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House of Representatives

Border Protection Legislation Amendment Bill 1999

Explanatory Memorandum

(Circulated by authority of the Minister for Immigration and Multicultural Affairs, the Hon. Philip Ruddock MP)

Outline and financial impact statement

Outline

The Border Protection Legislation Amendment Bill 1999 ("the Bill") implements the recommendations of the report of the Prime Minister's Coastal Surveillance Task Force to strengthen legislative provisions relating to people smuggling in order to maintain the integrity of Australia's borders.

The Bill also implements recommendations made by the Commonwealth Ombudsman in relation to administrative arrangements for the detention of non-citizens fishing illegally in Australian waters.

The Bill makes a number of amendments to the

·
Migration Act 1958 ("the Migration Act");
·
Customs Act 1901 ("the Customs Act"); and
·
Fisheries Management Act 1991 ("the Fisheries Act").

UNCLOS and Related Amendments

The amendments to the Migration Act and to the Customs Act revise, and enhance where appropriate, existing powers of investigation and enforcement at sea to take account of Australia's rights and obligations under the United Nations Convention on the Law of the Sea (UNCLOS) (Australian Treaty Series 1994 No.31) and customary international law.

The amendments will provide for, amongst other things:

-
the boarding and searching of ships and aircraft, in certain circumstances, in Australia's territorial sea, Australia's contiguous zone, the High Seas, and (in the case of the Customs Act) Australia's exclusive economic zone;
-
hot pursuit of ships whose master has not complied with a request to board;
-
hot pursuit of motherships (that is, ships reasonably suspected of being used in direct support of, or in preparation for, a contravention of specified legislation involving another ship) in certain circumstances;
-
the moving and/or destroying of ships which are unseaworthy, which pose a serious risk to navigation, quarantine, safety or public health, or which pose a serious risk of damage to property or the environment.

The amendments to the Customs Act also provide for

-
Customs officers to carry and use approved firearms and other approved items of personal defence equipment in certain circumstances.

The amendments to the Fisheries Act provide for

-
Customs officers to be officers for the purposes of the Fisheries Act;
-
Customs officers exercising powers as fisheries officers to carry and use approved firearms and other approved items of personal defence equipment in certain circumstances.

Automatic Forfeiture

The amendments to the Migration Act also provide for automatic forfeiture, followed by seizure and (if necessary) disposal, of ships and aircraft which have been used in a contravention of the Act involving the bringing or coming to Australia of persons who have no authority to come to Australia, or the entry or proposed entry into Australia of such persons.

Illegal Foreign Fishers

The Bill also makes a number of amendments to the Fisheries Act and consequential amendments to the Migration Act to provide for the detention of foreign fishermen who are brought into the migration zone.

The amendments to the Fisheries Act

-
enable an officer to detain and search a person who is in Australia or a Territory but who is not an Australian citizen or Australian resident, to determine whether or not to charge the person with an offence against certain sections of the Act dealing with illegal fishing.

Consequential amendments to the Migration Act

-
provide a scheme by which fishermen can be taken to have held a visa (called an enforcement visa) immediately upon enforcement action by fisheries officers.

Miscellaneous Amendments to the Migration Act

The Bill also makes a number of miscellaneous amendments to the Migration Act to

-
revise existing offence provisions relating to bringing unauthorised arrivals into Australia;
-
ensure that, where the Commonwealth arranges for or requires a person without a visa to be brought into Australia, those involved in doing so are not exposed to offences under the Migration Act;
-
ensure that refugee claimants who arrive unlawfully in an Australian territory beyond the scope of the Migration Act are able to be brought to the mainland promptly to have those claims considered and be detained as unlawful non-citizens.

Financial impact statement

The amendments to the Migration Act and the Customs Act will have a low financial impact.

The amendments to the Fisheries Act will have little direct financial impact. However, in taking on legislative responsibility for the detention of illegal foreign fishers, the Australian Fisheries Management Authority (AFMA) has noted the concerns of the Commonwealth Ombudsman over unsatisfactory features of holding illegal fishers on-board their boats in Darwin Harbour rather than on a shore based facility near Darwin. Accordingly, the construction of a land-based caretaker facility in Darwin to house suspected illegal foreign fishers pending investigation and laying of charges or repatriation, is currently being pursued by AFMA. Consideration of the financing of such a facility would be pursued through established budgetary processes.

Background to the UNCLOS amendments

In June 1999 the Prime Minister's Coastal Surveillance Task Force made a number of recommendations relating to Australia's coastal surveillance system. In particular it recommended that "comprehensive legislative amendments be introduced to further strengthen maritime investigatory and enforcement powers against both Australian and foreign flag vessels", and in particular utilise to the fullest extent the jurisdiction conferred on Australia in relation to such matters by virtue of UNCLOS.

In order to implement that recommendation, this Bill amends the Migration Act and the Customs Act to extend the circumstances in which migration and customs officers will be able to board ships. In particular, the amendments to the Customs Act will allow customs officers to board ships for the investigation of offences under other Acts as well as under the Customs Act.

The circumstances in which the commander of a Commonwealth ship or aircraft ("the commander") can request to board a ship depend on:

-
the nationality of the ship;
-
the maritime zone in which the request to board is made;
-
whether the ship is sailing toward Australia, or sailing away from Australia; and
-
whether an offence is believed to have been committed, or activities in preparation for the committing of an offence are being carried out.

Nationality of the Ship

Australian ships

It is a central principle of international law that every country has jurisdiction over a ship that is registered in that country. This means that every country may exercise powers over its "own" ships anywhere in the world, except when the ship is in the territorial sea of another country.

Foreign ships

Generally speaking, the laws of the flag state apply in relation to ships, and except in certain circumstances, only the flag state can exercise jurisdiction in relation to ships entitled to fly the flag of that state. However it is also recognised in UNCLOS that there are circumstances where another country may interfere with that sovereignty. Such circumstances relate to the conduct of a foreign registered ship in the territorial sea of another country and to a lesser extent in another country's contiguous zone or exclusive economic zone. In very limited circumstances another country may also interfere with the foreign ship's sovereignty on the high seas (see below for a description of those zones and the particular circumstances in which a ship may be boarded in those zones).

Two or more countries may also enter into an agreement or arrangement that allows each of those countries to exercise jurisdiction over ships registered in the other country.

Ships without nationality

Article 110 of UNCLOS provides that a warship or other duly authorised ship clearly marked and identifiable as being on government service which encounters on the high seas a foreign ship is not justified in boarding it unless there is a reasonable ground for suspecting that the ship is without nationality.

Further, Article 92 of UNCLOS provides that ships shall sail under the flag of one State only and that a ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry. That article goes on to provide that a ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.

The fact that a ship is without nationality does not mean that any State is entitled to assert jurisdiction over the ship or the people on board it. It does, however, mean that the protection of a State against interference with the ship cannot be invoked.

Maritime Zones

As mentioned above, UNCLOS recognises the existence of certain maritime zones in which countries may legitimately exercise jurisdiction and control. These are described below.

Internal waters

Internal waters are those areas on the landward side of the baselines that define the territorial sea of a country. Internal waters are part of the territory of a country, and the country has complete jurisdiction and control in relation to them.

Territorial sea

Article 3 of UNCLOS provides that "every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention." States have "sovereignty" over the territorial sea, its bed and subsoil and the airspace above it, subject to the general rules of international law and other rules set out in UNCLOS relating to matters such as innocent passage through territorial seas by foreign vessels.

The territorial sea is defined for the purposes of the Migration Act and the Customs Act, in relation to Australia, by reference to the Seas and Submerged Lands Act 1973. The Commonwealth has proclaimed a territorial sea of 12 nautical miles.

The territorial sea of a country does not include its internal waters. Hence many of the amendments to the Migration Act and the Customs Act refer to area on the landward side of the outer edge of Australia's territorial sea (so that the powers can be exercised in Australia's internal waters).

Contiguous zone

This is a declared zone of sea contiguous to, but beyond the territorial sea in which the Coastal state has certain enforcement powers. Article 33(2) of UNCLOS provides that "the contiguous zone" may not extend beyond 24 nautical miles from seaward of the territorial sea baselines.

Exclusive Economic Zone (EEZ)

This term is defined for the purpose of the Customs Act only as none of the amendments to the Migration Act refer to the EEZ.

Under Article 55 of UNCLOS "the exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States governed by the relevant provisions of this Convention."

Further, Article 57 of UNCLOS provides that the exclusive economic zone shall not extend beyond 200 nautical miles seaward from the territorial sea baselines.

Legislation that may be enforced in each of those zones (foreign ships only)

Territorial sea

In relation to the territorial sea UNCLOS provides that ships of all countries enjoy the right of innocent passage through that zone (Article 17).

Further, Article 21 of UNCLOS provides that a coastal State may adopt laws and regulations relating to innocent passage through the territorial sea in respect of a number of matters. These matters include:

-
the conservation of the living resources of the sea;
-
the prevention of infringement of the fisheries laws and regulations of the coastal State;
-
the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof; and
-
the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State.

Article 27 of UNCLOS provides:

The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases:

(a)
if the consequences of the crime extend to the coastal State;
(b)
if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea;
(c)
if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or
(d)
if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.

The amendments to the Migration Act will allow a commander to request to board a ship in the territorial sea for the purposes of the Migration Act.

The amendments to the Customs Act will allow a commander to request to board a ship in the territorial sea for the purposes of the Customs Act as well as other Acts. Those other Acts will be prescribed in the Customs Regulations 1926 (the Customs Regulations), and only Acts which deal with subject matters in relation to which UNCLOS enables the exercise of jurisdiction will be prescribed (these will be referred to as "Acts enforceable in the territorial sea").

