House of Representatives

Explanatory Memorandum

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

CUSTOMS AMENDMENT (ENHANCED BORDER CONTROLS AND OTHER MEASURES) BILL 2008

OUTLINE

1. The purpose of this Bill is to amend the Customs Act 1901 (the Customs Act) to:

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amend the arrival reporting and stores and prohibited goods reporting requirements to exclude Saturdays from the reporting period (Schedule 1);

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insert an additional matter that must be stated in an infringement notice (Schedule 2);

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provide for an exception to the offence of failing to make a cargo report (Schedule 3);

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insert new provisions, including offences, dealing with missing goods and goods delivered into home consumption without authority (Schedule 4);

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harmonise the boarding powers with the United Nations Convention of the Law of the Sea (Schedule 5);

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amend the impending arrival reporting requirements in relation to pleasure craft (Schedule 6);

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clarify the types of devices that can be used to enable to boarding of ship that has been the subject of a "hot pursuit" (Schedule 7);

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insert a new circumstance in which the commander of a Commonwealth aircraft can request the pilot of another aircraft to land (Schedule 8);

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extend the regime for the storage or taking into custody of prohibited weapons to all prohibited imports (Schedule 9);

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extend the power to seize goods without a warrant to goods on board a ship that are unaccounted for (Schedule 9);

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insert a regime supporting the current power of arrest, consistent with Crimes Act 1914 (Schedule 10);

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make a technical amendment to the matters that must be included in a search or seizure warrant (Schedule 11);

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insert a new offence for obstructing or interfering with Customs equipment (Schedule 12);

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extend the power to moor a Customs vessel to man-made structures (Schedule 13);

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extend the obligation to assist Customs officers to board a ship to the owner or operator of a port or port facility (Schedule 14);

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update the wording in section 58 (Schedule 15);

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extend the circumstances in which Customs officer may enter and remain upon certain areas (Schedule 16); and

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extend the matters that can be authorised in a search warrant or a seizure warrant and the powers that can be exercised by Customs officers and persons assisting when executing a warrant (Schedule 17).

2. The measures contained within this Bill, which have been developed in consultation with industry, are designed to ensure that the Australia Customs Service can continue to effectively perform its operational law enforcement and regulatory roles and functions in an increasingly complex and dynamic environment.

FINANCIAL IMPACT STATEMENT

3. The Bill has no financial impact.

NOTES ON CLAUSES

Clause 1 - Short title

1. This clause provides for the Bill, when enacted, to be cited as the Customs Amendment (Enhanced Border Controls and Other Measures) Act 2008.

Clause 2 - Commencement

2. Subclause (1) provides that each provision of this Act specified in column 1 of the table in that subclause commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table. This subclause also provides that any other statement in column 2 of the table has effect according to its terms.

3. Item 1 of the table provides that sections 1 to 3 and anything in this Act not elsewhere covered by the table will commence on the day on which the Act receives the Royal Assent.

4. Item 2 of the table provides that Schedules 1 and 2 commence on the day on which the Act receives the Royal Assent.

5. Item 3 of the table provides that Schedule 3 commences on the 28th day after the day on which this Act receives the Royal Assent.

6. Item 4 of the table provides that Schedule 4 commences on a single day to be fixed by Proclamation. However, it also provides that if nay of the provision(s) do not commence within the period of 6 months beginning of the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

7. Item 5 of the table provides that Schedules 5 to 11 commence on the 28th day after the day on which this Act receives the Royal Assent.

8. Item 6 of the table provides that Schedule 12, item 1, commences on the 28th day after the day on which this Act receives the Royal Assent.

9. Item 7 of the table provides that Schedule 12, item 2, commences immediately after the commencement of the provisions covered by table item 5. This item extends the arrest power to the new offence of obstructing or interfering with Customs equipment. This amendment cannot commence under the substituted power of arrest, which is contained in Schedule 10 of the Bill, commences.

10. Item 8 of the table provides that Schedules 13 and 14 commence on the 28th day after the day on which this Act receives the Royal Assent.

11. Item 9 of the table provides that Schedule 15 commences on the day on which the Act receives the Royal Assent.

12. Item 10 of the table provides that Schedules 16 and 17 commence on the 28th day after the day on which this Act receives the Royal Assent.

13. Subclause (2) provides that column 3 of the table contains additional information that is not part of the Act.

Clause 3 - Schedule(s)

14. This clause is the formal enabling provision for the Schedule to the Bill, providing that each Act specified in a Schedule is amended in accordance with the applicable items of the Schedule. In this Bill, the Customs Act is being amended.

15. The clause also provides that the other items of the Schedules have effect according to their terms. This is a standard enabling clause for transitional, savings and application items in amending legislation.

SCHEDULE 1 - ARRIVALS REPORT AND REPORT OF STORES AND PROHIBITED GOODS

Customs Act 1901

Background

16. Section 64AA of the Customs Act provides for the reporting of the arrival of a ship or aircraft on a voyage or flight to Australia from a place outside Australia. Subsection 64AA(3) provides that for a ship, the arrival report must be made before the end of 24 hours (disregarding any period that occurs on a Sunday or holiday) after the ship's arrival or the issue of a Certificate of Clearance in respect of the ship and the port.

17. Section 64AAA of the Customs Act provides for the reporting of stores and prohibited goods on a ship or aircraft on a voyage or flight to Australia from a place outside Australia. Similar to subsection 64AA(3), subsection 64AAA(3) provides that for a ship, the stores and prohibited goods report must be made before the end of 24 hours (disregarding any period that occurs on a Sunday or holiday) after the ship's arrival or the issue of a Certificate of Clearance in respect of the ship and the port.

18. The requirement that the arrival report and the stores and prohibited goods report be made before the end of the 24 hour period after the ship has arrived has meant that, for ships arriving on a Friday evening, shipping companies have been required to bring staff into their offices on a Saturday to make the required reports. Were the same ship to arrive on the Saturday, as both subsections 64AA(3) and 64AAA(3) disregard periods that occur on a Sunday or a holiday, the arrival report and the stores and prohibited goods report would be able to be made on the next business day.

19. As the information collected on the reports is not used by Customs to undertake real time risk assessment and the periods which occur on a Sunday and a holiday are already disregarded, subsections 64AA(3) and 64AAA(3) are to be amended to also disregard periods which occur on a Saturday. By disregarding periods that occur on a Saturday, Sunday or a holiday, the arrival report and the stores and prohibited goods report will be able to be made on the next business day after the arrival of the ship at its first port in Australia.

Item 1 - Subparagraph 64AA(3)(a)(i)

20. This item amends subparagraph 64AA(3)(a)(i) of the Customs Act by substituting the words "Sunday or holiday" with the words "Saturday, Sunday or holiday". This will mean that the 24 hour period in which the arrival report is required to be made for a ship will disregard periods which occur on a Saturday, Sunday or a holiday.

Item 2 - Subparagraph 64AAA(3)(a)(i)

21. This item amends subparagraph 64AAA(3)(a)(i) by substituting the words "Sunday or holiday" with the words "Saturday, Sunday or holiday". This will mean that the 24 hour period in which the stores and prohibited goods report is required to be made for a ship will disregard periods which occur on a Saturday, Sunday or a holiday.

Item 3 - Application provision

22. This item sets out an application provision in relation to the amendments to subparagraphs 64AA(3)(a)(i) and 63AAA(3)(a)(i). The application provision provides that the amendments to subparagraphs 64AA(3)(a)(i) and 63AAA(3)(a)(i) will apply to a ship that arrives at a port in Australia less than 24 hours before, at or after the commencement of the amendments.

23. The effect of the application provision is that if the amendments commenced on a Saturday, a ship which arrived on the Friday before the amendments commenced would be subject to the amended subparagraphs 64AA(3)(a)(i) and 63AAA(3)(a)(i). The ship would therefore be able to disregard the periods which occurred on Saturday, Sunday and a holiday and make the arrival report and stores and prohibited reports on the next business day.

SCHEDULE 2 - INFRINGEMENT NOTICES

Customs Act 1901

Background

24. Division 5 of Part XIII of the Customs Act relates to the issuing of infringement notices in respect of specified minor offences. Subsection 243Z(1) of Division 5 of Part XIII sets out the matters that must be included in an infringement notice. Subsection 243Z(3) provides that an infringement notice may contain any other matters that the Chief Executive Officer of Customs (the CEO) considers necessary.

25. Under section 243XA of the Customs Act, the CEO must develop written guidelines in respect of the administration of Division 5 of Part XIII. In the Infringement Notice Scheme Guidelines (2006) (the INS Guidelines) that were approved by the CEO under section 243XA of the Customs Act, clause 4.2 lists the discretionary matters that may be set out in an infringement notice. These discretionary matters include a statement that if the infringement notice penalty is paid within 28 days of the service of the notice, the person who was issued with the infringement notice cannot be prosecuted for the alleged offence and will not be regarded as having been convicted of an offence (the relevant statement).

26. The INS Guidelines are a legislative instrument subject to parliamentary scrutiny. As part of this scrutiny, the Standing Committee on Regulations and Ordinances (the Committee) considered that the relevant statement should be one of the mandatory matters to be included in an infringement notice and not a discretionary matter.

27. In response to the Committee's comments, the Customs Act is to be amended so that the relevant statement is a mandatory matter which must be included on an infringement notice.

Item 1 - After paragraph 243Z(1)(f)

28. This item inserts new paragraph (fa) into subsection 243Z(1) of the Customs Act. New paragraph 243Z(1)(fa) requires an infringement notice to state that if the person pays to the CEO, before the end of the period referred to in paragraph 243Z(1)(f), the penalty specified in the notice and, in the case of an alleged offence against section 243T, any unpaid duty or any unrepaid refund or drawback of duty, the person cannot be prosecuted for the alleged offence and will not be regarded as having been convicted of the offence.

SCHEDULE 3 - CARGO REPORTS

Customs Act 1901

Background

29. Section 64AB of the Customs Act sets out when a cargo report is required to be made, how that report is to be made and the offences for failing to make the report.

30. For cargo being carried on a ship, paragraph 64AB(8)(a) provides that the cargo report must be made no later than the prescribed period before the estimated time of arrival of the ship at the first port in Australia, or if the journey is of a kind described by the regulations, the start of the shorter period specified for that type of journey by the regulations. For a journey which is more than 48 hours, regulation 28 of the Customs Regulations 1926 (the Regulations) prescribes 48 hours as the period that the cargo report is required to be made before the estimated time of arrival of the ship at its first port in Australia. Regulation 29 of the Regulations prescribes shorter periods for journeys which are less than 48 hours.

31. Paragraph 64AB(8)(b) of the Customs Act provides that the cargo report for an aircraft must be made no later than 2 hours or such other period as is prescribed by the Regulations before the estimated time of arrival of the aircraft reported in the impending arrival report made under section 64 of the Customs Act. If the flight is of a kind described in the Customs Regulations, the cargo report is required to be made in the shorter period specified by the Regulations for that type of flight.

