Section 233BAB Customs Act 1901 | Special Offence for Tier 2 Goods


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The Legislation

Section 233BAB of the Customs Act 1901 (Cth) deals with Special Offence for Tier 2 Goods and is extracted below.

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233BAB Special offence relating to tier 2 goods

(1) The regulations may provide that:

(a) specified firearms, munitions and military warfare items of any kind including combat vests and body armour; and
(b) specified knives, daggers and other like goods; and
(c) specified chemical compounds; and
(d) specified anti personnel sprays and gases; and
(e) specified fissionable or radioactive substances; and
(f) specified human body tissue; and
(g) specified human body fluids; and
(h) items of child pornography or of child abuse material; and
(i) counterfeit credit, debit and charge cards; and
(j) other specified goods;
constitute tier 2 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) For the purposes of subsection (1) an item is taken to be an item of child pornography if it is a document or other goods:

(a) that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who:

(i) is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or
(ii) is in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(b) the dominant characteristic of which is the depiction, for a sexual purpose, of:

(i) a sexual organ or the anal region of a person who is, or appears to be, under 18 years of age; or
(ii) a representation of such a sexual organ or anal region; or
(iii) the breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age;
in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(c) that describes a person who is, or is implied to be, under 18 years of age and who:

(i) is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or
(ii) is in the presence of a person who is engaged in, or is implied to be engaged in, a sexual pose or sexual activity;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(d) that describes:

(i) a sexual organ or the anal region of a person who is, or is implied to be, under 18 years of age; or
(ii) the breasts of a female person who is, or is implied to be, under 18 years of age;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive.

(4) For the purposes of subsection (1), an item is taken to be an item of child abuse material if it is a document or other goods:

(a) that depicts a person, or a representation of a person, who:

(i) is, or appears to be, under 18 years of age; and
(ii) is, or appears to be, a victim of torture, cruelty or physical abuse;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(b) that describes a person who:

(i) is, or is implied to be, under 18 years of age; and
(ii) is, or is implied to be, a victim of torture, cruelty or physical abuse;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive.

(4A) The matters to be taken into account in deciding for the purposes of subsections (3) and (4) whether reasonable persons would regard a particular document or other goods as being, in all the circumstances, offensive, include:

(a) the standards of morality, decency and propriety generally accepted by reasonable adults; and
(b) the literary, artistic or educational merit (if any) of the material; and
(c) the general character of the material (including whether it is of a medical, legal or scientific character).

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

(a) the person intentionally imported goods; and
(b) the goods were tier 2 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 2,500 penalty units or imprisonment for 10 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 importation.

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

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

(a) the person intentionally exported goods; and
(b) the goods were tier 2 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 2,500 penalty units or imprisonment for 10 years, or both.

(6A) Subject to subsection (6B), absolute liability applies to paragraph (6)(c).

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

(6B) For the purposes of an offence against subsection (6), strict liability applies to the physical element of circumstance of the offence, that an approval referred to in subparagraph (6)(c)(ii) had not been obtained at the time of the exportation.

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

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