Contiguous zone

Article 33 of UNCLOS provides that a coastal State (Australia) may exercise the control in the contiguous zone necessary to:

-
prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; and
-
punish infringement of the above laws and regulations committed within its territory or territorial sea.

The amendments to the Migration Act will allow a commander to request to board a ship in the contiguous zone for the purposes of identifying the ship, or where the commander reasonably suspects that the ship is, will be or has been involved in a contravention, or attempted contravention in Australia of the Migration Act.

The amendments to the Customs Act will allow a commander to request to board a ship in the contiguous zone for the purposes of identifying the ship, or where the commander reasonably suspects that the ship is, will be or has been involved in a contravention, or attempted contravention in Australia of the Customs Act or another Act. Those other Acts will be prescribed in the Customs Regulations, and only Acts which are consistent with these provisions of UNCLOS will be prescribed (these will be referred to as "Acts enforceable in the contiguous zone").

It will be seen that contiguous zone jurisdiction differs according to whether or not there has been a contravention of Australian law in Australia or in the territorial sea. If a ship entered the contiguous zone in circumstances where it was suspected that an offence was about to be committed, Australia would have jurisdiction to exercise the control necessary to prevent the contravention occurring. In the case of an attempted importation of drugs, for example, this control might extend to seizing and disposing of the drugs. However, there would be no jurisdiction to arrest or charge the persons involved with attempting to commit an offence against Australian law, since no offence would have occurred with Australia's territory or territorial sea.

However, if there has been a contravention of customs, fiscal, immigration or sanitary law, and the ship is leaving Australia after having been used in the contravention, there is jurisdiction to arrest the persons on board, since the coastal state may exercise the control necessary to punish infringements of customs, fiscal, sanitary and immigration laws which have occurred within its territory or territorial sea.

Exclusive Economic Zone

Article 56 of UNCLOS provides in part that in the EEZ, the coastal State has: "(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living"

The amendments to the Customs Act will allow a commander to request to board a ship in the EEZ if the commander reasonably suspects that the master's ship is, will be or has been involved in a contravention or attempted contravention in the EEZ of certain Acts. These Acts will be prescribed in the Customs Regulations.

Coastal states are able to make laws dealing with topics relating to exploration and exploiting of living and non living natural resources, marine scientific research and the protection and preservation of the marine environment and have jurisdiction, under UNCLOS, to enforce those laws in the EEZ. An example of a relevant law is the Fisheries Management Act 1991. These laws in question will be referred to as "Acts enforceable in the EEZ".

Notes on individual clauses

Clause 1 - Short title

The short title by which this Act will be known is the Border Protection Legislation Amendment Act 1999.

Clause 2 - Commencement

Subclause 2(1) provides that sections 1, 2 and 3 of the Act commence on the day on which the Act receives the Royal Assent.

Subclause 2(2) provides that Division 2 of Part 3 of Schedule 1 commences immediately after the commencement of Schedule 2 to the Fisheries Legislation Amendment Act (No.1) 1999.

Subclause 2(3) provides that Part 5 of Schedule 1 is taken to have commenced on 1 September 1994, immediately after the commencement of section 83 of the Migration Legislation Amendment Act 1994.

Subclause 2(4) provides that Parts 1 and 3 of Schedule 3 commence at the same time as the item in Schedule 2 that inserts section 189A into the Customs Act 1901.

Subclause 2(5) provides that Division 2 of Part 2 of Schedule 3 commences immediately after the commencement of Schedule 2 to the Fisheries Legislation Amendment Act (No.1) 1999.

Subclause 2(6) provides that, subject to subsection (7) and (8), the remaining provisions commence on Proclamation.

Subclause 2(7) provides that the provisions referred to in subsection (6) will commence on the first day after the end of a period of 6 months after the Act receives the Royal Assent if the provisions have not commenced on Proclamation within that period.

Subclause 2(8) provides that, if apart from this subsection, an item of Schedule 2 would commence before the commencement of any of a number of specified amendments made by the Customs Legislation Amendment Act (No.1) 1999 to the Customs Act 1901, then the item commences immediately after the last commencement of those amendments.

The Customs Legislation Amendment Act (No.1) 1998 introduces a number of new terms into the Customs Act 1901. Those terms are used in the amendments to the Customs Act 1901 contained in this Act. This act also amends some of the provisions that are being introduced into or amended in the Customs Act 1901 by the Customs Legislation Amendment Act (No.1) 1998. Hence the amendments to the Customs Act 1901 contained in this Act must commence after the amendments contained in the Customs Legislation Amendment Act (No.1) 1998.

Clause 3 - Schedule(s)

This clause provides that, subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as indicated, and any other item has effect according to its terms.

Schedule 2 - Customs Act 1901

Part 1 - Chasing, boarding etc. ships and aircraft

Item 1 - Subsection 4(1)

This definition replaces the definition of "Australian ship" inserted into the Customs Act by the Customs Legislation Amendment Act (No. 1) 1998.

This item now defines the term to mean a ship that:

(a)
is an Australian ship as defined in the Shipping Registration Act 1981 ("the Shipping Registration Act"); or
(b)
is not registered under the law of a foreign country and is wholly owned by, or solely operated by:

(i)
one or more residents of Australia; or
(ii)
one or more Australian nationals; or
(iii)
one or more residents of Australia and one or more Australian nationals; or

For the purposes of this definition, the terms "Australian national" and "resident of Australia" have the same meanings as in the Shipping Registration Act.

Paragraph (a) of the definition

The Shipping Registration Act defines the term "Australian ship" to mean "a ship having Australian nationality by virtue of section 29". Section 29 of the Shipping Registration Act in turn regards the following ships to be taken to be Australian ships and to have Australian nationality:

(a)
registered ships;
(b)
unregistered ships (other than ships required to be registered), being:

(i)
Australian-owned ships referred to in section 13;
(ii)
Ships wholly owned by residents of Australia or by residents of Australia and Australian nationals; or
(iii)
Ships operated solely by residents of Australia or Australian nationals or both.

Paragraph (b) of the definition

Paragraph (b) of the definition is necessary because paragraph (a) only covers Australian ships which are ships within the meaning of the Shipping Registration Act. The term "ship" is defined in subsection 3(1) of the Shipping Registration Act to mean:

any kind of vessel capable of navigating the high seas and includes:
-
a barge, lighter or other floating vessel;
-
a structure that is able to float or be floated and is able to move or be moved as an entity from one place to another; and
-
an air-cushion vehicle, or other similar craft, used wholly or primarily in navigation by water"

Under that definition, certain vessels only capable of navigating the territorial sea or the internal waters of Australia would not be covered.

To remove any doubt, paragraph (b) is added to cover that gap. Paragraph (b) relies on the definition of the term "ship" as defined in the Customs Act. The definition in the Customs Act does not contain the qualification denoted by the use of the term "high seas".

Subsection 4(1) of the Customs Act defines the term "ship" widely to mean "any vessel used in navigation, other than air navigation, and includes:

-
an off-shore industry mobile unit; and
-
a barge, lighter or any other floating vessel".

Paragraph (b) does not, however, cover foreign registered ships.

Therefore, paragraph (b) covers a ship (as defined in the Customs Act) that is not foreign registered and is wholly owned or operated solely by the persons set out in that paragraph.

As explained above, the operation of international law makes it necessary to draw distinctions between Australian ships and foreign ships, because Australia has complete jurisdiction over its own ships, and the relevant flag state has complete jurisdiction over foreign ships, except to the extent otherwise provided for in UNCLOS.

Items 2 to 5 - Subsection 4(1)

These items insert new definitions into the Customs Act.

"Commonwealth aircraft" and "Commonwealth ship" is defined to mean an aircraft or ship that is in the service of the Commonwealth and displaying the ensign or insignia (as required) set out in the Customs Regulations.

"Exclusive economic zone" for the purposes of the Customs Act is defined to have the same meaning as in the Seas and Submerged Lands Act 1973 (Seas and Submerged Lands Act). Subsection 3(1) of the Seas and Submerged Lands Act provides that "exclusive economic zone" has the same meaning as in Articles 55 and 57 of UNCLOS (see above).

"Foreign ship", for the purposes of the Customs Act, is defined to be any ship that is not an "Australian ship".

Item 6 - Subsection 4(1) (subparagraph (c)(ii) of the definition of Frisk search)

This item provides a consequential amendment to the definition of frisk search in subsection 4(1) of the Customs Act by inserting "or (1C)" into subparagraph (c)(ii) of that definition. This is because item 35 below inserts a new subsection (1C) into section 219L of the Customs Act.

Item 7 - Subsection 4(1)

This item inserts a new definition of the term "UNCLOS". "UNCLOS" means the United Nations Convention on the Law of the Sea. UNCLOS entered into force for Australia on 16 November 1994, and its text may be found in Australian Treaty Series 1994 No. 31.

Item 8 - After section 4AA

This item inserts a new section 4AB into the Customs Act which provides for the payment of compensation for any acquisition of property that occurs under the Customs Act.

Subsection 51(xxxi) of the Constitution provides that the Parliament, subject to the Constitution, has the power to make laws for the peace, order, and good government of the Commonwealth with respect to: "the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws."

New subsection 4AB(1) provides that if anything done under a provision of the Customs Act would result in an acquisition of property and a provision of the Customs Act would be invalid (apart from this new section) because a particular person was not compensated for that acquisition, then the Commonwealth must pay that person a reasonable amount of compensation. The amount of that compensation will either be the amount agreed upon between the person and the Commonwealth or if no agreement can be agreed upon the amount of compensation will be a reasonable amount of compensation as determined by a court of competent jurisdiction.