32. Failure to make the cargo report within the required period is an offence. Subsection 64AB(9) provides that a cargo reporter who intentionally contravenes section 64AB commits an offence punishable, on conviction, by a penalty not exceeding 120 penalty units. Subsection 64AB(10) provides that a cargo reporter who contravenes section 64AB commits an offence punishable, on conviction, by a penalty not exceeding 60 penalty units. As Division 5 of Part XIII applies to the offence under subsection 64AB(10), an infringement notice may be issued as an alternative to prosecution for this offence.

33. As the estimated time of arrival for a ship or aircraft can change due to weather and other circumstances and a number of estimated times of arrival may be reported to the Australian Customs Service, cargo reporters may become liable for the offence of failing to make the cargo report within the required time. To assist the cargo reporting industry and to give effect to Customs' undertaking given to the cargo reporting industry to not pursue prosecutions of cargo reporters in certain circumstances, section 64AB is to be amended to include an exception to the offence of failing to make the cargo report within the required period.

34. The exception to the offence applies where the cargo report is made no later than the period required by subsection 64AB(8) before the actual arrival time of the ship or aircraft in Australia.

Item 1 - After subsection 64AB(14)

35. This item inserts new subsection 64AB(14A) into the Customs Act. New subsection 64AB(14A) provides that a cargo reporter who is required to make a cargo report in respect of particular goods will not be liable to be prosecuted for, and cannot be served with an infringement notice under Division 5 of Part XIII of the Customs Act, for an offence against section 64AB if:

a)

the cargo reporter made a cargo report, but contravened subsection 64AB(8) because the report was not made before the start of the period that the report was required to be made; and

b)

the time (the actual time of arrival) at which the ship or aircraft in question arrived at the first port or airport in Australia since it last departed from a port or airport outside Australia was later than the estimated time of arrival; and

c)

the cargo reporter would not have contravened subsection 64AB(8) if the estimated time of arrival of the ship or aircraft had been its actual time of arrival.

36. New subsection 64AB(14A) has the effect that while the cargo reporter is required to make the cargo report no later than the period required by subsection 64AB(8) before the estimated time of arrival of the ship or aircraft in Australia, if the cargo reporter makes the cargo report no later than the period required by subsection 64AB(8) but before the actual time of arrival of the ship or aircraft in Australia, the cargo reporter will not be liable to be prosecuted for and cannot be served with an infringement notice for an offence for failing to make the cargo report on time.

37. New subsection 64AB(14A) would apply, for example, where a cargo reporter, who was required by subsection 64AB(8) to make the cargo report for a ship not later than 48 hours before the estimated time of arrival of that ship in Australia, fails to make the cargo report within the required time but makes the report 48 hours before the actual time of arrival of the ship at its first port in Australia.

SCHEDULE 4 - MISSING GOODS AND GOODS DELIVERED WITHOUT AUTHORITY

Customs Act 1901

Background

38. Section 35A of the Customs Act imposes obligation on persons who have dealings with dutiable goods, which are subject to the control of Customs, to keep those goods safely and to account for those goods if requested to do so by a Collector. Where there is a failure to comply with these obligations, section 35A provides that the Collector may demand, in writing, the payment to the Commonwealth of an amount equal to the amount of duty of Customs that would have been payable on the goods, or on part of the goods not accounted for, had the goods been entered for home consumption on the day on which the demand by the Collector was made.

39. While section 35A of the Customs Act enables the recovery of duty where dutiable goods have gone missing, section 35A does not cover non-dutiable goods which are subject to the control of Customs and which cannot be accounted for by the person who had possession, custody or control over those goods. While no duty applies to these goods, the goods still need to be accounted for as the goods may be prohibited by or subject to a restriction or condition under the Customs Act or another law of the Commonwealth.

40. To ensure that goods, whether dutiable or non-dutiable, which are subject to the control of Customs and in the custody of another person, are kept safely and can be accounted for, new offences are to be included in the Customs Act for failing to keep dutiable and non-dutiable goods safely and for failing to account for the goods to the satisfaction of the Collect if required to do so.

Item 1 - At the end of paragraphs 35A(1)(b), (1A)(c) and (1B)(b)

41. This item inserts at the end of paragraphs 35A(1)(b), (1A)(c) and (1B)(b) of the Customs Act the words "in accordance with section 37". The inclusion of these words means that a person who is required to account for goods to the satisfaction of the Collector will now be required to account for those goods in accordance with new section 37 of the Customs Act.

42. New section 37, inserted by item 2 of this Schedule, provides that a person accounts for goods, or a part of the goods, to the satisfaction of a Collector only if the Collector sights the goods or, if the Collector is unable to sight the goods, the person satisfies the Collector that the goods have been dealt with in accordance with the Customs Act.

Item 2 - After section 35A

43. This item inserts after section 35A of the Customs Act new section 36. New section 36 creates new offences for failing to keep goods safely and for failing to account for goods.

New offences for failing to keep goods safely

44. New subsections 36(1) and (2) create two new offences for failing to keep good, which are subject to the control of Customs, safely.

45. New subsection 36(1) provides that a person will commit an offence if the person has or has been entrusted with the possession, custody or control of goods which are subject to the control of Customs and the person fails to keep the goods safely.

46. The new offence in subsection 36(1) is a mens rea offence which is punishable by a penalty of 500 penalty units.

47. New subsection 36(2) provides that a person will commit an offence if the person has or has been entrusted with the possession, custody or control of goods which are subject to the control of Customs and the person fails to keep the goods safely. This new offence is punishable by a penalty of 60 penalty units.

48. New subsection 36(3) provides that the offence contained in subsection 36(2) is an offence of strict liability. In imposing strict liability, consideration was given to both the Senate Standing Committee for the Scrutiny of Bills Sixth Report of 2002 on Application of Absolute and Strict Liability Offences in Commonwealth Legislation and the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers. It is considered that imposing strict liability to the new offence contained in subsection 36(2) will ensure the integrity of the regulatory regime which exists so that goods which are being imported or exported from Australia are available to be inspected or examined and dealt with in accordance with the Customs Act and other legislation.

New offences for failing to account for goods

49. New subsections 36(4), (5), (6) and (7) create four new offences for failing to, if required by a Collector, to account for goods which are subject to the control of Customs.

50. New subsection 36(4) provides that a person will commit an offence if the person has or has been entrusted with the possession, custody or control of goods which are subject to the control of Customs and the person, when requested by a Collector, does not account for the goods to the satisfaction of the Collector in accordance with new section 37. This new offence is punishable by a penalty of 500 penalty units.

51. New subsection 36(5) provides that a person who has failed to deliver goods that are subject to the control of Customs, or part of those goods, in accordance with an authority to deal or a permission given under section 71E of the Customs Act, will commit an offence if the person fails to account for the goods, if required, to the satisfaction of the Collector in accordance with new section 37. This new offence is punishable by a penalty of 500 penalty units.

52. The new offences contained in subsections 36(4) and (5) are mens rea offences.

53. New subsection 36(6) provides that a person will commit an offence if the person has or has been entrusted with the possession, custody or control of goods which are subject to the control of Customs and the person, when requested by a Collector, does not account for the goods to the satisfaction of the Collector in accordance with new section 37. This new offence is punishable by a penalty of 60 penalty units.

54. New subsection 36(7) provides that a person who has failed to deliver goods that are subject to the control of Customs, or part of those goods, in accordance with an authority to deal or a permission given under section 71E of the Customs Act, will commit an offence if the person fails to account for the goods, if required, to the satisfaction of the Collector in accordance with new section 37. This new offence is punishable by a penalty of 60 penalty units.

55. New subsection 36(8) provides that the offences created by new subsections 36(6) and (7) are both offences of strict liability. In imposing strict liability, consideration was given to both the Senate Standing Committee for the Scrutiny of Bills Sixth Report of 2002 on Application of Absolute and Strict Liability Offences in Commonwealth Legislation and the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers. It is considered that imposing strict liability to the new offences in subsections 36(6) and (7) will ensure the integrity of the regulatory regime which exists so that goods which are being imported or exported from Australia remain available to inspected or examined and dealt with in accordance with the Customs Act and other legislation.

Removal of goods by authority of section 71E permission

56. New subsection 36(9) provides that if the goods are removed to a place other than a warehouse by authority of a permission given to a person under section 71E of the Customs Act, the person is taken to have, or have been entrusted with the possession, custody or control of the goods for the purposes of new paragraphs 36(1)(b), (2)(b), (4)(b) and (6)(b).

57. New subsection 36(9) has the effect that it deems the person who has been given permission to move goods under section 71E of the Customs Act to have possession, custody or control of those goods for the purposes of the new offences contained in subsections 36(1), (2), (4) and (6).

Other liabilities not affected

58. New subsection 36(10) provides that the new offences created in section 36 do not affect the liability of a person arising under or by virtue of any other provision of the Customs Act or a security given under the Customs Act.

Accounting for goods

59. New section 37 specifies how a person, if requested, is to account for goods to the satisfaction of a Collector.

60. New section 37 provides that a person accounts for goods or part of goods to the satisfaction of the Collector only if the Collector sights the goods or, if the Collector is unable to sight the goods, the person satisfies the Collected that the goods have been dealt with in accordance with the Customs Act.

Item 3 - Subsection 243X(1)

61. This item inserts in subsection 243X(1) after the references to subsections 33(3), (3) or (6) a reference to new subsections 36(2), (6) or (7). The inclusion of the new subsections 36(2), (6) and (7) in subsection 243X(1) means that Division 5 of Part XIII of the Customs Act, which provides for infringement notices to be issued in lieu of prosecution, applies to these new offences.

SCHEDULE 5 - BOARDING POWERS AND THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (UNCLOS)

Customs Act 1901

Background

62. The Customs Act contains circumstances in which the commander of a Commonwealth ship or Commonwealth aircraft can make a request to board foreign ships, which empowers officers of Customs, police officers or members of the Australian Defence Force to board and exercise certain powers once the ship has been boarded. These powers are set out in Subdivision B of Division 1 of Part XII of the Customs Act. In originally formulating these powers, the United Nations Convention on the Law Of The Sea (UNCLOS) had to be taken into account. However, since these powers were enacted in 1999, several anomalies with UNCLOS have been identified and the amendments to the Customs Act contained in this Schedule address these anomalies.

Harmonisation of boarding powers

63. Section 184A of the Customs Act sets out the circumstances under which the commander of a Commonwealth ship or Commonwealth aircraft may request the master of a ship to permit the commander, a member of the commander's crew or an officer to board the master's ship. (In this context, an officer means officers of Customs, police officers or members of the Australian Defence Force - see section 185 of the Customs Act.) However, under UNCLOS, there is no requirement that such a request be made before a ship can be boarded in accordance with UNCLOS (except in the case of the commencement of the "hot pursuit" of a ship).

64. The amendments set out in the items of this Schedule, detailed below, amend section 184A to remove the requirement that a request to board must be made by the commander of a Commonwealth ship or aircraft before the ship can be boarded by the commander, a member of the commander's crew or an officer.

