House of Representatives

Explanatory Memorandum

Circulated By Authority of the Minister For Home Affairs, the Honourable Bob Debus MP

SCHEDULE 2 - SEARCH POWERS ON CERTAIN SHIPS AND AIRCRAFT

Customs Act 1901

Background

138. Current Division 1 of Part XII of the Customs Act provides Customs officers with certain powers that enable them to enforce the Customs Act, section 72.13 of the Criminal Code (which relates to marking of plastic explosives), Division 307 of the Criminal Code (that relate to serious drug offences) and any other prescribed Act that Australia may enforce in accordance with the United Nations Law of the Sea (UNCLOS) (the specified Acts), against ships found in Australia's various maritime zones. The Migration Act 1958 and the Fisheries Management Act 1991 are two of the Acts which have been so prescribed.

139. The scope of these maritime enforcement powers and the circumstances under which they may be exercised depend on Australia's jurisdiction under UNCLOS in the various maritime zones. The maritime zones include the territorial sea, the contiguous zone, the safety zones around Australian resources installations or Australian sea installations, and the exclusive economic zone.

140. In particular, these maritime powers allow Customs officers to board and search ships suspected of being involved in a contravention against one or more of the specified Acts. It also allows Customs officers to arrest without warrant any person found on the ship who is reasonably suspected of being involved in an offence against one or more of the specified Acts.

141. In exercising these powers, Customs officers have in recent times encountered violent resistance from persons on board the ships and attempts to escape custody and dispose of evidentiary material.

142. The provisions in this Schedule will amend Division 1 of Part XII of the Customs Act to allow Customs officers to, immediately on boarding a ship suspected of being involved in offences against the specified Acts, search for, examine, take possession of and retain items that may be:

a)

a weapon;

b)

used to help a person escape detention; or

c)

evidence of an offence against the specified Acts.

143. These amendments ensure the safety of Customs officers from possible attack while investigating ships suspected of offences against the specified Acts as well as preventing the possibility of evidence of an offence being thrown overboard before the ship reaches Australia. Where a person may be arrested as a suspect for an offence, the amendments would also minimise the opportunities for the suspect to escape custody. These new powers are complemented by provisions regarding the proper manner in which such powers may be exercised.

144. Similar powers exist in the Fisheries Management Act 1991 that enable fisheries officers to enforce fisheries offences in the maritime zones safely and more effectively.

145. Customs officers also have similar powers to enforce the Customs Act and section 72.13 and Division 307 of the Criminal Code in relation to aircraft that is in Australia. Therefore, this Schedule makes similar amendments to the enforcement powers of Customs officers in relation to aircraft.

146. The provisions of this Schedule also make minor or consequential amendments to other provisions of Division 1 of Part XII that relate to search powers.

Items 1 and 2 - Definition of frisk search

147. The term "frisk search" is currently defined in subsection 4(1) of the Customs Act for the purposes of the Customs Act and in subsection 183UA(1) of the Customs Act for the purposes of Division 1 of Part XII of the Customs Act.

148. Subsection 4(1) defines "frisk search" to mean:

(a)

a quick search of the person by the rapid and methodical running of hands over the person's outer garments; and

(b)

an examination of anything worn by the person that can be conveniently removed and is voluntarily removed by the person;

to:

(c)

determine whether:

(i)

if the search is conducted in circumstances described in subsection 219L(1) or (1A)-the person is unlawfully carrying any prohibited goods; and

(ii)

if the search is conducted in circumstances described in subsection 219L(1B) or (1C)-the person is carrying any weapon or thing capable of being used to inflict bodily injury on a person conducting a search under Division 1 of Part XII; and

(d)

recover any such goods;

149. By contrast, subsection 183UA(1) defines "frisk search" to mean:

(a)

a search of a person conducted by quickly running the hands over the person's outer garments; and

(b)

an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person;

150. Paragraphs (a) and (b) of the two definitions are slightly different and this creates confusion. Further, paragraphs (c) and (d) of the existing definition in subsection 4(1) go beyond defining the term. These paragraphs limit the purposes for which a frisk search may be carried out and empower goods to be recovered as a result of the search. These additional matters are more appropriately dealt with in a substantive provision than in a definition provision.