New subsection 4AB(2) provides that where damages or compensation have been recovered (under another proceeding) in relation to the event or transaction which led to the acquisition of the property those damages or compensation must be taken into account in assessing any compensation payable in a proceeding under new subsection 4AB(1).

New subsection 4AB(3) provides that "acquisition of property" has the same meaning as in paragraph 51(xxxi) of the Constitution.

New subsection 4AB(4) provides that any payments made under section 4AB will be paid from the Consolidated Revenue Fund as appropriated.

Item 9 - Section 59

This item repeals section 59. New proposed sections 184A, 184B, 184C and 184D will replace and add certain new powers to the powers currently contained in section 59 (see item 10 below).

Item 10 - Section 184

23 This item repeals section 184 and substitutes proposed new sections 184A, 184B, 184C and 184D. The current powers contained in section 184 are now recast in new proposed sections 184B, 184C and 184D to conform with international law and convention.

New section 184A Request to board a ship

New section 184A sets out when the commander of a Commonwealth ship or aircraft ("commander") may request to board a ship.

General power to request to board

New subsection 184A(1) provides that so long as the conditions set out in subsections 184A(2) - (9) are satisfied, a commander may request the master of a ship to board the master's ship.

The Note after new subsection 184A(1) makes it clear that the power to board and search in sections 185 and 185A may be exercised, if a request is made under new section 184A.

Foreign ships in Australian waters

New subsection 184A(2) gives a commander the power to make a request under subsection 184A(1) in respect of a foreign ship that is on the landward side of the outer edge of Australia's territorial sea .

Such request must be made for the purposes of the Customs Act or certain other Acts which will be prescribed in the Customs Regulations. Acts that are enforceable in the territorial sea can be prescribed.

A commander is able to make a request to board under this subsection for the purposes of the Customs Act. Once those other Acts have been prescribed in the Customs Regulations for the purposes of this subsection a commander will also be able to make that request under this subsection for the purposes of those Acts. Agencies whose legislation may be prescribed will be consulted and will have to agree to such prescription.

Australian ships outside territorial seas of other countries

New subsection 184A(3) gives a commander the power to make a request under subsection 184A(1) of the master of an Australian ship that is outside the territorial sea of any foreign country .

New subsection 184A(3) makes it clear that if a request can be made under new subsection 184A(9) a request should not be made under subsection 184A(3).

Foreign ships in contiguous zone or near installations

New subsection 184A(4) gives a commander the power to make a request under subsection 184A(1) in respect of a foreign ship that is either in the contiguous zone of Australia or within 500 metres of an Australian resources or sea installation where the commander:

-
wishes to establish the identity of the ship; or
-
reasonably suspects that the ship is, will be or has been involved in a contravention, or an attempted contravention, in Australia of the Customs Act or an Act prescribed in the Customs Regulations consistently with UNCLOS.

Only Acts that are enforceable in the contiguous zone can be prescribed in the Customs Regulations.

As explained Australia can exercise its jurisdiction over foreign ships in the contiguous zone to prevent or punish the infringement of certain of its laws. Once on board an officer will be able to exercise wider powers if the ship is or has been involved in the contravention of a relevant law in Australia (for example the power to arrest in amended paragraph 185(2)(d)). If the ship is boarded for the purposes of preventing such contravention the power to arrest under section 185 will not be able to be exercised.

Mother ships on high seas supporting contraventions in Australia

New subsection 184A(5) gives a commander the power to make a request under subsection 184A(1) in respect of a foreign ship that is:

-
outside the outer edge of the contiguous zone; and
-
not within 500 metres of an Australian resources or sea installation; and
-
outside the territorial sea of a foreign country;

where the commander:

-
reasonably suspects that the foreign ship is being, or was used in direct support of, or in preparation for, a contravention in Australia of the Customs Act or an Act prescribed in the Customs Regulations consistently with UNCLOS where the contravention involves another ship (whether foreign or Australian); and
-
makes the request as soon as practicable after the contravention happens.

Acts that are enforceable in the territorial sea can be prescribed for the purposes of this subsection.

New subsection 184A(5) is necessary to provide for a situation where a foreign mother ship is found to be "constructively present" but does not attempt to flee. In such a situation, it is considered appropriate that the commander is given the power to request to board.

The commander can only make the request once one of the support boats or other craft has been involved in the contravention.

The request to board must be made as soon as practicable after the contravention by the other boat or craft occurs. This is to ensure that, as far as practicable, any action taken against the mother ship is contemporaneous with the offence committed in the territorial sea.

If the master of the mother ship complies with the request then the commander or a member of his crew may board and exercise the powers contained in section 185.

If the master of the mother ship fails to comply with the request and attempts to flee, then new subsection 184B(1) applies and hot pursuit may commence.

In the circumstance where the mother ship is an Australian registered ship, then, because the ship is under Australian jurisdiction, an officer would be able to board the ship (see new subsection 184A(3)). If the master refused to allow boarding, then hot pursuit could commence.

Suspicious foreign ships in EEZ

New subsection 184A(6) gives a commander the power to make a request under subsection 184A(1) of a foreign ship that is:

-
in the exclusive economic zone (EEZ); and
-
the commander reasonably suspects that the ship is, will be or has been involved in a contravention or an attempted contravention in Australia's EEZ of a prescribed Act.

Only those Acts laws dealing with matters in relation to which Australia has jurisdiction in the EEZ will be prescribed for the purposes of this subsection.

Mother ships on high seas supporting contraventions in EEZ

New subsection 184A(7) applies to foreign ships that:

-
are outside the EEZ;
-
not within 500 metres of an Australian resources installation or Australian sea installation;
-
outside the territorial sea of another country; and
-
the commander reasonably suspects that the ship is being, or was used in direct support of, or in preparation for, a contravention in the EEZ of a prescribed Act, where the contravention involves another ship (whether foreign or Australian).

The request must be made as soon as practicable after the contravention happens.

This subsection mirrors new subsection 184A(5) but applies to contraventions in the EEZ laws dealing with matters in relation to which Australia has jurisdiction in the EEZ.

Foreign ships on high seas and covered by an agreement etc

New subsection 184A(8) applies to ships:

-
outside the outer edge of the contiguous zone of Australia; and
-
outside the territorial sea of a foreign country; and
-
the commander reasonably suspects that the ship is a foreign ship that is entitled to fly the flag of a country; and
-
Australia has an agreement or arrangement with that country.

This subsection contemplates the establishment of agreements or arrangements between Australia and other countries to allow the exercise of such powers as may be agreed in respect of ships of those other countries.

Under this subsection, if the commander reasonably suspects that the ship:

-
is a mother ship on the high seas that is working in a team with a ship that has contravened an Act that is enforceable in the territorial sea;
-
has been involved in a contravention in the EEZ of an Act that is enforceable in the EEZ; or
-
is a mother ship working in a team with a ship that has contravened an Act that is enforceable in the EEZ;

then the commander must make the request under subsections 184A(5), (6) or (7).

If a commander makes a request under subsection 184A(8) then an officer can board that ship and exercise those powers contained in new section 185A. Under new subsection 185A(4) if the officer is satisfied the ship is entitled to fly a flag of a country and Australia has a relevant agreement or arrangement with that country then the officer can exercise any powers that have been prescribed in the Customs Regulations. Those prescribed powers must be consistent with the relevant agreement or arrangement.

Under new subsection 185A(5), if the officer is satisfied that the ship is entitled to fly a flag of a country and Australia does not have an agreement or arrangement with that country the officer must leave the ship as soon as possible.

If the ship is not entitled to fly a flag the provisions applying to ships without nationality apply (new subsection 185A(6)).

Ships without nationality on the high seas

New subsection 184A(9) provides that a commander may make a request to board where the ship is outside the outer edge of the contiguous zone of Australia and outside the territorial sea of a foreign country and any of the following applies:

-
the ship is not flying a flag of a country; or
-
the ship is flying a flag of a country and the commander reasonably suspects that the ship is not entitled to fly that flag; or
-
the commander reasonably suspects that the ship is not entitled to fly the flag of a country or has been flying the flag of more than one country.

The commander can make the request to establish the identity of the ship.

If the request could be made under new subsections 184A(5), (6), (7) or (8) the commander must not make the request under subsection 184A(9).

Once a request has been made under this subsection an officer may board the ship under new section 185A and exercise those powers contained in section 185A on board that ship. If once the ship has been boarded and in exercising those powers the officer establishes that the ship is entitled to fly the flag of a country and:

-
the ship has not been flying two flags;
-
the ship is not flying a false flag; or
-
the ship is not entitled to fly the flag of a country with which Australia has a relevant agreement or arrangement;

the officer must leave the ship.

This reflects the limited jurisdiction that coastal States have in relation to ships on the high seas.

Means of making request

New subsection 184A(10) allows the commander to use any reasonable means to make a request under section 184A.

Request still made even if no master on ship etc

New subsection 184A(11) makes it clear that a request is still taken to have been made even if:

-
there was no master on board the ship to receive the request; or
-
the master did not receive or understand the request.

In the circumstances where there is no master on board the ship this may be because there is no-one on board the ship or despite people being on board the ship, none of them are the master of the ship.

Master must comply with request

New subsection 184A(12) requires the master of a ship to comply with a request made under section 184A (other than subsection (9)) unless he or she has a reasonable excuse.

Failure to do so is an offence carrying a maximum of 2 years imprisonment.

The master of a ship suspected of being without nationality on the high seas cannot be charged with an offence if he or she fails to comply with a request. Again this reflects the limited jurisdiction a coastal State has in relation to foreign ships on the high seas.

