Section 240 Customs Act 1901 | Failing to Keep Commercial Documents


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The Legislation

Section 240 of the Customs Act 1901 (Cth) deals with Failing to Keep Commercial Documents and is extracted below.

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240 Commercial documents to be kept

(1) A person who is the owner of goods imported into Australia shall keep all the relevant commercial documents relating to the goods that came into that person’s possession or control before, or come into that person’s possession or control on or after, the entry of those goods for any purpose, being documents that are necessary to enable a Collector to satisfy himself or herself of the correctness of the particulars shown in the entry until:

(a) if the goods are not ultimately entered for home consumption—the goods cease to be subject to the control of Customs; and
(b) if the goods are entered, or ultimately entered, for home consumption—the expiration of the period of 5 years after the goods are so entered.

Penalty: 30 penalty units.

(1AA) A person who is the owner of goods imported into Australia must keep all the relevant commercial documents relating to the goods:

(a) that come into the person’s possession or control before, or come into the person’s possession or control on or after, a return is given to Customs under section 69, 70 or 105C in relation to those goods; and
(b) that are necessary to enable a Collector to satisfy himself or herself of the correctness of the particulars shown in the return;
until the end of the period of 5 years after the giving of the return.

Penalty: 30 penalty units.

(1A) A person who is the owner of goods exported from Australia must keep all the relevant commercial documents relating to the goods that:

(a) come into the person’s possession or control at any time; and
(b) are necessary to enable a Collector to satisfy himself or herself as to the correctness of information communicated by, or on behalf of, the person to Customs (whether in documentary or other form);
for the period of 5 years after the time when the goods were exported from Australia.

Penalty: 30 penalty units.

(1B) A person who, in Australia:

(a) causes goods to be imported into, or exported from, Australia; or
(b) receives goods that have been imported into, or are to be exported from, Australia;
must keep all the relevant commercial documents that come into the person’s possession or control at any time and relate to the goods concerned or to their carriage to or from Australia, being documents that are necessary to enable a Collector to satisfy himself or herself:
(c) whether the person is complying with a Customs related law; or
(d) as to the correctness of information communicated by, or on behalf of, the person to Customs (whether in documentary or other form);
for the period of 5 years from the time when the goods were imported into, or exported from, Australia.

Penalty: 30 penalty units.

(2) Where, in accordance with the requirement of any law of the Commonwealth or of a State or Territory or with ordinary commercial practice a document that would, but for this subsection, be required to be kept in accordance with subsection (1), (1AA), (1A) or (1B), is required by that law or practice to be surrendered to another person, this section shall be taken to be complied with if, at all times after the document is so surrendered and during the period that the document would have been required to be kept, a true copy of the document, certified in accordance with subsection (3), is kept in its stead.

(3) Where a person is required to surrender a commercial document referred to in subsection (1), (1AA), (1A) or (1B) to another person for a reason set out in subsection (2), the first mentioned person may make a true copy of the document and, if the first mentioned person does so, and attaches to the copy a certificate, signed by the first mentioned person:

(a) to the effect:

(i) that the copy is a true copy of the original document; and
(ii) that the original document has been surrendered to that other person for that reason; and

(b) providing particulars of the reason referred to in subparagraph (a)(ii);
the certified copy shall be treated by the CEO or a Collector, and shall be admissible in all courts, as if it were the original document.

(4) A person who is required by this section to keep a commercial document relating to particular goods may keep the document at any place (which may be a place outside Australia) and, subject to subsection (5), may keep the document in any form or store it in any manner.

(5) A person referred to in subsection (4) must:

(a) keep the document in such a manner as will enable a Collector readily to ascertain whether the goods have been properly described for the purpose of importation or exportation, as the case requires, and, in the case of goods entered for home consumption, properly valued or rated for duty; and
(b) if the document is in a language other than the English language—keep the document in such a way that a translation of the document into the English language can readily be made; or
(c) if the document is a record of information kept by a mechanical, electronic or other device—keep the record in such a way that a document setting out in the English language the information recorded or stored can be readily produced.

Penalty: 30 penalty units.

(6) An authorised officer may, by written notice given to a person who is required under this section to keep a commercial document, require the person to inform the officer within a reasonable period, and in a manner specified in the notice, of the whereabouts of the document.

(6A) If:

(a) a notice is given to a person under subsection (6); and
(b) the person fails to comply with the notice;
the person commits an offence punishable, on conviction, by a penalty not exceeding 30 penalty units.

(6B) A person who is required to keep a commercial document must not alter or deface the document.

Penalty: 30 penalty units.

(6C) A document is not taken to be altered or defaced for the purposes of subsection (6B) merely because a notation or marking is made on it in accordance with ordinary commercial practice.

(7) This section shall not require the keeping of any commercial documents:

(a) by a company that has gone into liquidation and that has been dissolved;
(b) by a class of persons that is declared by the regulations to be a class to which this section does not apply; or
(c) of a kind declared by the regulations to be commercial documents to which this section does not apply.