151. To deal with these drafting issues, item 1 substitutes the definition of "Frisk search" in subsection 4(1) with the definition of "frisk search" in current subsection 183UA(1) and item 2 repeals the definition of "frisk search" in subsection 183UA(1).

152. This leaves a single new definition of "frisk search" in subsection 4(1) that applies to the whole Customs Act and removes any confusion. This definition is preferred as it is more consistent with the definition of "frisk search" in other Commonwealth legislation, for example, the Crimes Act 1914 and the Excise Act 1901 .

153. In addition, the matters that are dealt with in paragraphs (c) and (d) of the existing definition of "frisk search" in subsection 4(1) are addressed in new inserted subsection 219M(1A) (see item 16 below).

Item 3 - After paragraph 185(2 )( ca )

154. The powers of officers under subsection 185(2) of the Customs Act include a power to search a ship or aircraft and any goods on such a ship or aircraft, and to require persons on the ship or aircraft to produce documents. These powers also include powers to secure goods found and to take copies or extracts of documents found or produced.

155. Subsection 185(4A) provides that evidence of the commission of an offence against the law of the Commonwealth, a State or a Territory obtained in the exercise of powers under section 185 may be used, or given to another body for use, in investigating or prosecuting the offence. However, there is no explicit power in section 185 that allows an officer to take possession of and retain goods found or documents produced, where such goods or documents may be evidence of the commission of an offence.

156. Item 3 inserts new paragraph 185(2)(cb), which give officers additional powers to take possession of goods found or documents produced under subsection 185(2), if an officer has reasonable grounds to believe such goods or documents may afford evidence of the commission of a relevant offence. New subsection 185(7) sets out the matters that determine if such goods or documents may afford evidence of the commission of a relevant offence (see item 6 below).

157. This amendment makes it explicit that Customs can take possession of relevant evidentiary material found or produced in the exercise of the powers under subsection 185(2), for the purposes of investigating and prosecuting the relevant offence. This amendment also aligns the existing powers under subsection 185(2) with the amended personal search power under section 185AA (see items 8 to 12 below).

158. The new paragraph 185(2)(cb) does not apply with respect to narcotic goods as there is already an existing power under subsection 185(2)(e) to seize without warrant any narcotic goods found as a result of a search under subsection 185(2).

Items 4 and 5 - Insertion of Notes

159. The amended personal search power under section 185AA applies to a person found on a ship or aircraft boarded under paragraph 185(2)(a) and to a person placed on a ship or aircraft under subsection 185(3AA).

160. Items 4 and 5 insert Notes at the end of subsection 185(2) and subsection 185(3AA) linking these subsections to the amended personal search power under section 185AA.

Item 6 - At the end of section 185

161. Item 6 inserts new subsection 185(7) that sets out, for the purposes of new paragraph 185(2)(cb) (see item 3 above), the circumstances that satisfy the criteria that "goods found or documents produced on a ship or aircraft may afford evidence of the commission of a relevant offence".

162. In the case where the ship is in Australia, the criteria is satisfied only if the goods or documents may afford evidence of the commission of an offence, either in or outside Australia, against the Customs Act, section 72.13 or Division 307 of the Criminal Code or an Act prescribed by the regulations.

163. In the case where the ship is outside Australia, the criteria is satisfied only if the goods or documents may afford evidence of the commission of an offence:

a)

in Australia against the Customs Act, section 72.13 or Division 307 of the Criminal Code or an Act prescribed by the regulations;

b)

in Australia's exclusive economic zone against an Act prescribed by the regulations.

164. In the case where the aircraft is in Australia, the criteria is satisfied only if the goods or documents may afford evidence of the commission of an offence, either in or outside Australia, against the Customs Act or section 72.13 or Division 307 of the Criminal Code .