New section 184B Power to chase foreign ships for boarding

New sections 184B and 184C replace the current section 184 and provide for a new hot pursuit power consistent with Article 111 of UNCLOS where a Commonwealth ship or aircraft has to chase either a ship or a foreign mother ship. New section 184B applies to foreign ships, while new section 184C applies to Australian ships.

The hot pursuit provision in UNCLOS attempts to balance the common interest in uninterrupted navigation on the high seas and the interests of individual coastal countries in the enforcement of their domestic laws within their maritime zones. The provision allows interference with high seas navigation if a pursuing craft has reasonable grounds to believe that a vessel is or has been involved in the commission of an offence of the coastal country's law.

Generally, foreign ships may be chased if request to board is made

New subsection 184B(1) provides the commander with a power to chase or continue to chase a foreign ship in order to board it in the situation where the master of that ship has not complied with a request made under section 184A (other than subsection 184A(9)). The chase may continue to any place outside the territorial sea of a foreign country.

Subsection 184A(9) relates to ships on the high seas suspected of being without nationality. In the circumstances were a request is made under subsection 184A(9) officers can board the ship under section 185A even though the request has not been complied with, but the commander can not chase the ship if it flees after the request has been made.

Using different Commonwealth ships or aircraft to continue chase

New subsection 184B(2) is necessary to clarify that any Commonwealth ship or aircraft may participate in the chase even though its commander did not make the request under section 184A. This provision ensures that other Commonwealth ship or aircraft patrolling the area may be used to assist in a chase begun by the commander who made a request under section 184A.

When foreign ships may be chased without a request being made

New subsection 184B(3) provides the commander with a power to chase a foreign ship to a place outside the territorial sea of a foreign country to enable its boarding in the situation where immediately before the start of the chase the commander could have made the request to board the ship under subsections 184(5) or (7).

New subsection 184B(3) applies the "doctrine of constructive presence" (explained above in new subsection 184A(5)). Under this subsection the ship can be chased where the mother ship flees, and hot pursuit commences. In this case, there is no opportunity for the commander to make a request under either new subsections 184A(5) or (7).

Chase may continue even if the foreign ship is out of sight

New subsection 184B(4) clarifies that a chase under subsection 184B(1) or (3) may continue even if the crew of all of the Commonwealth ships and Commonwealth aircraft involved in the chase lose sight of the chased ship or lose trace of it from radar or other sensing devices.

This provision is necessary to ensure that a chase is not terminated simply because the crew of the Commonwealth ships have lost physical sight or trace from radar or other sensing devices of the chased ship. Normally, a chased ship could be monitored by physical sight where there is good visibility and the ships are in close proximity or by radar or other sensing device.

Chase may not continue after interruption

New subsection 184B(5) forbids the commander from using a Commonwealth ship or aircraft to chase or continue the chase of a foreign ship under section 184B if the chase is interrupted (within the meaning of Article 111 of UNCLOS) at a place outside the outer edge of the contiguous zone. This subsection has effect despite subsections 184B(1), (3) and (4). It is intended to ensure that the chase takes place contemporaneously with the original suspected contravention.

Means that may be used to enable boarding of the foreign ship

New subsection 184B(6) provides for the manner in which the commander chasing a foreign ship under section 184B may bring the chase to an end.

Anywhere outside the territorial sea of a foreign country, the commander may use any reasonable means consistent with international law to enable boarding of the chased ship, including:

-
using necessary and reasonable force; and
-
where necessary, firing at or into the chased ship to disable it or compel it to be brought to for boarding, after firing a gun as a signal.

New section 189A allows officers on board Customs vessels to be issued with firearms for the purposes of firing the signal as allowed by subsection 184B(6)

New section 184C - Power to chase Australian ships for boarding

Australian ships may be chased

New subsection 184C(1) allows the commander to chase or continue to chase an Australian ship to any place outside the territorial sea of another country to enable to ship to be boarded.

Unlike section 184B there is no requirement in relation to Australian ships that the commander have made a request to board under 184A or that a request could have been made. Again, this reflects the fact that Australia has unlimited jurisdiction over Australian ships (except in the territorial sea of another country).

Chase may continue even if the Australian ship is out of sight

New subsection 184C(2) provides that a chase may continue even if the crew of all the Commonwealth ships and Commonwealth aircraft involved in the chase lose sight of the chased ship or lose trace of it from radar and other sensing devices.

This provision is the same as that which applies to foreign ships (new subsection 184B(4)). Again this provision is necessary to ensure that a chase is not terminated simply because the crew of the Commonwealth ships have lost physical sight or trace from radar or other sensing devices of the chased ship. Normally, a chased ship could be monitored by physical sight where there is good visibility and the ships are in close proximity or by radar or other sensing device.

Means that may be used to enable boarding of the Australian ship

New subsection 184C(3) allows the commander to use any reasonable means to enable the boarding of the chased ship, including:

-
using necessary and reasonable force; and
-
where necessary, firing at or into the chased ship to disable it or compel it to be brought to for boarding, after firing a gun as a signal).

This can only occur if the ship is outside the territorial sea of another country.

This power is similar to that which applies to foreign ships, but in the case of foreign ships the means to enable the boarding of the chased ship must be consistent with international law.

New section 184D - Identifying an aircraft and requesting it to land for boarding

New section 184D provides for the powers that may be exercised in relation to aircraft.

Application of section

New subsection 184D(1) allows the commander of a Commonwealth aircraft ("the commander") to make requests of the pilot of another aircraft where:

-
if the other aircraft is an Australian aircraft - the other aircraft is over anywhere except a foreign country; or
-
if the other aircraft is not an Australian aircraft - the other aircraft is over Australia.

Requesting information to identify an aircraft

New subsection 184D(2) gives the commander, in a situation where he or she cannot identify another aircraft, the power to:

-
use his or her aircraft to intercept the other aircraft in accordance with the practices recommended in Annex 2 (headed "Rules of the Air") to the Convention on International Civil Aviation done at Chicago on 7 December 1944 (that was adopted in accordance with that Convention). Annex 2 covers a number of issues including interception manoeuvres, guidance of an intercepted aircraft, action by intercepted aircraft, air-to-air visual signals, and radio communication between the intercepted control unit or the intercepting aircraft and the intercepted aircraft; and
-
request the pilot of the other aircraft to disclose to the commander the following matters:

(i)
the identity of the other aircraft;
(ii)
the identity of all person on the other aircraft;
(iii)
the flight path of the other aircraft; and
(iv)
the flight plan of the other aircraft.

Requesting aircraft to land for boarding

New subsection 184D(3) gives the commander the power to request the pilot of the other aircraft to land it at the nearest airport or suitable landing field, in Australia, for boarding for the purposes of the Customs Act if:

-
the pilot does not comply with a request under subsection 184D(2); or
-
the commander reasonably suspects that the other aircraft is or has been involved in the contravention or attempted contravention of an offence against the Customs Act.

Once the other aircraft is landed, section 185 may be used to board and search the aircraft (see Note after this subsection).

Means of making request

New subsection 184D(4) allows the commander to use any reasonable means to make a request under section 184D.

However such means must comply with the practices recommended in Annex 2, headed "Rules of the Air", to the Convention on International Civil Aviation For example, if the commander rocks the aircraft and flashes navigational lights at irregular intervals from a position slightly above and ahead of, and normally to the left of, the other aircraft, this means that the other aircraft has been intercepted. After the other aircraft acknowledges that interception the commander may make a slow level turn, normally to the left on the desired heading, which means that the other aircraft should follow the intercepting aircraft.

Request still made even if pilot did not receive etc request

New subsection 184D(5) clarifies that even if the pilot of the other aircraft does not receive or understand the request it is still taken to have been made. If the pilot were to land the aircraft, this would allow an officer to board the plane under section 185.

Pilot must comply with request

New subsection 184D(6) requires the pilot of the other aircraft to comply with a request made under section 184D unless he or she has a reasonable excuse.

Failure to do so is an offence carrying a maximum penalty of 2 years imprisonment.

Definition

New subsection 184D(7) defines Australian aircraft to mean an aircraft that:

-
is an Australian aircraft as defined in the Civil Aviation Act 1988; or
-
is not registered under the law of a foreign country and is either wholly owned by, or solely operated by:
-
one or more residents of Australia; or
-
one or more Australian nationals; or
-
one or more residents of Australian and one or more Australian nationals.

Section 3 of the Civil Aviation Act 1988 defines Australian aircraft as an aircraft registered in Australia.

There may be circumstances where an aircraft is not registered in Australia but is still considered to be an Australian aircraft. These aircraft are covered by paragraph (b) of the definition.

For the purposes of this definition, Australian national and resident of Australia have the same meaning as in the Shipping Registration Act 1981.

Item 11 Subsection 185(1)

This item repeals subsection 185(1) and substitutes it with new subsections 185(1) and (1A).

Application of section to ships

New subsection 185(1) sets out the circumstances in which section 185 will apply to a ship.

New section 185 will apply where the other ship is outside the territorial sea of another country if either:

-
a request to board the ship has been made in relation to the ship under section 184A;
-
the ship is a foreign ship and it has been chased under new subsection 184B(3);
-
the ship is an Australian ship.

The second circumstance allows a ship to be boarded where it has not possible to make a request under section 184A because the ship has fled and there is no way to communicate that request.

This section does not apply to ships where the request to board has been made under subsections 184A(8) or (9). These subsections relate to ships on the high seas: subsection 184A(8) applies to ships reasonably suspected of being entitled to fly a flag of a country with which Australia has an agreement or arrangement and subsection 184A(9) applies to ships suspected of being without nationality. If a request is made to board in those circumstances then an officer may board the ship under new section 185A. If upon boarding under section 185A and using the powers contained in that section the officer becomes satisfied that the ship is an Australian ship then the officer can exercise those powers contained in section 185. Section 185 contains powers that are wider than those found in section 185A. Those limited powers contained in section 185A reflect the limited jurisdiction that countries have in relation to ships on the high seas (except in relation to Australian ships).

