Replacement Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Christopher Martin Ellison)
Schedule 4 - Seizure of goods in the Protected Zone
Under the Customs Act customs officers can only seize special forfeited goods (prohibited imports and prohibited exports) without a warrant if they are at, or in a container at a Customs place, or in, on or in a container on a conveyance at a Customs place (see section 203B). Customs place is defined in subsection 183UA(1) to mean certain limited places. In all other places, officers can only seize such goods with a warrant - this includes where an officer is on board a ship at sea (except narcotics).
Under section 30A of the Customs Act the CEO can, by notice published in the Gazette, exempt certain ships in the Torres Strait from the provisions in the Customs Act. Under that provision traditional inhabitants undertaking traditional activities are not required to comply with Customs reporting requirements, allowing such persons free movement between islands within the Protected Zone (the relevant part of the Torres Strait), Papua New Guinea and Australia. In particular, vessels are not required to enter an appointed port (as required by section 58) and are not required to have a Certificate of Clearance nor to be brought to a boarding station prior to departure (as required by sections 118 and 123). This deprives Customs the opportunity to search those types of vessels in an appointed port. If Customs officers were able to search those vessels at an appointed port, that is a Customs place for the purposes of section 183UA, those officers would be able to seize any special forfeited goods found on board without a warrant.
Whilst they are exempt from complying with the reporting requirements contained in the Customs Act, vessels in those areas can still be boarded and searched by Customs officers pursuant to sections 184A and 185 of the Customs Act. Where prohibited imports and prohibited exports are found on board those vessels, Customs is required to get a warrant in order to seize those goods. This poses considerable operational and safety problems for the officers concerned.
Similarly, where those vessels come ashore in the Torres Strait (not at an appointed port) a warrant must be obtained in order to be able to seize any special forfeited goods.
The amendments in this Schedule will allow officers to seize special forfeited goods and evidential material without a warrant on board exempt ships and in limited circumstances on land in the Protected Zone.
Customs Act 1901
Item 1 - Subsection 183UA(1) (at the end of the definition of authorised person)
This item amends the definition of authorised person in subsection 183UA(1) for the purposes of new sections 203CA and 203CB. These new sections relate to the seizure of goods in the Torres Strait. The people who are officers for the purposes of subsection 185(5) will be able to seize goods under these new provisions. These people are:
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- officers of Customs;
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- persons who are in command or the crew of Commonwealth ships or aircraft that have requested to board the vessel;
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- police officers; and
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- members of the Australian Defence Force.
This item contains a consequential amendment to subsection 203(2) to make it clear that a seizure warrant is not required in order to seize goods under new section 203CA or 203CB.
This item inserts new sections 203CA and 203CB into the Customs Act. They give authorised officers the power to seize certain goods and evidential material in certain circumstances as described below.
New section 203CA allows certain goods to be seized on board ships if:
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- section 185 applies to the ship, that is the ship may be boarded and searched (new paragraph 203CA(1)(a)); and
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- the ship is exempt from any provision of the Customs Act under subsection 30A(3) or the voyage of the ship is exempt from any provision under subsection 30A(5) (new paragraph 203CA(1)(b)).
That section also allows certain goods to be seized on board aircraft if:
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- section 185 applies to the aircraft, that is an aircraft that has landed in Australia for boarding as result of a request made under section 184D (new paragraph 203CA(2)(a)); and
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- the flight of the aircraft is exempt from any provision of the Customs Act under subsection 30A(5) (new paragraph 203CA(2)(b)).
Under section 30A there is an area established under the Torres Strait Treaty, known as the Protected Zone. Subsection 30A(3) provides that the CEO can exempt Protected Zone ships, being ships owned or operated by a traditional inhabitant of the Torres Strait, from so many of the provisions of the Customs Acts as are specified in a Gazette notice. That exemption only applies when those ships are on a voyages between places in Papua New Guinea and Australia that are in the Protected Zone or in an area in the vicinity of the Protected Zone. Under subsection 30A(5) the CEO can also make the same exemption in respect of other ships and aircraft that enter or depart Australia where the voyage or flight is being undertaken by at least one person who is a traditional inhabitant for the purposes connected with the performance of traditional activities in the Protected Zone. These ships may not be Protected Zone ships.