Item 1

65. This item repeals and substitutes subsection 184A(1).

66. Current section 184A(1) sets out a summary of when the commander of a Commonwealth ship or aircraft may request the master of ship to permit the ship to be boarded. The new subsection 184A(1) will simply state that, in the circumstances described in subsection 184A(2), (3), (4), (4A), (5), (6), (7), (8) or (9), an officer (within the meaning of section 185) may board a ship, removing the reference to the commander of a Commonwealth ship or aircraft and the master of a ship. These subsections set out the circumstances under which a ship may be boarded, in accordance with UNCLOS. For example, under subsection 184A(2), a foreign ship may be boarded in the territorial sea of Australia if the commander of a Commonwealth ship or aircraft reasonably suspects that the foreign ship is, will be or have been involved in a contravention of Division 307 of the Criminal Code. Division 307 deals with, amongst other things, the importation of border controlled drugs and plants.

Items 2, 6, 8, 9, 16, 22, 26, 32, 35, 36, 42, 52, 53, 54, 61 and 64

67. These items amend subsections 184A(2), (3), (4), (5), (6), (7), (8) and (9) by omitting the opening phrase to each of these subsections, which states that "The commander may make the request if:..." and substituting the phrase "The officer may board a ship if:...". These amendments, in combination with new subsection 184A(1), mean that if the circumstances set out in each of these subsections are satisfied, the ship can be boarded by officers without the commander of a Commonwealth ship or aircraft being required to make a request of a master of a ship.

68. In addition, the following amendments are required to be made to subsections 184A(3), (8) and (9) as a consequence of the removal of the request to board.

69. Item 8 amends subsection 184A(3) to substitute the wording of restriction on the use of the boarding power under subsection 184A(3) so that it no longer refers to the commander making a request to board under this subsection. It will now state that the subsection does not apply if the ship may be boarded under subsection 184A(9).

70. Item 35 amends subsection 184A(8) to also substitute the wording of restriction on the use of the boarding power under subsection 184A(8) so that it no longer refers to the commander making a request to board under this subsection. It will now state that the subsection does not apply if the ship may be boarded under subsections 184A(4A), (5), (6) or (7).

71. Item 42 amends subsection 184A(9) to also substitute the wording of restriction on the use of the boarding power under subsection 184A(9) so that it no longer refers to the commander making a request to board under this subsection. It will now state that the subsection does not apply if the ship may be boarded under subsections 184A(4A), (5), (6), (7) or (8).

72. Items 52 and 53 amend subsection 185(1) by omitting the phrase "a request to board the ship has been made" and substituting "the ship may be boarded" (twice occurring). Section 185 sets out the powers that may be exercised in respect of a ship that may be boarded under section 184A other than on the high seas, and subsection 185(1) currently provides that the section applies to a ship if the request to board has been made under section 184A. As a consequence of the removal of the request to board requirement, this subsection will now provide that section 185 applies to a ship if the ship may be boarded under section 184A. The Note to subsection 185(1) is also repealed by Item 54 and substituted to remove the reference to the request to board.

73. Items 61 and 64 amend subsections 185(5) and 185A(7) by omitting references in these subsections to the ship from which the relevant request under section 184A and substituting references to a Commonwealth ship referred to in section 184A, as a consequence of the removal of the request to board requirement. These items also amend these subsections to include specific references to a Commonwealth ship and a Commonwealth aircraft as a consequence of the repeal and substitution of subsection 184A(1). As the new subsection 184A(1) will no longer refer to the commander of a Commonwealth ship or Commonwealth aircraft, it is necessary to insert this reference into these subsections. These subsections set out the definition of officer for the purposes of each section.

Items 5, 12, 19, 24, 29, 34, 40 and 41

74. Items 5, 19, 24, 29 and 34 amend subsections 184A(2), (5), (6), (7) and (8) by omitting the phrases "the commander reasonably suspects" or "reasonably suspects that the master's ship" (where relevant) in each of these subsections and substituting either "the commander of a Commonwealth ship or Commonwealth aircraft reasonably suspects" or "of a Commonwealth ship or Commonwealth aircraft reasonably suspect that the ship" (where appropriate).

75. Item 12 amends paragraph 184A(4)(c) by inserting the phrase "of a Commonwealth ship or Commonwealth aircraft" after "commander".

76. Item 40 amends subparagraphs 184A(9)(b)(ii) and (iii) by omitting the phrase "reasonably suspects that the master's ship" and substitutes "of a Commonwealth ship or aircraft reasonably suspects that the ship".

77. Item 41 amends paragraph 184A(9)(c) by repealing the phrase "the Commander wishes to establish the identity of the master's ship" and substituting the phrase "the commander of a Commonwealth ship or Commonwealth aircraft wishes to establish the identity of the ship".

78. All of these amendments are a consequence of the repeal and substitution of subsection 184A(1), which contains the reference to the commander being the commander of a Commonwealth ship or Commonwealth aircraft, for the purposes of section 184A. As the new subsection 184A(1) will no longer refer to the commander of a Commonwealth ship or Commonwealth aircraft, it is necessary to insert this reference into each of the relevant subsections of section 184A.

Items 3, 7, 10, 13, 17, 23, 27, 33, 38 and 39

79. These items amend subsections 184A(2), (3), (4), (5), (6), (7), (8) and (9) to omit all reference to "master's" in respect of a ship. These amendments are also the consequence of the repeal and substitution of subsection 184A(1) where the reference to the request being made to a master of a ship to permit the master's ship to be board is being removed. This means that it is no longer necessary to refer to a master in respect of a ship that may be boarded in the remaining subsections of section 184A.

Items 21 and 31

80. These items amend subparagraphs 184A(5)(d) and (7)(d) to repeal and substitute these subparagraphs. These subparagraphs currently require that a request to board be made as soon as practicable after the contravention referred to in these subsections happens. New subparagraphs (b) require that the boarding occurs as soon as practicable after the contravention happens. These amendments are a consequence of the removal of the request to board requirement.

Item 43

81. This item repeals subsections 184A (10) and (11). Subsection (10) provides that a commander may use reasonable means to make a request to board and subsection (11) provides that a request to board will still be made even if there is no master on board to received the request or the master did not receive or understand the request. As a consequence of the removal of the request to board, these provisions are no longer required.

Items 44 and 45

82. Item 44 amends the offence provision in subsection 184A(12). Currently, it is an offence under this provision for a master to fail to comply with a request made under section 184A (other than a request made under subsection 184A(9)). As a consequence of the removal of the request to board requirement, the reworded offence will apply where the master of a ship does not facilitate, by all reasonable means, the boarding of the master's ship under section 184A (apart from subsection (9)).

83. Item 45 repeals and substitutes the Note to subsection 184A(12) as a consequence of the amendment to that provision. The new Note provides that the powers related to boarding under section 185 or 185A may still be exercised even though the master has not facilitated the boarding of his or her ship under this section (i.e. section 184A). This new Note removes the reference to a request to board which is contained in the current Note.

Item 51

84. This item amends section 184B of the Customs Act. Section 184B sets out the circumstances in which a foreign ship may be the subject of a "hot pursuit". (Further amendments are being made to section 184B by other items of this Schedule and are explained below.)

85. Item 51 amends subsection 184B(3) by omitting the phrase "the commander could have made a request to board the foreign ship" and substituting "the foreign ship could have been boarded". Again, as a consequence of the removal of the request to board, this subsection is being updated so that it refers the fact that the ship could be boarded (without a request having to be made).

Item 65

86. This item removes from section 228 of the Customs Act the reference to subsection 228(1). This amendment is a technical amendment to correct the numbering of the subsection.

Item 66

87. This item amends paragraph 228(1)(2) of the Customs Act, which sets out the circumstances under which a ship is forfeited to the Crown. Currently, a ship is forfeited if it is a ship the master of which has refused to permit his ship to be boarded following a request properly made of the master under subsection 184A(2) or (3). As a consequence of the removal of the request to board requirement, the reworded forfeiture circumstance will apply where the master of a ship has failed to facilitate, by all reasonable means, the boarding of the master's ship under subsection 184A(2) or (3).

New identification requirement as a consequence of the removal of the request to board

88. As a consequence of the removal of the request to board requirement, a new identification requirement is to be included in sections 185 and 185A of the Customs Act once the ship has been boarded. Section 185 sets out the powers that may be exercised in respect of a ship that may be boarded under section 184A other than on the high seas and section 185A sets out the powers that may be exercised in respect of a ship that may be boarded under section 184A on the high seas.

Items 58 and 63

89. Item 58 inserts new subsection 185(2AA) and (2AB). New subsection 185(2AA) provides that if one or more officers (as defined in this section) board a ship under section 185, the most senior of those officers who is an officer of Customs must:

a)

if requested to do so by the master of the ship; and

b)

as soon as reasonably practicable after boarding;

produce, for inspection by the master, written evidence of the fact that the officer is an officer within the meaning of section 185. However, this requirement does not apply in relation to officers who are members of the Australian Defence Force.

The most senior of the officers will be the person assigned as Boarding Team Leader of the boarding team and is the person with the highest rank in that team.

90. Under subsection 185(2AB), if the officer fails to produce the evidence mentioned in subsection (2AA), no officer may remain on the ship. This means that all officers, including officers who are members of the Australian Defence Force must leave the ship.

91. Identical provisions are also being inserted into section 185A by item 63.

Hot pursuit

92. As previously mentioned, section 184B sets out the circumstances in which a foreign ship may be the subject of a "hot pursuit". Subsection 184B(1) also requires amendment to account of the removal of the request to board. (The amendments in item 49 are more detailed than the other amendments to section 184B set out above.) Subsection 184B(1) is also being amended to ensure that the circumstances in which a "hot pursuit" may be undertaken, and the requirements that must be met before the pursuit can be commenced, are set out in more detail, consistent with UNCLOS.

Item 50

93. This item repeals and substitutes subsections 184B(1) and (2). New subsection 184B(1) provides that to enable the boarding of a foreign ship under section 184A (apart from under subsection 184A(9), the commander of a Commonwealth ship or Commonwealth aircraft may use it to chase, or continue the chase of, the foreign ship to any place outside the territorial sea of a foreign country if:

a)

a visual or auditory signal to bring the foreign ship to a position to enable boarding or to stop the foreign ship has been given (whether by the commander of the Commonwealth ship or Commonwealth aircraft or otherwise) - this requirement is required under UNCLOS and is currently satisfied by the making of the request to board. However, as a result of the alignment of the Customs Act with UNCLOS by the removal of the formal request to board, it is necessary to expressly include the requirement for a visual or auditory signal to be made in section 184B;

b)

the signal was given in such a way that it could be seen or heard (as the case may be) by the foreign ship; and

c)

at the time the signal was given, the foreign ship was in a maritime zone in which it could be boarded under section 184A (regardless of the location of the Commonwealth ship or Commonwealth aircraft) - again this is required under UNCLOS and the requirement is currently satisfied by the making of the request to board. However, it is now necessary to expressly include it in section 184B as a consequence of the removal of the request to board.

94. New subsection 184B(1A) provides that to avoid doubt, a visual or auditory signal mentioned in subsection 184B(1) is still made even if no person on board the foreign ship saw, heard or understood the signal. This qualification is in accordance with UNCLOS.

