Commonwealth Consolidated Acts

TORRES STRAIT FISHERIES ACT 1984 - SECT 42

             (1)  Subject to this section, an officer may:

                     (a)  board or enter a boat that he or she has reasonable grounds to believe has been used, is being used or is intended to be used for fishing in an area of Australian jurisdiction and may:

                              (i)  search the boat for fish, for equipment that has been used, is being used, is intended to be used or is capable of being used for fishing or for any document relating to the operations of the boat; and

                             (ii)  break open any hold, compartment, container or other receptacle on the boat that the officer has reasonable grounds to believe contains any document, equipment or thing that may afford evidence as to the commission of an offence against this Act; and

                    (aa)  subject to section 42A, search without warrant:

                              (i)  a person on a boat that the officer reasonably suspects is a foreign boat, or Papua New Guinea boat, used in a contravention of paragraph 45(1)(a) or in an offence against section 46A, 48, 49, 49A, 51 or 51A; and

                             (ii)  the person's clothing;

                            to find out whether there is hidden on the person or in the clothing:

                            (iii)  a weapon; or

                            (iv)  a thing capable of being used to inflict bodily injury on another person; or

                             (v)  a thing that may afford evidence as to the commission of an offence against subsection 45(2) or section 46A, 48, 49, 49A, 51 or 51A; and

                     (b)  where he or she has reasonable grounds to believe that there is on any premises any document, equipment or thing that may afford evidence as to the commission of an offence against this Act, with the consent of the owner or occupier of the premises or in pursuance of a warrant granted under section 43C:

                              (i)  enter the premises using such force as is necessary for the purpose;

                             (ii)  search the premises and break open and search any cupboard, drawer, chest, trunk, box, package or other receptacle, whether a fixture or not, in which he or she has reasonable grounds to believe there is a document, equipment or thing of that kind; and

                            (iii)  examine and take possession of, or secure against interference, any document, equipment or thing that he or she has reasonable grounds to believe may afford evidence as to the commission of an offence against this Act; and

                   (ba)  where the officer has reasonable grounds to believe that there is in any vehicle or aircraft anything that may afford evidence as to the commission of an offence against this Act, and subject to subsections (3) and (4):

                              (i)  stop and detain the vehicle or detain the aircraft, as the case may be; and

                             (ii)  enter and search the vehicle or aircraft; and

                            (iii)  break open and search any compartment, container or other receptacle in which the officer has reasonable grounds to believe there is any such thing; and

                            (iv)  examine and take possession of, or secure against interference, any such thing that the officer has reasonable grounds to believe may afford evidence as to the commission of an offence against this Act; and

                     (c)  examine anything found by action taken under paragraph (a) or (aa); and

                     (d)  seize, detain, remove or secure:

                              (i)  any fish that the officer has reasonable grounds to believe have been taken, processed, carried or landed in contravention of this Act;

                             (ii)  any boat (other than a Papua New Guinea boat) or equipment that the officer has reasonable grounds to believe has been used, is being used or is intended to be used in contravention of this Act; or

                            (iii)  any document or other thing that he or she has reasonable grounds to believe may afford evidence as to the commission of an offence against this Act; and

                   (da)  if premises are specified in a licence under subsection 19(4B) as premises on which fish are to be kept--enter the premises for the purpose of finding out whether a condition of the licence is being, or has been, complied with or whether a person is contravening or has contravened a provision of this Act and, in furtherance of that purpose:

                              (i)  search the premises for, and examine, fish; and

                             (ii)  search the premises for, inspect, take extracts from, and make copies of, any documents relating to the receiving of fish; and

                            (iii)  if the officer finds, during the course of the search, any thing that he or she believes, on reasonable grounds, may provide evidence of a contravention of a provision of this Act, secure the thing pending the obtaining of a warrant to seize it; and

                   (db)  with the consent of the holder of a licence under subsection 19(4B) or under a warrant issued under section 43C, seize any thing found during the course of a search that the officer believes, on reasonable grounds, may provide evidence of a contravention of this Act; and

                     (e)  detain any Papua New Guinea boat that the officer has reasonable grounds to believe has been used, is being used or is intended to be used in contravention of this Act; and

                    (ea)  seize all or any of the following that are forfeited to the Commonwealth under section 52A or that the officer has reasonable grounds to believe are forfeited under that section:

                              (i)  a boat;

                             (ii)  a net, trap or other equipment;

                            (iii)  fish; and

                   (eb)  seize all or any of the following that are forfeited to the Commonwealth under section 52AA or that the officer has reasonable grounds to believe are forfeited under that section:

