Monitoring powers and examination powers of goods for export provide designated authorised officers under the Customs Act 1901 (Customs Act) the legislative framework for monitoring compliance with the Customs Act and other customs related law.
Section 214AB lists the monitoring powers as the power to:
- search premises
- take photographs or video recordings or make sketches
- inspect, examine, count, measure, weigh, gauge, test or analyse, and take samples of anything at the premises
- inspect documents or records
- take extracts from or copy documents and records
- take equipment or material onto the premises to exercise the monitoring powers
- test and operate record-keeping, accounting, computing or other operating systems
- secure a thing that is believed on reasonable grounds to be evidence in the commission of an offence which may be lost, tampered with or destroyed
- operate equipment to check information
- copy information found by operating any equipment.
The key aspects of monitoring powers are:
- the nature of monitoring officer access to premises
- the broad application of the power to audit for compliance.
People who might be subjected to compliance checks using monitoring powers include cargo reporters, importers, exporters, customs brokers, freight forwarders, depot and warehouse proprietors, financial institutions, information storage facilities, bureau services, owners, and stevedores.
A monitoring officer is an officer authorised by the Comptroller-General of Customs (Comptroller-General) to enter premises and exercise monitoring powers (section 214AC). An officer can be authorised only if the Comptroller-General is satisfied that the officer is suitably qualified to exercise these powers, because of their abilities and experience.
Monitoring officers must be issued with identity cards (section 4C) and the officer must produce this card to the occupier before entering premises or exercising any monitoring power (subsection 214AE(6)).
Access to premises
A monitoring officer must obtain the consent, in writing, of the occupier before entering premises and exercising the monitoring powers, and must leave the premises if consent is withdrawn in writing (section 214AE). An occupier might give consent only for a particular period if they choose.
If the occupier does not give consent, the monitoring officer can apply to a magistrate for a monitoring warrant (section 214AF) to access the premises. The monitoring officer can also apply for a monitoring warrant where consent is withdrawn, or without first seeking consent.
Monitoring officer can ask questions
A monitoring officer, who has entered the premises with the consent of the occupier, can ask the occupier to answer any questions they choose but the occupier is not obliged to answer them (section 214AH).
However, if the monitoring officer has entered the premises under a monitoring warrant, the officer can require any person on the premises to answer any questions if the occupier of the premises, or a representative previously nominated to Customs by the occupier, is unavailable to do so or is absent from the premises.
Failure to answer in these circumstances is an offence against section 243SA. This is subject to the privilege against self-incrimination (section 243SC).
Monitoring officer can ask for assistance
A monitoring officer who has entered premises with the occupier's consent can ask the occupier to provide reasonable assistance to the officer but the occupier is not obliged to do so (section 214AI).
However, if the officer has entered the premises under a monitoring warrant, the officer might require the occupier to provide reasonable assistance and the occupier is obliged to do so (subsection 214AI(2)).
Compensation for damage to electronic equipment
If equipment operated during the exercise of monitoring powers is damaged, or data or programs are damaged or corrupted, the Commonwealth is liable to pay compensation to the owner of the equipment or the user of the data or programs.
Audit trail for compliance
Monitoring powers can be exercised at any premises, with the consent of the occupier, for the purposes of assessing:
- whether a person is complying with a customs related law
- whether a person’s record-keeping, accounting, computing or other operating systems of any kind accurately record and generate information to enable compliance with a customs related law; or
- the accuracy of information communicated by a person to the Department (whether in documentary or other form).
This provides an audit trail to more accurately determine where any breakdown in compliance occurs. When exercising the monitoring powers, monitoring officers are auditing for compliance, not searching for evidence of commission of an offence. If evidence of the commission of an offence is discovered, monitoring officers can secure that evidence for 72 hours but not remove it, pending the issuing of a warrant to seize the thing.
Export examination powers
Section 122F in Division 3A of the Customs Act will allow authorised officers to enter premises and examine goods that are reasonably believed to be intended for export. The powers in this division can only be exercised before the goods come under customs control. The powers allow officers to assess whether the goods meet the requirements relating to exports.
The export examination powers include the power to:
- search premises for export goods and documents relating to them (section 122K)
- examine export goods and take samples (section 122L)
- examine, take extracts and make copies of documents relating to export goods (section 122M)
- question the occupier about export goods and request that occupier to produce documents (section 122N)
- bring equipment to the premises (section 122P).
Only officers who are suitably qualified because of their abilities and experience can be authorised by the Comptroller-General (subsection 122F(4)). The officer must produce an identity card to the occupier before entering the premises (subsection 122H(6)).
The export examination powers can be exercised only with the consent, in writing, of the occupier of the premises (subsection 122H(4)) and the officer must leave the premises if consent is withdrawn in writing (section 122J). There is no ability to seek a warrant in these circumstances.
The Commonwealth is liable to pay reasonable compensation for any damage to property occurring as a result of the exercise of the export examination power.