165. The limits on the scope of the power to take possession of and retain evidentiary material set out under new subsection 185(7) are in accordance with Australia's jurisdiction under UNCLOS in the various maritime zones. Similar limits are applied to the power to arrest a person found on board a ship under paragraph 185(2)(d) and the new power to conduct a personal search for evidentiary material under new paragraph 185AA(1B).

Item 7 - At the end of subsection 185A(2 )

166. The amended personal search power in 185AA (see items 8 to 12 below) will apply to a person found on a ship boarded under paragraph 185A(2)(a). Item 7 inserts a Note after subsection 185A(2) to link paragraph 185A(2)(a) to the amended personal search power in section 185AA.

Items 8 to 12 - Amended search powers under section 185AA

167. Current section 185AA of the Customs Act allows an officer to search for, take possession of and retain items on a person, or in that person's immediate control, that could inflict bodily injury or help the person to escape.

168. However, these personal search powers can only be exercised where the person is on a detained ship or aircraft, or where the person is on a detained ship or aircraft and is being placed on another ship or aircraft for the purpose of moving him or her. Further, the existing powers do not allow officers to search for and take possession of potential evidentiary material.

169. Items 8 to 12 amend section 185AA to expand the scope of the personal search powers and the circumstances under which these powers may be exercised.

Item 8 - Subsections 185AA(1 ), ( 2 ) and ( 3 )

170. Item 8 repeals subsections 185AA(1), (2) and (3) and substitutes new subsections 185AA(1), (1A), (1B), (2), (2A), (3), (3A), (3B) and (3C).

New subsections 185AA(1 ), ( 1A) and (1B )

171. Under new subsections 185AA(1) and (1A), if a person is:

a)

found on a ship or aircraft boarded under section 185(2)(a); or

b)

placed on a ship or aircraft under subsection 185(3AA),

the person and any clothing and other property within the immediate control of that person may be searched for the purposes of finding out if that person is carrying or hiding;

a)

a weapon or thing capable of being used to inflict injury or help the person escape; or

b)

a document or other thing that the person conducting the search has reasonable grounds to believe may afford evidence of the commission of a relevant offence.

172. New subsection 185AA(1B) sets out the circumstances in which a document or other thing may afford evidence of the commission of a relevant offence, which effectively limits the scope of the power to search for evidence. The circumstances are the same as those set out in new subsection 185(7) for the purposes of new paragraphs 185(2)(cb) and (cc) (see items 3 and 6 above).

New subsection 185AA(2) and (2A )

173. Under new subsections 185AA(2) and (2A), if a person is found on a ship boarded under paragraph 185A(2)(a), the person and any clothing and other property within the immediate control of that person may be searched for the purposes of finding out if that person is carrying or hiding a weapon or thing capable of being used to inflict injury.

174. Section 185A relates to the boarding of certain foreign ships by officers on the high seas, where Australia has only very limited jurisdiction. In addition to the power to board, the only other powers relate to establishing the identity of the ship and its occupants. Generally, officers have no power to enforce any Australian law. Consequently, the only purpose for which the personal search power may be exercised on a ship boarded under section 185A is to search for weapons or potential weapons.

New subsections 185AA(3 ), ( 3A) and (3B ) - power to examine things found

175. New subsection 185AA(3) provides a new power for an officer to examine any thing found in the course of a search under section 185AA. If the thing found is a document, the examination may include reading the document, either directly or with the help of an electronic device.

176. Under new subsection 185AA(3A) an officer may do, or arrange for another officer or another person to do, whatever is reasonably necessary to permit the examination of the thing or things being examined. A similar power exists in current subsection 185(2C) in relation to the power to examine goods under current paragraph 185(2)(b).

177. New subsection 185AA(3B) limits the scope of subsection 185AA(3A) by prohibiting an officer from damaging a thing being examined by forcing it, or part of it, open unless:

a)

the person being searched has been given a reasonable opportunity to open the thing of part of it; or

b)

it is not reasonably practicable to give the person such an opportunity.

