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Border Protection Legislation Amendment Bill 1999

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1998-99

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

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)

 



BORDER PROTECTION LEGISLATION AMENDMENT BILL 1999

 

 

OUTLINE

 

1         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. 

 

2         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.

 

3         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

 

1         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.

 

2         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.

 

1         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.

1         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

 

1         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

 

2         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.

 

3         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.

 

1         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

 

1         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

 

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

 

2         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 UNCLOS AMENDMENTS

 

3         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.

 

4         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.

 

5         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

 

1         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

 

2         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).

 

3         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

 

4         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.

 

5         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.

 

6         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

 

7         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

 

8         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

 

9         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.

 

10     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.

 

 

11     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

 

12     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)

 

13     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.

 

14     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.”

 

15     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

 

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

 

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.

 

 

 

 

1         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.



1         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.

 

2         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

 

3         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.

 

1         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.

 

2         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”).

 

 

 

3         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. 

 

4         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

 

5         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…”

 

6         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. 

 

7         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

 

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

 

Clause 2      Commencement

 

2         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. 

 

3         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 .

 

4         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 .

 

5         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 .

 

6         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 .

 

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

 

8        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.

 

9               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.



10           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)

 

11      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 1 - MIGRATION ACT 1958

 

Part 1 - Chasing, boarding etc. ships and aircraft

 

Item 1                  After section 5A

 

New section 5B   Compensation for acquisition of property

 

1         This item inserts new section 5B which provides for the payment of compensation by the Commonwealth for any acquisition of property that occurs under the Migration Act.

 

2         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.”

 

3         New subsection 5B(1) provides that if anything done under a provision of the Migration Act would result in an acquisition of property and a provision of the Migration 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 reached, the amount of compensation will be a reasonable amount of compensation as determined by a court of competent jurisdiction.

 

4         New subsection 5B(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 5B(1).

 

5         New subsection 5B(3) provides that “acquisition of property” has the same meaning as in paragraph 51(xxxi) of the Constitution.

 

Item 2                  After Division 12 of Part 2

 

6         This item inserts new Division 12A which contains provisions dealing with the chasing, boarding etc of ships and aircraft.

 

New section 245A        Definitions

 

7         New section 245A inserts a number of definitions for the purposes of new Division 12A:

 

“aircraft”

 

8         This term is defined as including aeroplanes, seaplanes, airships, balloons or any other means of aerial locomotion.

 

“Australian aircraft”

 

9         This term is defined to mean 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 Australian and one or more Australian nationals.

 

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

 

2         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.

 

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

 

“Australian ship”

 

4         This term is defined to mean a ship that:

 

(a)      is an Australian ship as defined in the Shipping Registration Act 1981 ; 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.

 

For the purposes of this definition, the terms “ Australian national” and “ resident of Australia ” have the respective meanings given by the Shipping Registration Act 1981 .

 

14     The Shipping Registration Act 1981 (“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.

 

15     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”

 

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

 

17     To remove any doubt, paragraph (b) is added to cover that gap.  Paragraph (b) relies on the definition of the term “ship” also inserted by new section 245A (see below).  This definition does not contain the qualification denoted by the use of the term “high seas”.

 

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

 

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

 

20     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.

 

“Commonwealth aircraft” , “Commonwealth ship”

 

21     These terms are defined as being an aircraft or ship (as the case may be) which is in the service of the Commonwealth and displaying the ensign or insignia (as required) prescribed for the purposes of the definition of “Commonwealth aircraft” or “Commonwealth ship” (as the case may be) in subsection 4(1) of the Customs Act.

 

“contiguous zone”

 

22     This term is defined as having the same meaning, in relation to Australia, as in the Seas and Submerged Lands Act 1973 .   That Act in turn provides that it has the same meaning as in Article 33 of the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982.

 

“foreign ship”

 

23     This term is defined to mean a ship that is not an Australian ship.

 

“goods”

 

24     This term is defined to include documents.

 

 

 

“ship”

 

25     This term is defined 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.

 

“territorial sea”

 

26     This term is defined as having the same meaning, in relation to Australia, as in the Seas and Submerged Lands Act 1973 .   That Act in turn provides that it has the same meaning as in Articles 3 and 4 of the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982.

 

“this Act”

 

27     This term is defined to make it clear that "this Act" includes regulations made under the Migration Act.

 

“UNCLOS”

 

28     This term is defined to mean 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.

 

New section 245B        Request to board a ship

 

29     New section 245B sets out when the commander of a Commonwealth ship or aircraft (“the commander”) may request to board a ship.

 

General power to request to board

 

30     New subsection 245B(1) provides that so long as the conditions set out in one of subsections 245B(2) - (7) are satisfied, a commander 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.   The Note after new subsection 245B(1) makes it clear that the powers to board in new sections 245F and 245G may be exercised if a request is made under new section 245B.

 

Foreign ships in Australian waters

 

31     New subsection 245B(2) gives a commander the power to make a request, for the purposes of the Migration Act, under new subsection 245B(1) in respect of a foreign ship that is on the landward side of the outer edge of Australia’s territorial sea. 

 

 

 

Australian ships outside territorial seas of other countries

 

32     New subsection 245B(3) gives a commander the power to make a request under new subsection 245B(1) of the master of an Australian ship that is outside the territorial sea of any foreign country.  It also makes it clear that if a request can be made under new subsection 245B(7) a request must not be made under new subsection 245B(3). 

 

Foreign ships in contiguous zone or near installations

 

33     New subsection 245B(4) gives a commander the power to make a request under new subsection 245B(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 Migration Act.

 

Mother ships on high seas supporting contraventions in Australia

 

15     New subsection 245B(5) gives a commander the power to make a request under new subsection 245B(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 Migration Act where the contravention involves another ship (whether foreign or Australian); and

-                                               the commander makes the request as soon as practicable after the contravention happens.

 

15     New subsection 245B(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 the commander is given the power to request to board. 

 

16     The commander can only make the request once one of the support boats or other craft has been involved in the contravention, and he or she must make the request as soon as is practicable after the contravention occurs.

 

17     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.

 

18     If the master of the mother ship complies with the request then the commander or a member of his or her crew may board and exercise the powers contained in new section 245F.

 

19     If the master of the mother ship fails to comply with the request and attempts to flee, then new section 245C applies and hot pursuit may commence.

 

20     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 245B(3)).  If the master refused to allow boarding, then hot pursuit could commence.

 

Foreign ships on high seas and covered by an agreement etc

 

21     New subsection 245B(6) gives a commander the power to make a request under new subsection 245B(1) in respect of a ship where 

 

-                                               the ship is 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.

 

15     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.

 

16     Under this subsection, if the commander reasonably suspects that the ship is a mothership on the high seas that is working in a team with a ship that has contravened the Migration Act, then the commander must make the request under subsection 245B(5).

 

17     If a commander makes a request under new subsection 245B(6) then an officer can board that ship and exercise the powers contained in new section 245G.  Under new subsection 245G(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 the relevant/requisite powers that have been prescribed in the Migration Regulations.  Those prescribed powers must be consistent with the relevant agreement or arrangement.

 

18     Under new subsection 245G(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, then the officer must leave the ship as soon as practicable.

 

19     If the ship is not entitled to fly a flag the provisions applying to ships without nationality apply (new subsection 245G(6)).

Ships without nationality on high seas

 

20     New subsection 245B(7) gives a commander the power to make a request under new subsection 245B(1) in respect of a ship 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.

 

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

 

16     If the request could be made under new subsections 245B(5) or (6) the commander must not make the request under new subsection 245B(7). 

 

17     Once a request has been made under this subsection an officer may board the ship under new section 245G and exercise the powers contained in new section 245G 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

 

15     New subsection 245B(8) allows the commander to use any reasonable means to make a request under new section 245B.

 

Request still made even if no master on ship etc

 

16     New subsection 245B(9) 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.

 

15     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 is the master of the ship.

Master must comply with request

 

16     New subsection 245B(10) requires the master of a ship to comply with a request made under new section 245B (other than new subsection (7)) unless he or she has a reasonable excuse.  Failure to do so is an offence carrying a maximum penalty of 2 years imprisonment.

 

17     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 245C         Power to chase foreign ships for boarding

 

18     New sections 245C and 245D provide for new hot pursuit powers 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 245C applies to foreign ships, while new section 245D applies to Australian ships.

 

19     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

 

20     New subsection 245C(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 new section 245B (other than subsection 245B(7)).  The chase may continue to any place outside the territorial sea of a foreign country.

 

21     Subsection 245B(7) relates to ships on the high seas suspected of being without nationality.  In the circumstances were a request is made under subsection 245B(7) an  officer can board the ship under new section 245G even though the request has not been complied with, but the commander cannot chase the ship if it flees after the request has been made.

