Border Protection Legislation Amendment Act 1999 (160 of 1999)
Schedule 2 Customs Act 1901
Part 1 Chasing, boarding etc. ships and aircraft
10 Section 184
Repeal the section, substitute:
184A Request to board a ship
General power to request to board
(1) In the circumstances described in subsection (2), (3), (4), (5), (6), (7), (8) or (9), the commander of a Commonwealth ship or Commonwealth aircraft may request the master of a ship to permit the commander, a member of the commander's crew or an officer to board the master's ship.
Note: Sections 185 and 185A give power to board the master's ship if a request is made under this section.
Foreign ships in Australian waters
(2) The commander may make the request if the master's ship is a foreign ship that is on the landward side of the outer edge of Australia's territorial sea. However, the request must be made for the purposes of this Act or an Act prescribed by the regulations consistently with UNCLOS.
Australian ships outside territorial seas of other countries
(3) The commander may make the request if:
(a) the master's ship is an Australian ship; and
(b) the master's ship is outside the territorial sea of any foreign country.
The commander must not make the request under this subsection if it may be made under subsection (9).
Foreign ships in contiguous zone or near installations
(4) The commander may make the request if:
(a) the master's ship is a foreign ship; and
(b) the master's ship is either:
(i) in the contiguous zone of Australia; or
(ii) within 500 metres of an Australian resources installation or Australian sea installation; and
(c) the commander:
(i) wishes to establish the identity of the master's ship; or
(ii) reasonably suspects that the master's ship is, will be or has been involved in a contravention, or an attempted contravention, in Australia of this Act or an Act prescribed by the regulations consistently with UNCLOS.
Mother ships on high seas supporting contraventions in Australia
(5) The commander may make the request if:
(a) the master's ship is a foreign ship; and
(b) the master's ship is:
(i) outside the outer edge of the contiguous zone of Australia; and
(ii) not within 500 metres of an Australian resources installation or Australian sea installation; and
(iii) outside the territorial sea of a foreign country; and
(c) the commander reasonably suspects that the master's ship is being or was used in direct support of, or in preparation for, a contravention in Australia of this Act or an Act prescribed by the regulations consistently with UNCLOS, where the contravention involves another ship (whether a foreign ship or an Australian ship); and
(d) the request is made as soon as practicable after the contravention happens.
Suspicious foreign ships in EEZ
(6) The commander may make the request if:
(a) the master's ship is a foreign ship; and
(b) the master's ship is in the exclusive economic zone of Australia; and
(c) the commander reasonably suspects that the master's ship is, will be or has been involved in a contravention, or an attempted contravention, in Australia's exclusive economic zone of an Act prescribed by the regulations consistently with UNCLOS.
Mother ships on high seas supporting contraventions in EEZ
(7) The commander may make the request if:
(a) the master's ship is a foreign ship; and
(b) the master's ship is:
(i) outside the outer edge of the exclusive economic zone of Australia; and
(ii) not within 500 metres of an Australian resources installation or Australian sea installation; and
(iii) outside the territorial sea of a foreign country; and
(c) the commander reasonably suspects that the master's ship is being or was used in direct support of, or in preparation for, a contravention in Australia's exclusive economic zone of an Act prescribed by the regulations consistently with UNCLOS, where the contravention involves another ship (whether a foreign ship or an Australian ship); and
(d) the request is made as soon as practicable after the contravention happens.
Foreign ships on high seas and covered by an agreement etc.
(8) The commander may make the request if:
(a) the master's ship is:
(i) outside the outer edge of the contiguous zone of Australia; and
(ii) outside the territorial sea of a foreign country; and
(b) the commander reasonably suspects that the master's ship is a foreign ship that is entitled to fly the flag of a country; and
(c) Australia has an agreement or arrangement with that country which enables the exercise of Australian jurisdiction over ships of that country.
The commander must not make the request under this subsection if it may be made under subsection (5), (6) or (7).
Ships without nationality on high seas
(9) The commander may make the request if:
(a) the master's ship is:
(i) outside the outer edge of the contiguous zone of Australia; and
(ii) outside the territorial sea of a foreign country; and
(b) any of the following applies:
(i) the master's ship is not flying a flag of a country;
(ii) the master's ship is flying a flag of a country and the commander reasonably suspects that the master's ship is not entitled to fly that flag;
(iii) the commander reasonably suspects that the master's ship is not entitled to fly the flag of a country or has been flying the flag of more than one country; and
(c) the Commander wishes to establish the identity of the master's ship.
The commander must not make the request under this subsection if it may be made under subsection (5), (6), (7) or (8).
Means of making request
(10) The commander of a Commonwealth ship or Commonwealth aircraft may use any reasonable means to make a request under this section.
Request still made even if no master on the ship etc.