New subsections 203CA(3) and (4) set out what can be seized without warrant, being:
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- goods that the authorised person reasonably believes are special forfeited goods, that is, prohibited imports and prohibited exports (other than narcotics which can currently be seized without warrant under paragraph 185(2)(e));
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- things that the authorised person reasonably believes are evidential material relating to an offence in respect of special forfeited goods (which are found in the course of searching the ship or aircraft under section 185).
New subsection 203CA(5) provides that the authorised person must exercise his or her powers subject to section 203D which relates to necessary and reasonable detention of a conveyance and the use of necessary and reasonable force.
New section 203CB relates to the seizure of certain goods that are found at a place that is near a ship or aircraft that is exempt under section 30A from the requirements of the Customs Act.
Under subsection 203CB(1) goods that an authorised person suspects on reasonable grounds are special forfeited goods can be seized if the goods are:
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- at, or in a container at, a place that is near an exempt ship or aircraft; or
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- in, on, or in a container on, a conveyance at such a place; or
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- in a container in the immediate physical possession of, but not carried on the body of, a person at such a place.
Further the person must suspect on reasonable grounds that in the case of an arriving ship or aircraft the goods have been unloaded from that ship or aircraft or in the case of a leaving ship or aircraft the goods will be loaded onto that ship or aircraft.
Under subsection 203CB(2) the authorised person may, without warrant:
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- search the place for special forfeited goods (other than narcotic goods);
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- search any container at the place for special forfeited goods (other than narcotic goods);
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- stop and detain the conveyance about to leave the place, and search it and any container on it for such goods;
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- search the container in the immediate physical possession of the person for such goods;
as the case requires.
Narcotic goods can be seized without warrant under section 203C of the Customs Act.
If the authorised person finds goods that he or she reasonably suspects are special forfeited goods they can be seized.
Subsection 203CB(3) allows an authorised officer to seize without warrant things that they believe are evidential material relating to an offence committed in respect of special forfeited goods that are found in the course of a search conducted under subsection (2).
Under subsection 203CB(4) the authorised person may as part of the search ask the person apparently in charge of the place, conveyance or container about any goods or thing at the place, in or on the conveyance, or in the container.
Again these powers are subject to section 203D which relates to necessary and reasonable detention of a conveyance and the use of necessary and reasonable force.
These items make consequential amendments to section 203D as a result of the insertion of new sections 203CA and 203CB into the Customs Act. This will ensure that when exercising the powers contained in those sections they can only be exercised in accordance with section 203D.
Item 10 - Subdivision F of Division 1 of Part XII
This item omits from the heading to Subdivision F of Division 1 of Part XII the references to under a search warrant or under subsections 203B(3) and 203C(3) as the provisions of that subdivision will also relate to evidential material seized under new sections 203CA and 203CB.
These items amend subsections 203R(1) and 203S(1) so that they also apply to evidential material seized under subsections 203CA(4) and 203CB(3).
Item 13 - Subdivision G of Division 1 of Part XII
This item omits from the heading to Subdivision G of Division 1 of Part XII the references to under a seizure warrant or under subsections 203B(2) or (2A) and 203C(2) as the provisions of that subdivision will also relate to forfeited goods seized under new sections 203CA and 203CB.
These items make consequential amendments to the provisions of Subdivision G of Division 1 of Part XII to refer to goods seized under section 203CA or 203CB. Any special forfeited goods that are seized under those provisions are to be treated in the same manner as other forfeited goods that are seized under the Customs Act.
Item 30 - Subparagraph 219A(2)(c)(i)
This item inserts a reference to subsections 203CA(3) and 203CB(2) into subparagraph 219A(2)(c)(i). It also corrects a previous drafting error.
These items make consequential changes to section 219NA to make it clear that special forfeited goods that can be seized under section 203CA can still be seized without warrant even if they are found in the course of carrying out a frisk search of a person under subsection 219L(1B) or (1C).