178. A similar limitation exists in current subsection 185(3C) in relation to the powers to board, search and examine goods under section 185.

New subsection 185AA(3C )

179. New subsection 185AA(3C) enables an officer, or other person conducting the search, to take possession of:

-

a weapon or other thing capable of being used to inflict injury or help the person escape; or

-

a document or other thing that may afford evidence of the commission of a relevant offence,

that is found in the course of a search under new subsection 185AA(1A).

180. New subsection 185AA(3C) also enables an officer, or other person conducting the search to take possession of a weapon or other thing capable of being used to inflict injury that is found in the course of a search under new subsection 185AA(2A).

Existing subsections 185AA(4) and (5 )

181. Existing subsection 185AA(4) makes it clear that section 185AA does not authorise the removal of a person's clothing or to require a person to remove any of his or her clothing, except the person's outer garments.

182. Existing subsection 185AA(5) provides that a search of a person or a person's clothing under section 185AA must be conducted by an officer who is of the same sex as the person. Where no officer of the same sex is available to conduct the search, the search may be conducted by any other person of the same sex who is requested by an officer to conduct the search and agrees to do so.

183. Existing subsections 185(4) and (5) continue to apply to a search under new subsections (1A) or (2A).

Item 9 - Subsection 185AA(6 )

184. Existing subsection 185AA(6) provides immunity against civil or criminal proceedings to a person who conducts a search under section 185AA at the request of an officer, if the person acts in good faith and in accordance with subsection 185AA(7).

185. Existing subsection 185AA(7) prohibits an officer or other person who conducts a search under section 185AA from using more force, or subjecting a person to greater indignity, than is reasonably necessary in order to conduct the search.

186. Item 9 repeals and substitutes subsection 185AA(6). New subsection 185AA(6) retains the current immunity and extends it under the same conditions to an officer, who conducts a search, or person who conducts the search at the request of an officer, under section 185AA.

Item 10 - After subsection 185AA(7 )

187. Item 10 inserts new subsection 185AA(7A). Under new subsection 185AA(7A), if an officer who conducts a search under section 185AA obtains evidence of the commission of an offence against a law of the Commonwealth, a State or a Territory, that evidence may be used, or given to another body for use, in investigating or prosecuting the relevant offence. New subsection 185AA(7A) does not override or limit the laws of evidence of a State relating to proceedings for an offence against a law of that State.

188. Existing subsection 185(4A) is a similar provision applying to evidence obtained during the exercise of search powers under section 185.

Item 11 - Subsection 185AA(8 )

189. The term "officer" is defined separately for sections 185 and 185A in existing subsections 185(5) and 185A(7) respectively. Existing subsection 185AA(8) provides that for section 185AA, "officer" has the same meaning as it has in section 185. This is because existing personal search powers in section 185AA relate to persons who are on board a ship or aircraft detained under section 185(3) or who have been placed on board a ship or aircraft under section 185(3AA).

190. Item 11 repeals and substitutes existing subsection 185AA(8). Under new subsection 185AA(8), "officer" in section 185AA means an officer within the meaning of subsection 185(5) or subsection 185A(7). This reflects the fact that the personal search powers in new subsections 185AA(1A) and (2A) apply in respect of persons found on ships or aircraft boarded under paragraph 185(2)(a) as well as ships boarded under section 185A(2)(a).

Item 12 - At the end of section 185AA

191. Item 12 inserts new subsection 185AA(9), which extends the scope of the phrase "a person found on a ship or aircraft" in section 185AA to include a person suspected on reasonable grounds by an officer of having landed from, or left, the ship or aircraft.

192. New subsection 185AA(9) is based on existing subsection 185(6) that applies with respect to the same phrase in section 185.

Item 13 - After section 185AA

193. Item 13 inserts new section 185AAA which sets out the circumstances in which Customs can retain, or be required to return, a relevant item where possession of the item has been taken under new paragraph 185(2)(cb) or new subsection 185AA(3C).

