Senate

Explanatory Memorandum

(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Christopher Martin Ellison)

Schedule 2 - questions passengers etc and persons found in restricted places

Customs Act 1901

Item 1 - After section 195

84. Section 234A of the Customs Act prohibits people (except certain people such as passengers, crew, authorised persons) from entering, or being in, a section 234AA place.

85. Subsection 234AA(1) of the Customs Act sets out the places unauthorised people must not enter. The places are:

85.1.

places to be used by officers:

a.

for questioning, for the purposes of this Act or of any other law of the Commonwealth, passengers disembarking from or embarking on a ship or aircraft; or

b.

for examining, for such purposes, the personal baggage of such passengers; or

c.

as a holding place for such passengers; or

85.2.

certain areas of airports as notified in the Gazette by the Chief Executive Officer of Customs.

86. These places are defined in section 4 of the Customs Act to be 'section 234AA places'.

87. Section 234ABA provides that a Customs officer may direct a person to leave a section 234AA place if the officer reasonably believes that the person is in that place in contravention of section 234A.

88. However, Customs officers have no power to require a person who is in a section 234AA place to tell the officer who they are and why they are in the place particularly in order to determine if they are or are not authorised to be in the place.

89. Item 1 inserts new section 195A into the Customs Act to allow a Customs officer to ask and require a person in a section 234AA place to provide:

89.1.

the person's name;

89.2.

the person's reason for being in the section 234AA place; and

89.3.

evidence of the person's identity.

90. This will allow the Customs officer to decide whether they should direct the person to leave under section 234ABA.

91. It is proposed to rely on sections 243SA and 243SB of the Customs Act which will make it an offence to fail to answer a question or produce a document that an officer, pursuant to this power requires the person to answer or produce.

92. This provision contains a penalty of 30 penalty units. Section 243SC provides that a person who is required to answer a question under section 243SA or produce a document under section 243SB does not have to answer that question or produce the document if to do so would tend to incriminate the person or result in further attempts to obtain evidence that would tend to incriminate the person. A person may waive his or her rights under section 243SC.

Item 2 - Subsection 243SA(1)

93. Subsection 243SA(1) makes it an offence to fail to answer a question that an officer, pursuant to a power conferred on the officer by the Customs Act (other than subsection 214AH(2)), requires the person to answer.

94. Item 2 excludes questions asked under section 195A from the operation of subsection 243SA(1) as it will be covered by subsection 243SA(3) (see item 4 below).

Item 3 - Subsection 243SA(2)

95. Item 3 also amends subsection 243SA(1) to exclude questions asked under section 195A. Item 1 of Schedule 3 to this Bill will insert a power to ask operators about departing passengers and crew (new section 106J refers). Section 106J will also be excluded from the operation of subsection 243SA(1) and instead be subject to subsection 243SA(3).

Item 4 - At the end of section 243SA

96. Item 4 inserts subsection 243SA(3) into the Customs Act to provide that if:

96.1.

an officer requires a person to answer a question under section 195A;

96.2.

the officer informs the person of the officer's authority to ask the question; and

96.3.

the officer informs the person that it may be an offence not to answer the question;

the person must not fail to answer the question.

97. The offence is subject to a penalty of 30 penalty units. This is not a strict liability offence.

98. Paragraph (a) is the same as subsection 243SA(1). Paragraphs (b) and (c) contain new requirements that will apply in relation to questions asked under section 195A. It will also apply to questions asked under section 106J when it commences.

Item 5 - Paragraph 243SA(3)(a)

99. Item 5 amends paragraph 243SA(3)(a) so that questions asked under section 195A are subject to subsection 243SA(3).

Commencement of items 2 to 5 of Schedule 2 and items 4 to 7 of Schedule 3

100. Item 1 of Schedule 3 to this Bill inserts new section 106J into the Customs Act which also contains a power to ask questions. It will also be excluded from the operation of subsection 243SA(1) and subject instead to new subsection 243SA(3) (ie an officer asking questions under new section 106J will be required to inform the person being questioned of the officer's authority to ask the question and that it may be an offence not to answer the question).

101. New section 106J will commence on Proclamation and new section 195A will commence on the 28th day after the Royal Assent. Hence, it is possible that new section 106J could commence before new section 195A or vice versa. The commencement of items 2 to 5 and items 4 to 7 of Schedule 3 take this into account as follows.

New section 195A commences before, or at the same time as, new section 106J

102. If new section 195A commence before, or at the same time as, new section 106J, items 3 and 5 of Schedule 2 and items 4 and 6 of Schedule 3 will not commence at all. Items 2 and 4 of Schedule 2 and items 5 and 7 of Schedule 3 will:

102.1.1.

exclude new section 195A from subsection 243SA(1) when that section commences (item 2 of Schedule 2);

102.1.2.

insert new subsection 243SA(3) which will apply to new sections 195A when that section commences (item 4 of Schedule 2);

102.1.3.

excludes new section 106J from subsection 243SA(1) when that section commences (or immediately after section 195A commences if all the sections commence at the same time) (item 5 of Schedule 3); and

102.1.4.

adds a reference to new section 106J to subsection 243SA(3) when new section 106J commences (or immediately after section 195A commences if all the sections commence at the same time) (item 7 of Schedule 3).

New section 195A commences after new section 106J

103. If new section 195A commences after new section 106J, items 2 and 4 of Schedule 2 and items 5 and 7 of Schedule 3 will not commence at all. Items 2 and 5 of Schedule 2 and items 4 and 6 of Schedule 3 will:

103.1.1.

exclude new section 106J from subsection 243SA(1) when that section commences (item 4 of Schedule 3);

103.1.2.

insert new subsection 243SA(3) which will apply to new section 106J when that section commences (item 6 of Schedule 3);

103.1.3.

exclude new sections 106J and 195A from subsection 243SA(1) when new section 195A commences (item 3 of Schedule 2); and

103.1.4.

include new section 195A in subsection 243SA(3) when that section commences (item 5 of Schedule 2).