House of Representatives

Customs Amendment (Enhanced Border Controls And Other Measures) Bill 2008

Explanatory Memorandum

(Circulated by authority of the Minister for Home Affairs, the Honourable Bob Debus MP)

SCHEDULE 7 - USE OF DEVICES TO STOP OR IMPEDE A SHIP

Customs Act 1901

Background

131. Under sections 184B and 184C of the Customs Act, the commander of a Commonwealth ship or aircraft may use the ship or aircraft to chase a foreign or Australian ship to enable such a ship to be boarded. In the case of a foreign ship, under current provisions in the Customs Act, it may only be chased if its master has refused to comply with a request to board made under section 184A of the Customs Act. (Note that these circumstances will be modified by the amendments set out in Schedule 5 to the Bill, and the notes on clauses set out in Schedule 5 to this Explanatory Memorandum.)

132. Under subsections 184B(6) and 184C(3) of the Customs Act, the commander of the Commonwealth ship or aircraft may use reasonable means consistent with international law to enable the boarding of the chased ship. Such means expressly include using necessary and reasonable force (paragraphs 184B(6)(a) and 184C(3)(a)) and by firing at or into the chased ship to disable it or compel it to be brought to for boarding (paragraphs 184B(6)(b) and 184C(3)(c)).

133. A third method is to be inserted into subsections184B(6) and 184B(3) to enable to boarding of the chased ship, being the use of a device designed to stop or impede the ship. This amendment will ensure that the commander of a Customs vessel will have the operational flexibility to decide in any given situation on the most appropriate device to use as a means to enable the boarding of a chased ship, regardless of whether it is a gun or another alternative device. This would include, for example, a propeller entrapment device. While it is possible that the term "reasonable and necessary force" could provide authority for the use of such a device, this device is to be expressly included in sections 184B and 184C.

134. The terminology is also consistent with the similar power in section 84 of the Fisheries Management Act 1991 in that Act's application to a foreign ship. However the Customs Act is to be expanded to reflect Customs' broader operational border protection role and provide for potential future capability development by ensuring that Customs Act will cover devices designed to stop or impede a ship but not necessarily by stopping or impeding the system for propelling the ship.

Item 1 - At the end of subsection 184B(6)

135. This item amends subsection 184B(6) by inserting new paragraph (c). New paragraph (c) refers to using a device designed to stop or impede a ship, where necessary.

Item 2 - At the end of subsection 184C(3)

136. This item amends subsection 184C(3) by inserting new paragraph (c). New paragraph (c) also refers to using a device designed to stop or impede a ship, where necessary.


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