Border Protection Legislation Amendment Act 1999 (160 of 1999)

Schedule 2   Customs Act 1901

Part 1   Chasing, boarding etc. ships and aircraft

25   Subsection 185(3)

Repeal the subsection, substitute:

Power to detain and move ship or aircraft

(3) An officer may detain the ship or aircraft and bring it, or cause it to be brought, to a port, airport or other place that he or she considers appropriate if:

(a) in the case of a ship that is in Australia - the officer reasonably suspects that the ship is or has been involved in a contravention, either in or outside Australia, of this Act or an Act prescribed consistently with UNCLOS; and

(b) in the case of an Australian ship that is outside Australia - the officer reasonably suspects that the ship is, will be or has been involved in a contravention, either in or outside Australia, of this Act or any other Act; and

(c) in the case of a foreign ship that is outside Australia - the officer reasonably suspects that the ship is, will be or has been involved in a contravention:

(i) in Australia of this Act or an Act prescribed consistently with UNCLOS; or

(ii) in Australia's exclusive economic zone of an Act prescribed consistently with UNCLOS; and

(d) in the case of an aircraft that is in Australia - the officer reasonably suspects that the aircraft is or has been involved in a contravention, either in or outside Australia, of this Act.

However, a ship need not be brought to a port or other place if the CEO makes a direction in relation to the ship under section 185B.

Power to detain people on detained ships or aircraft

(3A) If an officer detains a ship or aircraft under this section, the officer may also detain any person who is found on the ship or aircraft and bring the person, or cause the person to be brought, to the migration zone (within the meaning of section 5 of the Migration Act 1958).

Use of necessary and reasonable force

(3B) An officer may use such force as is necessary and reasonable in the exercise of a power under this section.

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

(3C) In boarding and searching the ship or aircraft and searching or examining goods found on the ship or aircraft, an officer must not damage the ship, aircraft or goods by forcing open a part of the ship, aircraft or goods unless:

(a) 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

(b) it is not reasonably practicable to give that person such an opportunity.

This subsection has effect despite paragraphs (2)(a) and (b) and subsection (3B).

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

(3D) In arresting or detaining a person found on the ship or aircraft, an officer:

(a) 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

(b) must not 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 (2)(d) and subsection (3B).

Limit on use of force to arrest fleeing person

(3E) In arresting a person found on the ship or aircraft who is fleeing to escape arrest, an officer must not do anything likely to cause the person grievous bodily harm unless:

(a) 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

(b) 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 (3D) and has effect despite paragraph (2)(d) and subsection (3B).

If ship covered by agreement, officer may exercise other powers

(3F) If:

(a) an officer is satisfied that the ship is a foreign ship that is entitled to fly the flag of a country; and

(b) Australia has an agreement or arrangement with that country which enables the exercise of Australian jurisdiction over ships of that country;

then the officer may exercise any powers prescribed by the regulations consistently with the agreement or arrangement in relation to the ship or persons found on the ship.