95. Subsection 184B(2) currently clarifies that a Commonwealth ship or aircraft may be used to chase a foreign ship even if it is not the ship or aircraft from which the request to board was made. As a consequence of the removal of the request to board, new subsection 184B(2) clarify that a Commonwealth ship or aircraft may be used in the chase:

a)

whether or not it was the Commonwealth ship or aircraft referred to in section 184A in relation to the boarding of the foreign ship under that section; and

b)

whether or not the visual or auditory signal referred to in new subsection 184A(1) was given from the ship or aircraft.

Safety zones around resources and sea installations

96. Under subsection 184A(4) of the Customs Act, the commander of a Commonwealth ship or aircraft may request the master of a foreign ship to permit the ship to be boarded where the ship is within 500 metres of an Australian resources installation or an Australia sea installation. This is the area that may be declared a safety zone for the installation, in accordance with UNCLOS. The purpose of this power to board is to enable the enforcement of relevant laws in the safety zones around installations, including installations in Australia's Exclusive Economic Zone (EEZ).

97. However, currently the commander may only make a request if he or she reasonably suspects that the master's ship has been involved in a contravention in Australia of the Customs Act, specified provisions of the Criminal Code or prescribed Acts. Restricting the application of this power to contraventions that occur in Australia (which for the purposes of Subdivision B of Division 1 of Part XII of the Customs Act includes the territorial sea) means that ships suspected of contraventions of the above-mentioned Acts that occur in safety zones around Australian resources and sea installations could not technically be boarded under subsection 184A(4). Items 11 and 15 of Schedule 5 amend section 184A to address this anomaly.

Items 11 and 15

98. Item 11 amends paragraph 184A(4)(b) to remove the references to an Australian resources or Australian sea installation from this subsection. The amended subsection 184A(4) only applies to foreign ships in the contiguous zone of Australia.

99. Item 15 inserts new subsection 184A(4A) which sets out the circumstances in which a ship that is within 500 metres of an Australian resources or Australian sea installation may be boarded (which also takes account of the removal of the request to board). New subsection 184A(4A) provides that the officer may board a ship if:

a)

the ship is a foreign ship; and

b)

the ship is within 500 metres of an Australian resources installation or Australian sea installation (the 500 metre zone); and

c)

the commander of a Commonwealth ship or Commonwealth aircraft:

(i)

wishes to establish the identity of the ship; or

(ii)

reasonably suspects that the ship is, will be or has been involved in a contravention or an attempted contravention in the 500 metre zone of the Customs Act, section 72.13 or Division 307 of the Criminal Code or an Act prescribed by the regulations for the purposes of Subdivision B of Division 1 of Part XII of the Customs Act.

Boarding of mother ships

Items 18 and 28

100. Subsections 184A(5) and (7) of the Customs Act allow the commander to make a request to board in respect of "mother ships" that are supporting contraventions of specified Acts in either Australia or Australia's Exclusive Economic Zone (the EEZ). However, currently such a request cannot be made if the "mother ship" is within 500 metres of an Australian resources installation or Australian sea installation. UNCLOS does not contain such a restriction in relation to "mother ships" and this restriction is to be removed.

101. Item 18 amends subsection 184A(5) by repealing subparagraph 184A(5)(b)(ii). The restriction relating to boarding in the 500 metre zone is contained in this subparagraph.

102. Item 28 amends subsection 184A(7) by repealing subparagraph 184A(7)(b)(ii). The restriction relating to boarding in the 500 metre zone is contained in this subparagraph.

Boarding of stateless vessels on the high seas

103. Under current subsection 184A(9), ships without nationality (for example a ship not flying a flag of a country) can only be boarded if they are outside the contiguous zone of Australia and outside the territorial sea of another country. However, the limitation in relation to being outside Australia's contiguous zone does not exist under UNCLOS so this restriction is also being removed.

Items 37 and 62

104. Item 37 amends subsection 184A(9) by repealing and substituting paragraph 184A(9)(a). This paragraph currently contains the restriction that a ship without nationality must be outside the outer edge of the contiguous zone of Australia and the territorial sea of a foreign country before it can be boarded. New paragraph (a) contains the restriction that the ship without nationality must be simply outside the territorial sea of a foreign country before such a ship can be boarded under subsection 184A(9).

105. Item 62 repeals and substitutes 185A(1). This section sets out the powers that may be exercised in respect of a ship that may be boarded on the high seas and subsection 185A(1) sets out the ships to which the section applies. The repeal and substitution of subsection 185A(1) will merely clarify that section 185A applies to a ship that may be boarded under subsection 184A(9) where the ship is outside the territorial sea of a foreign country and removes the reference to the contiguous zone restriction. New subsection 185A(1) also removes references to a request to board being made under section 184A, as a consequence of the removal of the request to board requirement. This provision will simply refer to a ship that may be boarded under the relevant provisions of section 184A.

Acts prescribed for the purposes of section 184A

106. Under section 184A, several of the circumstances in which the boarding powers may be exercised are for the purposes of an Act prescribed consistently with UNCLOS, or where the commander of a Commonwealth ship or aircraft suspects on reasonable grounds that the ship has been involved in the contravention of an Act prescribed consistently with UNCLOS. These Acts have been prescribed in the Customs Regulations 1926 (the Customs Regulations).

107. As previously referred to, section 185 sets out the powers that Customs officers may exercise once on board a ship that is not on the high seas. Similar to section 184A, some of those powers are linked to suspected contraventions of an Act prescribed by the Customs Regulations consistently with UNCLOS.

108. However, UNCLOS does not restrict which Acts can be prescribed - it only requires that a law to be enforced must deal with a subject matter in relation to which UNCLOS give a country jurisdiction. Therefore, amendments to sections 184A and 185 of the Customs Act remove all references to the requirement that an Act be prescribed consistently with UNCLOS and instead refer to Acts prescribed by the regulations for the purposes of Subdivision B of Division 1.

Items 4, 14, 20, 25, 30, 55, 56, 57, 59, 60 and 67

109. Items 14, 20, 25, 30, 55, 56, 57, 59 and 60 amend subsections 184A(2), (4), (5), (6) and (7), and subsections 185 (2) and (3) by omitting the references to "consistently with UNCLOS" and "an Act prescribed consistently with UNCLOS", and substituting with references to "for the purposes of this Subdivision" and "an Act prescribed by the regulations for the purposes of this Subdivision" respectively.

110. Item 4 amends subparagraph 184A(2)(c)(i) to omit the reference to "the commander makes the request for the purposes of this Act or an Act prescribed consistently with UNCLOS" and substitutes the phrase "the boarding would be for the purposes of this Act or an Act prescribed by the regulations for the purposes of this Subdivision". This amendment combines the amendment required to the regulation making power in relation to UNCLOS as well as the amendment required as a consequence of the removal of the request to board.

111. Item 67 amends section 270 of the Customs Act, which sets out the regulation making power, by inserting new subsection (6). This new subsection provides that regulations for the purposes of Subdivision B of Division 1 of Part XII must not prescribe an Act unless the Act deals with a subject matter in relation to which UNCLOS gives Australia jurisdiction.

Definition of "commander"

112. The commander of a Commonwealth ship or Commonwealth aircraft is defined in subsection 184A(14) of the Customs Act and includes a commissioned officer of the Australian Defence Force (the ADF). However, in some circumstances, the boarding of a ship may take place from an inflatable ship that has been launched from a larger Commonwealth ship and the person in charge of the inflatable ship may not be a commissioned officer. The definition is to be extended so that it also includes a warrant officer, and a non-commissioned officer, of the ADF.

Items 46, 47, 48 and 49

113. Item 46 amends the definition of "commander" in subsection 184A(14) by inserting new paragraphs (c) and (d), which refer to a warrant officer of the Australian Defence Force and a non-commissioned officer of the Australian Defence Force respectively. Each of these officers will be a commander for the purposes of section 184A.

114. Item 47 repeals the definition of member of the commander's crew. This term is currently only used in subsection 184A(1) and as a consequence of the repeal and substitution of subsection 184A(1), this term is no longer in section 184A and the definition in no longer required.

115. Items 48 and 49 insert two new definitions for the purposes of the amendments made by item 46. Non-commissioned officer of the Australian Defence Force means a non-commissioned officer within the meaning the Defence Force Discipline Act. Warrant officer of the Australian Defence Force means a sailor, soldier or airman who holds the rank of warrant officer.

Definition of "officer"

116. In subsections 185(5) and 185A(7), the term officer is defined for each of those sections. In subsection 185(5), officer expressly includes a police officer or a member of the Australian Defence Force. However, these positions have not been expressly included in subsection 185A(7) even though the current definition in subsection 185A(7) covers them. Subsection 185A(7) is to be amended to include an express reference to these officers and ensure consistency with the wording of the definition in subsection 185(5).

Item 64

117. This item amends subsection 185A(7) by inserting new paragraph (c). New paragraph (c) refers to a police officer or a member of the Australian Defence Force.

SCHEDULE 6 - IMPENDING ARRIVAL REPORTS FOR PLEASURE CRAFT

Customs Act 1901

Background

118. Section 64 of the Customs Act provides for the making of an impending arrival report by a ship or aircraft in respect of a voyage or flight to Australia from a place outside Australia. Section 64 sets out when the report is required to be made, how the report should be made and the offences for failing to make the report. Information collected in the report is used for risk assessment purposes and by other Commonwealth agencies such as the Australian Quarantine and Inspection Service and the Department of Immigration and Citizenship.

119. In relation to ships, subsection 64(5) requires the operator of a ship to report the impending arrival of the ship not earlier than 10 days before the estimated time of arrival of the ship at its first port in Australia and no later than the start of the period prescribed before the ship's estimated time of arrival. 96 hours has been prescribed in the Customs Regulations 1926 (the Regulations), when a ship's journey is over 96 hours, as the period before the ship's estimated time of arrival that the impending arrival report is required to be made. When the journey is less than 96 hours, different periods of time have been prescribed in the Regulations depending on the length of the journey.

120. While the requirements in subsection 64(5) apply to all ships coming to Australia, masters of some yachts and other pleasure type vessels have experienced some difficulty in complying with the requirements of subsection 64(5). The inability to comply usually occurs due to the lack of facilities that these types of vessels have onboard and the fact that the requirements in subsection 64(5) are primarily directed towards commercial vessels. The inability in particular for masters/operators of yachts and pleasure type vessels to comply with the requirement in paragraph 64(5)(a), which requires the impending arrival report to be made not earlier than 10 days before the estimated time of arrival of the ship, has resulted in a number of masters/operators committing an offence under section 64 of the Customs Act for failing to report of their impending arrival within the required timeframe.

121. To resolve some of the difficulties faced by masters/operators of yachts and pleasure type vessels, section 64 of the Customs Act is to be amended to exclude pleasure craft from the reporting timeframe set out in subsection 64(5), and to include a new reporting timeframe for pleasure craft. It is intended that pleasure craft will have a longer period of time, for example up to 3 months, to report their impending arrival. It is still intended that the report will still need to be made no later than the same periods prescribed for other ships.