 

Using different Commonwealth ships or aircraft to continue chase

 

22     New subsection 245C(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 new section 245B.  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 new section 245B.

 

 

 

When foreign ships may be chased without a request being made

 

23     New subsection 245C(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 new subsection 245B(5).

 

24     New subsection 245C(3) applies the “doctrine of constructive presence” (explained above in relation to new subsection 245B(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 new subsection 245B(5). 

 

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

 

25     New subsection 245C(4) clarifies that a chase under new section 245C may continue even if the crew of all of the Commonwealth ships and aircraft involved in the chase lose sight of the chased ship or lose trace of it from radar or other sensing devices. 

 

26     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

 

27     New subsection 245C(5) forbids the commander from using a Commonwealth ship or aircraft to chase or continue the chase of a foreign ship under new section 245C if the chase is interrupted (within the meaning of Article 111 of UNCLOS) at a place beyond the outer edge of the contiguous zone.  This subsection has effect despite new subsections 245C(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

 

28     New subsection 245C(6) provides for the manner in which the commander chasing a foreign ship under new section 245C may bring the chase to an end.

 

29     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 245D        Power to chase Australian ships for boarding

 

Australian ships may be chased

 

15     New subsection 245D(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.

 

16     Unlike new section 245C, there is no requirement in relation to Australian ships that the commander has made a request to board under new section 245B 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

 

17     New subsection 245D(2) provides that a chase under this section may continue even if the crew of all the Commonwealth ships and aircraft involved in the chase lose sight of the chased ship or lose trace of it from radar and other sensing devices.

 

18     This provision is the same as that which applies to foreign ships (new subsection 245C(4) refers).  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

 

19     New subsection 245D(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.

 

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

 

16     This power is similar to that which applies to foreign ships (new subsection 245C(6) refers), 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 245E        Identifying an aircraft and requesting it to land for boarding

 

17     New section 245E provides for certain powers that may be exercised in relation to aircraft.

 

 

Application of section

 

18     New subsection 245E(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 (which includes Australia’s territorial sea).

 

Requesting information to identify an aircraft

 

15     New subsection 245E(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:

 

-                                               . the identity of the other aircraft;

-                                               . the identity of all persons on the other aircraft;

-                                               . the flight path of the other aircraft; and

-                                               . the flight plan of the other aircraft.

 

Requesting aircraft to land for boarding

 

15     New subsection 245E(3) gives the commander the power to request the pilot of the other aircraft to land it at the nearest proclaimed airport or suitable landing field, in Australia, for boarding for the purposes of the Migration Act if:

 

-                                               the pilot does not comply with a request under new subsection 245E(2); or

-                                               the commander reasonably suspects that the other aircraft is or has been involved in the contravention or attempted contravention of the Migration Act.

 

15     Once the other aircraft has landed, new section 245F may be used to board and search the aircraft.

 

 

 

Means of making request

 

16     New subsection 245E(4) allows the commander to use any reasonable means to make a request under new section 245E.

 

17     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

 

18     New subsection 245E(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 new section 245F.

 

Pilot must comply with request

 

19     New subsection 245E(6) requires the pilot of the other aircraft to comply with a request made under new section 245E unless he or she has a reasonable excuse. Failure to do so is an offence carrying a maximum penalty of 2 years imprisonment.

 

New section 245F        Power to board and search etc ships and aircraft

 

Application of section to ships

 

20     New subsection 245F(1) provides that new section 245F will apply where a ship is outside the territorial sea of another country if:

 

-                                               a request has been made in relation to the ship under new section 245B; or

-                                               the ship is a foreign ship and it has been chased under new subsection 245C(3); or

-                                               the ship is an Australian ship.

 

15     The second circumstance allows a ship to be boarded where it has not been possible to make a request under new section 245B because the ship has fled and there is no way to communicate that request.

 

16     This section does not apply, however, to ships where the request to board has been made under new subsection 245B(6) or (7).  These subsections relate to ships on the high seas: subsection 245B(6) 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 245B(7) 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 245G. 

17     If, upon boarding under new section 245G and using the powers contained in that section, the officer becomes satisfied that the ship is an Australian ship, then the officer can exercise the powers contained in new section 245F.  New section 245F contains powers which are wider than those found in new section 245G.  The limited powers contained in new section 245G reflect the limited jurisdiction that countries have in relation to ships on the high seas (except in relation to Australian ships).

 

18     The note to this subsection clarifies that new section 245G deals with the boarding of ships where a request has been made under new subsection 245B(6) or (7).

 

Application of section to aircraft

 

19     New subsection 245F(2) provides that new section 245F applies to an aircraft that has landed in Australia for boarding as a result of a request under new section 245E.

 

Officer’s powers

 

20     New subsection 245F(3) provides that an officer may, in relation to the ship or aircraft:

 

-                                               Board and search it;

-                                               Search, examine and secure any goods found on it;

-                                               Require all persons on it to answer questions, and produce any documents, in relation to certain specified matters;

-                                               Copy, or take extracts from, documents found or produced;

-                                               Arrest without warrant any person found on a ship or aircraft if:

.    the ship or 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 Migration Act; or

.    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 an offence in Australia against the Migration Act.

 

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 Migration Act. 

 

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 245F(8) and (9)).

 

Hence, in relation to people found on ships outside Australia, 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 against the Migration Act 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 Migration Act inside Australia and is now fleeing.    

 

15     New subsection 245F(4) 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 or arrangement between Australia and another country or other countries.

 

Help to search

 

16     New subsection 245F(5) makes it clear that an officer may use a dog to assist in searching the ship or aircraft.

 

Help to examine goods

 

17     New subsection 245F(6) 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.

 

Examples of examining goods

 

18     New subsection 245F(7) provides a non-exhaustive list of things that may be done in the examination of goods. 

 

Power to detain and move ship or aircraft

 

19     New subsection 245F(8) provides that an officer may detain a ship or aircraft and bring it, or cause it to be brought, to a port or other place he or she considers appropriate where the officer has the relevant reasonable suspicion. 

 

20     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.

 

21     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 Migration Act.

 

22     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 Migration Act.  This reflects Australia’s ability to exercise its jurisdiction over Australian ships.

 

23     If the ship is 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 in Australia of the Migration Act.

 

24     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).

 

25     New subsection 245F(8) also provides that if the ship is to be moved or destroyed under the direction of the Secretary under new section 245H, then the ship need not be brought to a port or other place.

 

26     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 Migration Act.

 

Power to detain people on detained ships or aircraft

 

27     New subsection 245F(9) makes it clear that if an officer detains a ship or aircraft under new section 245F, 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 (a term which is defined in section 5).

 

Use of necessary and reasonable force

 

28     New subsection 245F(10) allows an officer to use such force as is necessary and reasonable in the exercise of a power under new section 245F.  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 new section 245F.

 

29     The next new subsections place general limits on the powers conferred on officers under new section 245F.

 

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

 

30     New subsection 245F(11) imposes certain limits on an officer exercising force to board and search ships, aircraft or goods under new section 245F. 

 

31     In boarding and searching a ship or aircraft 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 or aircraft or the 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.

 

15     This provision is modelled after section 3U of the Crimes Act 1914 placing officers for the purposes of the Migration Act 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

 

16     New subsection 245F(12) imposes certain limits on an officer when arresting or detaining a person under new section 245F.

 

17     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).

 

15     This provision is modelled after section 3ZC of the Crimes Act 1914 placing officers for the purposes of the Migration Act 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

 

16     New subsection 245F(13) imposes certain limits on an officer when arresting a fleeing person.

 

17     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).

 

15     This provision is modelled after section 3ZC of the Crimes Act 1914 placing officers for the purposes of the Migration Act 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

 

16     New subsection 245F(14) covers the circumstances where an officer boards a ship after making a request under new section 245B and, once on board, establishes that the ship is entitled to fly a flag of a country with which Australia has an agreement or arrangement.  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 Migration Regulations consistently with the relevant agreement or arrangement.

 

Complying with requirement by officer

 

17     New subsection 245F(15) provides that the penalty for refusing or failing to comply with a requirement made by an officer under new section 245F is 100 penalty units.

 

Evidence may be used in prosecutions etc.

 

18     New subsections 245F(16) makes it clear that if an officer obtains evidence when exercising his or her powers under new section 245F, that evidence may, subject to State Laws relating to Evidence, be used in, or given to another body for use in, investigations of the offence or in proceedings for the prosecution for the offence.  

 

19     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.

 

Section not to limit officer’s other powers

 

20     New subsection 245F(17) makes it clear that new section 245F does not limit the use by an officer of any other powers under the Migration Act.

