Guidelines Questioning persons about goods and debt.pdf

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Guidelines: Questioning persons about
goods and debt
Questioning persons about goods and debt
Introduction
The Customs and Excise Act 2018 (CEA 2018) empowers Customs officers to question
persons about any dutiable, prohibited, uncustomed, or forfeited goods they have or have had
in their possession, and whether any debt is due to the Crown. Use these guidelines to
understand the exercise of questioning powers under section 205 of the CEA 2018.
Section 205 is a commonly used and broad questioning power, and the scope of questioning
includes anything that reasonably relates to the possibility that a person has or has had any
dutiable, prohibited, uncustomed, or forfeited goods in his or her possession. This is additional
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to the obligation to answer questions under section 26 of the CEA 2018.
The following table explains the statutory power to question persons about goods and debt –
section 205 of the CEA 2018.
Legislation – Customs
A Customs officer may question
Notes
and Excise Act 2018
any person who…
INFORMATION
Section 205:
Questions must relate to any of the
has, within the preceding 72
Questioning persons
following:
hours, arrived in New Zealand,
about goods and debt
whether the person has, or has
or
had in their possession any
is departing New Zealand, or
dutiable, prohibited, uncustomed
is within a Customs-controlled
or forfeited (DPUF) goods
Area (CCA) licensed for the
the nature, origin, value,
temporary holding of imported
ownership, or intended
goods for examination by
destination of DPUF goods
Customs, the disembarkation,
whether any debt is due to the
embarkation or processing of
Crown under the CEA 2018 and
persons arriving in or departing
is payable by the person or any
NZ, or the processing of craft
other entity that the person is
arriving in or departing NZ or
associated with
loading or unloading of goods
the nature and extent of that
onto or from craft arriving in or
debt (if any).
departing NZ, or
is on board, or is embarking or
Where a Customs officer questions
disembarking, a craft that has
a person under section 205 of the
arrived in or is departing New
CEA 2018, and the person requests
Zealand, or
or enquires they should be
is within a duty-free store.
RELEASED UNDER THE OFFICIAL  informed that:
they are being questioned under
section 205 of the CEA 2018;
and
they are compelled to answer
the questions pursuant to
section 383 of the CEA 2018.
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Guidelines: Questioning persons about
goods and debt
Refusal to answer questions:
If the person fails or refuses,
without reasonable excuse, to
answer a question or gives an
incorrect answer, they can be
informed that they may be
committing an offence under
section 383(1) of the CEA 2018.
Section 383(3) of the CEA 2018
does apply. This means that it is
not a reasonable excuse to fail
or refuse to answer the question
on the ground that to answer
would or might incriminate or
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tend to incriminate that person.
The power to detain
Section 206 of the CEA 2018 provides powers to detain in relation to section 205 of the CEA
2018. Refer to Questioning and Detention for further information.
Obligations and offences
INFORMATION
A person questioned under section 205 of the CEA 2018 is compelled to answer that question.
They may be committing an offence if they fail to answer pursuant to section 383 of the CEA
2018.
Other statutory provisions within the CEA 2018, the Oranga Tamariki Act 1989 (OTA 1989),
and New Zealand Bill of Rights Act 1990 (NZ BORA 1990) also require persons questioned
under certain sections to answer those questions.
If a person is not obliged to answer a question asked under a statutory provision, then it is not
an offence to fail or refuse to answer that question.
Customs and Excise Act 2018
The following table summarises obligations and offences in relation to section 205 of the CEA
2018.
Legislation – Customs
Summary
Notes
RELEASED UNDER THE OFFICIAL
and Excise Act 2018
Section 26:
The person is only required to
It is an offence to refuse to
Requirement to answer
answer questions about the
answer or knowingly give a false
questions and produce
craft, its journey, any goods or
answer to any question under
documents
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Guidelines: Questioning persons about
goods and debt
persons that are on, or have
section 26(2) (section 27(1) of
been on, the craft.
the CEA 2018)
  Those required to answer

questions are:
•
the owner of the craft
•
the person in charge of the
craft
•
a member of the crew of the
craft
•
a passenger on the craft
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Section 75:
  This section requires that all
  It is an offence to fail or refuse,
Entry of imported
imported goods be entered in
without reasonable excuse, to
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goods
the prescribed form and manner.
answer questions or to give an
Section 75(4) requires a person
incorrect answer (section 383 of
entering imported goods to
the CEA 2018)
answer questions asked by a

Customs officer with respect to
those goods.
Section 89:
  This section requires that all
  It is an offence to fail or refuse,
Entry of exported
exported goods be entered in
without reasonable excuse, to
INFORMATION
goods
the prescribed form and manner.
answer questions or to give an
  Section 89(3) requires a person
incorrect answer (section 383 of
entering exported goods to
the CEA 2018)
answer questions asked by a