(11) To avoid doubt, a request is still made under this section even if:
(a) there was no master on board the ship to receive the request; or
(b) the master did not receive or understand the request.
Master must comply with request
(12) The master of a ship must comply with a request made under this section (other than subsection (9)) unless he or she has a reasonable excuse.
Penalty: Imprisonment for 2 years.
Note: The master's ship can still be boarded under section 185 or 185A even though the master has not complied with a request to board under this section.
184B Power to chase foreign ships for boarding
Generally, foreign ships may be chased if request to board is made
(1) To enable the boarding of a foreign ship whose master has not complied with a request to board under section 184A (other than subsection 184A(9)), the commander of a Commonwealth ship or Commonwealth aircraft may use it to chase, or continue the chase of, the master's ship to any place outside the territorial sea of a foreign country.
Note: Subsection 184A(9) is about requests to board ships without nationality that are on the high seas. Section 185A allows those ships to be boarded, even though the master of the ship has not complied with the request to board.
Using different Commonwealth ships or aircraft to continue chase
(2) To avoid doubt, a Commonwealth ship or Commonwealth aircraft may be used in the chase even if its commander did not make the request under section 184A.
When foreign ships may be chased without a request being made
(3) The commander of a Commonwealth ship or Commonwealth aircraft may use it to chase, or continue the chase of, a foreign ship to a place outside the territorial sea of a foreign country to enable the boarding of the foreign ship if, immediately before the start of the chase, the commander could have made a request to board the foreign ship under subsection 184A(5) or (7).
Chase may continue even if the foreign ship is out of sight
(4) A chase under this section 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.
Chase may not continue after interruption
(5) The commander of a Commonwealth ship or Commonwealth aircraft must not use it to chase, or continue the chase of, a foreign ship under this section 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 (1), (3) and (4).
Means that may be used to enable boarding of the foreign ship
(6) Anywhere outside the territorial sea of a foreign country, the commander of a Commonwealth ship or Commonwealth aircraft chasing a ship under this section may use any reasonable means consistent with international law to enable boarding of the chased ship, including:
(a) using necessary and reasonable force; and
(b) where necessary and after firing a gun as a signal, firing at or into the chased ship to disable it or compel it to be brought to for boarding.
184C Power to chase Australian ships for boarding
Australian ships may be chased
(1) To enable the boarding of an Australian ship, the commander of a Commonwealth ship or Commonwealth aircraft may use it to chase, or continue the chase of, the Australian ship to any place outside the territorial sea of a foreign country.
Chase may continue even if the Australian ship is out of sight
(2) A chase under this section 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.
Means that may be used to enable boarding of the Australian ship
(3) Anywhere outside the territorial sea of a foreign country, the commander of a Commonwealth ship or Commonwealth aircraft chasing a ship under this section may use any reasonable means to enable boarding of the chased ship, including:
(a) using necessary and reasonable force; and
(b) where necessary and after firing a gun as a signal, firing at or into the chased ship to disable it or compel it to be brought to for boarding.
184D Identifying an aircraft and requesting it to land for boarding
Application of section
(1) This section allows the commander of a Commonwealth aircraft to make requests of the pilot of another aircraft that:
(a) if the other aircraft is an Australian aircraft - is over anywhere except a foreign country; and
(b) if the other aircraft is not an Australian aircraft - is over Australia.
Requesting information to identify an aircraft
(2) If the commander cannot identify the other aircraft, the commander may:
(a) 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); and
(b) request the pilot of the other aircraft to disclose to the commander:
(i) the identity of the other aircraft; and
(ii) the identity of all persons on the other aircraft; and
(iii) the flight path of the other aircraft; and
(iv) the flight plan of the other aircraft.
Requesting aircraft to land for boarding
(3) The commander may request the pilot of the other aircraft to land it at the nearest airport, or at the nearest suitable landing field, in Australia for boarding for the purposes of this Act if:
(a) the pilot does not comply with a request under subsection (2); or
(b) the commander reasonably suspects that the other aircraft is or has been involved in a contravention, or attempted contravention, of this Act.
Note: Section 185 gives power to board the aircraft and search it once it has landed.
Means of making request
(4) Any reasonable means may be used to make a request under this section.
Request still made even if pilot did not receive etc. request
(5) To avoid doubt, a request is still made under this section even if the pilot did not receive or understand the request.
Pilot must comply with request
(6) The pilot of the other aircraft must comply with a request made under this section unless he or she has a reasonable excuse.
Penalty: Imprisonment for 2 years.
Definition
(7) In this section, Australian aircraft means an aircraft that:
(a) is an Australian aircraft as defined in the Civil Aviation Act 1988; or
(b) is not registered under the law of a foreign country and is either 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.
For the purposes of this definition, Australian national and resident of Australia have the same meanings as in the Shipping Registration Act 1981.