 

Definition of officer

 

21     New subsection 245F(18) provides that, for the purposes of new section 245F, “officer” means an officer within the meaning of section 5 of the Migration Act, and includes:

 

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

.    the ship or aircraft from which the relevant request under new section 245B or 245E was made; or

.    a ship or aircraft that was used under new section 245C or 245D to chase the ship in relation to which this section applies; and

-                                               a member of the Australian Defence Force.

 

15     The definition of “officer” for the purposes of new section 245F has been extended to include certain commanders and crew, as well as members of the Australian Defence Force. 

 

 

16     This will allow those people to exercise the powers contained in new section 245F and, in particular, will allow them to use those powers in isolated places.   For example it may be desirable for a 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 new section 245F.

 

Interpretation

 

17     New subsection 245F(19) provides that

-                                               a reference to a person found on the ship or aircraft includes a reference to a person suspected on reasonable grounds by an officer of having landed from or left the ship or aircraft;  and

-                                               a reference to goods found on the ship or aircraft includes a reference to goods suspected on reasonable grounds by an officer of having been removed from the ship or aircraft.

 

New section 245G        Boarding of certain ships on the high seas

 

15     New section 245G provides for the circumstances in which a ship on the high seas can be boarded and sets out the powers that can be exercised once on board such a ship.

 

Application of section

 

16     New subsection 245G(1) sets out the circumstances in which the powers contained in new section 245G can be exercised.  New section 245G applies to ships where a request to board the ship has been made under new subsection 245B(6) or (7), and the ship is outside the outer edge of Australia’s contiguous zone and outside the territorial sea of any country (that is, the ship is on the high seas). 

 

17     Requests can be made under new subsection 245B(6) 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 new subsection 245B(7) in relation to a ship that is not flying a flag or where the commander reasonably suspects the ship is without nationality (see new subsection 245G(6)).

 

Powers to establish the identity of the ship

 

18     New subsection 245G(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 a 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

 

15     New subsection 245G(3) makes it clear that an officer can exercise the powers contained in new section 245F if, after boarding the ship and exercising the powers contained in new subsection 245G(2), the officer is satisfied that the ship is an Australian ship.

 

Officer confirms that the ship is covered by an agreement etc

 

16     New subsection 245G(4) applies where the officer is satisfied that the ship is a foreign ship entitled to fly the flag of a country, and Australia has an agreement or arrangement with that country which enables Australia to exercise Australian jurisdiction over ships from that country.  Once the officer is so satisfied, he or she can then exercise those powers that are set out in the Migration Regulations.  Those prescribed powers must be consistent with the agreement or arrangement. 

 

17     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 Migration 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

 

18     New subsection 245G(5) applies where the officer is satisfied that the ship is a foreign ship that is entitled to fly a flag of a country, and Australia does not have a relevant agreement or arrangement with that country.  In those circumstances the officer must leave the ship as soon as possible.

 

Officer confirms that the ship is without nationality

 

19     New subsection 245G(6) applies where the officer is satisfied that the ship is a foreign ship that:

 

-                                               is not entitled to fly the flag of a country; or

-                                               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.



15     Where the officer is so satisfied, the officer may search the ship.

 

Definition of officer

 

16     New subsection 245G(7) provides that, for the purposes of new section 245G, “officer” means an officer within the meaning of section 5 of the Migration Act, and includes any person who is in command of, or a member of the crew of:

 

 

-                                               the ship or aircraft from which the relevant request under new section 245B or 245E was made; or

-                                               a ship or aircraft that was used under new section 245C to chase the ship in relation to which this section applies.

 

New section 245H        Moving or destroying hazardous ships etc

 

15     New section 245H deals with the movement or destruction of a ship that is unseaworthy or that constitutes a particular hazard. 

 

16     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, Australia 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

 

17     New subsection 245H(1) provides that new section 245H only applies to a ship that is 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 Migration Act.

 

18     This section will apply in two circumstances where a ship is in Australia.  The first 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 245H(3) is met then the ship can either be moved, moved and destroyed, or destroyed.

 

19     The second circumstance arises where a ship has been lawfully detained under new section 245F 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 245H(3) the ship may be moved, moved and destroyed, or destroyed.

 

Application of section to ships outside Australia

 

20     New subsection 245H(2) applies to ships outside Australia if the ship has been detained under new subsection 245F(8) and:

 

-                                               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 Migration Act; and

-                                               if the ship is a foreign ship, the officer reasonably suspects it is or has been involved in a contravention in Australia of the Migration Act.



15     New section 245H will apply to motherships that are outside the territorial sea, as long as the motherships have been involved in the contravention of the Migration Act in Australia.

 

When the ship may be destroyed or moved

 

16     New subsection 245H(3) gives the Secretary 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 Secretary has reasonable grounds to believe any of the following:

 

-                                               the ship is unseaworthy;

-                                               the ship poses a serious risk to navigation, quarantine, safety or public health;

-                                               the ship poses a serious risk of damage to property or the environment.

 

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

 

16     New subsection 245H(3) also allows the Secretary 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.

 

Giving of notice after the ship has been destroyed

 

17     New subsection 245H(4) applies where a ship has been destroyed.  In such circumstances the Secretary must, as soon as practicable, but not later than 7 days after the ship has been destroyed, give written notice to either:

 

-                                               the owner of the ship; or

-                                               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.

 

15     New subsection 245H(5) requires that the notice in question state that the ship has been destroyed, set out the reason why the ship was destroyed, and state that compensation may be payable under new section 5B. A person may be paid compensation under that section if the destruction of the ship results in an acquisition of property.

 

Failure to give notice not to affect validity

 

16     New subsection 245H(6) makes it clear that the validity of a ship’s destruction is not affected if a notice under new subsection 245H(4) 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

 

17     New subsection 245H(7) provides that this section applies despite sections 260 and 261 and Subdivisions B and C of new Division 13A. 

 

18     The effect of this provision is that the Secretary may take action pursuant to new section 245H (provided the ship is a ship to which a paragraph of new subsection 245H(3) applies) despite the fact that the other provisions referred to in new subsection 245H(7) may also be applicable, and measures pursuant to those provisions may have been taken.

 

19     The measures that may be taken under subsection 245H(&) that may be taken are:

 

-                                               detaining a vessel where its master, owner, agent or charterer has been guilty of an offence against the Migration Act and, where default is made in payment of any penalty imposed in respect of an offence against the Migration Act, seizing the vessel and taking proceedings for forfeiting and condemning it (section 260);

-                                               seizing and disposing of vessels in certain circumstances (section 261);

-                                               seizing of and dealing with vessels and certain equipment believed to be forfeited (Subdivisions B and C of new Division 13A); 

 

Item 3                  Subsection 251(1)

 

15     This item repeals subsection 251(1) and replaces it with a new provision to take account of the establishment of the new regime pursuant to item 2. 

 

16     New subsection 251(1) provides that an officer may at any time board and search a vessel if new section 245F does not apply to the vessel and the officer reasonably suspects there is on board the vessel an unlawful non-citizen or a person seeking to enter the migration zone and who would, if in the migration zone, be an unlawful non-citizen.                  

 

Item 4                  Paragraph 252(1)(a)

 

17     This item repeals paragraph 252(1)(a) and replaces it with a new provision to take account of the establishment of the new regime pursuant to item 2.  This amendment makes it clear that the exercise of the search power in section 252 is limited, in the case of persons who are being detained, to persons who are detained either in Australia or on an Australian ship that is outside the territorial sea of any country. 

 



Part 2 - Forfeiture

 

Item  5        At the end of Section 260

 

18     New subsection 260(7) provides that new Division 13A does not limit the operation of existing section 260.  The effect of this provision is that, in relation to a vessel which is seized as forfeited pursuant to new Division 13A, the Secretary may nevertheless take proceedings for forfeiting, condemning and selling the vessel pursuant to section 260 in the circumstances provided for in that section.

 

Item  6        Paragraph 261(2)(a)

 

19     This item ensures that the Secretary can dispose of a vessel seized pursuant to new section 261B if satisfied that the vessel is in such poor condition that its custody or maintenance involves expense out of proportion to its value, and the other requirements of subsection 261(2) are met.

 

Item  7        At the end of paragraph 261(2)(b)

 

20     This item inserts another requirement into subparagraph 261(2)(b) with the effect that the Secretary can not make a direction to dispose of a vessel under subsection 261(2) if the vessel has been condemned as forfeited under new Division 13A.

 

Item  8        Subsection 261(4)

 

21     This item amends subsection 261(4) to provide that the proceeds of a sale of a vessel under section 261 are to be applied firstly not only in payment of costs incurred by the Commonwealth in the custody and maintenance of the vessel (as currently provided for), but also in payment of costs incurred by the Commonwealth in selling or disposing of the vessel, before the balance is to be paid to the owner and any other person with interests in the vessel before its sale.  This item also provides that payment of such balance is subject to new subsection 261(5).