                              (i)  a net, trap or other equipment;

                             (ii)  fish; and

                    (ec)  seize any fish that are the property of the Commonwealth because of the operation of section 52AC or that the officer has reasonable grounds to believe are the property of the Commonwealth because of the operation of that section; and

                   (ed)  seize anything:

                              (i)  that is on, in or attached to a boat and that forms part of the boat; and

                             (ii)  that is the property of the Commonwealth because of the operation of section 52AD or that the officer has reasonable grounds to believe is the property of the Commonwealth because of the operation of that section; and

                      (f)  arrest, without warrant, a person if the officer has reasonable grounds to believe that:

                              (i)  the person is committing or has committed an offence against this Act; and

                             (ii)  proceedings against the person by summons would not be effective; and

                     (g)  require the master of a boat that the officer has reasonable grounds to believe has been used, is being used or is intended to be used in contravention of this Act to bring the boat to a place in Australia, in an external Territory or to a place at sea specified by the officer (whether or not the boat has previously been brought to another place or other places in accordance with a requirement made by an officer under this paragraph) and to remain in charge of the boat at that place until an officer permits him or her to depart from that place; and

                     (h)  bring a boat that the officer has reasonable grounds to believe has been used or, is being used in contravention of this Act to a place in Australia or in an external Territory or to a place at sea (whether or not the boat has previously been brought to another place or other places by an officer exercising powers under this paragraph) and may remain in control of the boat pending the taking and determination of proceedings in respect of that contravention; and

                   (ha)  board or enter a boat that the officer has reasonable grounds to believe is a boat in relation to which levy under the Fisheries Levy Act 1984  may become payable or has been paid and inspect the boat or any part of the boat; and

                   (hb)  for the purposes of boarding a boat under paragraph (a) or (ha):

                              (i)  require the master to stop the boat to allow the officer to board it; and

                             (ii)  if the master does not stop the boat as required and the boat is not an Australian boat, use any reasonable means consistent with international law to stop the boat; and

                      (j)  require the master of a boat in respect of which a licence under section 19 or a Treaty endorsement is required to be in force under this Act to give information concerning the boat, the crew or any person on board the boat; and

                     (k)  require a person who is on board a boat in respect of which a licence under section 19 or a Treaty endorsement is required to be in force under this Act to state his or her full name and usual place of residence; and

                   (ka)  require a person found any premises entered in pursuance of paragraph (b) or in any vehicle or aircraft detained or searched under paragraph (ba):

                              (i)  to state the full name and usual place of residence of the person;

                             (ii)  to produce any documents in the possession, or under the control, of the person relating to any fish found on the premises or in the vehicle or aircraft; or

                            (iii)  to give information concerning any such fish; and

                    (m)  require the master of a boat to state whether he or she is the holder of a master fisherman's licence and, if so, to produce the licence and permit the officer to make copies of, or take extracts from, the licence; and

                     (n)  require the master of a boat in respect of which a licence under section 19 or a Treaty endorsement is required to be in force under this Act to produce the licence or endorsement, as the case may be, and permit the officer to make copies of, or take extracts from, the licence or endorsement, as the case may be; and

                     (o)  require the master of a boat to cause to be lifted from the sea any equipment that the officer has reason to believe is being, or has been, used by a person on board the boat in contravention of this Act; and

                   (oa)  where, for the purpose of ascertaining whether equipment that is on, or that is being used by or from, a boat is equipment of a kind specified in an instrument that is in force under subsection 16(1), it is necessary to ascertain the dimensions of the equipment--require the master of the boat to provide such reasonable assistance as is requested by the officer in order to ascertain the dimensions of the equipment (including, if the officer so requests, causing the equipment to be placed in the sea or on land, or to be removed from the sea and placed on the boat or on land); and

                     (p)  require a person on board a boat at sea to state whether he or she has engaged in fishing on the boat during the current voyage of the boat; and

                   (pa)  require a person engaged in commercial fishing without the use of a boat, being fishing in respect of which a licence under section 19 is required to be in force under this Act, to give information concerning the fishing, or to state his or her full name and usual place of residence; and

                   (pb)  require a person in charge of commercial fishing without the use of a boat, being fishing in respect of which a licence under section 19 is required to be in force under this Act, to produce the licence and permit the officer to make copies of, or take extracts from, the licence; and

                     (q)  sell any fish seized by him or her under this Act.

Note:          Schedule 2 gives officers powers relating to detention of suspected illegal foreign fishers.

