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This is a Bill, not an Act. For current law, see the Acts databases.
1998-99
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Border
Protection Legislation Amendment Bill
1999
No. ,
1999
(Immigration and Multicultural
Affairs)
A Bill for an Act to provide
enhanced protection for Australia’s borders, and for related
purposes
ISBN: 0642 409234
Contents
Part 1—Chasing, boarding etc. ships and
aircraft 4
Part
2—Forfeiture 23
Part 3—Enforcement
visas 29
Division 1—Basic
provisions 29
Division 2—Amendments relating to the Fish Stocks
Agreement 35
Part 4—Miscellaneous
amendments 36
Part 5—Technical
amendment 43
Part 1—Chasing, boarding etc. ships and
aircraft 44
Part 2—Transfer of goods into or out of coasting
trade 70
Part 1—Customs officers to be fisheries
officers 71
Part 2—Suspected illegal foreign
fishers 72
Division 1—Basic
provisions 72
Division 2—Amendments relating to the Fish Stocks
Agreement 75
Part 3—Customs officers exercising powers as fisheries officers may
carry arms 77
A Bill for an Act to provide enhanced protection for
Australia’s borders, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Border Protection Legislation Amendment
Act 1999.
Sections 1, 2 and 3
(1) Sections 1, 2 and 3 commence on the day on which this Act receives the
Royal Assent.
Division 2 of Part 3 of Schedule 1
(2) 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.
Part 5 of Schedule 1
(3) 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.
Parts 1 and 3 of Schedule 3
(4) 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.
Division 2 of Part 2 of Schedule 3
(5) 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.
Remaining provisions of this Act
(6) Subject to subsections (7) and (8), the remaining provisions of this
Act commence on a day or days to be fixed by Proclamation.
(7) If the provisions referred to in subsection (6) do not commence under
that subsection within the period of 6 months after the day on which this Act
receives the Royal Assent, they commence on the first day after the end of that
period.
Special condition for commencement of items of Schedule 2
(8) If, apart from this subsection, an item of Schedule 2 would commence
before the commencement of any of the following amendments of the Customs Act
1901 made by the Customs Legislation Amendment Act (No. 1)
1999:
(a) the amendments of sections 4, 175, 185, 219L, 219M and
219ZE;
(b) the amendments inserting sections 186A and 219NA;
then the item commences immediately after the last commencement of those
amendments.
Subject to section 2, each Act that is specified in a Schedule to this
Act is amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect according to
its terms.
Part
1—Chasing, boarding etc.
ships and aircraft
Insert:
(1) If:
(a) this Act would result in an acquisition of property; and
(b) any provision of this Act would not be valid, apart from this section,
because a particular person has not been compensated;
the Commonwealth must pay that person:
(c) a reasonable amount of compensation agreed on between the person and
the Commonwealth; or
(d) failing agreement—a reasonable amount of compensation determined
by a court of competent jurisdiction.
(2) Any damages or compensation recovered, or other remedy given, in a
proceeding begun otherwise than under this section must be taken into account in
assessing compensation payable in a proceeding begun under this section and
arising out of the same event or transaction.
(3) In this section:
acquisition of property has the same meaning as in paragraph
51(xxxi) of the Constitution.
2 After Division 12 of Part
2
Insert:
In this Division, unless the contrary intention appears:
aircraft includes aeroplanes, seaplanes, airships, balloons
or any other means of aerial locomotion.
Australian aircraft means an aircraft that:
(a) is an Australian aircraft as defined in the Civil Aviation Act
1988; or
(b) is not registered under the law of a foreign country and is either
wholly owned by, or solely operated by:
(i) one or more residents of Australia; or
(ii) one or more Australian nationals; or
(iii) one or more residents of Australia and one or more Australian
nationals.
For the purposes of this definition, Australian national and
resident of Australia have the same meanings as in the Shipping
Registration Act 1981.
Australian ship means 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 either
wholly owned by, or solely operated by:
(i) one or more residents of Australia; or
(ii) one or more Australian nationals; or
(iii) one or more residents of Australia and one or more Australian
nationals.
For the purposes of this definition, Australian national and
resident of Australia have the same meanings as in the Shipping
Registration Act 1981.
Commonwealth aircraft means an aircraft that is in the
service of the Commonwealth and displaying the ensign or insignia prescribed for
the purposes of the definition of Commonwealth aircraft in
subsection 4(1) of the Customs Act 1901.
