Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Christopher Martin Ellison)Schedule 2 - Unauthorised entry
Customs Act 1901
22. Section 234AA of the Customs Act allows a Collector of Customs to display a sign at or near a place that is to be used by officers of Customs for the questioning of ship or aircraft passengers, the examining of the personal baggage of such passengers and as a holding place for such passengers. These places are defined as section 234AA places.
23. Under subsection 234A(1) of the Customs Act, it is an offence for a person to:
- 23.1.
- enter into a section 234AA place; or
- 23.2.
- enter on, or be in or on a ship, aircraft or wharf at which a ship is berthed where the personal baggage of a disembarking or embarking passenger is being examined or in the vicinity of the ship, aircraft or wharf.
24. Subsection 234A(1A) sets out several circumstances in which the offence in subsection 234A(1) does not apply. Three such circumstances are where a person enters into the relevant place by authority (paragraph 234A(1A)(a) and (b)) or where the person is a holder of a security identification card who enters into or is in the relevant place for the purposes of his or her employment (paragraph 234A(1A)(ab)). Currently, a security identification card is either an Aviation Security Identification Card (ASIC) or a Visitor Identification Card (VIC) under section 213A of the Customs Act and regulation 170B of the Customs Regulations 1926 .
25. In the circumstance where a person is the holder of a security identification card, it is proposed to tighten the exemption from the offence in subsection 234A(1). In addition to holding a card, the person must also not be subject to a written direction from a Collector not to enter into, or be in or on, the relevant place.
26. In most instances, the holders of a security identification card will not be subject to such a written direction from a Collector. However, there are some circumstances in which Customs may wish to issue such directions.
27. For example, there may be instances where the holder of a security identification card asserts that he or she is in a relevant place for the purposes of his or her employment but Customs may not be satisfied that this is the case, particularly if they are in the place outside their normal working hours.
28. Another example is where security identification cards are issued to people who are not employed at airports. For example, ASICs have been issued to foreign officials in order that they may meet visiting foreign diplomats on the tarmac of an international airport. If Customs decides that the presence of these officials in a section 234AA place is of concern due to the security risk posed by such unfettered access or during periods of peak activity, they may issue them with a written direction.
29. Another example is where the holder of a security identification card comes to Customs' attention as being of concern from a border integrity point of view, such as using their access privileges to transport goods without Customs knowledge, and Customs believes it is necessary to issue a written direction to reduce or alleviate this risk.
Item 1 Paragraph 234A(1A)(a)
30. This item amends paragraph 234A(1A)(a) of the Customs Act by omitting the reference to "by authority" and substituting a reference to "by the authority of a Collector". This amendment clarifies that the offence in subsection 234A(1) will not apply by operation of paragraph 234A(1A)(a) only where a person is in a relevant place by the authority of a Collector.
Item 2 Paragraph 234A(1A)(ab)
31. This item repeals and substitutes paragraph 234(1A)(ab) of the Customs Act. New paragraph (ab) applies where a person is a holder of a security identification card who enters into, or is in the place for the purposes of his or her employment and is not subject to a direction under new subsection 234(1B). Therefore, the offence in subsection 234A(1) will not apply by operation of paragraph 234A(1A)(ab) only where both criteria are satisfied.
Item 3 Paragraph 234A(1A)(b)
32. This item amends paragraph 234A(1A)(b) of the Customs Act by omitting the reference to "by authority" and substituting a reference to "by the authority of a Collector". This amendment clarifies that the offence in subsection 234A(1) will not apply by operation of paragraph 234A(1A)(b) only where a person is in a relevant place by the authority of a Collector.
Item 4 After subsection 234A(1A)
33. This item amends section 234A of the Customs Act by inserting new subsection 234A(1B).
34. For the purposes of new paragraph 234A(1A)(ab), new subsection (1B) sets out the power of a Collector to give a written notice to a person who is the holder of a security identification card (within the meaning of section 213A), directing the person not to enter into, or be in or on:
- 34.1.
- a place in relation to which a sign is displayed under subsection 234AA(1); or
- 34.2.
- any of the following:
- 34.2.1.
- a ship;
- 34.2.2.
- an aircraft;
- 34.2.3.
- the wharf at which, or the part of a wharf adjacent to which, a ship is berthed,
- at a time when goods being the personal baggage of passengers disembarking from, or embarking on that ship or aircraft are being examined, for the purposes of this Act, at or in the vicinity of the ship, aircraft, wharf or part of a wharf.
Item 5 Subsection 234A(2)
35. This item amends section 234A of the Customs by repealing and substituting subsection 234A(2).
36. Subsection 234A(2) currently provides that subsection 234A(1) does not prohibit a person:
- 36.1.
- who has, or is a member of an authority which has, the management or control of a wharf or wharves or an airport or airports; or
- 36.2.
- who is employed in connexion with the management or control of a wharf or wharves or an airport or airports,
from entering on, or being in or on, a place, ship, aircraft, wharf or part of a wharf for the purposes of that management or control. The people referred to in a paragraph (b) extends to cleaners, handymen, security staff and other staff who are not the actual management of an airport or wharf but are necessary for management and control.
37. It is no longer considered appropriate that people referred to in paragraph (b) should be completely exempt from the offence in subsection 234A(1). Such people will be removed from subsection 234(2) and will become subject to the offence in subsection 234A(1). They will only be exempt from the offence if they satisfy any of the exemptions in subsection 234A(1A).
38. New subsection 234A(2) will limit the complete exemption from the offence in subsection 234A(1) only to a person who has, or is a member of an authority which has, the management or control of a wharf or wharves or an airport or airports.