 

Item  9        At the end of section 261

 

22     This item inserts two new subsections at the end of Section 261.

 

23     New Subsection 261(5) provides that where a person owes a debt to the Commonwealth under the Migration Act, and there is some balance left over from the sale of a vessel and payable to the person pursuant to subsection 261(4), then the Commonwealth may use the balance to reduce that debt.

 

24     New subsection 261(6) provides that new Division 13A does not limit the operation of existing section 261.  The effect of this provision is that a vessel which is seized as forfeited pursuant to new Division 13A may nevertheless be disposed of pursuant to section 261 provided the requirements in subsection 261(2) are satisfied. 

 

Item 10      After Division 13 of Part 2

 

25     This item inserts new Division 13A which sets outs provisions dealing with the forfeiture and seizure of vessels and things used in certain circumstances that contravene the Migration Act.

 

New Subdivision A - Automatic forfeiture

 

26     New subdivision A deals with the automatic forfeiture of certain things. 

 

New Section 261A       Forfeiture of things used in certain offences

 

27     Paragraph (a) of new section 261A provides that a vessel used or involved in a contravention in Australia of the Migration Act is to be forfeited where the contravention involved:

-                                               the bringing or coming to Australia of one or more persons who were, or upon entry into Australia became, unlawful non-citizens; or

-                                               the entry or proposed entry into Australia of one or more such persons.

 

15     This provision is intended to provide for the forfeiture not only of those vessels which are used in the actual contravention of the Migration Act (for example, the vessels used to actually bring the persons in question into Australia), but also of vessels which may be “involved” in such a contravention (by, for example, being used as a “mothership” in support of, or in preparation for, the actual bringing of such persons into Australia).

 

16     Paragraph (b) of new section 261A provides that a vehicle or equipment on a vessel described in paragraph (a) at the time of the contravention or which was used or involved in the contravention is also to be forfeited.

 

New Subdivision B - Seizure

 

17     New subdivision B deals with the seizure of things forfeited pursuant to new section 261A. 

 

New section 261B        Seizure of things used in certain offences

 

18     New section 261B provides that an officer may seize a thing if it is forfeited under new section 261A, or if the officer reasonably suspects that the thing is forfeited under new section 261A.

 

New Subdivision C - Dealing with things seized as automatically forfeited

 

19     New Subdivision C provides how things which are seized as automatically forfeited are to be dealt with.

 

 

New section 261C        Application of this Subdivision

 

20     New section 261C provides that this subdivision sets out rules about a thing that an officer seizes under new section 261B.

 

New section 261D        Notice of seizure

 

21     New section 261D sets out the requirements relating to the giving of notice of a seizure pursuant to new section 261B to the owner of the seized thing.

 

22     Subsection 261D(1) provides that an officer must give written notice of the seizure of the thing to the owner of the thing or, where the owner cannot be identified after reasonable enquiry, to the person in whose possession or custody or under whose control the thing was immediately before it was seized. 

 

23     Subsection 261D(2) allows an officer to give the notice by fixing it to a prominent part of the thing in circumstances where the officer cannot conveniently give the notice to the person specified in subsection 261D(1).

 

24     Subsection 261D(3) provides that the notice referred to in this section must identify the thing, state that the thing has been seized and that it will be condemned as forfeited unless one of the persons referred to in subsection 261D(1) gives the Secretary within 14 days a written claim in English for the thing, and specify the address of the Secretary.

 

New section 261E        Dealing with thing before it is condemned

 

25     New section 261E provides, in subsection (1), that the Secretary may cause the seized thing to be disposed of or destroyed in circumstances where the custody or maintenance of the thing creates serious difficulties, or where the expenses of the custody or maintenance of the thing between its seizure and condemnation are likely to be greater than its value.  Subsection 261E(2) provides that disposal pursuant to this section may be subject to specified conditions.

 

New section 261F        Thing condemned if not claimed in time

 

26     New section 261F provides, in subsection (1), that the thing is condemned as forfeited to the Commonwealth 14 days after the section 261D notice has been given unless, within that period, one of the persons referred to in subsection 261D(1) gives the Secretary a written claim in English for the thing and the claim sets out an address for service on the person making the claim.  Subsection 261F(2) provides that a person may claim the thing even if it is disposed of or destroyed before or after the claim.

 

New section 261G        Dealing with claim for thing

 

27     New section 261G contains the requirements for dealing with a claim for a thing.

 

 

28     Subsection 261G(1) provides that, if a thing is claimed under new section 261F, an officer may retain possession of the thing whether or not any proceedings for the condemnation of the thing have been instituted, and the Secretary may give the claimant a written notice stating that the thing will be condemned if the claimant does not institute proceedings against the Commonwealth within one month either to recover the thing or for a declaration that the thing is not forfeited. 

 

29     If the Secretary gives a notice pursuant to this subsection and the claimant institutes proceedings, the outcome of the proceedings will determine whether the claimant recovers the thing.  If the Secretary does not give such a notice, an officer may nevertheless retain possession of the thing, and the claimant will be able to recover the thing only if a court orders its release to the claimant. 

 

30     Subsection 261G(2) provides that the Secretary may give the notice by posting it prepaid as a letter to the last address of the claimant that is known to the Secretary.

 

31     Subsection 261G(3) states that subsection (2) does not limit the ways in which the notice may be given. Sections 28A and 29 of the Acts Interpretation Act 1901 explain how a notice can be given, and when it is taken to be given.  

 

New section 261H        What happens if thing is claimed

 

32     New section 261H explains what is to happen with the thing depending on whether or not proceedings are instituted.

 

33     Subsection 261H(1) provides that the section applies if the Secretary gives the claimant a notice under new section 261G.

 

34     Subsection 261H(2) provides that the thing which is the subject of the notice is condemned as forfeited to the Commonwealth immediately after the end of the period of one month after the notice is given if the claimant does not institute proceedings of the type referred to in the notice.

 

35     If the claimant does institute such proceedings within the stated timeframe, subsection 261H(3) provides that the thing is condemned as forfeited to the Commonwealth immediately after the end of the proceedings, unless there is an order for the claimant to recover the thing, or (if the thing has been sold or disposed of before the end of the proceedings) an order for the Commonwealth to pay the claimant an amount in respect of the thing, or a declaration that the thing is not forfeited.

 

36     Subsection 261H(4) provides that proceedings which go to judgment end at the end of the period within which an appeal against the judgment can be lodged or, if an appeal against the judgment is lodged within that period, when the appeal lapses or is finally determined.

 

37     Subsection 261H(5) provides that proceedings relating to the thing may be instituted or continued even if the thing is disposed of or destroyed.   

 

38     Subsection 261H(6) deal with circumstances where the court hearing the proceedings decides that it would have ordered the thing be delivered to the claimant apart from the fact that the thing had been disposed of or destroyed. In these circumstances the court may make such orders as the court considers appropriate, including an order that the Commonwealth pay the person an amount equal to:

 

-                                               the proceeds of the sale of the thing (if the thing has been sold before the end of the proceedings); or

-                                               the market value of the thing (if the thing has been disposed of - except by sale - or destroyed before the end of the proceedings;

 

less (in each case) such costs incurred by the Commonwealth in respect of the thing as the court considers appropriate. 

 

New section 261I         Dealing with thing after it is condemned

 

15     New section 261I provides that a thing which is condemned as forfeited to the Commonwealth must be dealt with or disposed of in accordance with the directions of the Minister.

 

New Subdivision D - Operation of Division

 

16     New Subdivision D clarifies the operation of new Division 13A.

 

New section 261J         Operation of Division

 

17     New Section 261J provides that the operation of new Division 13A is not limited by new section 245H and sections 260 and 261. The effect of this is that the measures provided for in new Subdivision 13A can be taken even though the other provisions referred to in new section 261J, that is

-                                               moving or destroying hazardous ships (section 245H);

-                                               detaining vessels where its master, owner, agent or charterer has been guilty of an offence against the Migration Act and, where default is made in payment of any penalty imposed in respect of an offence against the Migration Act, seizing the vessel and taking proceedings for forfeiting and condemning it (section 260);

-                                               seizing and disposing of vessels in certain circumstances (section 261);

may also be applicable, and measures pursuant to those provisions may have been taken.

 

Item  11      Application

 

15     This item provides that the amendments made by this Part apply only in relation to contraventions after the commencement of this Part.

 



Part 3 - Enforcement visas

 

Division 1 - Basic provisions

 

Items 12 to 15     Subsection 5(1)

 

16     These items insert new definitions into the Migration Act.

 

17     enforcement visa ” is defined as having the meaning given by new section 38A which is inserted by item 17 of this Part of the Bill.

