Correction to the Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Christopher Martin Ellison, MP)Schedule 11 - powers of arrest
Customs Act 1901
Omit the explanation of this Item and substitute with:
This item amends subsection 210(1A) of the Customs Act by omitting the words "the offence of assaulting an officer in the execution of his duties" and substituting "an offence against section 147.1, 147.2 or 149.1 of the Criminal Code in relation to a Customs officer".
Subsection 210(1A) of the Customs Act authorises a Customs officer or police officer to arrest a person where the officer has reasonable grounds for believing that a person has committed the offence of assaulting an officer in the course of the execution of his duties. The reference to the offence of assaulting a Customs officer was a reference to former paragraph 232A(b) of the Customs Act, which made it an offence to assault a Customs officer (as well as to resist, molest, obstruct or intimidate a Customs officer).
Amendments to the Customs Act made by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 mean that paragraph 232A(b) will no longer prohibit the conduct of assaulting a Customs officer. This conduct will instead be prohibited by sections 147.1, 147.2 and 149.1 of the Criminal Code 1995. These sections relate to offences of doing harm to a public official, threatening to do harm to a public official and obstructing, hindering, intimidating or resisting a public official respectively.
The amendment to paragraph 232A(b) has had the unintended effect that Customs officers and police officers no longer have the power under subsection 210(1A) to arrest a person who is assaulting a Customs officer.
At common law, an assault does not require actual physical contact. A threatening gesture or threatening words may constitute an assault (provided that it gives rise to an apprehension of immediate violence in the mind of the person threatened).
In order to restore Customs officers' and police officers' power of arrest in these circumstances, it is proposed to amend subsection 210(1A) of the Customs Act to permit the power of arrest to be exercised when a person commits an offence against section 147.1 or 147.2 or 149.1 of the Criminal Code in relation to a Customs officer.
The amendment will mean that Customs officers will have the power to arrest a person who is obstructing, hindering, intimidating or resisting an officer (where no assault, actual or threatened is made). This is because conduct that constitutes assault at common law is dealt with in three separate provisions of the Criminal Code but these provisions also prohibit conduct which would not amount to an assault.