Commonwealth ship means a ship that is in the service of the
Commonwealth and flying the ensign prescribed for the purposes of the definition
of Commonwealth ship in subsection 4(1) of the Customs Act
1901.
contiguous zone, in relation to Australia, has the same
meaning as in the Seas and Submerged Lands Act 1973.
foreign ship means a ship that is not an Australian
ship.
goods includes a document.
ship means any vessel used in navigation, other than air
navigation, and includes:
(a) an off-shore industry mobile unit; and
(b) a barge, lighter or any other floating vessel.
territorial sea, in relation to Australia, has the same
meaning as in the Seas and Submerged Lands Act 1973.
this Act includes regulations made under this Act.
UNCLOS means the United Nations Convention on the Law of the
Sea.
Note: The text of the Convention is set out in Australian
Treaty Series 1994 No. 31.
General power to request to board
(1) In the circumstances described in subsection (2), (3), (4), (5), (6)
or (7), the commander of a Commonwealth ship or Commonwealth aircraft may
request the master of a ship to permit the commander, a member of the
commander’s crew or an officer to board the master’s ship.
Note: Sections 245F and 245G give power to board the
master’s ship if a request is made under this section.
Foreign ships in Australian waters
(2) The commander may make the request if the master’s ship is a
foreign ship that is on the landward side of the outer edge of Australia’s
territorial sea. However, the request must be made for the purposes of this
Act.
Australian ships outside territorial seas of other
countries
(3) The commander may make the request if:
(a) the master’s ship is an Australian ship; and
(b) the master’s ship is outside the territorial sea of any foreign
country.
The commander must not make the request under this subsection if it may be
made under subsection (7).
Foreign ships in contiguous zone or near installations
(4) The commander may make the request if:
(a) the master’s ship is a foreign ship; and
(b) the master’s ship is either:
(i) in the contiguous zone of Australia; or
(ii) within 500 metres of an Australian resources installation or
Australian sea installation; and
(c) the commander:
(i) wishes to establish the identity of the master’s ship;
or
(ii) reasonably suspects that the master’s ship is, will be or has
been involved in a contravention, or an attempted contravention, in Australia of
this Act.
Mother ships on high seas supporting contraventions in
Australia
(5) The commander may make the request if:
(a) the master’s ship is a foreign ship; and
(b) the master’s ship is:
(i) outside the outer edge of the contiguous zone of Australia;
and
(ii) not within 500 metres of an Australian resources installation or
Australian sea installation; and
(iii) outside the territorial sea of a foreign country; and
(c) the commander reasonably suspects that the master’s ship is
being or was used in direct support of, or in preparation for, a contravention
in Australia of this Act, where the contravention involves another ship (whether
a foreign ship or an Australian ship); and
(d) the request is made as soon as practicable after the contravention
happens.
Foreign ships on high seas and covered by an agreement
etc.
(6) The commander may make the request if:
(a) the master’s ship is:
(i) outside the outer edge of the contiguous zone of Australia;
and
(ii) outside the territorial sea of a foreign country; and
(b) the commander reasonably suspects that the master’s ship is a
foreign ship that is entitled to fly the flag of a country; and
(c) Australia has an agreement or arrangement with that country which
enables the exercise of Australian jurisdiction over ships of that
country.
The commander must not make the request under this subsection if it may be
made under subsection (5).
Ships without nationality on high seas
(7) The commander may make the request if:
(a) the master’s ship is:
(i) outside the outer edge of the contiguous zone of Australia;
and
(ii) outside the territorial sea of a foreign country; and
(b) any of the following applies:
(i) the master’s ship is not flying a flag of a country;
(ii) the master’s ship is flying a flag of a country and the
commander reasonably suspects that the master’s ship is not entitled to
fly that flag;
(iii) the commander reasonably suspects that the master’s ship is
not entitled to fly the flag of a country or has been flying the flag of more
than one country; and
(c) the Commander wishes to establish the identity of the master’s
ship.
The commander must not make the request under this subsection if it may be
made under subsection (5) or (6).
Means of making request
(8) The commander of a Commonwealth ship or Commonwealth aircraft may use
any reasonable means to make a request under this section.
Request still made even if no master on the ship etc.
(9) To avoid doubt, a request is still made under this section even
if:
(a) there was no master on board the ship to receive the request;
or
(b) the master did not receive or understand the request.
Master must comply with request
(10) The master of a ship must comply with a request made under this
section (other than subsection (7)) unless he or she has a reasonable
excuse.