Customs officer with respect to
those goods.
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Section 376:
  It is an offence for a person to
  A person who commits an
Threatening or
threaten, assault, by force,
offence under this section is
resisting Customs
resist, intentionally obstruct or
liable on conviction to -
THE
officer
intimidate a Customs officer
(a) imprisonment for a term not

exercising their power to
exceeding 12 months; or
question.
(b) a fine not exceeding $15,000
Section 383:
UNDER  It is an offence to fail or refuse,    A person who commits an
Failure to answer
without reasonable excuse, to
offence under this section is
questions
answer questions or to give an
liable on conviction, -
incorrect answer.
(a) in the case of an individual,
  Section 383(3) does apply to
to a fine not exceeding $5,000
section 205. This means that it
(b) in the case of a body
is not a reasonable excuse to
corporate, to a fine not
fail or refuse to answer the
exceeding $25,000.
RELEASED
question on the ground that to
  The person may be issued with
answer would or might
an infringement notice for failing
incriminate or tend to incriminate
to answer questions, or for
that person.
providing incorrect answers.
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Guidelines: Questioning persons about
goods and debt
New Zealand Bill of Rights Act 1990
Every person that Customs officers interact with must be treated fairly and reasonably.
When questioning a person under section 205 of the CEA 2018, they are required to answer
those questions. When they are asked questions which do not have a statutory power
compelling them to answer, then the NZ BORA 1990 provides for the refusal to answer those
questions.
Legislation – NZ BORA
Summary
Notes
1990
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Section 14:
Provides the right to freedom of
  Section 14 of the NZ BORA
Freedom of expression
expression, which includes the right
1990 does not mean that a
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to say nothing.
person can refuse to answer a
question which the CEA 2018
compels them to answer.
  A person may only refuse to
answer a question if they are not
being questioned under a
statutory provision pursuant to
which they are obliged to
answer.
INFORMATION
Oranga Tamariki Act 1989
The Oranga Tamariki Act 1989 (OTA 1989) prescribes a protective regime for children and
young persons being questioned. A child or young person has the same rights as an adult
OFFICIAL
under the NZ BORA 1990, and certain additional rights prescribed under the OTA 1989.
The OTA 1989 defines:
THE
  a child as a person under the age of 14 years
  a young person as a person of or over the age of 14 years but under 18 years
Any Customs officer may question a child or young person as a matter of general questioning
UNDER
or by statutory provision in the CEA 2018. However, if during that questioning there are
reasonable grounds to suspect that they have committed an offence then you must comply by
explaining the rights pursuant to the OTA 1989.

Refer also to NZCS 318 Children and Young Persons Checklist when questioning a child or
young person.
RELEASED
The following table summarises rights under the OTA 1989 that Customs officers must comply
with when questioning a child or young person in relation to section 205 of the CEA 2018.

Legislation – Oranga
Summary
Notes
Tamariki Act 1989
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Guidelines: Questioning persons about
goods and debt
Section 215
The following are circumstances in
The following rights must be
Child or young person
which a child or young person must
explained to a child or young
to be explained their
be explained of their rights:
person, in a manner and language
appropriate to the age and level of
rights before
  before questioning the child or
understanding, that:
questioned by
young person whom there are
enforcement officer
reasonable grounds to suspect
  they are not obliged to
of having committed an offence
accompany an officer to any
  before asking the child or young
place for purposes of being
person questions intended to
questioned. If they consent to
obtain an admission of an
accompany, they may withdraw
offence.
that consent at any time  1982
  when, during normal
  they are under no obligation to
questioning, the officer forms the
make or give statement and if
view that there are reasonable
they consent, they may withdraw
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grounds to suspect the child or
that consent at any time
young person of having
  any statement made or given
committed an offence
may be used in evidence in any
  when the child or young person
proceedings
requests rights to be explained
  they are entitled to consult with
to them
and make or give any statement
  In some instances further
in the presence of a lawyer
explanation must be given
and a nominated person, in
because one had been given
accordance with the OTA 1989.
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more than an hour ago.

Section 221:
Sets out requirements to be
For any oral or written statement
Admissibility of
satisfied regarding the admissibility
made or given to be admissible,
statements made by
of any statements made by children
then:
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children and young
and young persons as a result of
  before questioning, the officer
persons
questioning (sections 223, 224 and
must have explained in a

225 provide exceptions to section
manner and in language that is
THE
221).
appropriate to the age and level

of understanding all their rights
under section 215 of the OTA
1989
  before any statement is taken,
UNDER
the child or young person must
have had the opportunity to
consult with any lawyer and/or
any nominated person
  the statement must have been
taken in the presence of a
lawyer and/or a nominated
RELEASED
person.

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Guidelines: Questioning persons about
goods and debt
Document information
Version
1.0, 16 June 2021
Published
21 June 2021
Next review
21 June 2023
Content owner
CTS Compliance/Enforcement
Business owner
Group Manager Border Operations
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INFORMATION
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UNDER
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