The note to this subsection clarifies that section 185A deals with the boarding of ships where a request has been made under subsection 184A(8) or (9).

Application to aircraft

New subsection 185(1A) applies section 185 to an aircraft that has landed in Australia or Australia's territorial sea for boarding as a result of a request under section 184D.

Item 12 - At the end of paragraph 185(2)(a)

This item inserts the word "and" at the end of paragraph 185(2)(a) of the Customs Act. This makes it clear that the paragraphs in subsection 185(2) are cumulative.

Item 13 - Paragraph 185(2)(b)

This item inserts the power to examine goods into section 185. Currently section 185 allows officers to search goods. This item makes it clear that such goods can also be examined. New subsections 185(2C) and (2D) prescribe things that may be done in the examination of goods.

Item 14 - At the end of paragraphs 185(2)(b) and (ba)

This item inserts the word "and" at the end of paragraphs 185(2)(b) and (ba) of the Customs Act.

Item 15 - Paragraph 185(2)(c)

This item inserts to words "the following" after the words "in relation to" in paragraph 185(2)(c) of the Customs Act. This makes it clear that officers can makes requests in relation to one or more of the matters found in the subparagraphs contained in paragraph 185(2)(c).

Item 16 - Subparagraph 185(2)(c)(i)

This item replaces "; or" found in subparagraph 185(2)(c)(i) with ";". This reflects current drafting styles.

Item 17 - Subparagraph 185(2)(c)(ii)

This item extends the types of questions that an officer may ask on board a ship or aircraft and the types of documents that can be required to be produced. Currently an officer may ask questions (or require documents to be produced) in relation to the presence of persons on board the ship or aircraft. New subparagraph 185(2)(c)(ii) allows questions to be asked or documents produced in relation to the identity of those persons on board.

Item 18 - Subparagraph 185(2)(c)(ii)

This item omits the word "and" from subparagraph 185(2)(c)(ii) of the Customs Act.

Item 19 - At the end of paragraph 185(2)(c)

This item inserts a new subparagraph 185(2)(c)(iii) into the Customs Act.

New subparagraph 185(2)(c)(iii) allows Customs officers to ask people found on board ships and aircraft questions or require them to produce documents about the contravention, attempted contravention or involvement in a contravention or an attempted contravention, either in or outside Australia of the Customs Act.

Item 20 - After paragraph 185(2)(c)

This item inserts a new paragraph 185(2)(ca) into the Customs Act. This new paragraph will allow officers on board a ship or aircraft to copy or take extracts of any documents:

-
found on the ship or aircraft; or
-
produced by a person on board the ship or aircraft. Officers can ask for certain documents to be produced under paragraph 185(2)(c) of the Customs Act.

Item 21 Paragraph 185(2)(d)

This item amends the circumstances in which an officer can arrest a person on board a ship or aircraft.

An officer can arrest a person on board a ship if:

-
the ship is in Australia and the officer reasonably suspects that the person has committed, is committing or attempting to commit, or is involved in the commission of an offence, either in or outside Australia, against the Customs Act or a prescribed Act (new subparagraph 185(2)(d)(i)); and
-
the ship is outside Australia and the officer reasonably suspects that the person has committed, is committing or attempting to commit, or is involved in the commission of:

(i)
an offence in Australia against the Customs Act or a prescribed Act (new subsubparagraph 185(2)(d)(ii)(A)); or
(ii)
an offence in Australia's EEZ against a prescribed Act (subsubparagraph 185(2)(d)(ii)(B)).

The circumstances in which an officer may arrest a person on board a ship reflect the jurisdiction that Australia can exercise in the different maritime zones.

In relation to ships found in Australia the officer will have to have the relevant suspicion in relation to the Customs Act or an Act that is enforceable in the territorial sea.

There may be circumstances where it is desirable to deal with people or goods on board a ship on its way to Australia which has been boarded before the ship comes into Australia's territorial sea. In those circumstances people on board the ship will not be able to be arrested, but the ship and people may be able to be detained (under new subsections 185(3) and 185(3A)) and brought to a port or other place in Australia.

Hence in relation to people found on ships outside Australia (except in relation to punishable offences in the EEZ) the officer needs to have a reasonable suspicion that the person has committed, is committing or attempting to commit, or is involved in the commission of an offence in Australia . This will allow an officer to arrest a person who is on a mother ship that is involved in the commission of an offence, but the offence must have occurred in Australia. It also covers the circumstance where the ship has been used to contravene or has attempted to contravene the relevant Acts inside Australia and is now fleeing.

Those Acts that are enforceable in the contiguous zone will be prescribed for the purposes of new subsubparagraph 185(2)(d)(ii)(A).

New subsubparagraph 185(2)(d)(ii)(B) allows an officer to arrest a person where he or she has a reasonable suspicion that the person has committed, attempted to commit, or is involved in the commission of offences in the EEZ. Those offences must be contained in prescribed Acts. Acts that are enforceable in the EEZ can be prescribed for the purposes of this subsubparagraph.

In the case of persons found on board an aircraft an officer can exercise the power of arrest if the aircraft is in Australia and the officer reasonably suspects that the person has committed, is committing or attempting to commit, or is involved in the commission of an offence either in or outside Australia against the Customs Act. In accordance with international law, Australia does not have jurisdiction in relation to foreign aircraft outside Australia.

Item 22 - At the end of subsection 185(2)

This item inserts a new paragraph 185(2)(e) into the Customs Act. This paragraph allows an officer to seize, without warrant, any narcotic goods found on a ship or aircraft.

Item 23 - Subsection 185(2A)

This item omits from subsection 185(2A) the words "or convention or other agreement" and substitutes "convention or other agreement or arrangement".

This is a consequential amendment necessary because these amendments introduce the power to board a ship that is entitled to fly a flag of a country and Australia has an agreement or arrangement with that country. Subsection 185(2A) provides that the power to arrest a person in the contiguous zone is subject to Australia's obligations under international law including obligations under any treaty or convention or other agreement between Australia and another country or other countries.

Item 24 Before subsection 185(3)

This item inserts new subsections 185(2B), (2C) and (2D) into the Customs Act.

New subsection 185(2B) makes it clear that an officer may use a dog to assist in the searching of a ship or aircraft.

New subsection 185(2C) makes it clear that when examining goods, an officer may do, or arrange for another officer or other person having necessary experience to do, whatever is reasonably necessary to permit the examination of the goods. This will allow experts to examine goods where officers do not have the requisite training or knowledge.

New subsection 185(2DD) provides a list of things that may be done in the examination of goods. This list is not exhaustive and includes:

-
opening any package in which goods are or may be contained;
-
using a device, such as an X-ray machine or ion scanning equipment, on the goods
-
testing or analysing the goods;
-
measuring or counting the goods;
-
if the goods are a document - reading the document either directly or with the use of an electronic device;
-
using dogs to assist in examining the goods.

These things that can be done to examine goods are the same as those that can be done in relation to examining goods that are under Customs control.

Item 25 - Subsection 185(3)

This item repeals subsection 185(3) and inserts new subsections 185(3), (3A), (3B), (3C), (3D), (3E) and (3F) into the Customs Act. These provisions deal with the detention of ships or aircraft, and their movement to a port or airport or other place that an officer considers appropriate.

Power to detain and move ship or aircraft

New subsection 185(3) recasts the current subsection 185(3) maintaining an officer's power to detain a ship or aircraft and bring it, or cause it to be brought, to a port or airport or other place where the officer has the relevant reasonable suspicion.

As with the power to arrest persons found on board a ship, the power to detain a ship has been extended to operate outside Australia's territorial sea. As this power has been extended outside Australia's territorial sea the circumstances in which a ship can be detained depends on where the ship is detained.

If a ship is in Australia, it can be detained if the officer reasonably suspects that the ship is or has been involved in a contravention, either in or outside Australia, of the Customs Act or a prescribed Act (new paragraph 185(3)(a)). Acts that are enforceable in the territorial sea can be prescribed for the purposes of new paragraph 185(3)(a).

If the ship is an Australian ship and it is outside Australia it can be detained if the officer reasonably suspects that the ship is, will be or has been involved in a contravention, either in or outside Australia, of the Customs Act or any other Act (new paragraph 185(3)(b)). This new paragraph reflects Australia's ability to exercise its jurisdiction over Australian ships.

If the ship in a foreign ship and it is outside Australia it can be detained if the officer reasonably suspects that the ship is, will be or has been involved in a contravention either:

-
in Australia of this Act or a prescribed Act (new paragraph 185(3)(c)(i)); or
-
in Australia's EEZ of a prescribed Act (new paragraph 185(3)(c)(ii)).

In both of these circumstances the relevant contravention must be either in Australia or in the EEZ. This is in contrast to the power to detain Australian ships where the contravention does not have to occur in Australia.

In certain circumstances it may not be desirable to bring a ship to a port (for example where for quarantine reasons the ship should be bought to some other place).

New subsection 185(3) also provides that if the ship has been moved or destroyed under the direction of the CEO under new section 185B then the ship need not be brought to a port or other place.

In relation to aircraft, an aircraft can only be detained if it is located in Australia and an officer reasonably suspects that the aircraft is or has been involved in a contravention, either in or outside Australia, of the Customs Act.

Power to detain people on detained ships or aircraft

New subsection 185(3A) makes it clear that if an officer detains a ship or aircraft under section 185, the officer may also detain any person found on the ship or aircraft and bring the person, or cause the person to be brought, to the migration zone.

