Section 233BAA Customs Act 1901 | Special Offence for Tier 1 Goods


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The Legislation

Section 233BAA of the Customs Act 1901 (Cth) deals with Special Offence for Tier 1 Goods and is extracted below.

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233BAA Special offence relating to tier 1 goods

(1) Subject to subsection (3), the regulations may provide that:

(a) specified performance enhancing drugs; and
(b) specified non narcotic drugs; and
(c) other specified goods;
constitute tier 1 goods.

(2) The regulations must not specify an item for the purposes of subsection (1) unless:

(a) its importation is prohibited, either absolutely or on condition, by the Customs (Prohibited Imports) Regulations; or
(b) its exportation is prohibited, either absolutely or on condition, by the Customs (Prohibited Exports) Regulations.

(3) If the regulations made for the purposes of subsection (1) prescribe a quantity of a drug specified for those purposes to be the critical quantity, the specified drug does not constitute tier 1 goods unless it is of a quantity that exceeds the critical quantity.

(4) A person is guilty of an offence against this subsection if:

(a) the person intentionally imported goods; and
(b) the goods were tier 1 goods and the person 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.

Maximum penalty: A fine not exceeding 1,000 penalty units or imprisonment for 5 years, or both.

(4A) Subject to subsection (4B), absolute liability applies to paragraph (4)(c).

Note: For absolute liability, see section 6.2 of the Criminal Code.

(4B) For the purposes of an offence against subsection (4), strict liability applies to the physical element of circumstance of the offence, that an approval referred to in subparagraph (4)(c)(ii) had not been obtained at the time of the importation.

Note: For strict liability, see section 6.1 of the Criminal Code.

(5) A person is guilty of an offence against this subsection if:

(a) the person intentionally exported goods; and
(b) the goods were tier 1 goods and the person 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.

Maximum penalty: A fine not exceeding 1,000 penalty units or imprisonment for 5 years, or both.

(5A) Subject to subsection (5B), absolute liability applies to paragraph (5)(c).

Note: For absolute liability, see section 6.2 of the Criminal Code.

(5B) For the purposes of an offence against subsection (5), strict liability applies to the physical element of circumstance of the offence, that an approval referred to in subparagraph (5)(c)(ii) had not been obtained at the time of the exportation.

Note: For strict liability, see section 6.1 of the Criminal Code.

(6) A person convicted or acquitted of an offence against subsection (4) or (5) in respect of particular conduct is not liable to any proceeding under section 233 in respect of that conduct.