Section 86 Customs Act 1901 | Suspension of Warehouse Licences


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The Legislation

Section 86 of the Customs Act 1901 (Cth) deals with Suspension of Warehouse Licences and is extracted below.

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86 Suspension of warehouse licences

(1) The CEO may give notice in accordance with this section to the holder of a warehouse licence if he or she has reasonable grounds for believing that:

(a) the physical security of the warehouse is no longer adequate having regard to the matters referred to in paragraph 81(1)(e); or
(b) the plant and equipment used in the warehouse are such that the protection of the revenue in relation to goods in the warehouse is inadequate; or
(c) where the licence is held by a natural person—that person is not a fit and proper person to hold a warehouse licence; or
(d) where the licence is held by a partnership—a member of the partnership is not a fit and proper person to be a member of a partnership holding a warehouse licence; or
(e) where the licence is held by a company—a director, officer or shareholder of the company who participates in the management or control of the warehouse is not a fit and proper person so to participate; or
(f) an employee of the holder of the licence, being an employee who participates in the management or control of the warehouse, is not a fit and proper person so to participate; or
(fa) where the licence is held by a company—the company is not a fit and proper company to hold a warehouse licence; or
(g) a condition to which the licence is subject has not been complied with; or
(h) a fee payable in respect of a licence is unpaid and has been unpaid for 28 days after the day on which it became payable;
or it otherwise appears to him or her to be necessary for the protection of the revenue, or for the purpose of ensuring compliance with the Customs Acts, any other law of the Commonwealth prescribed by the regulations or a law of a State or Territory prescribed by the regulations, to give the notice.

(1A) The CEO shall, in considering whether a person is a fit and proper person for the purposes of paragraph (1)(c), (d), (e) or (f), have regard to:

(a) any conviction of the person of an offence against this Act committed:

(i) where the licence has not been renewed—after the grant of the licence or within 10 years immediately preceding the making of the application for the licence;
(ii) where the licence has been renewed on one occasion only—after the renewal of the licence or within 10 years immediately preceding the making of the application for the renewal; or
(iii) where the licence has been renewed on more than one occasion—after the latest renewal of the licence or within 10 years immediately preceding the making of the application for the latest renewal;

(b) any conviction of the person of an offence under a law of the Commonwealth, of a State or of a Territory that is punishable by imprisonment for a period of one year or longer, being an offence committed:

(i) where the licence has not been renewed—after the grant of the licence or within 10 years immediately preceding the making of the application for the licence;
(ii) where the licence has been renewed on one occasion only—after the renewal of the licence or within 10 years immediately preceding the making of the application for the renewal; or
(iii) where the licence has been renewed on more than one occasion—after the latest renewal of the licence or within 10 years immediately preceding the making of the application for the latest renewal; or

(c) whether the person is an undischarged bankrupt.

(1B) The CEO shall, in considering whether a company is a fit and proper company for the purposes of paragraph (1)(fa) have regard, in relation to the company, to:

(a) any conviction of the company of an offence against this Act that was:

(i) where the licence has not been renewed—committed after the grant of the licence;
(ii) where the licence has been renewed on one occasion only—committed after the renewal of the licence;
(iii) where the licence has been renewed on more than one occasion—committed after the latest renewal of the licence; or
(iv) committed:

(A) where the licence has not been renewed—within 10 years immediately preceding the making of the application for the licence;
(B) where the licence has been renewed on one occasion only—within 10 years immediately preceding the making of the application for the renewal of the licence; or
(C) where the licence has been renewed on more than one occasion—within 10 years immediately preceding the making of the application for the latest renewal of the licence;
and at a time when a person who is a director, officer or shareholder of the company was a director, officer or shareholder of the company;

(b) any conviction of the company of an offence under a law of the Commonwealth, of a State or of a Territory that is punishable by a fine of $5,000 or more, being an offence that was:

(i) where the licence has not been renewed—committed after the grant of the licence;
(ii) where the licence has been renewed on one occasion only—committed after the renewal of the licence;
(iii) where the licence has been renewed on more than one occasion—committed after the latest renewal of the licence; or
(iv) committed:

(A) where the licence has not been renewed—within 10 years immediately preceding the making of the application for the licence;
(B) where the licence has been renewed on one occasion only—within 10 years immediately preceding the making of the application for the renewal of the licence; and
(C) where the licence has been renewed on more than one occasion—within 10 years immediately preceding the making of the application for the latest renewal of the licence;
and at a time when a person who is a director, officer or shareholder of the company was a director, officer or shareholder of the company; or

(c) the matters mentioned in paragraphs 81(3)(c) and (e).

(2) Notice in accordance with this section to the holder of a warehouse licence shall be in writing and shall be:

(a) served, either personally or by post, on the holder of the licence; or
(b) served personally on a person who, at the time of service, apparently participates in the management or control of the warehouse.

(3) A notice in accordance with this section to the holder of a warehouse licence:

(a) shall state that, if the holder of the licence wishes to prevent the cancellation of the licence, he or she may, within 7 days after the day on which the notice was served, furnish to the CEO at an address specified in the notice a written statement showing cause why the licence should not be cancelled; and
(b) may, if it appears to the CEO to be necessary to do so:

(i) for the protection of the revenue; or
(ii) for ensuring compliance with the Customs Acts, any other law of the Commonwealth prescribed by the regulations or a law of a State or Territory prescribed by the regulations;
state that the licence is suspended;
and, if the notice states that the licence is suspended, that licence is suspended on and from the service of the notice.

(5) Where a warehouse licence is suspended under this section, the CEO:

(a) may at any time revoke the suspension; and
(b) if the licence has not been cancelled within 28 days after the day on which the licence was suspended—shall revoke the suspension.

(6) Subject to subsection (7), during a period in which a warehouse licence is suspended under this section, a person shall not use the warehouse with the intention of warehousing goods.

Penalty: 50 penalty units.

(7) Notwithstanding subsection (6), during a period in which a warehouse licence is suspended under this section, a Collector may:

(a) permit goods to be placed in the warehouse; and
(b) permit a process to be carried out in the warehouse; and
(c) permit the removal of goods from the warehouse, including the removal of goods to another warehouse; and
(d) by notice in a prescribed manner to the owner of goods in the warehouse, require the owner to remove his or her goods to another warehouse approved by the Collector; and
(e) take such control of the warehouse or all or any goods in the warehouse as may be necessary for the protection of the revenue or for ensuring compliance with the Customs Acts, any other law of the Commonwealth prescribed by the regulations or a law of a State or Territory prescribed by the regulations; and
(f) by notice in writing to the holder of the licence, require him or her to pay to the Customs in respect of the services of officers required as the result of the suspension, including services relating to the enforcement of the suspension, the supervision of activities in relation to the warehouse permitted by a Collector, the stocktaking of goods in the warehouse or the reconciliation of records relating to such goods, such fee as the CEO determines, having regard to the cost of the services.

(8) If an amount that the holder of a licence is required to pay in accordance with a notice under paragraph (7)(f) is not paid, that amount may be recovered as a debt due to the Commonwealth by action in a court of competent jurisdiction.