Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Christopher Martin Ellison, MP)Schedule 1 - Restricted areas
Customs Act 1901
The amendments contained in this Schedule recognise the role of Customs in contributing to border security and enhance the capacity of Customs officers to more effectively monitor and enforce security requirements at our borders.
Section 234AA of the Customs Act provides that a Collector may cause signs to be displayed at or near certain places (section 234AA places) that identify the place and state that entry into it by unauthorised persons is prohibited. The places are those used by officers for questioning passengers; for examining personal baggage of such passengers; and as a holding place for such passengers.
This item inserts into subsection 234AA(1) of the Customs Act a new place (new paragraph 234AA(1)(b)), being a place covered by a notice made by the CEO under new subsection 234AA(3), in which entry by unauthorised persons will be prohibited.
Currently, the Collector can cause signs to be displayed at or near section 234AA places which state that the use of cameras or sound recorders at the place by unauthorised persons is prohibited.
This item extends those provisions so that signs can be displayed that state that the unauthorised use of mobile phones or other electronic forms of communication by unauthorised persons is prohibited (new paragraph 234AA(2)(b)). This amendment recognises changes in technology that have occurred since this provision was inserted.
Item 3 - At the end of section 234AA
This item inserts new subsections 234AA(3) and (4) into the Act.
New subsection 234AA(3) provides that the CEO may publish a notice in the Gazette specifying that certain areas (between the Customs outward control point /baggage examination area and the aircraft) are areas to which section 234AA applies.
This area must be an area of an airport appointed under section 15 of the Customs Act (new subsection 234AA(3)) and must comprise one or more of the areas in new subsections 234AA(4)(a), (b) and (c). Paragraph (a) will cover those areas of the airport between the aircraft and a place where Customs processing is completed. Paragraph (b) will cover those areas between where passengers pass through the first point at which they are normally subject to processing by Customs officers and the aircraft. Paragraph (c) will cover any areas that are in the vicinity of the areas covered by paragraphs (a) and (b). For example, this could cover the area where passengers leaving Australia wait before they are processed by Customs officers.
It is proposed that these areas should be restricted because arriving passengers and crew in those areas are in border quarantine until such time as they have cleared immigration and Customs processing. They should not have any contact with a person in Australia until they have completed this process and have left the sterile area. In the case of departing passengers and crew, once they have been cleared for departure they are not permitted to make contact with unauthorised persons on the other side of the border.
Currently subsection 234A(1) provides that persons other than passengers disembarking from, or embarking on, a ship or aircraft shall not, except by authority enter section 234AA places or enter a ship, aircraft or certain wharfs.
This item removes the reference to passengers as it is proposed to insert new provisions into subsection 234A(2) which will exempt passengers and certain other persons from these provisions.
Item 5 - Subsection 234A(1) (penalty)
This item increases the penalty for entering into a section 234AA place or entering a ship, aircraft or certain wharfs from $1,000 to 50 penalty units, that is, $5,500.
Item 6 - After paragraph 234A(1A)(a)
Certain people who work in airports are issued with security identification cards. These people need to be able to enter section 234A places for the purposes of their employment. This item will make it clear that subsection 234A(1) does not prohibit a person who is a holder of a security identification card from entering into or being in a section 234A place for the purposes of his or her employment. The term security identification card is defined in section 213A of the Customs Act.
Item 7 - At the end of subsection 234A(1A)
This item will make it clear that subsection 234A(1) does not prohibit crew, passengers and persons who are included in a class of persons whom the CEO determines to be exempt from section 234A from entering 234AA places, ships, aircraft and certain wharves.
The determination by the CEO must be in writing.
Item 8 - Paragraph 234AB(1)(a)
This item contains a consequential amendment to paragraph 234AB(1)(a) as a result of the amendments that will be made to subsection 234AA(2) relating to mobile phones and other electronic forms of communication.
These amendments will allow an officer to direct a person not to use a mobile phone or other electronic form of communication.
This item repeals and substitutes subsection 234AB(4) to make a consequential amendment as a result of the amendments relating to mobile phones and other electronic forms of communication. New subsection 234AB(4) will ensure that if in any proceedings for the prosecution of a person for an offence of failing to comply with a direction, evidence that a sign stating that the use of mobile phones or other electronic forms of communication at a 234AA place is prohibited was displayed at or near that place, is prima facie evidence that the sign was so displayed in accordance with subsection 234AA(2).
This item will insert a new section 234ABA into the Customs Act which will allow a Customs officer to direct a person to leave a 234AA place if the officer reasonably believes that the person is in that place in contravention of section 234A (new subsection 234ABA(1) refers).
New subsection 234ABA(2) provides that a Customs officer may, by themselves or with the assistance of other officers or a protective service officer (as defined by the Australian Protective Service Act 1987 (see new subsection 234ABA(4)), use reasonable force to remove the person from the 234AA place if the person refuses to leave when so directed.
However, where an officer removes a person under new subsection 234ABA(2) the officer and the persons assisting must not use more force, or subject the person to greater indignity, than is necessary or reasonable.