122. If 3 months were to be prescribed, the amendment would enable the report to be made no earlier than 3 months (as opposed to 10 days) before the estimated time of arrival and no later than 96 hours prior to the pleasure craft's estimated time of arrival in Australia. For example, the master/operator of a pleasure craft on a journey from Cape Town (South Africa) to Australia, which may take between 5 and 6 weeks to complete, could report the impending arrival of the pleasure craft prior to setting out on the voyage to Australia. Alternatively, the master/operator may decide if they were to land in another foreign country before arriving in Australia, to report the impending arrival from that foreign country.

123. Although operators of pleasure craft will have a separate timeframe for reporting their impending arrival, the remaining requirements and offences contained in section 64 of the Customs Act will continue to apply to pleasure craft.

124. The amendment will only alter the time at which an impending arrival report may be made to Customs. The other requirements contained within the Customs Act, such as those relating to how the report is to be made will not change as a result of this amendment. Similarly, the offence provisions relating to the failure to report will not change and thus apply equally to pleasure craft.

Part 1 - Amendments

Item 1 - Subsection 4(1)

125. This item inserts in subsection 4(1) of the Customs Act a definition for the term ' pleasure craft '. 'Pleasure craft' for the purposes of the Customs Act is to mean a ship that from time of its arrival at its first port of arrival in Australia from a place outside Australia until the time of its departure from its last port of departure in Australia is:

a)

used or intended to be used wholly for recreation activities or sporting activities or both; and

b)

not used or intended to be used for any commercial activity; and

c)

not offered or intended to be offered for sale or disposal.

Item 2 - Subsection 64(5)

126. This item inserts in subsection 64(5) after the words "a ship" the words "other than a pleasure craft". This amendment means that operators of ships that are pleasure craft will no longer need to report their impending arrival in accordance with the requirements set out in subsection 64(5).

Item 3 - After subsection 64(5)

127. This item inserts a new subsection 64(5A) into the Customs Act. New subsection 64(5A) provides when the impending arrival report for a pleasure craft is required to be made. New subsection 64(5A) provides that the report must not be made earlier than the prescribed number of days before the time stated in the report to be the estimated time of arrival of the pleasure craft, and must not be made later than the start of the prescribed period before the pleasure craft's estimated time of arrival, or, if the journey is of a kind described in the regulations for new subparagraph 64(5A)(b)(ii), the start of the shorter period specified in those regulations before the estimated time of arrival.

Item 4 - Subsection 64(6)

128. This item inserts after "paragraph (5)(b)" in subsection 64(6) a reference to new paragraph 64(5A)(b). Inserting a reference to new paragraph 64(5A)(b) in subsection 64(6) means that the regulations will be able to prescribe matters of a transitional nature (including prescribing any saving or application provisions) arising out of the making of regulations for the purposes of new paragraph 64(5A)(b).

Part 2 - Application provision

Item 5 - Application

129. This item sets out an application provision in relation to the amendments being made by this Schedule. The application provision provides that the amendments made by Schedule 5 would apply to a ship if the period which has been prescribed for the purposes of new subparagraph 64(5A)(b)(i) or (ii) starts on or after the day on which the amendments in Schedule 5 commence.

130. The application provision has the effect that if the period prescribed was, for example, 48 hours and the amendments commence on a Monday, the application provision would provide that the amendment would apply to a ship, provided it was a pleasure craft, which had an estimated time of arrival on Wednesday. If however, the estimated time of arrival was on Tuesday, the amendment would not apply as the prescribed period of 48 hours would not have started on or after the day that the amendments commenced (as that period would start on Sunday).

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.

SCHEDULE 8 - POWER TO REQUEST AIRCRAFT TO LAND

Customs Act 1901

Background

137. Section 184D of Part XII of Division 1 of the Customs Act provides that the commander of a Commonwealth aircraft may request, in the circumstances set out in subsection 184D(3), for the pilot of an aircraft over Australia or an Australian aircraft not over a foreign country to land at the nearest airport or at the nearest suitable landing field in Australia. The request to land is made so that the aircraft can be boarded for the purposes of the Customs Act.

138. Subsection 184D(3) provides that the request to land may be made if the aircraft fails to identify itself if requested to do so under subsection 184D(2) or the commander reasonably suspects that the aircraft is, or has been, involved in a contravention or attempted contravention of the Customs Act or section 72.13 or Division 307 of the Criminal Code. Failure to comply with the request to land, unless the pilot of the aircraft has a reasonable excuse, is an offence to which up to 2 years imprisonment applies.

139. As the current circumstances that a request to land can be made are limited, section 184D is to be amended to include two new circumstances in which the request to land can be made. The two new circumstances are where an aircraft over Australia or an Australian aircraft not over a foreign country is suspected of carrying goods that are related to the carrying out of a terrorist act or the existence of the shipment of the goods prejudices, or is likely to prejudice, Australia's defence and security or international peace and security.

Item 1 - At the end of subsection 184D(3)

140. This item amends subsection 184D(3) of the Customs Act by inserting a new paragraph into that subsection. New paragraph 184D(3)(c) provides that the commander of a Commonwealth aircraft may request the pilot of an aircraft over Australia or an Australian aircraft not over a foreign country to land the aircraft at the nearest airport or at the nearest suitable landing field in Australia if the commander reasonably suspects that the other aircraft is carrying goods that are either or both: 1) connected, whether directly or indirectly, with the carrying out of a terrorist act, whether a terrorist act has occurred, is occurring, or is likely to occur; or 2) the existence of the shipment of the goods prejudices, or is likely to prejudice, Australia's defence or security or international peace and security.

141. The term 'Australian aircraft' is defined in subsection 184D(7) of the Customs Act. The term 'terrorist act' is defined in section 183 of the Customs Act for the purposes of Division 1 of Part XII. Division 1 of Part XII of the Customs Act includes section 184D.

SCHEDULE 9 - SEIZING UNACCOUNTED FOR GOODS AND STORING OR TAKING CUSTODY OF PROHIBITED ITEMS

Customs Act 1901

Background

Goods that are not accounted for

142. Under subsection 229(1) of the Customs Act, certain goods are forfeited to the Crown. In particular, paragraph 229(1)(e) applies to:

"All goods found on any ship or aircraft after arrival in any port or airport and not being specified or referred to in the cargo report made under section 64AB and not being baggage belonging to the crew or passengers and not being satisfactorily accounted for."

Forfeited goods can be seized under the authority of a seizure warrant granted under section 203 of the Customs Act.

143. Paragraph 229(1)(e) applies to goods a Customs officer might find while conducting a search of a ship that has arrived in Australia that are not part of the ship's cargo and which no member of the crew claims as their own. Such goods might include items such as certain types of pornography or a weapon.

144. Since there is no indication that the goods are intended to be taken off the ship and are therefore imported, such goods cannot be seized as prohibited imports even in the case of certain types of pornography or weapons. Goods are only imported into Australia if they are landed in Australia or are brought within a port with the intention of landing them in Australia. If there was an intention to take the goods off the ship, they would be imported and could be seized as prohibited imports without having to first obtain a seizure warrant. (All prohibited imports are special forfeited goods and can be seized without a seizure warrant when they are at a Custom place, which includes a appointed port). However, as they are only forfeited goods, a seizure warrant would have to be obtained before the goods could be seized. This can be a time-consuming process and, by the time the warrant has been obtained, the goods may have been disposed of or the ship may have left Australia.

145. Therefore, the goods that can be seized without a warrant at a Customs place are to be extended to the goods listed in paragraph 229(1)(e). This amendment will ensure, in particular, that the unaccounted for goods do not make their way into the Australian community.

Item 1 Subsection 183UA(1) (definition of special forfeited goods)

146. This item amends the definition of special forfeited goods in subsection 183UA(1) of the Customs Act by inserting a reference to paragraph 229(1)(e). Currently, only goods referred to in paragraphs 229(1)(b) or (n) are special forfeited goods by definition, being prohibited imports and prohibited exports respectively. As referred to above, special forfeited goods can be seized by a Customs officer without a warrant when the goods are at a Customs place. Including goods covered by paragraph 229(1)(e) in this definition will mean that these goods can also be seized without a warrant when they at a Customs place.

Part XIIA of the Customs Act - Approved storage or taking into custody of prohibited items

147. Part XIIA of the Customs Act sets out the regime whereby Customs officers can either lock on board a ship or aircraft, or take into custody, firearms that are prohibited imports for the duration of a ship or aircraft's visit in Australia. This regime was put in place in 1999 to protect the community from the potential danger of firearms that have come into Australia on a ship or aircraft but which are not intended to leave the ship or aircraft. Legally speaking, in such circumstances, these firearms do not need to satisfy any of the requirements set out in the Customs (Prohibited Imports) Regulations 1956 (the PI Regulations) as they are not imported. They also cannot be seized without a warrant as special forfeited goods because they are not imported. However, this regime eliminates the possibility that these firearms may be diverted into the Australian community.

148. In order to strengthen the protection that is given by the regime in Part XIIA of the Customs Act, its coverage is to be extended to all goods listed in the PI Regulations. This will ensure that where goods arriving in Australia that are part of the stores of the ship or aircraft or the personal effects of the crew and that would be subject to restriction under the PI Regulations if imported, but may be freely available in other jurisdictions, either cannot leave the ship or aircraft on which they arrive or can be taken into custody by Customs.

Item 2 Part XIIA (heading)

149. This item substitutes the heading to Part XIIA with a new heading referring to " Special provisions relating to prohibited items " (as opposed to prohibited weapons)

Items 3 and 4 Section 227A

150. These items amend section 227A, which sets out the overview of Part XIIA to replace the references to certain weapons with a reference to certain items. The overview contains a brief description of the goods to which Part XIIA applies and the action that may be taken by Customs officer in relation to such goods in specified circumstances.

Items 5 and 6 Section 227B (definition of prohibited weapon)

151. These items amend section 227B by repealing the current definition of prohibited weapon and inserting a new definition of prohibited item. A prohibited item will mean a thing to which Part XIIA applies because of section 227D (in Part XIIA).

Item 7 Section 227D

152. This item repeals and substitutes section 227D, which sets out the goods to which Part XIIA applies.

153. New section 227D provides that Part XIIA applies to any thing if:

a)

it is on board a ship or aircraft to which Part XIIA applies (which is set out in section 227C in Part XIIA which is unchanged by the Bill). The Part applies to a ship or aircraft that is on a voyage or flight to Australia from a place outside Australia and that is not taken to have been imported into Australia); and

b)

its importation is:

(i)

prohibited absolutely by the PI Regulations; or

(ii)

prohibited by the PI Regulations unless a licence, permission, consent, approval or other document (however described) is granted or given, and such a licence, permission, consent, approval or other document has not been granted or given; and

c)

either:

(i)

it is, or should have been, specified in a report given by the operator under section 64AAA as part of the stores of the ship (section 64AAA sets out the requirement that a report of the ship or aircraft stores must be made to Customs upon the arrival of the ship or aircraft in Australia); or

(ii)

it is part of the personal effects of the crew of the ship or aircraft.