 

18     " fisheries detention offence " is defined with reference to offences that are found in the Fisheries Management Act 1991 .  This definition will itself be amended by item 28 of this Part of the Bill through the addition of references to two new offences.  The amended definition will commence after Schedule 2 of the Fisheries Legislation Amendment Act (No.1) 1999 commences.

 

19     " fisheries officer " and " foreign boat " are also defined with reference to the Fisheries Management Act 1991 .  These terms only appear in the context of the exercise of powers under the Fisheries Management Act 1991 .

 

Item 16      Subsection 5(1) (definition of substantive visa )

 

20     This item substitutes a new definition of the term “ substantive visa ” and adds an enforcement visa to the types of visas which are not substantive visas.

 

Item 17      After section 38

 

21     This item inserts new section 38A to create a new class of temporary visas to travel to, enter and remain in Australia.  These visas will be known as enforcement visas.

 

Item 18      Subsection 43(1)

 

22     This item is consequential to the amendment at Item 19 inserting new subsection 43(3).

 

Item 19      At the end of section 43

 

23     This item inserts new subsections 43(3) and 43(4) to ensure that section 43 does not apply to enforcement visas. 

 

24     New subsection 43(3) will ensure that Fisheries officers can take suspected illegal foreign fishers to any part of the Australian coast (including those parts that may not be a “port” for the purposes of the Migration Act) without the continued validity of any enforcement visas being placed in doubt.   Doubts over the validity of an enforcement visa might otherwise arise through the operation of section 173 of the Migration Act.

 

25     " Australian resident " is defined with reference to a provision that will be inserted into the Fisheries Management Act 1991 by Schedule 3 of this Bill.

 

26     " master " for the purposes of section 43 of the Migration Act is also defined with reference to the Fisheries Management Act 1991 because the latter Act provides the context in which foreign fishing boats maybe directed into shore other than at a port.

 

Item 20      At the end of section 44

 

27     This item inserts new subsection 44(2) to provide that certain subdivisions in Division 3, Part 2 of the Migration Act dealing with visa applications do not apply to enforcement visas. 

 

28     The content of subsection44(2) reflects the fact that the grant of enforcement visas will take place without any visa application process .

 

Item 21      Paragraph 46(1)(d)

 

29     This item is consequential to new section 164D of the Migration Act inserted by item 23 in this part of the Bill. 

 

30     Section 164D provides that holders and former holders of enforcement visas cannot make for a visa other than a protection visa whilst they are in Australia.  The amendment to paragraph 46(1)(d) ensures that a visa application purported to be made by the holder of an enforcement visa will not be valid.

 

Item 22      After subsection 82(2)

 

31     This item inserts new subsection 82(2A) to provide that a temporary visa held by a non-citizen ceases to be in effect if an enforcement visa for the non-citizen comes into effect.

 

32     This will ensure that a foreign fisher cannot hold more than one non-permanent visa at a time.  It should be noted that Australian residents for the purposes of the Fisheries Management Act 1991 cannot be granted enforcement visas - see subsection 164C(7).  This means that non-citizens with a residential connection to Australia which is not limited as to time (including New Zealand citizens who hold a Special Category visa) will not be placed in a position where doubts may be raised over the continued existence of their temporary visa.

 

Item 23      After Division 4 of Part 2

 

33     This item inserts a new division - Division 4A - into the Migration Act dealing with enforcement visas.

 

 

 

 

 

New section 164A        Definitions

 

34     New section 164A provides definitions for interpretation of new Division 4A.  Both " fisheries detention " and " master " are defined with reference to the Fisheries Management Act 1991 as that Act provides the context in which enforcement visas may be granted.

 

New section 164B        Grant of enforcement visas

 

35     New section 164B provides that an enforcement visa is granted in the following circumstances:

 

Non-citizen on foreign boat outside migration zone (new subsection 164B(1))

 

36     A non-citizen on a foreign boat outside the migration zone is taken to have been granted an enforcement visa when the fisheries officer, acting under the Fisheries Management Act 1991 :

 

-                                               makes a requirement of the boat’s master to bring or take the boat into the migration zone;  or

-                                               exercises his or her power under paragraph 84(1)(m) of the Fisheries Act to bring the boat into the migration zone;

 

whichever occurs first.

 

15     This will ensure that all non-citizens on the vessel are the holders of visas before they enter the migration zone (either because they are Australian residents or because they are holders of enforcement visas).  The objective is to ensure that no immigration offences are committed by either the non-citizens themselves, or the fisheries officers, when a foreign fishing boat is directed into shore.

 

Non-citizen in migration zone (new subsection 164B(2))

 

16     A non-citizen in the migration zone who does not already hold an enforcement visa is granted an enforcement visa when he or she is detained by a fisheries officer under new paragraph 84(1)(ia) of the Fisheries Management Act 1991 .  That paragraph is inserted into that Act by Schedule 3.

 

Non-citizen in prescribed circumstances (new subsection 164B(3))

Non-citizen on foreign boat in prescribed circumstances (new subsection 164B(4))

 

17     In both cases a non-citizen who does not already hold an enforcement visa is granted an enforcement visa when a fisheries officer exercises under the Fisheries Management Act 1991 a prescribed power in prescribed circumstances in relation to the non-citizen.  

 

18     The objective of the provisions are to provide flexibility to accommodate unforeseen changes to the kinds of powers that a fisheries officer may exercise which would result in the need for a non-citizen to be granted an enforcement visa.

Enforcement visas granted by force of this section (new subsection 164B(5))

 

19     The objective of this provision is to remove any doubt over enforcement visas being granted by operation of law.  There is no visa application process for enforcement visas and it is not possible for a non-citizen to decline the lawful grant of an enforcement visa.

 

Exception if Minister's declaration in force (new subsection 164B(6))

 

20     New subsection 164B(6) provides that, despite new subsections 164B(1) to (4), an enforcement visa is not granted if a declaration under new subsection 164B(7) is in force in relation to the non-citizen or a class of persons of which the non-citizen is a member.

 

Declaration (new subsection 164B(7))

 

21     New subsection 164B(7) provides that the Minister may make a written declaration, for the purposes of this section, that it is undesirable that a person, or any persons in a class of persons, travel to and enter Australia or remain in Australia.

 

22     This provision has been modelled on existing subsection 33(9) of the Migration Act and is intended to ensure that the Minister has the power to ensure that particular non-citizens, or classes of non-citizens are not granted enforcement visas.

 

Section does not apply to Australian residents (new subsection 164B(8))

 

23     New subsection 164B(8) ensures that non-citizens who are Australian residents (as defined in the Fisheries Management Act 1991 ) will not be granted enforcement visas.

 

New section 164C        When enforcement visa ceases to be in effect

 

24     New section 164C provides for the ceasing of an enforcement visa in the following circumstances:

 

Non-citizen in fisheries detention (new subsection 164C(1))

 

25     The enforcement visa of a non-citizen who is in fisheries detention ceases to be in effect:

 

-                                               when the non-citizen is released, or escapes, from fisheries detention; or

-                                               when the Minister makes a declaration under new subsection 164B(7); or

-                                               on the occurrence of a prescribed event

 

whichever occurs first.

 

15     The objective of the prescribed event provision in paragraph 164C(1)(c) is to provide flexibility to accommodate unforeseen changes to the kinds of powers that a fisheries officer may exercise which would result in the need for a non-citizen to be granted an enforcement visa.

Non-citizen not in fisheries detention (new subsection 164C(2))

 

16     The enforcement visa of a non-citizen who is not in fisheries detention ceases to be in effect:

-                                               when a decision is made not to charge the non-citizen with a fisheries detention offence; or

-                                               when the Minister makes a declaration under new subsection 164B(7); or

-                                               on the occurrence of a prescribed event;

 

whichever occurs first.

 

15     Again, the objective of the prescribed event provision in paragraph 164C(2)(c) is to provide flexibility to accommodate unforeseen changes to the kinds of powers that a fisheries officer may exercise which would result in the need for a non-citizen to be granted an enforcement visa.

 

New section 164D        Applying for other visa

 

16     New section 164D provides that a non-citizen who holds an enforcement visa, or who has held an enforcement visa and remains in Australia when the visa ceases to be in effect, may not apply for any visa other than a protection visa while he or she remains in Australia.

 

Item 24      At the end of subsection 193(1)

 

17     This item adds new paragraph 193(1)(d).  The new provision will ensure that sections 194 and 195 do not apply to a person detained under section 189 of the Migration Act; who held an enforcement visa that has ceased to be in effect and has not been a lawful non-citizen since the enforcement visa ceased to be in effect.