Penalty: Imprisonment for 2 years.
Note: The master’s ship can still be boarded under
section 245F or 245G even though the master has not complied with a request to
board under this section.
Generally, foreign ships may be chased if request to board is
made
(1) To enable the boarding of a foreign ship whose master has not complied
with a request to board under section 245B (other than subsection 245B(7)), the
commander of a Commonwealth ship or Commonwealth aircraft may use it to chase,
or continue the chase of, the foreign ship to any place outside the territorial
sea of a foreign country.
Note: Subsection 245B(7) is about requests to board ships
without nationality that are on the high seas. Section 245G allows those ships
to be boarded, even though the master of the ship has not complied with the
request to board.
Using different Commonwealth ships or aircraft to continue
chase
(2) To avoid doubt, a Commonwealth ship or Commonwealth aircraft may be
used in the chase even if its commander did not make the request under section
245B.
When foreign ships may be chased without a request being
made
(3) The commander of a Commonwealth ship or Commonwealth aircraft may use
it to chase, or continue the chase of, a foreign ship to a place outside the
territorial sea of a foreign country to enable the boarding of the foreign ship
if, immediately before the start of the chase, the commander could have made a
request to board the foreign ship under subsection 245B(5).
Chase may continue even if the foreign ship is out of
sight
(4) A chase under this section may continue even if the crew of all of the
Commonwealth ships and Commonwealth aircraft involved in the chase lose sight of
the chased ship or lose trace of it from radar or other sensing
devices.
Chase may not continue after interruption
(5) The commander of a Commonwealth ship or Commonwealth aircraft must not
use it to chase, or continue the chase of, a ship under this section if the
chase is interrupted (within the meaning of Article 111 of UNCLOS) at a place
outside the outer edge of the contiguous zone. This subsection has effect
despite subsections (1), (3) and (4).
Means that may be used to enable boarding of the foreign
ship
(6) Anywhere
outside the territorial sea of a foreign country, the commander of a
Commonwealth ship or Commonwealth aircraft chasing a ship under this section may
use any reasonable means consistent with international law to enable boarding of
the chased ship, including:
(a) using necessary and reasonable force; and
(b) where necessary and after firing a gun as a signal, firing at or into
the chased ship to disable it or compel it to be brought to for
boarding.
Australian ships may be chased
(1) To enable the boarding of an Australian ship, the commander of a
Commonwealth ship or Commonwealth aircraft may use it to chase, or continue the
chase of, the Australian ship to any place outside the territorial sea of a
foreign country.
Chase may continue even if the Australian ship is out of
sight
(2) A chase under this section may continue even if the crew of all of the
Commonwealth ships and Commonwealth aircraft involved in the chase lose sight of
the chased ship or lose trace of it from radar or other sensing
devices.
Means that may be used to enable boarding of the Australian
ship
(3) Anywhere outside the territorial sea of a foreign country, the
commander of a Commonwealth ship or Commonwealth aircraft chasing a ship under
this section may use any reasonable means to enable boarding of the chased ship,
including:
(a) using necessary and reasonable force; and
(b) where
necessary and after firing a gun as a signal, firing at or into the chased ship
to disable it or compel it to be brought to for boarding.
Application of section
(1) This section allows the commander of a Commonwealth aircraft to make
requests of the pilot of another aircraft that:
(a) if the other aircraft is an Australian aircraft—is over anywhere
except a foreign country; and
(b) if the other aircraft is not an Australian aircraft—is over
Australia.
Requesting information to identify an aircraft
(2) If the commander cannot identify the other aircraft, the commander
may:
(a) use his or her aircraft to intercept the other aircraft in accordance
with the practices recommended in Annex 2 (headed “Rules of the
Air”) to the Convention on International Civil Aviation done at Chicago on
7 December 1944 (that was adopted in accordance with that Convention);
and
(b) request the pilot of the other aircraft to disclose to the
commander:
(i) the identity of the other aircraft; and
(ii) the identity of all persons on the other aircraft; and
(iii) the flight path of the other aircraft; and
(iv) the flight plan of the other aircraft.
Requesting aircraft to land for boarding
(3) The commander may request the pilot of the other aircraft to land it
at the nearest proclaimed airport, or at the nearest suitable landing field, in
Australia for boarding for the purposes of this Act if:
(a) the pilot does not comply with a request under subsection (2);
or
(b) the commander reasonably suspects that the other aircraft is or has
been involved in a contravention, or attempted contravention, of this
Act.