Therefore, Part XIIA will apply to all goods listed in the PI Regulations as opposed to only firearms, firearm accessories etc. New section 227D also updates the reference to the section of the Customs Act under which a stores report must be made, which is now section 64AAA (and no longer section 64AA).

Items 8, 9, 10 and 11

154. These items amend section 227E by omitting references to "prohibited weapon" and "weapon" and substituting these with references to "prohibited item" and "item". This means that section 227E, which sets out the circumstances in which goods to which Part XIIA applies can be stored on board a ship or aircraft, now applies to prohibited items and not just prohibited weapons.

Items 12, 13, 14 and 15

155. These items amend section 227F by omitting references to "weapon" and substituting these with references to "item". This means that section 227F, which sets out the circumstances in which goods to which Part XIIA applies can be taken into custody by a Customs officer, now applies to prohibited items and not just prohibited weapons.

SCHEDULE 10 - POWERS OF ARREST

Part 1 - Amendments

Customs Act 1901

Background

156. Subdivision H of Division 1 of Part XII of the Customs Act sets out the powers of an officer of Customs and police to arrest persons without a warrant in relation to particular offences which have or are being committed.

157. Section 210 of Subdivision H provides that an officer of Customs or police may arrest without a warrant any person that the officer has reasonable grounds to believe is guilty of an offence listed in subsection 210(1). Subsection 210(1) lists offences contained in the Customs Act, such as those relating to the smuggling of and the unlawful importation and exportation of certain goods, and certain offences contained in the Criminal Code, such as those relating to the trafficking and possession of controlled drugs and the importation of plastic explosives.

158. Section 212 of the Customs Act provides that a person arrested under section 210 may be detained until such time as he or she can, without undue delay, be taken before a Justice. Once the person is taken before a Justice, section 213 of the Customs Act provides that the Justice may commit the person to gaol until the hearing of the charge or may release the person on bail until such time as the hearing of the charge can occur.

159. While section 210 of the Customs Act permits an officer of Customs or police to arrest a person without a warrant for an offence listed in section 210, the Customs Act, unlike the arrest powers contained in the Crimes Act 1914 (the Crimes Act), does not specify any matters that must be taken into account by an officer before the arrest is made and does not specifically include any powers that may be exercised, or obligations to be fulfilled, once the arrest has been made.

160. The Crimes Act, in addition to the power to arrest a person without a warrant, contains provisions relating to the level of force that an officer may used when making the arrest the circumstances when a frisk search of an arrested person may be undertaken and the circumstances in which a person who has been arrested can be released. The Crimes Act also requires an officer to inform the person being arrest of the grounds of their arrest.

161. As the Customs Act contains only limited provisions which relate to the arrest of a person without a warrant, the Customs Act is to be amended so that the arrest powers in the Customs Act are consistent with those that are contained in the Crimes Act.

162. As Customs officers often have difficulty with detaining people who they have arrested under section 210 of the Customs Act due to the lack of suitable facilities to detain the person and the length of time that the person may have to be detained until they can be taken before a Justice, sections 212 and 213 of the Customs Act are to be amended so that a Customs officer who has arrested a person under section 210 will be required to deliver that person as soon as practicable to the custody of the police or taken before a magistrate or bail justice.

Item 1 - Subsection 183UA(1)

163. This item inserts a definition for the term "seizable item" into subsection 183UA(1) of the Customs Act. Subsection 183UA(1) is the definition section for Division 1 of Part XII of the Customs Act. The term "seizable item" is defined to mean anything that would present a danger to a person or that could be used to assist a person to escape from lawful custody.

Item 2 - Subdivision H of Division 1 of Part XII

164. This item repeals and substitutes Subdivision H of Division 1 of Part XII of the Customs Act with a new Subdivision H. New Subdivision H outlines new arrest powers and obligations relating to use of that power.

New section 210 - Power of arrest without warrant

165. New section 210 provides the power for an officer of Customs or police to arrest a person without a warrant in certain circumstances. New section 210 specifies when a person may be arrested without a warrant and qualifies when the power of arrest should be exercised. The qualifications contained in new section 210 are consistent with those which are contained in section 3W of the Crimes Act.

166. Subsection 210(1) provides that an officer of Customs or police may without a warrant arrest a person if the officer believes on reasonable grounds that the person has committed, or is committing, one or more of the offences listed in paragraph 210(1)(a) and proceedings by summons against the person would not achieve one or more of the purposes noted in paragraph 210(1)(b).

167. Paragraph 210(1)(a) lists the offences for which the power of arrest without a warrant may be used. The offences in new paragraph 210(1)(a) are the same as the offences in current subsection 210(1) prior to its repeal by this Schedule. The list of offences in new paragraph 210(1)(a) however does include the additional offences which are contained in subsections 33(1) or 33(5) of the Customs Act. The offences under subsections 33(1) and (5) relate respectively to moving, altering or interfering with goods which are subject to the control of Customs or directing or permitting another person to move such goods.

168. New paragraph 210(1)(b) qualifies the power of arrest contained in paragraph 210(1)(a). Paragraph 210(1)(b) requires the officer before arresting a person without a warrant to be of the view that proceedings by summons would not achieve one or more of the purposes noted in paragraph 210(1)(b). The purposes specified in paragraph 210(1)(b) are the same as those that are contained in subsection 3W(2) of the Crimes Act.

169. Paragraph 210(1)(b) specifies the following purposes:

•

ensuring the appearance of the person before a court in respect of the offence;

•

preventing a repetition or continuation of the offence or the commission of another offence;

•

preventing the concealment, loss or destruction of evidence relating to the offence;

•

preventing harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence;

•

preventing the fabrication of evidence in respect of the offence; and

•

preserving the safety or welfare of the person.

170. New subsection 210(2) provides that it is an offence if a person resists, obstructs or prevents the arrest of any person under new section 210. The offence is punishable by a penalty of 10 penalty units.

171. New subsection 210(3) sets out when a person arrested under section 210 must be released. Subsection 210(3) provides that if the officer of Customs or police no longer has reasonable grounds to believe that the person has committed the offence for which they were arrested, and the person has not be charged, and the holding of the person in custody is no longer necessary to achieve a purpose noted in paragraph 210(1)(b), the person must be released.

172. New subsection 210(4) provides power for an officer of Customs or police to arrest without a warrant a person who the officer believes on reasonable grounds has escaped from lawful custody where the person is still liable under Subdivision H of Part XII of the Customs Act.

New section 210A - Use of force in making arrest

173. New section 210A, which is consistent with the use of force provisions contained in section 3ZC of the Crimes Act, sets out the force that may be used in the course of an arrest under section 210.

174. Subsection 210A(1) provides that an officer of Customs or police must not, in the course of an arrest under section 210, use more force or subject the person to greater indignity then is necessary and reasonable to make the arrest or to prevent the escape of the person after the arrest.

175. New subsection 210A(2) further provides that an officer of Customs or police must not use force which is likely to cause death or grievous body harm to the person being arrested unless the officer believes on reasonable grounds that:

•

the use of such harm is necessary to protect the life or to prevent serious injury to another person including the officer; or

•

the use of such harm, if the person is attempting to escape arrest by fleeing, is necessary to protect the life or to prevent serious injury to another person including the officer; or

•

the use of such harm, where the person is attempting to escape arrest by fleeing and the person has, if practicable, been called on to surrender, is considered necessary if the person cannot be apprehended in any other manner.

New section 210B - Person to be informed of grounds of arrest

176. New section 210B, which is consistent with the requirement in section 3ZD of the Crimes Act that a person be informed of the grounds of their arrest, requires an officer who has made the arrest under section 210 of the Customs Act to inform the person being arrested of the offence that they have been arrested for. Subsection 210B(1) requires the person arrested to be informed at the time of their arrest.

177. Subsection 210B(2) clarifies what a person being arrested under section 210 is required to be informed of. Subsection 210B(2) provides that officer need only inform the person of the substance of the offence and when informing the person of the substance of the offence the officer is not required to use language of a precise or technical nature to describe the offence.

178. Subsection 210B(3) provides that an officer is not required to inform a person being arrested of the grounds for their arrest if the person being arrested should, because of the circumstances of the arrest, know the substance of the offence or the person's action made it impracticable for the officer to inform the person.

New section 211 - Power to conduct a frisk search on an arrested person

179. New section 211, which is consistent with the frisk search powers contained in section 3ZE of the Crimes Act, allows an officer of Customs or police who arrests a person under section 210, or who is present at the arrest of the person, to conduct a frisk search of the person arrested. Section 211 requires the frisk search to occur at or as soon after the time of arrest and should only be done if the officer suspects on reasonable grounds that it is prudent to do the search in order to ascertain if the person is carrying any seizable items. If seizable items are found, section 211 allows those items to be seized.

180. Item 1 of this Schedule inserts a definition for the term "seizable item" in subsection 183UA(1) of the Customs Act. "Seizable item" is defined to mean anything that would represent a danger to a person or that could be used to assist a person to escape from lawful custody.

New section 211A - Power to conduct an ordinary search of an arrested person

181. New section 211A, which is consistent with the power to conduct an ordinary search on a person arrested contained in section 3ZF of the Crimes Act, allows an officer of Customs or police who has arrested a person under section 210 or who is present at the arrest, to conduct an ordinary search of the arrested person. Section 211A requires the ordinary search to be conducted at or as soon after the time of arrest and only if the officer suspects on reasonable grounds that the person is carrying either evidential material in relation to the offence or another offence or the person is carrying seizable items. Section 211A permits the seizure of evidential material and seizable items which are found during the ordinary search.

New section 212 - How arrested person to be dealt with

182. New section 212 requires the officer of Customs who arrested a person under section 210 to ensure the person is either delivered into the custody of a police officer or is taken before a magistrate or bail justice as soon as practicable. New section 212 avoids the office having to detain the person arrested for lengthy periods of time until the person is able to be taken before a judicial officer. The ability for the person arrested to be delivered into the custody of a police office will mean that if the arrest under section 210 is made outside normal business hours, as frequently occurs, the person under arrest will be able to be held in appropriate police facilitates until the person arrested can be dealt with in accordance with the law.

News section 213 Requirement to furnish name etc

183. New section 213, which is consistent with section 3V of the Crimes Act, requires a person arrested and the officer making the arrest to furnish their name and other information when requested.

184. New section 213 provides that an officer of Customs or police may request a person arrested under new section 210 of the Customs Act to provide his or her name or address or his or her name and address, if the person's name or address is not known to the officer.

185. If is an offence under subsection 213(2), to which a penalty of 5 penalty units apply, for a person arrested under section 210 to refuse to give his or her name and address or to give a name and address that is false in a material particular. It is however not an offence if the person arrested refuses to give his or her name and address or gives a false name and address if the person has a reasonable excuse or the officer fails to furnish, when requested, his or her name, his or her place of duty or evidence that the officer (if the officer is not uniformed and it is practicable for the officer to provide evidence) is a Customs or police officer.