 

Item 25      Paragraph 198(2)(a)

 

18     This is a consequential amendment following the addition of paragraph 193(1)(d) by item 24 above.

 

Item 26      At the end of subsection 229(1)

 

19     This item inserts new paragraph 229(1)(d) to ensure that no offence relating to carriage of non-citizens without documentation is committed where a non-citizen who holds an enforcement visa is brought into Australia.

 

Item 27      At the end of paragraph 229(5)(b)

 

20     This item inserts new subparagraphs 229(5)(b)(iv) and 229(5)(b)(v) to provide and amended defence to a prosecution for an offence against subsection 229(1) of the Migration Act.  

 

21     They provide a defence in relation to the bringing of a non-citizen into Australia on a vessel if it is established that the master of the vessel had reasonable grounds for believing that the non-citizen in fact was the holder of an enforcement visa or would, when entering Australia, be the holder of an enforcement visa.

 

Division 2 - Amendments relating to the Fish Stocks Agreement

 

Item 28      Subsection 5(1) (definition of fisheries detention offence)

Item 29      At the end of section 43

Item 30      After subsection 164B(1)

 

22     The amendments made by items 28, 29 and 30 will commence as soon as possible after commencement of Schedule 2 to the proposed Fisheries Legislation Amendment Act (No.1) 1999.

 

23     Each item makes amendments to the various provisions which are consequential to the commencement of Schedule 2 of the proposed Fisheries Legislation Amendment Act (No.1) 1999 .  

 

24     That Schedule will commence by way of Proclamation, or if not proclaimed within 6 months, as soon as the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks enters into force for Australia.

 



Part 4 - Miscellaneous amendments

 

Item 31      Subsection 42(1)

 

25     This item is consequential to the insertion of new subsection 42(2A), below.

 

Item 32      After subsection 42(2)

 

26     This item inserts new subsection 42(2A) which provides that the requirement in subsection 42(1) for a non-citizen not to travel to Australia without a visa that is in effect does not apply to a non-citizen in relation to travel to Australia in the circumstances set out in paragraphs (a) to (f) of the subsection. 

 

27     The circumstances outlined in paragraphs 42(2A)(a) and (b), that is

-                                               travel by a New Zealand citizen who holds and produces a New Zealand passport that is in force;  and

-                                               travel by a non-citizen who holds and produces a passport that is in force and is endorsed with an authority to reside indefinitely on Norfolk Island;

have been moved from the Migration Regulations 1994 to the Migration Act as a consequence of the insertion into sections 229, 232 and 232A of the Migration Act of references to section 42 of the Migration Act.

 

15     Under new paragraph 42(2A)(c), a non-citizen is not required to have a visa to travel to Australia if:

-                                               the non-citizen is brought to the migration zone because of new subsection 245F(9) of the Migration Act, or because of new subsection 185(3A) of the Customs Act 1901 ; and

-                                               the non-citizen would, in the migration zone, be an unlawful non-citizen.

 

15     Under new paragraph 42(2A)(d), a non-citizen is not required to have a visa to travel to Australia if:

-                                               the non-citizen is removed from Australia under section 198, but is refused entry by the receiving country; and

-                                               the non-citizen returns to Australia as a direct result of that refusal; and

-                                               the non-citizen would, in the migration zone, be an unlawful non-citizen.

 

15     For example, a non-citizen may be removed from Australia to another country of which that person has claimed to be a national.  That country may determine that the non-citizen is not their national and may refuse entry to the non-citizen.  In such circumstances, Australia will accept the return of the non-citizen, and the non-citizen will not be required to have a visa that is in effect in order to make the return travel to Australia.  Section 189 of the Migration Act then requires the person to be detained.

 

16     Under new paragraph 42(2A)(e), a non-citizen is not required to have a visa to travel to Australia if:

 

 

-                                               the non-citizen is removed from Australia under section 198; and

-                                               the High Court or the Federal Court had made an order in relation to the non-citizen before the non-citizen left Australia or Australian airspace, or the Minister gave an undertaking to the High Court or the Federal Court in relation to the non-citizen; and

-                                               the effect of the order or undertaking is that the non-citizen has to travel to Australia; and

-                                               the Minister has made a declaration that this paragraph is to apply in relation to the non-citizen’s travel; and

-                                               the non-citizen would, in the migration zone, be an unlawful non-citizen.

 

15     Under new paragraph 42(2A)(f), a non-citizen is not required to have a visa to travel to Australia if:

-                                               the non-citizen travels from Norfolk Island to Australia; and

-                                               the Minister has made a declaration that this paragraph is to apply in relation to the non-citizen’s travel; and

-                                               the non-citizen would, in the migration zone, be an unlawful non-citizen.

 

15     Norfolk Island is part of Australia at international law, but is not part of the “migration zone” for the purposes of the Migration Act; it has its own legislation in relation to immigration matters.  However, Norfolk Island’s capacity to deal with unauthorised arrivals is limited.  Those unauthorised arrivals who can not be removed from Norfolk Island immediately because of the need to consider their position under our international obligations will need to be brought to the migration zone to enable that process to take place. 

 

16     Therefore, where the Minister has made a declaration under paragraph 42(2A)(f), the non-citizen is deported from Norfolk Island, and provided that the non-citizen would be an unlawful non-citizen in the migration zone, the non-citizen is not required to have a visa that is in effect to travel to Australia.  Section 189 of the Migration Act then requires the person to be detained.

 

Item 33      At the end of section 42

 

17     This item adds new subsection 42(4) to make it clear that even though a non-citizen may travel to or be brought to Australia without a visa by virtue of subsection 42(2A) or (3), the person’s status in the migration zone is not affected.  Therefore, if a person is an unlawful non-citizen in the migration zone, they must be detained under section 189 of the Act.

 

Item 34      At the end of section 48

 

18     This item adds new subsection 48(2) which provides that a non-citizen who has been removed pursuant to section 198 and has returned to the migration zone by virtue of paragraph 42(2A)(d) or (e), is taken to have been continuously in the migration zone for the purposes of section 48, despite the removal under section 198. 

 

 

 

19     This amendment will ensure that the limitation on the making of visa applications set out in subsection 48(1) applies to such a non-citizen, and that the failed removal does not create additional entitlements that have already been finally determined prior to the person’s removal.

 

Item 35      After subsection 48A(1)

 

20     This item inserts new subsection 48A(1A) which provides that a non-citizen who has been removed pursuant to section 198 and has returned to the migration zone by virtue of paragraph 42(2A)(d) or (e), is taken to have been continuously in the migration zone for the purposes of section 48A, despite the removal under section 198. 

 

21     This amendment will ensure that a non-citizen referred to in paragraph 42(2A)(d) or (e) who had applied for, and been refused, one or more protection visas before being removed pursuant to section 198 is not able to make a further application for a protection visa after returning to Australia under paragraph 42(2A)(d) or (e).

 

Item 36      At the beginning of Subdivision A of Division 12 of Part 2

 

22     This item inserts new section 228A in the Migration Act to dispel any uncertainty regarding the extra-territorial operation of Subdivision A of Division 12 of Part 2. The provisions in question do not contain an express intention that they operate extra-territorially. However, in order to give effect to the express words of some of the provisions it is necessary to imply intended extra-territorial operation.  New section 228A will ensure that provisions in Subdivision A of Division 12 of Part 2 will operate extra-territorially as intended.

 

Item 37      At the end of paragraph 229(1)(a)

 

23     This item makes a minor technical amendment.

 

Item 38      At the end of subsection 229(1)

 

24     This item amends subsection 229(1) so that a master, owner, agent, charterer and operator of a vessel on which a non-citizen is brought into Australia are not each guilty of an offence against section 229 if the non-citizen, when entering Australia, is a non-citizen who, by virtue of subsection 42(2) or (2A) or regulations made under subsection 42(3), does not require a visa for travel to Australia.

 

Item 39      Subsections 229(3) and (4)

 

25     This item removes subsections (3) and (4) from section 229.  These evidentiary provisions currently only apply in respect of proceedings for an offence against subsection 229(1).  Substantially the same provisions are now incorporated into section 271 (item 56 below refers) to ensure a more general application.

 

 

 

Item 40      Subsection 230(1)

Item 41      After subsection 230(1)

 

26     The amendments made by these items will ensure that the current subsection 230(1) operates as intended.

 

27     Subsection 230(1) currently provides that it is an offence for the master, owner, agent and charterer of a vessel to have a concealed unlawful non-citizen on their vessel when it arrives in Australia.  However, an unlawful non-citizen is, by definition, a non-citizen in the migration zone who is not a lawful non-citizen (see sections 13 and 14 of the Migration Act). Given the technical meaning of “unlawful non-citizen”, subsection 230(1) can currently be of no effect.