194. Under new subsection 185AAA(1), Customs must return such an item if either the reason for the item's retention by Customs no longer exists or it is decided that the item is not to be used in evidence, or a period of 60 days after the item was taken possession of, ends (whichever is the earlier). However, Customs is not required to return the item if is other forfeited or forfeitable to the Commonwealth or if the item is the subject of a dispute as to ownership.

195. Under new subsection 185AAA(2), Customs must take all reasonable steps to return an item that Customs is required to return. However, the item does not have to be returned if, before the end of the 60 day period referred to in subsection (1), proceedings were instituted in which the relevant item may be evidence, and those proceedings have not been completed. In addition, Customs is not required to return an item if an extension of the 60 day period has been granted under new subsection 185AAA(4), or Customs is otherwise authorised to retain, destroy or dispose of the item.

196. Under new subsections 185AAA(3), (4) and (5), Customs may apply to a magistrate for, and the magistrate may grant, an extension of the 60 day period referred to in subsection 185AAA(1). (Under these sections, a magistrate may also grant an extension of a previously extended time period.)

197. New subsection 185AAA(6) defines the term "relevant item" for the purposes of new section 185AAA. A relevant item basically means goods, documents, weapons and any other things taken possession of under new paragraph 185(2)(cb) and new subsection 185AA(3C). However, it does not include narcotic goods taken possession of under subsection 185AA(3C) which means that narcotic goods do not have to be returned by Customs to a person under section 185AAA.

Items 14 and 15 - Subsections 219L(1B) and (1C )

198. Items 14 and 15 repeal existing subsections 219L(1B) and (1C) respectively. These two subsections enable a detention officer to detain a person for the purposes of conducting a frisk search under section 219M, in circumstances where a ship or aircraft has been boarded under section 185. A frisk search is a type of personal search.

199. The scope of the personal search powers under new subsection 185AA(1A) are slightly more robust than a frisk search. Further, the circumstances in which these new powers can be exercised, as set out in subsection 185AA(1), completely overlap the circumstances in which a person may be detained for the purpose of a frisk search under subsections 219L(1B) or (1C). Therefore, the new subsections 185AA(1) and (1A) render subsections 219L(1B) and (1C) redundant and these redundant provisions are to be repealed.

Item 16 - Subsection 219L(2 )

200. Item 16 omits references to subsections 219L(1B) and (1C) in subsection 219L(2) as a consequence of the repeal of subsections 219(1B) and (1C).

Item 17 - Before subsection 219M(1 )

201. Existing section 219M sets out the manner in which a frisk search of a person detained under section 219L is to be conducted. However, although the power to conduct such a search is implied on the reading of sections 219L and 219M, there is no explicit power in either section to conduct a frisk search.

202. Item 17 inserts new subsection 219M(1A). New subsection 219M(1A) provides an express power for a Customs officer to conduct a frisk search on a person detained under section 219L for purpose of determining if the person is unlawfully carrying prohibited goods. This purpose is consistent with the remaining circumstances under subsections 219L(1) and (1A) in which a person can be detained following the repeal of subsections 219L(1B) and (1C). Both circumstances relate to where a detention officer suspects on reasonable grounds a person of carrying prohibited goods.

203. New subsection 219M(1A) also provides a power to recover any prohibited goods found in the course of the frisk search.

Items 18 to 21 - Consequential amendments

204. Items 18 to 21 repeal subsection 219M(4), section 219NA and paragraph 219ZE(1)(cb) and make amendments to paragraph 219ZE(1)(ca) as a consequence of the repeal of subsections 219L(1B) and (1C) by items 14 and 15 of Schedule 1.

Item 22 - Application

205. Item 22 provides that the amendments made in items 3, 6, 8, 9, 10, 11 and 12 that relate to the new search powers apply in relation to ships and aircraft that are boarded on or after the commencement of this item.