Note: Section 245F gives power to board the aircraft and
search it once it has landed.
Means of making request
(4) Any reasonable means may be used to make a request under this
section.
Request still made even if pilot did not receive etc.
request
(5) To avoid doubt, a request is still made under this section even if the
pilot did not receive or understand the request.
Pilot must comply with request
(6) The pilot of the other aircraft must comply with a request made under
this section unless he or she has a reasonable excuse.
Penalty: Imprisonment for 2 years.
Application of section to ships
(1) This section applies to a ship that is outside the territorial sea of
a foreign country if:
(a) a request to board the ship has been made under section 245B;
or
(b) the ship is a foreign ship described in subsection 245C(3) (which
allows foreign ships on the high seas to be chased); or
(c) the ship is an Australian ship.
However, this section does not apply to a ship if a request to board the
ship has been made under subsection 245B(6) or (7) (certain ships on the high
seas), unless an officer is satisfied under subsection 245G(3) that the ship is
an Australian ship.
Note: Section 245G deals with the boarding of ships where a
request has been made under subsection 245B(6) or (7).
Application of section to aircraft
(2) This section applies to an aircraft that has landed in Australia for
boarding as a result of a request made under section 245E.
(3) An officer may:
(a) board and search the ship or aircraft; and
(b) search and examine any goods found on the ship or aircraft;
and
(c) secure any goods found on the ship or aircraft; and
(d) require all persons found on the ship or aircraft to answer questions,
and produce any documents in their possession, in relation to the
following:
(i) the ship or aircraft, its voyage or flight and its cargo, stores, crew
and passengers;
(ii) the identity and presence of those persons on the ship or
aircraft;
(iii) a contravention, an attempted contravention or an involvement in a
contravention or attempted contravention, either in or outside Australia, of
this Act; and
(e) copy, or take extracts from, any document:
(i) found on the ship or aircraft; or
(ii) produced by a person found on the ship or aircraft as required under
paragraph (d); and
(f) arrest without warrant any person found on the ship or aircraft
if:
(i) in the case of a person found on a ship or aircraft that is in
Australia—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 this Act; and
(ii) in the case of a person found on a ship that is outside
Australia—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 this Act.
(4) Any exercise of the power of arrest referred to in subsection (3) in
the contiguous zone in relation to Australia is subject to the obligations of
Australia under international law, including obligations under any treaty,
convention or other agreement or arrangement between Australia and another
country or other countries.
Help to search
(5) Without limiting the generality of paragraph (3)(a), an officer may
use a dog to assist in searching the ship or aircraft.
Help to examine goods
(6) In the exercise of the power under paragraph (3)(b) to examine goods,
the officer may do, or arrange for another officer or other person having the
necessary experience to do, whatever is reasonably necessary to permit the
examination of the goods.
Examples of examining goods
(7) Without limiting the generality of subsection (6), examples of what
may be done in the examination of goods include the following:
(a) opening any package in which goods are or may be contained;
(b) using a device, such as an X-ray machine or ion scanning equipment, on
the goods;
(c) if the goods are a document—reading the document either directly
or with the use of an electronic device;
(d) using a dog to assist in examining the goods.
Power to detain and move ship or aircraft
(8) An officer may detain the ship or aircraft and bring it, or cause it
to be brought, to a port or other place that he or she considers appropriate
if:
(a) in the case of a ship or aircraft that is in Australia—the
officer reasonably suspects that the ship or aircraft is or has been involved in
a contravention, either in or outside Australia, of this Act; and
(b) in the case of an Australian ship that is outside Australia—the
officer reasonably suspects that the ship is, will be or has been involved in a
contravention, either in or outside Australia, of this Act; and
(c) in the case of a foreign ship that is outside Australia—the
officer reasonably suspects that the ship is, will be or has been involved in a
contravention in Australia of this Act.
However, a ship need not be brought to a port or other place if the
Secretary makes a direction in relation to the ship under section
245H.
Power to detain people on detained ships or aircraft
(9) If an officer detains a ship or aircraft under this section, the
officer may also detain any person who is found on the ship or aircraft and
bring the person, or cause the person to be brought, to the migration
zone.
Use of necessary and reasonable force
(10) An officer may use such force as is necessary and reasonable in the
exercise of a power under this section.