 

28     Item 40 removes the reference to “Australia” in subsection 230(1) and replaces it with a reference to “the migration zone”.  Subsection 230(1) as amended by Item 40 will provide that it is an offence to have a concealed unlawful non-citizen on the vessel when it arrives in the migration zone.

 

29     New subsection 230(1A), as inserted by the Item 41, will provide that it is also an offence to have a concealed person on the vessel when it arrives in Australia in circumstances where the person would, if in the migration zone, be an unlawful non-citizen.

 

Item 42      Subsection 230(2)

 

30     This item makes a minor technical amendment.

 

Item 43      Paragraph 230(2)(a)

 

31     This item is consequential to the insertion of new subsection 230(1A).

 

Item 44      After subsection 230(2)

 

32     This item provides that subsection 230(1A) does not apply to a person where the master of the vessel takes the steps set out in paragraphs 230(1A)(a) and (b).  

 

Item 45      Subparagraph 232(a)(ii)

 

33     This item makes a minor technical amendment, consequential to the addition of subparagraph 232(a)(iii), below.

 

Item 46      At the end of paragraph 232(a)

 

34     This item adds new subparagraph 232(a)(iii).  The effect of new subparagraph 232(a)(iii) is that a master, owner, agent, and charterer of the vessel referred to in section 232 are not each deemed to be guilty of an offence against section 232 if subsection 42(1) does not apply to the non-citizen.

 

Item 47      At the end of section 232

 

35     This item adds a defence provision substantially the same as that provided for in subsection 229(5) to section 232 in view of the more general application of the evidentiary provisions currently contained in subsections 229(3) and (4) as a result of the amendment made by item 56 below.   

 

Item 48      Paragraph 232A(a)

 

36     This item adds a reference to subsection 42(1) in paragraph 232A(a) so that a person is not guilty of an offence under section 232A if subsection 42(1) does not apply to the group of 5 or more people referred to in paragraph 232A(a).

 

Item 49      Paragraph 232A(b)

 

37     This item amends paragraph 232A(b) to replace the element of knowledge with the element of recklessness.  Section 232A currently provides that a person who organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of 5 or more people and who does so knowing the people would become, upon entry into Australia, unlawful non-citizens.  By replacing the knowledge element with an element of recklessness as to whether the people in question had, or have, a lawful right to come to Australia, this amendment will ensure that a person cannot avoid liability under section 232A on the basis that they did not have technical knowledge that the people being trafficked would become, in Australia, “unlawful non-citizens”.

 

Item 50      Paragraph 249(1)(a)

 

38     This item repeals and substitutes paragraph 249(1)(a).  New paragraph 249(1)(a) corrects an anomaly in the operation of this provision by providing that an officer, in order to prevent a person from leaving the vessel on which the person arrived in Australia, is only required to have a suspicion that the person is an unlawful non-citizen rather than knowledge that the person is in fact an unlawful non-citizen.

 

Item 51      After subsection 249(1)

 

39     This item inserts new subsection 249(1AA) in the Migration Act to provide that an officer may prevent a person from leaving a vessel on which the person arrived in Australia if the officer reasonably suspects that the person is seeking to enter the migration zone, and would, if in the migration zone, be an unlawful non-citizen.

 

40     This item will correct an anomaly in the operation of this provision to enable persons who have not entered the migration zone but who are within Australia’s territorial sea and are suspected to become unlawful non-citizens if they did enter the migration zone, to be prevented from leaving the vessel on which they are located.

 

 

 

Item 52      Subsection 249(1A)

 

41     This item is consequential to the insertion of new subsection 249(1AA) by the above item.

 

Item 53      Subsection 249(1A)

 

42     This item is also consequential to the insertion of new subsection 249(1AA).

 

Item 54      Subsection 249(2)

 

43     This item is also consequential to the insertion of new subsection 249(1AA).

 

Item 55      Paragraph 262(b)

 

44     This item extends the operation of section 262 by providing that the master, owner, agent and charterer of the vessel on which a particular person in detention pursuant to subsection 250(2) travelled to Australia are jointly and severally liable to pay the Commonwealth the costs referred to in section 262 not only where the person in detention is convicted of an offence against a prescribed law relating to the control of fishing, but also where the person is convicted of an offence against the Migration Act.

 

Item 56      At the end of subsection 271(1)

 

45     This item inserts new paragraphs 271(1)(j) and (k) which add to the existing evidentiary provisions provisions substantially the same as those currently contained in subsections 229(3) and (4). 

 

46     Under new paragraph 271(1)(j), in certain circumstances:

-                                               evidence of failure to produce a passport; or

-                                               evidence of the production of a passport that was not an Australian passport

is prima facie evidence that a person is a non-citizen. 

 

15     Under new paragraph 271(1)(k), in certain circumstances, failure to produce, on entering Australia, evidence of a visa that is in effect and that permits the non-citizen to travel to and enter Australia, is prima facie evidence that the non-citizen did not hold such a visa when entering Australia.

 

Item 57      Paragraph 504(1)(j)

 

16     This item repeals and substitutes paragraph 504(1)(j).  The new provision increases the maximum penalty that can be provided for in the Regulations in respect of persons alleged to have contravened section 229 or 230, and who chose the administrative penalty under the Regulations as an alternative to prosecution, from $3000 to the current penalty unit equivalent of $3300 in the case of a natural person and $11000 in the case of a body corporate.

 

Item 58      Application

 

17     This item provides that the amendments made by items 32, 33, 34, 35, 38, 46 and 48 do not apply in relation to travel to Australia before the commencement of those items, and that the amendments made by items 39, 49, 55 and 56 do not apply in relation to the entry of a person into Australia before the commencement of those items.

 



Part 5 - Technical amendment

 

Item 59      Paragraph 198(2)(c)

 

18     This item makes a technical amendment to paragraph 198(2)(c) which corrects a grammatical error.

 



SCHEDULE 2 - CUSTOMS ACT 1901

 

Part 1 - Chasing, boarding etc. ships and aircraft

Item 1                  Subsection 4(1)

 

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

 

2         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

 

3         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

 

3         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”

 

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

 

5         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”.

 

6         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”.

 

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

 

8         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.

 

9         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)

 

10     These items insert new definitions into the Customs Act.

 

11     “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.

 

12     “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).

 

13     “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 )

 

14     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)

 

15     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

 

16     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.

 

17     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.”

 

18     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.

 

19     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).

 

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

 

21     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

 

22     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

 

24     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

 

25     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.

 

26     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

 

27     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

 

28     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.

 

29     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

 

30     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 .

 

31     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

 

32     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.

 

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

 

34     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

 

35     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.

 

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

 

37     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. 

 

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

 

39     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.

 

40     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. 

 

41     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.

 

42     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

 

43     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.

 

44     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

 

45     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).

 

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

 

47     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

 

48     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.

 

49     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.

 

50     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).

 

3         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.

 

4         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.

 

5         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

 

6         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.

 

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

 

4         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). 

 

5         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.

 

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

 

Means of making request

 

4         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

 

5         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.

 

3         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

 

4         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. 

 

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

 

6         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

 

7         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.

 

8         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

 

9         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.

 

10     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

 

11     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

 

12     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).

 

13     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

 

14     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. 

 

15     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

 

16     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

 

17     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.

 

18     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.

 

3         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

 

4         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.

 

5         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

 

6         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.

 

7         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

 

8         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). 

 

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

 

4         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

 

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

 

Application of section

 

6         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

 

3         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

 

89     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.

 

89     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

 

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

 

 

 

 

 

 

91     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

 

92     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

 

93     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.

 

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

 

Definition

 

95     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.

 

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

 

90     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.

 

91     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)

 

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

 

Application of section to ships

 

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

 

94     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.

 

89     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.

 

90     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).

 

91     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

 

92     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)

 

93     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)

 

94     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)

 

95     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)

 

96     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)

 

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

 

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

 

98     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)

 

99     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)

 

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

 

101 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)

 

102 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)

 

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

 

90     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)).

 

89     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.

 

90     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.

 

91     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.

 

 

 

 

92     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.

 

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

 

94     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.

 

95     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)

 

96     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)

 

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

 

98     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)

 

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

 

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

 

101 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.

 

102 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.

 

89     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)

 

90     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

 

91     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. 

 

92     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.

 

93     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).

 

94     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.

 

95     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)).

 

89     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.

 

90     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).

 

91     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.

 

92     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

 

93     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. 

 

94     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

 

95     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.

 

96     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

 

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

 

98     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.

 

89     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

 

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

 

91     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).

 

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

 

90     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

 

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

 

92     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).

 

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

 

90     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

 

91     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)

 

92     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)

 

93     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.

