The sad reality is that smuggling, from a legal perspective, is a far more encompassing concept than one might think, and who the law classifies as a smuggler is not always the hard-bitten seadogs Hollywood would have you believe. Indeed, average people, making quite honest mistakes, can find themselves labelled smugglers, and more distressingly, find their goods, often quite mundane, confiscated by border security, with no recourse for recovery.

 

Section 233 of the Customs Act 1901 (Cth) (‘CA’) holds that a person shall not “smuggle any goods” or “import any prohibited imports.” Both proscriptions are vague, and a further reading of the CA reveals that “prohibited imports” effectively means any goods the Governor-General deems prohibited.  Furthermore, “prohibited” is by no means an absolute term, and goods can become prohibited by a failure to comply with conditions or restrictions surrounding them, even if otherwise, their possession would be perfectly legal. Jewellery, luxury clothing, handbags, shoes and works of art are all possible examples.

 

Such wide terms are to an extent necessary to ensure legislation such as the Customs Act can operate effectively, and not be hamstrung by loopholes and administrative errors. But the trade-off for this means that a failure to correctly import seemingly innocuous goods can attract to them the consequences and stigma of smuggling.

 

Indeed, to make matters worse, under s 233(1AB) CA, importing prohibited goods is an offence of strict liability, meaning that the intention of the offender is irrelevant. Instead, the matter is only judged by reference to a person’s actions. Make no mistake: such a system is not typical when talking about criminal offences, and instead reverses the usual procedure that the prosecution in a criminal matter must first prove that the physical act took place, and then prove that the offender undertook that action with the intent to do so beyond a reasonable doubt.

 

To cap the whole matter off, under s 229 CA, all goods which have been smuggled or unlawfully imported are held to be forfeited to the Commonwealth, meaning that the owner’s title in the goods is rendered null and void. Moreover, under s 205C(1) CA, where no claim for the return of goods is made within 30 days, or where under 205D(2) CA, a court rules the goods to be, these goods may be classified as “condemned” or “taken as condemned”, meaning legal title to the goods now vests in the Crown. Effectively, this means that validly seized goods can become the property of the Commonwealth, and accordingly be disposed of or destroyed in a manner seen fit, merely because the owner failed to disclose the goods at a seaport or airport.

 

Of course, our purpose is not to, upon entry, unnecessarily alarm anyone, but rather raise awareness of the ease with which the above may happen if people are not careful. In addition, we aim to outline strategies to avoid such dire results.

 

To begin, on the Incoming Passenger Cards (IPCs) used by Australian Customs, passengers to Australia on incoming passenger liners or aircraft are asked “Are you brining into Australia goods obtained overseas or purchased duty and/or tax free in Australia-

As these questions make immediately evident, Border Protection is really only concerned with items above a certain quantum, meaning those souvenirs of your latest voyage probably aren’t going to be taken from you. These questions also tend to show a commercial bias, and a preoccupation with the type and purpose of the goods. This makes sense. The Government naturally has an interest in ensuring all imported goods are taxed properly. After all, the ATO must always have its due. Again, this means that goods for personal use, brought back from holiday, are unlikely to attract scrutiny, unless their value exceeds AUD$900.00 per passenger.

 

However, it must be said that the AUD$900.00 per person limit is low. Most mid-level bags and shoes purchased in Europe or in North America will exceed this. The tobacco limit of 25 grams of tobacco per person is even worse, with this limit equating to a little more than a single packet of 20 cigarettes. Everything over this limit must be declared and the appropriate tax or duty paid at the point of entry. If you do not disclose properly, there is the possibility that the Commonwealth will prosecute the traveller for a smuggling offence under the CA. Because of its strict liability, the defences of lack of understanding or that the traveller always intended to declare notwithstanding contrary statements on the IPC are irrelevant and will most likely result in smuggling convictions. This will result in substantial fines of five times the amount of duty payable on the goods, or where the duty of the goods is unknown, a penalty not exceeding 1000 penalty units (i.e. capping at $158,570.00), as well as the confiscation of the goods by the Crown. There are harsh penalties indeed.

 

In fact, De Marco Lawyers incorporating Judicate Lawyers is learning of the above first hand. We are involved in a matter concerning the alleged failure to properly fill out an ICP in respect of imported jewellery. Our clients believed that any misunderstanding in respect of their ICP could be corrected by declaring their goods to Australian Customs, and explaining the reasons for the mistake. However, the seizure of their goods has demonstrated this not to be the case. Such a matter emphasises the ease with which such offences may be accidently committed, and the difficulties faced in trying to remedy the situation.

 

A further issue is the possible ramifications of the Queensland Supreme Court’s verdict in Comptroller-General of Customs v Yip [2016] QCA 339, a decision which whilst not binding in Victoria, holds persuasive power. In short, the Queensland Supreme Court held forfeiture of goods (i.e. where the owner’s title of the goods is rendered void) and condemnation of the goods (i.e. where the title to such goods is transferred to the Commonwealth) to be one and the same, thus making it even easier, and quicker, for title to the goods to be permanently stripped from the original owner. Whilst it is still as yet uncertain whether this decision will be applied outside of Queensland such a decision does show a trend, or inclination, of reducing the protection of individuals accused of smuggling, and increasing the power of Border Protection in seizing goods.

 

Furthermore, questions such as whether a traveller is importing;

emphasise the importance of common sense when deciding whether goods can be seized. Ask yourself: “Are my goods likely illegal or heavily restricted? Are they classed as drugs or a restricted substance? Do they pose a heath risk or quarantine issue?” If the answer is no to all of the above, you’re probably okay.

 

Beyond this, for those still concerned with goods they might be bringing back, the solution might be as simple as consulting a Customs Broker, or even a member of the Department of Immigration and Border Protection, to ensure that the importation process runs smoothly. Or that at the very least, any possible problems with importation are flagged before the goods are brought into Australia’s borders.  

 

We live in an increasingly inter-connected world, where the ease of travel and importation is only growing. As such, it can be easy to forget that sometimes seemingly harmless objects might be viewed differently by Customs. When this happens, the results can be drastic. However, as this article has striven to explain, with a bit of foresight and common sense, and maybe even some professional help, these issues can be largely avoided. For those of you considering the last option, we take the opportunity to note that De Marco Lawyers has the expertise and experience to help you with your importation issues or queries.

 

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This article is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to render legal advice. No reader should act on the basis of any matter contained in this article without first obtaining specific professional advice.

 

DISCLAIMER: We accept no responsibility for any action taken after reading this article. It is intended as a guide only and is not a substitute for the expert legal advice you can get from De Marco Lawyers and other relevant experts.