Section 5 of the Migration Act 1958 defines the migration zone as the area consisting of the State, Territory, Australian resource installation and Australian sea installation and, to avoid doubt, includes:

(a)
land that is part of a State or Territory at mean low water; and
(b)
sea within the limits of both a State or a Territory and a port; and
(c)
piers, or similar structures, any part of which is connected to such land or to ground under such sea.

Use of necessary and reasonable force

New subsection 185(3B) allows an officer to use such force as is necessary and reasonable in the exercise of a power under section 185. This is a declaratory provision, removing any doubt that officers can use such force as is necessary in the circumstances where there is resistance and opposition to the exercise of the powers under section 185.

The next new subsections place general limits on the powers conferred on officers under section 185.

Limit on use of force to board and search ships or aircraft

New subsection 185(3C) imposes certain limits on an officer exercising force to board and search ships or aircraft under section 185.

In boarding and searching a ship or aircraft and examining and searching goods found on the ship or aircraft, an officer must not damage the ship or aircraft or goods by forcing open a part of the ship, aircraft or goods unless:

-
the person (if any) apparently in charge of the ship or aircraft has been given a reasonable opportunity to open that part or the goods; or
-
it is not reasonably practicable to give that person such an opportunity.

This provision is modelled after section 3U of the Crimes Act 1914 placing officers of Customs in the same position as constables when they exercise their powers in relation to conveyances.

Limit on use of force to arrest or detain person on ships or aircraft

New subsection 185(3D) imposes certain limits on an officer when arresting or detaining a person under section 185.

In arresting or detaining a person found on a ship or aircraft, an officer must not:

-
use more force, or subject the person to greater indignity, than is necessary and reasonable to make the arrest or detention or to prevent the person escaping after the arrest or detention; and
-
do anything likely to cause the person grievous bodily harm unless the officer believes on reasonable grounds that doing the thing is necessary to protect life or prevent serious injury of another person (including the officer).

This subsection has effect despite paragraph 185(2)(d) and subsection 185(3B).

This provision is modelled after section 3ZC of the Crimes Act 1914 placing officers of Customs in the same position as a person either making an arrest or trying to prevent an arrested person from fleeing. The second restriction is the same as applies to constables when they are in the course of arresting a person.

Limit on use of force to arrest fleeing person

New subsection 185(3E) imposes certain limits on an officer when arresting a fleeing person.

In arresting a person found on a ship or aircraft who is fleeing to escape arrest, an officer must not do anything likely to cause the person grievous bodily harm unless:

-
the person has, if practicable, been called on to surrender and the officer believes on reasonable grounds that the person cannot be apprehended in any other way; or
-
the officer believes on reasonable grounds that doing the thing is necessary to protect life or prevent serious injury of another person (including the officer).

This subsection applies in addition to subsection 185(3D) and has effect despite paragraph 185(2)(d) and subsection 185(3B).

This provision is modelled after section 3ZC of the Crimes Act 1914 placing officers of Customs in the same position as constables when they are in the course of arresting a person.

If ship covered by agreement officer may exercise other powers

New subsection 185(3F) covers the circumstances where an officer boards a ship after making a request under new section 184A and once on board establishes that the ship is entitled to fly a flag of a country and Australia has an agreement or arrangement with that country. Where that agreement or arrangement enables Australia to exercise jurisdiction over ships of that country, the officer can exercise those powers that are prescribed in the Customs Regulations. Those powers that can be prescribed in the Customs Regulations must be consistent with the relevant agreement or arrangement.

Item 26 - Subsection 185(4)

This item replaces the penalty for refusing or failing to comply with a requirement made by an officer under section 185 with 100 penalty units. The current penalty is $1000. 100 penalty units is approximately equivalent to $10,000. This new penalty reflects the seriousness of the offence.

Item 27 - After subsection 185(4)

This item inserts new subsection 185(4A) into the Customs Act. New subsection 185(4A) makes it clear that if an officer obtains evidence of the commission of an offence when exercising his or her powers under section 185 that evidence may be used, or given to another body for the purpose of use in:

-
investigating the offence; or
-
proceedings for the prosecution of the offence.

This subsection is intended to cover the circumstance where an officer boards for the purposes of one Act but upon boarding obtains evidence of the commission of an offence against a different Act, including State and Territory legislation. However, this provision does not override or limit the operation of a law of a State about evidence that may be used in proceedings for the prosecution for an offence against a law of that State.

Item 28 - Subsection 185(5)

This item replaces the definition of officer for the purposes of section 185. "Officer" will mean an officer within the meaning of subsection 4(1) of the Customs Act, and includes:

-
any person who is in command, or a member of the crew, of:

(a)
the ship or aircraft from which the relevant request under section 184A or 184D was made; or
(b)
a ship or aircraft that was used under section 184B or 184C to chase the ship in relation to which this section applies; and

-
a police officer or a member of the Australian Defence Force.

Subsection 4(1) of the Customs Act defines an officer to mean a person either:

-
employed in the Customs; or
-
authorised in writing by the CEO under the Customs Act to perform all the functions of an officer of Customs.

The definition of "officer" for the purposes of section 185 has been extended to include certain commanders and crew. The definition has also been extended to include police officers and members of the Australian Defence Force. This will allow those people to exercise the powers contained in section 185 and in particular allow them to use those powers in isolated places. It may be desirable for a police officer or member of the Australian Defence Force to meet a plane which has been requested to land and for that person to exercise the powers contained in section 185.

Item 29 - After section 185

This item inserts new sections 185A and 185B into the Customs Act.

New section 185A provides for the circumstances in which a foreign ship on the high seas can be boarded and sets out the powers that can be exercised once on board those ships.

Application of section

New subsection 185A(1) sets out the circumstances in which the powers contained in section 185A can be exercised. Section 185A applies to ships where a request to board the ship has been made under subsection 184A(8) or (9) and the ship is outside the outer edge of Australia's contiguous zone and outside the territorial sea of any country (the ship is on the high seas).

Requests can be made under subsection 184A(8) where the commander reasonably suspects that the ship is entitled to fly the flag of a country and Australia has a relevant agreement or arrangement with that country. A commander can make a request under subsection 184A(9) in relation to a ship that is not flying a flag or the commander reasonably suspects the ship is without nationality (see new subsection 185A(6)).

Powers to establish the identity of the ship

New subsection 185A(2) allows an officer to exercise the following powers where a request to board the master's ship is made under the relevant provisions:

-
board the ship;
-
ask any person found on board the ship questions about the identity and voyage of the ship;
-
require any person found on the ship to produce documents relevant to finding out the identity or voyage of the ship; and
-
require the master or a member of the master's crew to show the commander or member of the commander's crew readings of the master's ship's navigation instruments relating to the voyage of the ship.

Officer discovers that the ship is an Australian ship

New subsection 185A(3) makes it clear that an officer can exercise those powers contained in section 185 if, after boarding the ship and exercising those powers contained in subsection 185A(2), the officer is satisfied that the ship is an Australian ship.

Officer confirms that the ship is covered by an agreement etc

New subsection 185A(4) applies where the officer is satisfied that the ship is a foreign ship entitled to fly the flag of a country. If Australia has an agreement or arrangement with that country which enables Australia to exercise Australian jurisdiction over ships from that country, the officer can then exercise those powers that are set out in the Customs Regulations. Those prescribed powers must be consistent with the agreement or arrangement. For example, the agreement or arrangement may allow the ship to be searched and goods seized but not allow the ship to be detained. Only the powers set out in the agreement or arrangement may be prescribed in the Customs Regulations. There are currently no such agreements or arrangements, but this provision will facilitate the implementation of any agreements or arrangements that may be concluded in the future.

Officer discovers that the ship is not covered by an agreement etc

New subsection 185A(5) applies where the officer is satisfied that the ship is a foreign ship that is entitled to fly a flag of a country. If Australia does not have a relevant agreement or arrangement with that country the officer must leave the ship as soon as possible.

Officer confirms that the ship is without nationality

New subsection 185A(6) applies where the officer is satisfied that the ship is a foreign ship that is either:

-
not entitled to fly the flag of a country;
-
has been flying the flag of a country that it is not entitled to fly; or
-
has been flying the flag of more than one country.

Where the officer is so satisfied, the officer may search the ship and seize without warrant, any narcotic goods found on the ship.

This provision is based on Article 108 of UNCLOS which provides that all States shall co-operate in the suppression of illicit traffic in narcotic drugs engaged by ships on the high seas.

Definition of officer

New subsection 185A(7) extends the definition of officer for the purposes of section 185A.

New subsection 185A(7) extends the definition in subsection 4(1) of the Customs Act to include any person who is in command or member of the crew of either:

-
the ship from which the request to board was made under section 184A; or
-
a ship that was used under section 184B or 184C to chase the ship.

This allows a commander or member of the crew on board a Commonwealth vessel that joins a chase under section 184B to exercise those powers in section 185A.

New section 185B Moving or destroying hazardous ships etc

New section 185B deals with the movement or destruction of a ship that is a particular hazard or is too expensive to keep in custody or to maintain. In accordance with UNCLOS, this section has been divided according to where the ship is located and whether the ship is an Australian ship. As indicated Australian can exercise wider powers in relation to Australian ships or ships inside its territorial sea. If the ship is a foreign ship and is outside the territorial sea of Australia the power to move, move and destroy or destroy the ship may be exercised only in more limited circumstances.

Application of section to ships in Australia

New subsection 185B(1) provides that section 185B only applies to a ship in Australia, where an officer reasonably suspects that the ship is or has been involved in a contravention or an attempted contravention, either in or outside Australia, of the Customs Act or a prescribed Act.

