Explanatory Memorandum
(Circulated by authority of the Minister for Home Affairs, the Honourable Bob Debus MP)SCHEDULE 13 - POWER TO MOOR
Customs Act 1901
Background
206. Section 194 of the Customs Act provides that the officer in charge of a ship employed in the service of the Customs (Customs vessel), is permitted to haul such a ship upon any part of the coast or the shores, banks or beaches of any port, bay, harbour, lake or river and may moor the ship at such a place for such time as is deemed necessary.
207. Customs vessels can be deployed and operated for extensive periods of time and require unrestricted access to tie up at natural features and man-made structures to enable a range of operational and support activities to be undertaken in an effective and safe manner, including:
- a)
- landing shore parties to conduct patrols and investigations ashore;
- b)
- providing a support base for operational activity, ashore and on the water;
- c)
- re-supplying and allowing crew to rest during difficult conditions;
- d)
- taking on board support teams for enforcement actions;
- e)
- landing apprehended persons or evidence from enforcement actions; and
- f)
- investigating vessels tied up in marinas or at wharves.
208. However, the power in section 194 does not necessarily provide authority for the officer in charge of a Customs vessel to moor the vessel to any man-made structures that may located at a coast, shore, bank or the other natural features referred to above, such as an installation, wharf, pier, jetty or other man-made structure. In addition, Customs operates many sea-going Customs vessels and the officer in charge of these vessels also requires the authority to tie up to structures located at sea for the purposes of undertaking Customs patrol activities effectively and safely. Section 194 presently does not provide the officer in charge with this authority.
Item 1 Section 194
209. This item repeals and substitutes section 194 of the Customs Act.
210. New subsection 194(1) retains the current authority for the officer of Customs to moor a Customs vessel at the natural features mentioned in paragraph 188 above for such time as the officer considers necessary. In addition, new subsection 194(1) also provides authority for the officer in charge of a Customs vessel to moor a Customs vessel to:
- a)
- any man-made structure at or in any of the natural features mentioned in paragraph 188; and
- b)
- any man-made structure anywhere in the territorial sea of Australia, the contiguous zone of Australia or the exclusive economic zone of Australia.
Such man-made structures may include, for example, wharves, piers, docks and offshore pontoons and facilities.
The Customs vessel may also remain at these moorings for as long as the officer in charge considers necessary.
211. This will mean that Customs will have increased capabilities in areas where access to private or commercial facilities is currently not available. Safety and efficiency impacts on crew conducting enforcement activity at sea will also be improved.
212. New subsection 194(2) creates a new offence in relation to the person who is the owner, occupier or operator of any of the places at or to which the officer in charge of a Customs vessel may moor the vessel. That person will commit an offence if:
- a)
- the person does not provide the officer with all reasonable facilities and assistance that the person is reasonably capable of providing; and
- b)
- the person does not do so in circumstances where the officer is exercising, or attempting to exercise, his or her powers under section 194.
This offence will be a mens rea offence and will be punishable by a penalty of 30 penalty units.
213. As a matter of general practice, the officer in charge of a Customs vessel will seek in the first instance to consult with and obtain the assistance of the owner, occupier or operator of areas covered by the amended power to moor the vessel. For example, Customs will consult on the location of other vessels or potential hazards within a port or associated with structures, or whether the proposed mooring is able to support the load of the relevant Customs vessel and is appropriate and safe for the vessel to tie up to.
214. The obligation placed upon an owner, occupier and operator of relevant places will be to provide the officer in charge with all reasonable facilities and assistance so the Customs vessel can be moored.
215. Customs may, in certain circumstances due to operational imperatives, request the mooring to take priority over the mooring of commercial vessels. However, it is expected that these circumstances would be extremely rare.