Limit on use of force to board and search ships or
aircraft
(11) In boarding and searching the ship or aircraft and searching or
examining goods found on the ship or aircraft, an officer must not damage the
ship, aircraft or goods by forcing open a part of the ship, aircraft or goods
unless:
(a) the person (if any) apparently in charge of the ship or aircraft has
been given a reasonable opportunity to open that part or the goods; or
(b) it is not reasonably practicable to give that person such an
opportunity.
This subsection has effect despite paragraphs (3)(a) and (b) and subsection
(10).
Limit on use of force to arrest or detain person on ships or
aircraft
(12) In arresting or detaining a person found on the ship or aircraft, an
officer:
(a) must not use more force, or subject the person to greater indignity,
than is necessary and reasonable to make the arrest or detention, or to prevent
the person escaping after the arrest or detention; and
(b) must not do anything likely to cause the person grievous bodily harm
unless the officer believes on reasonable grounds that doing the thing is
necessary to protect life or prevent serious injury of another person (including
the officer).
This subsection has effect despite paragraph (3)(f) and subsection
(10).
Limit on use of force to arrest fleeing person
(13) In arresting a person found on the ship or aircraft who is fleeing to
escape arrest, an officer must not do anything likely to cause the person
grievous bodily harm unless:
(a) the person has, if practicable, been called on to surrender and the
officer believes on reasonable grounds that the person cannot be apprehended in
any other way; or
(b) the officer believes on reasonable grounds that doing the thing is
necessary to protect life or prevent serious injury of another person (including
the officer).
This subsection applies in addition to subsection (12) and has effect
despite paragraph (3)(f) and subsection (10).
If ship covered by agreement, officer may exercise other
powers
(14) If:
(a) an officer is satisfied that the ship is a foreign ship that is
entitled to fly the flag of a country; and
(b) Australia has an agreement or arrangement with that country which
enables the exercise of Australian jurisdiction over ships of that
country;
then the officer may exercise any powers prescribed by the regulations
consistently with the agreement or arrangement in relation to the ship or
persons found on the ship.
Complying with requirement by officer
(15) A person must not, without reasonable excuse, refuse or fail to
comply with a requirement made by an officer under this section.
Penalty: 100 penalty units.
Evidence may be used in prosecutions etc.
(16) To avoid doubt, if, when exercising powers under this section, an
officer obtains evidence of the commission of an offence against a law of the
Commonwealth, a State or a Territory, then that evidence may be used, or given
to another body for use, in:
(a) investigating the offence; or
(b) proceedings for the prosecution for the offence.
However, this subsection does not override or limit the operation of a law
of a State about the evidence that may be used in proceedings for the
prosecution for an offence against a law of that State.
Section not to limit officer’s other powers
(17) This section does not limit the use by an officer of any other powers
under this Act.
Definition of officer
(18) In this section, officer means an officer within the
meaning of section 5, and includes:
(a) any person who is in command, or a member of the crew, of:
(i) the ship or aircraft from which the relevant request under section
245B or 245E was made; or
(ii) a ship or aircraft that was used under section 245C or 245D to chase
the ship in relation to which this section applies; and
(b) a member of the Australian Defence Force.
Interpretation
(19) In this section:
(a) 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
(b) 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.
Application of section
(1) This section applies to a ship if:
(a) a request has been made under:
(i) subsection 245B(6) (request to board a ship of a country with which
Australia has an agreement); or
(ii) subsection 245B(7) (request to board a ship without nationality);
and
(b) the ship is:
(i) outside the outer edge of the contiguous zone of Australia;
and
(ii) outside the territorial sea of any country (including
Australia).
Powers to establish the identity of the ship
(2) An officer may:
(a) board the ship; and
(b) ask all persons found on the ship questions about:
(i) the identity of the ship; and
(ii) the voyage of the ship; and
(c) require all persons found on the ship to produce documents relevant
to:
(i) finding out the identity of the ship; or
(ii) the voyage of the ship; and
(d) require the master or a member of the master’s crew to show the
commander or a member of the commander’s crew readings of the ship’s
navigation instruments relating to the voyage of the ship.
Officer discovers that the ship is an Australian ship
(3) If, after exercising the powers in subsection (2), the officer is
satisfied that the ship is an Australian ship, then section 245F applies to the
ship.
Note: If section 245F applies to a ship, then the officer
will be able to exercise all of the powers under that section in relation to the
ship.
Officer confirms that the ship is covered by an agreement
etc.