             (2)  The powers of an officer under subsection (1) may be exercised:

                     (a)  in the case of powers under that subsection other than the power referred to in paragraph (1)(g)--in Australia, in an external Territory, in an area of Australian jurisdiction or in an area of waters in relation to which the Fisheries Management Act 1991 applies; and

                     (b)  in the case of the power referred to in paragraph (1)(g)--in a place referred to in paragraph (a) of this subsection, in an area of Papua New Guinea jurisdiction, in Papua New Guinea or in the territorial sea of Papua New Guinea.

    (2AAA)  If there is a restraint on the liberty of a person on a boat resulting from an officer's exercise of a power under paragraph (1)(d), (e), (g) or (h) in relation to a boat:

                     (a)  the restraint is not unlawful; and

                     (b)  civil or criminal proceedings in respect of the restraint may not be instituted or continued in any court against:

                              (i)  the officer; or

                             (ii)  any person assisting the officer in the exercise of the power; or

                            (iii)  AFMA; or

                            (iv)  the Commonwealth.

This subsection is not intended to affect the jurisdiction of the High Court under section 75 of the Constitution.

          (2A)  Where an officer (other than a prescribed person who is in uniform) boards or enters upon a boat, the officer shall:

                     (a)  in the case of a prescribed person--produce, for inspection by the master of the boat, written evidence of the fact that the officer is a prescribed person; or

                     (b)  in any other case--produce, for inspection by the master of the boat, the officer's identity card;

and, if the officer fails to do so, the officer is not authorised to remain on board the boat.

       (2AA)  Where an officer (other than a prescribed person who is in uniform) proposes to enter and search, or to detain, a vehicle, the officer shall, if there is a person in charge of the vehicle:

                     (a)  where the officer is a prescribed person--produce, for inspection by the person in charge of the vehicle, written evidence of the fact that the officer is a prescribed person; or

                     (b)  in any other case--produce, for inspection by the person in charge of the vehicle, the officer's identity card;

and, if the officer fails to do so, the officer is not authorised to enter and search, or to detain, the vehicle.

          (2B)  Where an officer (other than a prescribed person who is in uniform) makes a requirement of a person (in this subsection referred to as the relevant person ) under subsection (1), the officer shall:

                     (a)  in the case of a prescribed person--produce, for inspection by the relevant person, written evidence of the fact that the officer is a prescribed person; or

                     (b)  in any other case--produce, for inspection by the relevant person, the officer's identity card;

and, if the officer fails to do so, the relevant person is not obliged to comply with the requirement.

             (3)  Subject to subsection (4), the powers of an officer under paragraph (1)(ba) in respect of any vehicle or aircraft must not be exercised without either:

                     (a)  the consent of the owner or person in charge of the vehicle or aircraft to the exercise of those powers; or

                     (b)  the obtaining of a warrant under section 43C or 43P authorising the exercise of those powers.

             (4)  If:

                     (a)  the owner or person in charge of a vehicle or aircraft referred to in subsection (3) refuses to consent to the exercise by an officer of powers under paragraph (1)(ba); and

                     (b)  an officer seeking to exercise those powers believes, on reasonable grounds:

                              (i)  that there is in the vehicle or aircraft anything that may afford evidence of an offence against this Act or the regulations; and

                             (ii)  that the delay that would occur if an application for a warrant were made (either in person or under section 43P) would frustrate the effective execution of the warrant;

those powers may be exercised without a warrant but, if that is done, the officer must:

                     (c)  if it is practicable to do so, notify the owner or person in charge of a vehicle or aircraft that the officer will be exercising powers under paragraph (1)(ba) without a warrant and that the reasons for the exercise of those powers may be requested; and

                     (d)  as soon as reasonably practicable, record the reasons for the exercise of those powers without a warrant; and

                     (e)  upon request by the owner or person in charge of the vehicle or aircraft--provide the record of those reasons to the person affected by the exercise of those powers.

          (6A)  A reference in this section to an offence against, or a contravention of, this Act includes a reference to an offence against, or a contravention of:

                     (a)  section 6 of the Crimes Act 1914 ; or

                     (b)  section 11.1, 11.4 or 11.5 of the Criminal Code ;

that relates to this Act.

             (7)  In this section:

"examine" includes count, measure, weigh, grade or gauge.

"prescribed person" means:

                     (a)  a member or special member of the Australian Federal Police or a member of the Police Force of Queensland; or

                     (b)  a member of the Defence Force; or

                     (c)  an officer of Customs (as defined in the Customs Act 1901 ); or

                     (d)  an inspector appointed under the Fisheries Act 1994 of Queensland.

"this Act" includes the regulations.