 

89     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)

 

90     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.

 

89     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. 

 

89     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

 

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

 

91     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

 

92     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). 

 

93     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

 

94     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

 

89     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

 

90     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

 

91     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

 

92     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.



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

 

90     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

 

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

 

92     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.

 

89     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

 

90     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

 

91     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.

 

92     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.

 

93     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

 

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

 

-                                               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



-                                               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)).

 

89     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. 

 

90     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.

 

91     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.

 

92     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

 

93     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:

 

-                                               is unseaworthy;

-                                               poses a serious risk to navigation, quarantine, safety or public health;

-                                               poses a serious risk of damage to property or the environment; or

-                                               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.

 

89     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. 

 

90     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.

 

91     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

 

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

 

-                                               the owner of the ship; or

-                                               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.

 

89     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.

 

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

 

-                                               that the ship has been destroyed under new subsection 185B(3);

-                                               the reason for the destruction; and

-                                               that compensation may be payable under section 4AB of the Customs Act.

89     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

 

90     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

 

91     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)

 

92     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.

 

93     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.

 

94     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

 

95     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

 

96     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.

 

97     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.

 

98     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.

 

99     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. 

 

100 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.

 

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

 

-                                               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

-                                               enabling the safe exercise by Customs officers of powers conferred upon them under the Customs Act.

 

89     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.

 

90     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.

 

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

 

92     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 .

 

93     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:



-                                               the circumstances in which the powers in Division 1 of Part XII of the Customs Act may be exercised;

-                                               the officers of Customs who are entitled to exercise those powers; and

-                                               the manner and frequency of reporting to the CEO concerning the exercise of those powers.

 

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

 

90     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.

 

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

 

-                                               the circumstances in which relevant firearms and equipment may be issued;

-                                               the circumstances in which such firearms and equipment are to be recalled;

-                                               the circumstances in which such firearms and equipment can be used and manner of their use;

-                                               the nature of the secure storage of such firearms and equipment when recalled; and

-                                               any other matters relating to deployment of such firearms and equipment as the CEO thinks appropriate.

 

89     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.

 

90     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.

 

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

 

92     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)

 

93     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

 

94     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)

 

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

 

96     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:

 

-                                               an Australian ship and it is outside the territorial sea of another country;

 

This reflects Australia’s ability to exercise jurisdiction over Australian ships.

 

-                                               a foreign ship that is on the landward side of the outer edge of Australia’s territorial sea.

 

 

 

 

89     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.

 

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

 

91     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)

 

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

 

93     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.

 

94     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.

 

95     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:

 

-                                               an Australian ship and it is outside the territorial sea of another country; or

 

Again this reflects Australia’s wide jurisdiction over Australian ships.

 

-                                               a foreign ship that is on the landward side of the outer edge of Australia’s territorial sea.

 

Item 37      After subsection 219L(1B)

 

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

 

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

 

-                                               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

 

-                                               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)

 

89     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)

 

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

 

91     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.

 

92     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.

 

93     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)

 

94     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)

 

95     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)

 

96     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)

 

97     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)

 

98     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)

 

99     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)

 

100 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

 

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

 

 

 

 

102 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.

 

103 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)

 

104 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)

 

105 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.

 

106 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)

 

107 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.

 

108 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)

 

109 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.

 

110 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.

 



SCHEDULE 3 - FISHERIES MANAGEMENT ACT 1991

 

Part 1 - Customs officers to be fisheries officers

 

Item 1                  Subsection 4(1) (at the end of the definition of officer )

 

1         This item expands the definition of officer under the Fisheries Act.  As a result, Customs officers will automatically have the authority to act as officers under the Fisheries Act in matters relating to surveillance of, and enforcement against, illegal fishers.

 

Item2                   Subsection 84(8) (at the end of the definition of prescribed person )

 

2         This item expands the groups of prescribed persons under the Fisheries Act.  As a result, Customs officers, when acting as Fisheries officers, will simply be able to identify themselves using written evidence.

 

 

Part 2 - Suspected illegal foreign fishers

 

Division 1 - Basic provisions

 

3         This Part introduces a new power.  This will enable the Australian Fisheries Management Authority (AFMA) to detain suspected illegal foreign fishers while investigations are undertaken.  To date, while AFMA has undertaken this detention function, legislative responsibility has remained with the Department of Immigration and Multicultural Affairs.  The transfer of legislative responsibility addresses one of the recommendations of the report of the Commonwealth Ombudsman on Administrative Arrangements for Indonesian Fishermen Detained in Australian Waters .

 

4         The changed legislative detention powers are associated with the introduction of a new visa sub-class, known as an enforcement visa.  The enforcement visa automatically comes into effect upon action by a Fisheries officer against a suspected illegal foreign fisher (a detailed explanation of this new visa is provided under Schedule 1, Part 3 of the Migration Act 1958 section of this Explanatory Memorandum).

 

Item 3                  Subsection 4(1)

5         This item provides a definition of “Australian resident”.  Australian citizens and Australian residents will not be subject to detention under the illegal foreign fishers regime.

 

Item 4                  After paragraph 84(1)(i)

6         This item details the detention powers which may be exercised by a Fisheries officer in relation to investigating a suspected offence by an illegal foreign fisher.  These powers include the ability to transfer a detainee between places within Australia and its external Territories; the powers to search without warrant for weapons; the powers to photograph and record information to identify the detainee.

 

Item 5                  Subsection 84(7)

Item 6                  Subsection 84(7)

7         These items amend subsection 84(7) to clarify the application of the Crimes Act 1914 to the Fisheries Act or sections of that Act.

 

Item 7                  After section 84

 

New section 84A Detention under paragraph 84(1)(ia)

8         This item details the basis on which a detainee must be released.  It should be noted that Australian citizens or Australian residents cannot be detained under this regime and that detention is limited to a maximum of 168 hours from the time detention began.  While under detention, the relevant sections of the Crimes Act 1914 are applicable.  There is also specific provision that unnecessary force should not be used in detaining a suspect.

 

New section 84B Searches under paragraph 84(1)(ic)

9         This item details the procedures for conducting searches of detainees including requirements for persons of the same sex as the detainee to conduct the search, and that unnecessary force or subjection to unnecessary indignity should not be involved.

 

Item 8                  At the end of Division 4 of Part 6

 

New section 98A Escape from detention

10     This new item introduces a prison sentence of up to two years for those illegal foreign fishers who intentionally escape from detention.  Such a penalty reflects the need for deterrence against actions which may endanger detainees or officials working in detention centres.

 

Division 2 - Amendments relating to the Fish Stocks Agreement

 

11     The items in this Division are consequential on the Fisheries Legislation Amendment Bill (No.1) 1999, Schedule 2, which implements the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Fish Stocks Agreement).

 

 

 

 

 

 

 

 

 

 

 

Item 9                  Paragraph 84(1)(ia)

Item 10      Paragraph 84(1)(ia)

Item 11      Paragraph 84(1)(ib)

Item 12      After paragraph 87E(1)(a)

 

12     These items add to the powers to detain persons, that may be exercised by a Fisheries officer, to also include detention in Australia of foreign fishers from a boat with a nationality party to the Fish Stocks Agreement that is believed to have been involved in an offence against a high seas regional fishery management measure.  The use of this power is conditional on the procedure prescribed in the Fish Stocks Agreement involving the notification of the appropriate authority of the country of nationality of the boat and, either:

 

-      authorisation being provided by that country for investigative action; or

-      a serious offence has been committed and the country of nationality has not acted in accordance with its international obligations.

 

13     Detention in Australia would be for the purposes of determining whether or not to charge a person.  Proceeding to hearing does not occur without consent of the country of nationality of the boat alleged to have been involved in the offence.

 

14     The power to detain includes taking the detainee from place to place.

Item 13      At the end of section 87E

15     This item provides that the use of detention powers for offences inside the Australian Fishing Zone covered by section 84 are not limited because the foreign boat has a nationality of a party to the Fish Stocks Agreement.

 

 

Part 3 - Customs officers exercising powers as fisheries officers may carry arms

 

Item 14       Before section 85

 

New section 84C          Customs officers may carry arms in exercise of powers under this Act

16     This item is a consequential addition to the Fisheries Act resulting from the decision to allow Customs officers to carry arms (as provided for in new section 189A the Customs Act, inserted by item 32 of Schedule 2 of this Bill).  The arming of Customs marine crews reflects the increased risks faced when operating far from shore and away from the support of armed Defence or police personnel. 

 

17     It is expected that Customs officers will regularly be exercising their responsibilities under the Fisheries Act.  Between 24 and 200 nautical miles, it is largely under fisheries legislation that Customs officers will have powers for enforcement action.