(4) If:
(a) after exercising the powers in subsection (2), the officer is
satisfied that the ship is a foreign ship that is entitled to fly the flag of a
country; and
(b) Australia has an agreement or arrangement with that country which
enables the exercise of Australian jurisdiction over ships of that
country;
then the officer may exercise the powers prescribed by the regulations
consistently with that agreement or arrangement.
Officer discovers that the ship is not covered by an agreement
etc.
(5) If:
(a) after exercising the powers in subsection (2), the officer is
satisfied that the ship is a foreign ship that is entitled to fly the flag of a
country; and
(b) Australia does not have an agreement or arrangement with that country
which enables the exercise of Australian jurisdiction over ships of that
country;
then the officer must leave the ship as soon as is practicable.
Officer confirms that the ship is without nationality
(6) If, after exercising the powers in subsection (2), the officer is
satisfied that the ship is a foreign ship that:
(a) is not entitled to fly the flag of a country; or
(b) has been flying the flag of a country that it is not entitled to fly;
or
(c) has been flying the flag of more than one country;
then the officer may search the ship.
Definition of officer
(7) In this section, officer
means an officer within the meaning of section 5, 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
245B or 245E was made; or
(b) a ship or aircraft that was used under section 245C to chase the ship
in relation to which this section applies.
Application of section to ships in Australia
(1) This section applies to a ship that is in Australia and that an
officer reasonably suspects is or has been involved in a contravention or an
attempted contravention, either in or outside Australia, of this Act.
Application of section to ships outside Australia
(2) This section also applies to a ship that is outside Australia
if:
(a) an officer has detained it under subsection 245F(8); and
(b) in the case of an Australian ship—the officer reasonably
suspects it is or has been involved in a contravention or an attempted
contravention, either in or outside Australia, of this Act; and
(c) in the case of a foreign ship—the officer reasonably suspects it
is or has been involved in a contravention in Australia of this Act.
When the ship may be destroyed or moved
(3) The Secretary may direct an officer to move, destroy, or move and
destroy the ship, or cause such thing to be done, if the Secretary has
reasonable grounds to believe any of the following:
(a) that the ship is unseaworthy;
(b) that the ship poses a serious risk to navigation, quarantine, safety
or public health;
(c) that the ship poses a serious risk of damage to property or the
environment.
Giving of notice after the ship has been destroyed
(4) As soon as practicable, but not later than 7 days after the ship has
been destroyed, the Secretary must give a written notice to:
(a) the owner of the ship; or
(b) if the owner cannot be identified after reasonable inquiry—the
person in whose possession or under whose control the ship was when it was
detained or located.
(5) The notice must state:
(a) that the ship has been destroyed under subsection (3); and
(b) the reason for the destruction; and
(c) that compensation may be payable under section 5B.
Note: A person may be paid compensation under section 5B if
the destruction of the ship results in an acquisition of property (within the
meaning of paragraph 51(xxxi) of the Constitution).
Failure to give notice not to affect validity
(6) A failure to give a notice under this section does not affect the
validity of the ship’s destruction.
Section to override certain other provisions
(7) This section applies despite sections 260 and 261 and Subdivisions B
and C of Division 13A.
3 Subsection 251(1)
Repeal the subsection, substitute:
(1) An officer may at any time board and search a vessel if:
(a) section 245F does not apply to the vessel; and
(b) the officer reasonably suspects there is on board the
vessel:
(i) an unlawful non-citizen; or
(ii) a person seeking to enter the migration zone who would, if in the
migration zone, be an unlawful non-citizen.
4 Paragraph 252(1)(a)
Repeal the paragraph, substitute:
(a) the person is detained:
(i) in Australia; or
(ii) on an Australian ship (within the meaning of section 245A) that is
outside the territorial sea of any country (including Australia);
or
5 At the end of section 260
Add:
(7) Division 13A does not limit the operation of this section.
6 Paragraph 261(2)(a)
After “(1)”, insert “or section 261B”.
7 At the end of paragraph
261(2)(b)
Add “or condemned as forfeited under Division 13A”.
8 Subsection 261(4)
Omit “the vessel and”, substitute “the vessel, and in
selling or disposing of the vessel, and, subject to subsection
(5),”.
9 At the end of section 261
Add:
(5) If:
(a) a person owes a debt to the Commonwealth under this Act; and
(b) an amount by way of the balance of the proceeds of a sale (the
balance amount) is payable to the person under subsection
(4);
the Commonwealth may apply the balance amount in payment of the debt, and
the debt is reduced accordingly. The amount applied must not exceed the amount
of the debt.