This covers the situation where the ship has entered Australia. It may have even landed on a beach. In such circumstances, if an officer reasonably suspects that the ship has been involved in a relevant contravention and one of the criteria in new subsection 185B(3) is met then the ship can either be moved, moved and destroyed or destroyed.

This also covers the situation where a ship has been lawfully detained under section 185 and has been brought to a port or other place inside Australia (including the territorial sea). Again, if the officer has the requisite reasonable suspicion and the ship meets one of the criteria in new subsection 185B(3) the ship may be moved, moved and destroyed or destroyed.

Application of section to ships outside Australia

New subsection 185B(2) applies to ships outside Australia if the ship has been detained under subsection 185(3) and:

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if the ship is an Australian ship, the officer reasonably suspects it is or has been involved in a contravention or attempted contravention, either in or outside Australia, of the Customs Act or a prescribed Act; and
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if the ship is a foreign ship, the officer reasonably suspects it is or has been involved in a contravention or attempted contravention of:

·
the Customs Act or a prescribed Act in the territorial sea of Australia (new subparagraph 185B(2)(c)(i)) or
·
a prescribed Act in the EEZ (new subparagraph 185B(2)(c)(ii)).

In the case of foreign ships section 185B does not apply if the ship has not been involved in a contravention or attempted contravention in the relevant zone.

Acts that are enforceable in the territorial sea may be prescribed for the purposes of new subparagraph 185B(2)(c)(i). If, for example, a ship is detained in Australia's contiguous zone which has not been involved in a contravention or attempted contravention of a relevant Act but it is believed that the ship will be involved in such contravention, Australia's jurisdiction only extends to being able to prevent that contravention, not punish a suspected future contravention. Hence in those circumstances an officer would be able to detain the ship and order it to a port or other place but the ship could not be further moved or destroyed.

New section 185B will apply to mother ships that are outside the contiguous zone, as mother ships will have been involved in the contravention of a relevant Act in Australia. Officers may not board a mother ship until the support boat or craft has contravened or attempted to contravene a relevant law in Australia, ie in Australia's territorial sea.

Acts that are enforceable in the EEZ may be prescribed for the purposes of new subparagraph 185B(2)(c)(ii).

When ship may be destroyed or moved

New subsection 185B(3) gives the CEO of Customs the power to direct an officer to move, destroy, or move and destroy a ship, or cause such thing to be done to a ship if the CEO has reasonable grounds to believe either the ship:

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is unseaworthy;
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poses a serious risk to navigation, quarantine, safety or public health;
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poses a serious risk of damage to property or the environment; or
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if the ship is to be destroyed, or removed and destroyed, that the expenses of keeping and maintaining the ship before its destruction are likely to be greater than its value.

The first three circumstances cover the situations where the ship is either a risk to people or property. In some circumstances, the risk may be removed by moving the vessel. For example, it may pose a serious risk to navigation but it may be seaworthy and can be moved to eliminate that navigation risk. In other examples moving the ship will not eliminate the relevant risk (for example if it is a quarantine hazard). In those circumstances the ship may be destroyed.

New subsection 185B(3) also allows the CEO to direct that the ship be moved and then destroyed. This covers circumstances where it is impractical or undesirable to destroy the ship where it is located, for example where it has landed on a beach.

The fourth circumstance covers the situation where the expense of keeping the ship and maintaining it, until legal action has taken place, are likely to be greater than its value. In those circumstances the ship can only be destroyed, or moved and destroyed. This does not allow the ship to be just moved as movement of the ship will not eliminate the circumstance.

Giving of notice after the ship has been destroyed

New subsection 185B(4) applies where a ship has been destroyed. In such circumstances the CEO must give written notice to either:

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the owner of the ship; or
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if the owner cannot be identified after reasonable inquiry - the person who was in possession of the ship or who had control of the ship when it was detained or located.

That notice must be given as soon as practicable, but not later than 7 days after the ship has been destroyed, and such notice should set out the reason why the ship was destroyed.

New subsection 185B(5) provides that the notice must state:

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that the ship has been destroyed under new subsection 185B(3);
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the reason for the destruction; and
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that compensation may be payable under section 4AB of the Customs Act.

A person may be able to be paid compensation under new section 4AB if the destruction of the ship results in an acquisition of property (see note).

Failure to give notice not to affect validity

New subsection 185B(6) makes it clear that the validity of a ship's destruction is not affected if a notice under is section is not given. There may be circumstances where the owner and person in control or possession of the ship can not be found, and hence it is not possible for the relevant notice to be given.

Section to override certain other provisions

New subsection 185B(7) provides that this section applies despite Subdivisions D and G (other than section 205G) of Division 1 of Part XII of the Customs Act. Subdivision D allows goods believed to be forfeited to be seized, and subdivision G contains provisions for dealing with those seized goods. In the circumstances where a ship is not dealt with under new section 185B (moved or destroyed) and there are reasonable grounds to suspect that the ship is forfeited then the ship may be seized and dealt with in accordance with the provisions in subdivisions D and G.

Item 30 - Paragraph 186A(1)(b)

This item repeals paragraph 186A(1)(b) and replaces it. Section 186A applies to goods that under Customs control. New paragraph 186A(1)(b) extends the circumstances in which documents may be copied or an extract taken.

New subparagraph 184A(1)(b)(ii) extends that power to copy and take extracts to the circumstance where an officer of Customs is satisfied that the document or part of the document may contain information relevant to the commission or attempted commission of another offence against the Customs Act or of an offence contained in a prescribed Act.

This will go some way towards addressing situations where officers have discovered documents in passenger's bags at the airport and have been satisfied that the documents may contain information relevant to the commission of an offence under the Migration Act 1958. Under new subparagraph 186A(1)(b)(ii) the officer will be able to make copies or take extracts if the Migration Act 1958 is prescribed in the Customs Regulations.

Item 31 - At the end of section 187

This item inserts a new subsection 187(2) into the Customs Act. Section 187 of the Customs Act contains in part a power to board any ship or aircraft. New section 185 also contains a power to board ships and aircraft. New subsection 187(2) makes it clear that if new section 185 applies to the ship or aircraft then the powers contained in 187 can not be exercised in relation to that ship or aircraft.

Item 32 - After section 189

This item inserts a new section 189A into the Customs Act relating to the circumstances in which officers may carry arms. This Act amends the Customs Act to allow officers to use certain powers outside the territorial sea of Australia. This is an extension of their current powers which can only be exercised in Australia. Since officers will be exercising powers at greater distances out at sea it may be impractical for them to wait for the assistance of the police or Defence Force if they suspect that people on board the ship to be boarded may present some risk to the safety of the officers. Subsections 184B(6) and 184C(3) also allow ships to be fired at for the purposes of enabling boarding.

New subsection 189A(1) allows the commander of a Customs vessel (commander) to issue approved firearms and other approved items of personal defence equipment to officers under his or her command for a number of purposes.

New section 189A only applies to commanders of Customs vessels and not all Commonwealth vessels. New subsection 189A(5) provides that for the purposes of section 189A "Customs vessel" means a Commonwealth ship that is under the command of a Customs officer and is flying a Customs flag.

The commander will only be able to issue approved firearms and approved items of personal defence equipment. New subsection 189A(5) provides that a firearm is an approved firearm if it is of a kind declared in the regulations to be an approved firearm.

New subsection 189A(5) provides that "approved item of personal defence equipment" means an extendable baton, an oleoresin capsicum spray or anti-ballistic clothing. It also includes any other item that is prescribed to be an approved item of personal defence equipment.

The firearms and approved items of personal defence equipment may to be issued for the purposes of either:

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enabling the firearm to be used for the purposes of subsection 184B(6) or 184C(3) (that is, to fire at or signal at a ship that has failed to comply with a request to board or to fire into a ship to enable it to be boarded); or
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enabling the safe exercise by Customs officers of powers conferred upon them under the Customs Act.

The second purpose also allows a Customs officer to be issued with the relevant firearms and equipment where they are exercising powers under the Customs Act where those powers are related to a suspected commission or attempted commission of an offence against another Act. For example, an officer may reasonably suspect that a ship has been involved in the contravention of the Migration Act 1958 and that ship is in the contiguous zone. If the Migration Act 1958 is prescribed for the purposes of subsection 184A(4) the officer will be able to be issued with the relevant firearm or other equipment for the purposes of boarding that ship once a request to board has been made.

New paragraph 189A(1)(b) provides that the commander must take all reasonable steps to ensure that the relevant firearms and equipment are kept in secure storage at all times when not required. This is limited to firearms and equipment that are available for issue under this section. Thus, if a member of a police force or the Australian Defence Force is on board a Customs vessel,, the commander is not required to ensure the safe storage of their firearms.

The issuing and storage of the relevant firearms by the commander is subject to the directions of the CEO.

Subsection 4(4) of the Customs Administration Act 1985 provides that:

Where a person employed in the Australian Customs Service, or a person not so employed who is authorized in writing by the CEO to perform a function or functions of a person employed in the Australian Customs Service, performs a function or exercises a power under a law of customs or excise , the person is, in the performance of that function or the exercise of that power, subject to the directions of the CEO .

Further, section 183UC of the Customs Act provides that without limiting the generality of the power conferred on the CEO under subsection 4(4) of the Customs Administration Act 1985, the CEO may give directions concerning:

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the circumstances in which the powers in Division 1 of Part XII of the Customs Act may be exercised;
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the officers of Customs who are entitled to exercise those powers; and
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the manner and frequency of reporting to the CEO concerning the exercise of those powers.

Such directions are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.