186. Subsection 213(4) further creates a new offence, to which a penalty of 5 penalty units apply, if an officer has requested the person arrested to provide his or her name and address and the officer refuses or fails, when requested by the person arrested, to give his or her name, his or her place of duty or evidence that the officer (if the officer is not uniformed and it is practicable for the officer to provide evidence) is a Customs or police officer.

Financial Transactions Report Act 1988

Item 3 - Subsection 33A(4)

187. This item omits in subsection 33A(4) of the Financial Transactions Reports Act 1988 (the Financial Act) the words "section 212 and 213 of the Customs Act 1901 apply" and substitutes the omitted words with "section 212 of the Customs Act 1901 applies".

188. Section 33A of the Financial Act provides for a person to be arrested without a warrant where the officer making the arrest has grounds to believe that the person is guilty of an offence against section 15 of the Financial Act. Section 15 of the Financial Act relates to the reporting of the transfer of currency into or out of Australia.

189. Subsection 33A(4) provides, before the amendments made by this Schedule commence, that sections 212 and 213 of the Customs Act apply to a person arrested without a warrant under section 33A of the Financial Act as though the person had been arrested under section 210 of the Customs Act.

190. As a consequence of the repeal and substitution of Division H of Division 1 of Part XII of the Customs Act by Item 2 of this Schedule, the Financial Act also requires amendment. The amended subsection 33A(4) provides that where a person is arrested under section 33A, new section 212 of the Customs Act, insert by item 2 of this Schedule, applies as though the person arrested under section 33A had been arrested under section 210 of the Customs Act.

Part 2 - Application provision

Item 4 - Application to arrest made before commencement of this Schedule

191. This item sets out an application provision in relation to the amendments being made by this Schedule. The application provision provides that the amendments made by this Schedule, with the exception of new subsection s210(3) and (4), will not affect the validity of and will not apply to an arrest made under section 210 before the amendments in this Schedule commence.

192. Subsection 210(3) and (4), which relate respectively to the power to release of a person arrested if there is no longer reasonable grounds to detain the person and the power to arrest a person who is believed to have escaped from lawful custody, will apply to a person who has been arrested under section 210 before the amendments in this Schedule commenced, as if the person was arrested after the commencement of the amendments in this Schedule.

SCHEDULE 11 - WARRANTS

Customs Act 1901

Background

193. Sections 198, 203 and 203DA of the Customs Act provide for warrants to be issued by judicial officers, including judicial officers of State Courts, for the search of premises or the seizure of certain goods. Section 208G of the Customs Act requires a copy of the warrant, when a search or seizure warrant is being executed at premises, to be made available to the occupier of the premises.

194. Paragraph 203G(5)(a) provides that 'a copy of the warrant', in relation to a warrant issued under sections 198, 203 or 203DA of the Customs Act, means a copy of the warrant which includes the signature of the judicial officer who issued the warrant and the seal of the relevant court.

195. As a number of Courts no longer use court seals, such as the State courts of Queensland, the requirement in paragraph 203G(5)(a) that the copy of the warrant include the seal of the relevant court, is not able to be complied with.

196. Consistent with warrant provisions in other Commonwealth legislation, such as the Crimes Act 1914 and the Environmental Protection and Biodiversity Conservation Act 1999 which do not require a copy of the warrant to include the seal of the relevant court, paragraph 203G(5)(a) of the Customs Act is to be amended to remove the requirement that the copy of the warrant include the seal of the relevant court.

Item 1 - Subsection 203G(5) (paragraph (a) of the definition of a copy of the warrant)

197. This item omits from paragraph (a) of the definition of 'a copy of the warrant' contained in subsection 203G(5)(5) of the Customs Act the words "and the seal of the relevant court". This amendment means that a copy of a warrant issued under section 198, 203 or 203DA of the Customs Act only needs to contain the signature of the judicial officer.

SCHEDULE 12 - COMMONWEALTH PROPERTY IN CUSTOMS PLACES

Customs Act 1901

Background

198. Customs utilises a wide range of equipment such as motor vehicles, X-ray machines, CCTV cameras and portable scanning devices to facilitate its role in managing the security and integrity of Australia's borders. Customs has identified several circumstances in which CCTV cameras located at Customs-controlled waterfront and airport areas have been damaged. However, it is foreseeable that people may, for example, physically alter the position of a camera, place objects in front of a camera, or attach some form of material or object over the lens of a camera, without necessarily damaging the equipment.

199. It is also possible to interfere with X-ray machines and other Customs equipment. Such interference to Customs equipment represents a serious risk to the integrity and effectiveness of Customs border control operations. For example, intentional repositioning of a camera at the waterfront could conceal the illicit activities of persons intending to interfere with the contents of a container.

200. Section 29 of the Crimes Act 1914 (the Crimes Act) provides that any person who intentionally destroys or damages any property, whether real or personal, belonging to the Commonwealth or to any public authority under the Commonwealth, shall be guilty of an offence. However, this offence is not applicable to circumstances set out above where the Commonwealth equipment is not damaged. This Schedule inserts a new offence in the Customs Act to cover such circumstances.

Item 1 - After section 33B

201. This item amends the Customs Act by inserting new section 33C.

202. New section 33C provides that a person commits an offence if:

a)

the person intentionally obstructs or interferes with the operation of a thing; and

b)

the thing belongs to the Commonwealth; and

c)

the thing is located in a Customs place.

The offence will be punishable by an penalty of 60 penalty units.

203. The term "Customs place" is defined in subsection 183UA(1) of the Customs Act, and includes all of the places at which Customs, and officers of Customs, carry out their functions, for example all proclaimed ports and airports and all Customs Houses.

204. Similar to subsection 29(2) of the Crimes Act, absolute liability applies to the physical element of circumstance of the offence, that the property is property belonging to the Commonwealth. This is considered appropriate in this circumstance as this is a jurisdictional element rather than an element going to the essence of the offence (see Part 4.5 of the "Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers").

Item 2 - Subparagraph 210(1)(a)(ii)

205. This item amends subparagraph 210(1)(a)(ii) (as inserted by Schedule 10 to this Bill) to insert a reference to new section 33C. This means that an officer of Customs or police may without warrant arrest a person if the officer believes on reasonable grounds the person has committed or is committing the offence in new section 33C.

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.

SCHEDULE 14 - FACILITATION OF BOARDING

Customs Act 1901

Background

216. Section 61 of the Customs Act currently places an obligation on the master of an arriving ship, the master of a resources installation or the owner of a sea installation to facilitate the boarding of the ship or installation by all reasonable means. In particular, Customs is required to board ships on arrival in Australia to:

-

conduct Customs and Immigration clearance of the ship and crew; and

-

verify advance crew and ship information previously provided by the ship's master or the ship's agent prior to arrival.

217. In some situations, due to the location and design of the berth, the master of a ship is unable to facilitate boarding in accordance with section 61. In such cases, the Customs officers rely on the port loading cranes (with personnel cages) or other port owned facilities to board the vessel. In these situations, the port operator or the port facility operator is often the only entity with the ability to facilitate the boarding.

218. However, there is no legislative obligation placed on the owner or operator of a port or port facility to facilitate the boarding of Customs officials in circumstances such as those above.

Item 1 - After section 61

219. This item amends the Customs Act by inserting new section 61A. This new section imposes such an obligation on the owner or operator of a port or port facility.

220. New subsection 61A(1) provides that an officer of Custom may request an owner or operator of a port or of a port facility to facilitate, by any reasonable means, the boarding of a ship that is in the port by any person who is authorised under the Customs Act to board the ship.

221. New subsection 61A(2) provides that the owner or operator commits an offence if the owner or operator fails to comply with the request. The offence is punishable by a penalty of 30 penalty units. This is not a strict liability offence.

222. New subsection 61(3) provides that a port facility is an area of land or water, or land and water, (including any buildings, installations or equipment in or on the area) used either wholly or partly in connection with the docking, mooring, loading and unloading of ships.

223. This amendment seeks to address the rare circumstances where, as outlined above, the master of a ship is unable to lower equipment such as a gangway to enable Customs officers to board the vessel (for example, due to the design of the berth). An example of such a situation is where a bulk carrier ship is berthed in a port where there is either no or limited access to infrastructure at the berth that is suitable for the master to lower a gangway onto. As mentioned above, in such circumstances Customs would require the use of port facilities such as personnel cages attached to loading cranes to facilitate the boarding of the ship by Customs officers.

224. As a matter of general practice, Customs will continue to seek to use the boarding infrastructure provided by the master of a ship (for example, a gangway or pilot ladder) before seeking the assistance of a port or port facility owner or operator. As stated above, it is expected that the need to seek this alternative assistance will rarely arise.

225. The obligation on a port or port facility owner operator will be to facilitate, by any reasonable means, the boarding of a ship that is located anywhere within the limits of the appointed port. What constitutes "reasonable means" will need to be determined based on the boarding considerations and requirements associated with each particular port or port facility. Customs will negotiate suitable arrangements with port or port facility owners and operators for use of equipment suitable to facilitate the boarding of ships by Customs officers. An example of such assistance may include making personnel cages attached to loading cranes available for use or, if port-side access is not feasible, making a ship available to enable Customs officers to board from a rope ladder lowered on the seaward side of the ship. In addition, exceptional high risk circumstances may arise where a port or port facility owner or operator may be required to immediately cease other loading or unloading activities in order to facilitate a boarding.

SCHEDULE 15 - ENTERING PLACES OTHER THAN PORTS OR AIRPORTS

Customs Act 1901

Background

226. Section 58 of the Customs Act places an obligation on the master of a ship and a pilot of an aircraft to enter Australia at appointed ports and airports. Subsection 58(1) provides that the master of a ship and the pilot of any aircraft shall not suffer his or her ship or aircraft to enter any place other than a port or airport unless from stress or weather or other reasonable cause. Section 4(1) of the Customs Act defines 'port' and 'airport' to mean those appointed under section 15 of the Customs Act by the Chief Executive Officer of Customs. It is an offence for failing to comply with subsection 58(1) to which up to 500 penalty units may apply.

227. As the terminology used in subsection 58(1) is dated, at the request of industry subsection 58(1) will be amended to update the language used in that subsection.

Item 1 - Subsection 58(1)

228. This item substitutes in subsection 58(1) the words "suffer his or her ship or aircraft to enter any" with the words "bring his or her ship or aircraft to a". The amendment is not intended to change how subsection 58(1) operates.

SCHEDULE 16 - RIGHT OF ACCESS FOR PATROLS

Customs Act 1901

Background

229. As part of performing their functions and carrying out their duties, officers of Customs require access to certain areas for patrolling and for the purpose of detecting and/or dealing with arriving or departing ships or aircraft and the people or goods associated with such ships and aircraft.

230. Section 15 of the Customs Act enables the CEO of Customs to appoint specific ports and airports for the purposes of the Customs Act. Ships and aircraft arriving from overseas or departing for overseas are required to report to Customs at these appointed ports or airports.

231. The existing power for officers of Customs to patrol areas under section 193 of the Customs Act includes access to any part of the coast, railways and airports and the shores, banks or beaches of any port bay harbour or lake. This power allows Customs to detect and deal with individuals, ships or aircraft within appointed ports and airports as well as those attempting to circumvent the Customs Act by arriving or departing from areas that are not section 15 appointed ports or airports.