(6) Division 13A does not limit the operation of this section.
10 After Division 13 of Part
2
Insert:
The following things are forfeited to the Commonwealth:
(a) a vessel used or involved in a contravention of this Act (where the
contravention occurred in Australia), if the contravention involved:
(i) the bringing or coming to Australia of one or more persons who were,
or upon entry into Australia became, unlawful non-citizens; or
(ii) the entry or proposed entry into Australia of one or more such
persons;
(b) a vehicle or equipment:
(i) on a vessel described in paragraph (a) at the time of the
contravention mentioned in that paragraph; or
(ii) used or involved in the contravention referred to in that
paragraph.
An officer may seize a thing in Australia if:
(a) the thing is
forfeited under section 261A; or
(b) the officer reasonably suspects that the thing is forfeited under
section 261A.
This Subdivision sets out rules about a thing that an officer seizes
under section 261B.
(1) The officer must give written notice of the seizure of the thing to
the owner of the thing. However, if the owner cannot be identified after
reasonable inquiry, the officer must give the notice to the person in whose
possession or custody or under whose control the thing was immediately before it
was seized.
(2) If the officer cannot conveniently give the notice to the person
referred to in subsection (1) in person, the officer may give written notice of
the seizure of the thing by fixing the notice to a prominent part of the
thing.
(3) The notice must:
(a) identify the thing; and
(b) state that the thing has been seized; and
(c) specify the reason for the seizure; and
(d) state that the thing will be condemned as forfeited unless the owner
of the thing, or the person who had possession, custody or control of the thing
immediately before it was seized, gives the Secretary within 14 days a written
claim in English for the thing; and
(e) specify the address of the Secretary.
Note: Section 261F condemns the thing if it is not claimed
within 14 days. Section 261H condemns the thing if it is claimed but the
claimant does not get a court order supporting the claim.
(1) The Secretary may, on behalf of the Commonwealth, cause the thing to
be disposed of or destroyed if:
(a) its custody or maintenance creates serious difficulties; or
(b) the expenses of its custody or maintenance between its seizure and
condemnation are likely to be greater than its value.
(2) If the Secretary causes the thing to be disposed of, the Secretary may
cause the disposal to be subject to specified conditions.
(1) By force of this subsection, the thing is condemned as forfeited to
the Commonwealth 14 days after notice of seizure of the thing has been given
under section 261D, unless:
(a) within the 14 days the owner of the thing or the person who had
possession, custody or control of it immediately before it was seized gives the
Secretary a written claim for the thing; and
(b) the claim is in English; and
(c) the claim sets out an address for service on the person making the
claim.
Note: Section 261I requires things condemned as forfeited to
be dealt with in accordance with the Secretary’s
directions.
(2) A person may claim the thing even if it is disposed of or destroyed
before or after the claim.
(1) If the thing is claimed under section 261F:
(a) an officer may retain possession of the thing whether or not any
proceedings for the condemnation of the thing have been instituted;
and
(b) 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:
(i) to recover the thing; or
(ii) for a declaration that the thing is not forfeited.
Note 1: An officer may retain possession even if the
Secretary does not give notice. If so, the claimant will be able to recover the
thing only if a court orders its release to the claimant.
Note 2: If the Secretary does give the notice and the
claimant institutes proceedings, whether the claimant recovers the thing will
depend on the outcome of the proceedings.
(2) The Secretary may give the notice to the claimant by posting it
prepaid as a letter to the last address of the claimant that is known to the
Secretary. If the Secretary does so, the letter is taken to be properly
addressed for the purposes of section 29 of the Acts Interpretation Act
1901.
(3) Subsection (2) does not limit the ways in which the notice may be
given.
Note: 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.
(1) This section applies if the Secretary gives the claimant a notice
under section 261G about instituting proceedings:
(a) to recover the thing; or
(b) for a declaration that the thing is not forfeited.
(2) If the claimant does not institute such proceedings within the period
of one month after the notice is given, the thing is condemned as forfeited to
the Commonwealth immediately after the end of that period.
(3) If the claimant institutes such proceedings within the period of one
month after the notice is given, the thing is condemned as forfeited to the
Commonwealth immediately after the end of the proceedings, unless, at the end of
the proceedings, there is:
(a) an order for the claimant to recover the thing; or
(b) 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
(c) a declaration that the thing is not forfeited.