New section 189A is situated in Division 1 of Part XII of the Customs Act and so the CEO may make directions under section 183UC of the Customs Act in relation to the powers contained in new section 189A.

New subsection 189A(2) sets out a list of things that the directions may deal with. These include:

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the circumstances in which relevant firearms and equipment may be issued;
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the circumstances in which such firearms and equipment are to be recalled;
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the circumstances in which such firearms and equipment can be used and manner of their use;
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the nature of the secure storage of such firearms and equipment when recalled; and
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any other matters relating to deployment of such firearms and equipment as the CEO thinks appropriate.

New subsection 189A(3) makes it clear that an officer does not have to obtain a licence or permission for the purposes of possessing or use of the relevant firearm or equipment where such a licence or permission is required under a law of a State or Territory.

Further, new subsection 189A(3) makes it clear that such firearms do not need to be registered where such registration is required under a law of a State or Territory.

This provision is modelled on section12 of the Australian Federal Police Act 1979 in relation to firearms carried by AFP officers.

New subsection 189A(4) makes it clear that section 189A does not affect the operation of any other provision of the Customs Act or Customs Regulations which allow firearms to be used in circumstances other than those covered in section 189A.

Item 33 - Paragraph 207(1)(a)

This is a consequential amendment which inserts "185(2), 185A(6)" after the word "subsection" in paragraph 207(1)(a) of the Customs Act. Section 207 deals with the immediate disposal of narcotic goods. New subsections 185(2) and 185A(6) allow an officer to seize narcotic goods. This amendment will allow those goods to be disposed of.

Item 34 - Section 208D

This is a consequential amendment which inserts "185(2), 185A(6)" after the word "subsection" in subsection 208D(1) of the Customs Act. Section 208D deals with the disposal of forfeited goods and makes provision for the disposal of narcotic goods. New subsections 185(2) and 185A(6) allow an officer to seize narcotic goods. This amendment will allow those goods to be disposed of.

Item 35 - After paragraph 219L(1A)(b)

This item inserts a new paragraph into subsection 219L(1A) of the Customs Act.

New paragraph 219L(1A)(b) provides that a frisk search of a person on board a ship can be conducted under subsection 219L(1A) if the ship is either:

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an Australian ship and it is outside the territorial sea of another country;
This reflects Australia's ability to exercise jurisdiction over Australian ships.
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a foreign ship that is on the landward side of the outer edge of Australia's territorial sea.

Subsection 219L(1A) allows a detention officer to detain a person for the purposes of a frisk search if an officer has boarded a ship, aircraft or installation under sections 185 or 187 of the Customs Act. In order to detain the person the detention officer must suspect on reasonable grounds that the person is unlawfully carrying prohibited goods on his or her body.

The CEO of Customs can declare a class of officers of Customs to be detention officers (section 219ZA of the Customs Act refers).

New paragraph 219L(1A)(c) makes it clear that a person can be detained for this purpose if they are on board an Australian ship or on board a foreign ship if the foreign ship is inside the territorial sea of Australia.

Item 36 - Paragraph 219L(1B)(b)

This item repeals paragraph 219L(1B)(b) of the Customs Act and replaces it with new paragraphs 219L(1B)(b) and (c).

Currently subsection 219L(1B) allows a detention officer on board a ship or aircraft to detain a person for the purposes of a frisk search if the detention officer suspects on reasonable grounds that the person on board the ship or aircraft or about to board the ship or aircraft is carrying on his or her body any weapon or thing that is capable of being used to inflict bodily injury on an officer.

New paragraph 219L(1B)(b) still requires that the detention officer must suspect on reasonable grounds that the person on board the ship or aircraft is carrying on his or her body any weapon or thing that is capable of being used to inflict bodily injury on an officer.

New paragraph 219L(1B)(c) has been inserted to make it clear that this power can be exercised in relation to people on board a ship if the ship is either:

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an Australian ship and it is outside the territorial sea of another country; or
Again this reflects Australia's wide jurisdiction over Australian ships.
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a foreign ship that is on the landward side of the outer edge of Australia's territorial sea.

Item 37 - After subsection 219L(1B)

This item inserts a new subsection 219L(1C) into the Customs Act.

New subsection 219L(1C) allows a detention officer to detain a person for the purpose of conducting a frisk search if:

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the person has boarded a Customs vessel or Commonwealth ship for a purpose connected with the conduct of a search or the exercise of another power under section 185; and
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the detention officer suspects on reasonable grounds that the person is carrying on his or her body any weapon or thing that is capable of being used to inflict bodily injury on an officer.

Item 38 - Subsection 219L(2)

Item 39 - Subsection 219M(4)

Item 40 - Section 219NA

Item 41 - Paragraph 219ZE(1)(cb)

These items are a consequential amendment as a result of item 33 inserting a new circumstance were an detention officer may detain a person for the purposes of a frisk search.

Item 42 - Subsection 228(1)

This item omits the words "or boats not exceeding 80 metres in overall length and the following" and replaces them with "boats and".

Subsection 228(1) provides the circumstances where certain ships and aircraft shall be forfeited to the Crown. Currently if a ship is less than 80 metres in overall length and is involved in one of the activities set out in subsection 228(1) it will be forfeited to the Crown. If the ship is suspected of being forfeited it can then be seized using the provisions contained in subdivision D of Division 1B of Part XII of the Customs Act.

If the ship is longer than 80 metres and it would have been forfeited if it were less than 80 metres in length, the owner of the ship can pay a penalty not exceeding $100,000 and ship will be returned to them. The ship can be detained until the penalty is paid or until security for its payment is paid.

This distinction between ships of different lengths is no longer seen as being relevant, and hence the distinction is going to be removed from subsection 228(1). This is analogous with amendments being made to the Migration Act 1958 which will create a forfeiture regime for vessels used in people smuggling irrespective of the size of the vessel.

Item 43 - Paragraph 228(1)(2)

Item 44 - Paragraph 228(1)(2)

These items insert the words "or her" and "or her" after the words "his" and "him" respectively in paragraph 228(1)(2) of the Customs Act. This reflects current drafting styles.

Item 45 - Paragraph 228(1)(2)

This item provides a consequential amendment of paragraph 228(1)(2) by omitting "59(1) or (2)" and substituting it with "184A(2) or (3)". New section 184A will now be the provision giving the commander powers to deal with ships.

Item 46 - Paragraph 228(1)(3)

This item provides a consequential amendment to paragraph 228(1)(3). It omits "59" and substitutes it with "184D". Section 184D will now be the provision giving the commander powers to deal with aircraft (see item 6 above).

Item 47 - Paragraph 228(1)(3)

This item amends paragraph 228(1)(3) by inserting the words "landing field" after the word "airport". This is a consequential amendment to ensure consistency between paragraph 228(1)(3) and proposed new subsection 184D(3).

Item 48 - Paragraph 228(1)(6)

This item provides a consequential amendment to paragraph 228(1)(3). It omits "in pursuance of section 59, 185 or 187". Currently, paragraph 228(1)(6) applies to any ship or aircraft which upon being boarded under those sections is found to be constructed, adapted, altered, fitted in any manner for the purpose of concealing goods. The references to the particular sections under which boarding can occur has been removed so that if the powers to board are moved in the future there will no need to make consequential amendments.

Item 49 - Subsection 228(1)

This item omits all the words between (and including) "The owner" and "its payment" in subsection 228(1). These ships will be forfeited in the same manner as smaller ships.

Item 50 - Subsection 228(2)

This item repeals this subsection 228(2). This subsection contained the method of calculating the length of a ship for the purposes of section 228. Since the distinction in length is going to be removed, this subsection is no longer required.

Item 51 - Transitional and saving provisions for this Part

This item provides transitional provisions for the use of ensigns and insignia by Commonwealth ships or aircraft.

Subitem (1) provides, for the purposes of the definition of Commonwealth ship in new subsection 4(1) of the Customs Act, the ensign prescribed in regulations for a class of ships or aircraft for the purposes of section 59 of the Act. Currently Regulation 26 of the Customs Regulations prescribe the ensigns and insignia to be used by Commonwealth ships until such time as new regulations are made to prescribe new symbols specifically for Commonwealth vessels.

Subitem (5) provides that despite the amendments to subsection 185(4) that subsection continues to apply in relation to offences committed before the commencement of these amendments as if the amendment had not been made.

Part 2 - Transfer of goods into or out of coasting trade

Item 52 - Subsection 175(1) (definition of Australian ship)

This item repeals the definition of the term "Australian ship". The term is now defined in new subsection 4(1) (see item 1 of part 1).

Item 53 - After subsection 175(2)

This item inserts new subsection 175(2A) after subsection 175(2) in order to apply subsection 175(2) to a coastal ship that is an Australian ship if the ship is anywhere outside the territorial sea of a foreign country.

This amendment is consistent with international law which gives a coastal state the power to enforce its domestic laws over its own ships provided they are outside the territorial sea of other coastal states.

Item 54 - After subsection 175(3)

This item inserts new subsection 175(3AA) after subsection 175(3) in order to apply subsection 175(3) to a ship that is an Australian ship if the ship is anywhere outside the territorial sea of a foreign country.

This amendment is consistent with international law which gives a coastal state the power to enforce its domestic laws over its own ships provided they are outside the territorial sea of other coastal states.

Item 55 - After subsection 175(3A)

This item inserts new subsection 175(3AAA) after subsection 175(3A) in order to apply subsection 175(3A) to an Australian ship described in paragraph 175(3A)(a) if the ship is anywhere outside the territorial sea of a foreign country.

This amendment is consistent with international law which gives a coastal state the power to enforce its domestic laws over its own ships provided they are outside the territorial sea of other coastal states.


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