232. However, several limitations have been identified in relation to the operation of current section 193. For example:

a)

the provision does not clearly indicate whether this power includes the ability to access and patrol man-made structures such as piers, docks, breakwaters, loading, assembly and other similar areas, that are located at or in the places mentioned in section 193;

b)

whilst the provision provides the power to patrol any part of the coast, there is no guarantee that access may be gained to areas that are fenced or contain features that may obstruct an ability to gain access and patrol;

c)

section 193 does not require an owner, occupier or person who controls such an area to facilitate access to an officer of Customs. This may limit the effectiveness of the power in section 193 to provide officers of Customs with access to areas which need to be patrolled;

d)

officers of Customs have experienced difficulties in gaining access to places mentioned in section 193 that are completely surrounded by private property.

Item 1 - Section 193

233. Current section 193 is to be repealed and replaced by item 1 of this Schedule to address these limitations.

234. New subsection 193(1) provides that an officer of Customs may, for the purposes of the performance of the duties and functions of an officer of Customs, enter and remain upon any part of:

a)

the coast, including but not limited to the shores, banks, beaches and any man-made structure in or on the coast;

b)

any part of a port, bay or harbour, including but not limited to the shores, banks, beaches and any man-made structure in or on the port, bay or harbour;

c)

an airport or airstrip, including an airport that has not been appointed as an airport under section 15 of the Customs Act;

d)

a lake or river, including but not limited to the shores, banks, beaches and any man-made structure in or on the lake or river; or

e)

any area of land or water that is adjacent to, any of these places listed in paragraphs (a) to (d) for the purposes of entering and remaining upon these places in (a) to (d).

This power will also be extended to a person assisting an officer of Customs, for the purpose of assisting the officer to perform the officer's functions and duties.

235. An officer of Customs, or a person assisting the officer, may use all reasonable means, including the use of reasonable force, for the purposes of entering any of the places referred to above. Customs will develop policies and procedures in relation to the use of the powers in subsection 193(1) through the use of reasonable means.

236. New subsection 193(2) provides that a person commits an officer if:

a)

the person is the owner, occupier or operator of any of the places referred to in subsection 193(1); and

b)

the person is present at that place at the time an officer of Customs, or person assisting an officer, seeks to exercise the power to enter that place; and

c)

the person does not provide the officer, or person assisting the officer with all reasonable facilities and assistance, including means of access to the place, that the person is reasonably capable of providing.

The offence is punishable by a penalty of 30 penalty units.

237. This new power will not derogate from the powers of an officer of Customs under section 152 of the Maritime Transport and Offshore Facilities Security Act 2003 and Customs will continue to manage the requirements of this Act in accordance with existing arrangements, policies and procedures.

238. As a matter of general practice, Customs will seek to obtain the consent and assistance of the owner, occupier or operator of places mentioned in subsection 193(1) before exercising the powers under subsection 193(1). However, if consent cannot be obtained, it is foreseeable that Customs officers may need to gain entry by force (for example, breaking a padlock or removing a section of a fence). Customs does note that operational flexibility is required and in certain circumstances there may be an operational imperative for Customs to enter a place without prior notification to the owner/occupier/operator. However, Customs anticipates that the circumstances requiring such action would however be extremely rare.

239. Customs also notes that the obligation on an owner, occupier and operator of relevant places will be to provide a Customs officer with all reasonable facilities and assistance, including a means of access to the place, that the person is reasonably capable of providing. This will be determined on a case by case basis, taking account of the requirements for access to each relevant place.

SCHEDULE 17 - SEARCH AND SEIZURE WARRANTS

Customs Act 1901

Background

240. Under section 198 of the Customs Act, a judicial officer may issue a warrant to search premises for, and seize, evidential material relating to specified offences under the Customs Act. Under section 203 of the Customs Act, a judicial officer can also issue a warrant for the seizure of forfeited goods on premises. "Forfeited goods" are those goods that are forfeited to the Crown under various sections of the Customs Act and the Commerce (Trade Descriptions) Act 1905. Under section 203DA, a warrant may also be issued for the seizure of certain in-transit goods, for example goods related to the carrying out of a terrorist act.

Carrying out a frisk or ordinary search under a search or seizure warrant for seizable items

241. Under sections 199 and 203 of the Customs Act, a search or seizure warrant may authorise the frisk or ordinary search of a person at or near the warrant premises if the executing officer or person assisting has reasonable grounds to suspect that the person has evidential material (under a search warrant) or forfeited goods (in a seizure warrant) in his or her possession. However, unlike section 3F of the Crimes Act 1914, there is no power to conduct such a search for anything that would present a danger to a person or that could be used to assist a person to escape from lawful custody. This poses a safety risk for Customs officers and other people at or near warrant premises.

242. In addition, a seizure warrant issued under section 203 cannot presently authorise the seizure of any evidential material found on the warrant premises relating to an offence committed in respect of forfeited goods and special forfeited goods. At present, a search warrant would also have to be issued in relation to the same premises covered by a seizure warrant.

243. The amendments in items 1 to 10 in this Schedule amend the relevant sections of the Customs Act to allow a search warrant to also authorise the frisk or ordinary search of a person at or near the warrant premises if the executing officer or person assisting has reasonable grounds to suspect that the person has seizable items in his or her possession. These amendments will also extend to a seizure warrant in the same terms and will also allow a seizure warrant to authorise a frisk or ordinary search for evidential material relating to an offence committed in respect of forfeited goods and special forfeited goods.

Item 1 Paragraph 198(4)(b)

244. This item amends paragraph 198(4)(b) to include a reference to "seizable item". This will allow a judicial officer to state in a search warrant that the warrant authorises a frisk or ordinary search of a person at or near warrant premises for a seizable item.

245. The definition of "seizable item" (see the amendments in items 1, 2, 3, 5, 8 and 9 of this Schedule) is being inserted into subsection 183UA(1) of the Customs Act by Schedule 10 to this Bill. "Seizable item" is defined as anything that would present a danger to a person or that could be used to assist a person to escape from custody.

Items 2 and 3 Subparagraphs 199(1)(e)(i) and (ii)

246. These items amend subparagraphs 199(1)(e)(i) and (ii) to also include a reference to "seizable item" and "items" respectively. Subsection 199(1) sets out the activities authorised by a search warrant. This will mean, if a warrant allows a frisk or ordinary search of a persons at or near warrant premises for a seizable item to be conducted, that the search can be carried out and that any seizable item found in the course of the search can be seized.

Item 4 Paragraph 203(6)(b)

247. This item amends paragraph 203(6)(b) to include a reference to seizable items. Similar to item 1, this will allow a judicial officer to state in a seizure warrant that the warrant authorises a frisk or ordinary search of a persons at or near warrant premises for a seizable item.

Item 5 At the end of subsection 203(6)

248. This item inserts a new paragraph (c) into subsection 203(6). Under new paragraph (c), a judicial officer will also be able to state in a seizure warrant whether the warrant authorises the ordinary search or frisk search of a person who is at or near premises when a warrant is being executed, if the executing officer or person assisting suspects on reasonable grounds that that person has in his or her possession any relevant evidential material.

Item 6 At the end of section 203

249. This item inserts new subsection 203(10), which contains a definition of "relevant evidential material" for the purposes of new paragraph 203(6)(c). This will be evidential material in relation to an offence by reason of the commission or which goods are believed to be:

a)

forfeited goods of a kind referred to in paragraph 203(5)(a) (i.e. the goods to which the warrant relates); or

b)

special forfeited goods.

Therefore, the power to seize evidential material under a seizure warrant will not extend to all evidential material but only to the evidential material that relates to the offence that makes the goods the subject of the warrant forfeited or special forfeited goods.

Items 7 and 8 Subparagraphs 203A(1)(e)(i) and (ii)

250. These items amend subparagraphs203A(1)(e)(i) and (ii) to also include a reference to "seizable item" and "items" respectively. Subsection 203A(1) sets out the activities authorised by a seizure warrant. This will mean, if a warrant allows a frisk or ordinary search of a persons at or near warrant premises for a seizable item to be conducted, that the search can be carried out and that any seizable item found in the course of the search can be seized.

Item 9 At the end of subsection 203A(1)

251. This item amends subsection 203A(1) by inserting new paragraph (f). This new paragraph applies if a seizure warrant authorises the ordinary search or frisk search of a person who is at or near premises when a warrant is being executed if the executing officer or person assisting suspects on reasonable grounds that that person has in his or her possession any relevant evidential material. In those circumstances, the search can be conducted and any relevant evidential material found in the course of that search can be seized.

Item 10

252. This item inserts new subsection 203A(7), which contains a definition of "relevant evidential material" for the purposes of new paragraph 203A(1)(f), in the same terms as new subsection 203(10).

Requirement to give name and address

253. Under the Customs Act, Customs officers do not currently have to power to request the name and address of a person located at premises that have been entered under the authority of either a search warrant or a seizure warrant. This power is considered essential, particularly if it is considered that a person may be able to assist in the execution of the warrant. In addition, if a person's identity can be confirmed, this may assist in pursuing action that might be required to be taken in respect of that person, or may assist in evaluating any potential risks to Customs officers or other people present at the warrant premises.

254. New section 203HA of the Customs Act sets out the power whereby a Customs officer or an authorised person may request a person at premises that are the subject of a warrant issued under either section 199, 203 or 203DA to provide their name and address. It shall be an offence for the arrested person to refuse to comply with this request, with a penalty of 5 penalty units.

Item 11 After section 203H

255. This item inserts new section 203HA into the Customs Act.

256. New subsection 203HA(1) provides that if:

a)

a search warrant or a seizure warrant in relation to premises is being executed; and

b)

the designated warrant officer believes on reasonable grounds that a person who is at or near the premises may be able to assist the officer in the execution of the warrant

the officer may request the person to provide his or her name or address, or name and address, to the officer.

257. Under subsection 203HA(2), the person commits an offence if a designated warrant officer makes such a request, the officer has informed the person of the reason for the request and has complied with a request that a person may make under subsection 203HA(4), and the person refuses or fails to comply with the request or gives a name or address that is false in a material particular. The offence is punishable by a penalty of 5 penalty units and the offence will not apply if the person has a reasonable excuse (subsection 203HA(3)).

258. Under subsection 203HA(4), a person, after being requested to provide a name and/or address by a designated warrant officer, may request that that officer provide his or her name and/or address of their place of duty, or if the officer is not in uniform and it is practicable to do so, to provided evidence that he or she is an officer of Customs. The officer commits an offence if they refuse or fail to comply with the request or give a name or address that is false in a material particular. The offence is also punishable by a penalty of 5 penalty units.

259. Subsection 203HA(5) sets out the definition of designated warrant officer for the purposes of section 203HA. Only an executing officer (who is the Customs officer named in a warrant as being responsible for its execution) or a Customs officer who is assisting in the execution of the warrant is a designated warrant officer. In some circumstances in relation to a seizure warrant, an executing officer or a officer assisting may also be an officer of police or a member of the Australian Defence Force.