Border Protection Legislation Amendment Act 1999 (160 of 1999)
Schedule 2 Customs Act 1901
Part 1 Chasing, boarding etc. ships and aircraft
29 After section 185
Insert:
185A Boarding of certain ships on the high seas
Application of section
(1) This section applies to a ship if:
(a) a request has been made under:
(i) subsection 184A(8) (request to board a ship of a country with which Australia has an agreement); or
(ii) subsection 184A(9) (request to board a ship without nationality); and
(b) the ship is:
(i) outside the outer edge of the contiguous zone of Australia; and
(ii) outside the territorial sea of any country (including Australia).
Powers to establish the identity of the ship
(2) An officer may:
(a) board the ship; and
(b) ask all persons found on the ship questions about:
(i) the identity of the ship; and
(ii) the voyage of the ship; and
(c) require all persons found on the ship to produce documents relevant to:
(i) finding out the identity of the ship; or
(ii) the voyage of the ship; and
(d) require the master or a member of the master's crew to show the commander or a member of the commander's crew readings of the ship's navigation instruments relating to the voyage of the ship.
Officer discovers that the ship is an Australian ship
(3) If, after exercising the powers in subsection (2), the officer is satisfied that the ship is an Australian ship, then section 185 applies to the ship.
Note: If section 185 applies to a ship, then the officer will be able to exercise all of the powers under that section in relation to the ship.
Officer confirms that the ship is covered by an agreement etc.
(4) If:
(a) after exercising the powers in subsection (2), the 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 the powers prescribed by the regulations consistently with that agreement or arrangement.
Officer discovers that the ship is not covered by an agreement etc.
(5) If:
(a) after exercising the powers in subsection (2), the officer is satisfied that the ship is a foreign ship that is entitled to fly the flag of a country; and
(b) Australia does not have an agreement or arrangement with that country which enables the exercise of Australian jurisdiction over ships of that country;
then the officer must leave the ship as soon as is practicable.
Officer confirms that the ship is without nationality
(6) If, after exercising the powers in subsection (2), the officer is satisfied that the ship is a foreign ship that:
(a) is not entitled to fly the flag of a country; or
(b) has been flying the flag of a country that it is not entitled to fly; or
(c) has been flying the flag of more than one country;
then the officer may search the ship and seize without warrant any narcotic goods found on the ship.
Definition of officer
(7) In this section, officer has the meaning given by subsection 4(1), and includes any person who is in command, or a member of the crew, of:
(a) the ship from which the relevant request under section 184A was made; or
(b) a ship that was used under section 184B to chase the ship in relation to which this section applies.
185B Moving or destroying hazardous ships etc.
Application of section to ships in Australia
(1) This section applies to a ship that is in Australia and that an officer reasonably suspects is or has been involved in a contravention or an attempted contravention, either in or outside Australia, of this Act or a prescribed Act.
Application of section to ships outside Australia
(2) This section also applies to a ship that is outside Australia if:
(a) an officer has detained it under subsection 185(3); and
(b) in the case of an Australian ship - the officer reasonably suspects it is or has been involved in a contravention or an attempted contravention, either in or outside Australia, of this Act or a prescribed Act; and
(c) in the case of a foreign ship - the officer reasonably suspects it is or has been involved in a contravention:
(i) in Australia of this Act or a prescribed Act; or
(ii) in Australia's exclusive economic zone of a prescribed Act.
When ship may be destroyed or moved
(3) The CEO may direct an officer to move, destroy, or move and destroy the ship, or cause such thing to be done, if the CEO has reasonable grounds to believe any of the following:
(a) that the ship is unseaworthy;
(b) that the ship poses a serious risk to navigation, quarantine, safety or public health;
(c) that the ship poses a serious risk of damage to property or the environment.
(4) The CEO may direct an officer to destroy, or move and destroy, the ship, or cause such thing to be done, if the CEO has reasonable grounds to believe that the ship is in such poor condition that its custody or maintenance by the Commonwealth would involve an expense that would be likely to be greater than its value.
Giving of notice after the ship has been destroyed
(5) As soon as practicable, but not later than 7 days after the ship has been destroyed, the CEO must give a written notice to:
(a) the owner of the ship; or
(b) if the owner cannot be identified after reasonable inquiry - the person in whose possession or under whose control the ship was when it was detained or located.
(6) The notice must state:
(a) that the ship has been destroyed under subsection (3) or (4); and
(b) the reason for the destruction; and
(c) that compensation may be payable under section 4AB.
Note: A person may be paid compensation under section 4AB if the destruction of the ship results in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution).
Failure to give notice not to affect validity
(7) A failure to give a notice under this section does not affect the validity of the ship's destruction.
Section to override certain other provisions
(8) This section applies despite Subdivisions D and G (other than section 205G) of Division 1 of Part XII.