(4) For the purposes of subsection (3), if the proceedings go to judgment,
they end:
(a) if no appeal against the judgment is lodged within the period for
lodging such an appeal—at the end of that period; or
(b) if an appeal against the judgment is lodged within that
period—when the appeal lapses or is finally determined.
(5) Proceedings relating to the thing may be instituted or continued even
if it is disposed of or destroyed.
(6) If the court hearing the proceedings decides that it would have
ordered that the thing be delivered to a person apart from the fact that the
thing had been disposed of or destroyed, the court may make such orders as the
court considers appropriate, including an order that the Commonwealth pay the
person an amount equal to:
(a) if the thing has been sold before the end of the proceedings—the
proceeds of the sale of the thing, less such costs incurred by the Commonwealth
in respect of the thing as the court considers appropriate; or
(b) if the thing has been disposed of (except by sale) or destroyed before
the end of the proceedings—the market value of the thing at the time it
was disposed of or destroyed, less such costs incurred by the Commonwealth in
respect of the thing as the court considers appropriate.
If the thing is condemned as forfeited to the Commonwealth, the thing
must be dealt with or disposed of in accordance with the directions of the
Secretary.
Sections 245G, 260 and 261 do not limit the operation of this
Division.
11 Application
The amendments made by this Part apply only in relation to contraventions
after the commencement of this Part.
12 Subsection 5(1)
Insert:
enforcement visa has the meaning given by section
38A.
13 Subsection 5(1)
Insert:
fisheries detention offence means an offence against section
99, 100, 100A, 101, 101A or 101B of the Fisheries Management Act
1991.
14 Subsection 5(1)
Insert:
fisheries officer means an officer as defined in the
Fisheries Management Act 1991.
15 Subsection 5(1)
Insert:
foreign boat has the same meaning as in the Fisheries
Management Act 1991.
16 Subsection 5(1) (definition of substantive
visa)
Repeal the definition, substitute:
substantive visa means a visa other than:
(a) a bridging visa; or
(b) a criminal justice visa; or
(c) an enforcement visa.
17 After section 38
Insert:
There is a class of temporary visas to travel to, enter and remain in
Australia, to be known as enforcement visas.
Note: Division 4A deals with these visas.
18 Subsection 43(1)
After “Subject to”, insert “subsection (3)
and”.
19 At the end of section 43
Add:
(3) This section does not apply to:
(a) the holder of an enforcement visa; or
(b) an Australian resident entering Australia on a foreign boat as a
result of a fisheries officer:
(i) making a requirement of the boat’s master under subparagraph
84(1)(k)(ii) or paragraph 84(1)(l) of the Fisheries Management Act 1991;
or
(ii) exercising his or her power under paragraph 84(1)(m) of that Act in
relation to the boat;
because a fisheries officer had reasonable grounds to believe that the
boat was used, or was intended to be used, in the commission of a fisheries
detention offence.
Note: Subsection 33(10) also disapplies this
section.
(4) In subsection (3):
Australian resident has the same meaning as in the
Fisheries Management Act 1991.
master has the same meaning as in the Fisheries Management
Act 1991.
20 At the end of section 44
Add:
(2) This Subdivision and the later Subdivisions of this Division, other
than this section and Subdivision AG, do not apply to enforcement
visas.
21 Paragraph 46(1)(d)
After “(criminal justice),”, insert “164D (enforcement
visa),”.
22 After subsection 82(2)
Insert:
(2A) A temporary visa held by a non-citizen ceases to be in effect if an
enforcement visa for the non-citizen comes into effect.
23 After Division 4 of Part
2
Insert:
In this Division:
fisheries detention means detention under paragraph 84(1)(ia)
of the Fisheries Management Act 1991.
master has the same meaning as in the Fisheries Management
Act 1991.
Non-citizen on foreign boat outside migration zone
(1) A non-citizen on a foreign boat outside the migration zone is granted
an enforcement visa when, because a fisheries officer has reasonable grounds to
believe that the boat has been used, is being used or is intended to be used in
the commission of a fisheries detention offence, a fisheries officer:
(a) makes a requirement of the boat’s master under subparagraph
84(1)(k)(ii) or paragraph 84(1)(l) of the Fisheries Management Act 1991;
or
(b) exercises his or her power under paragraph 84(1)(m) of that Act in
relation to the boat;
whichever occurs first.
Note 1: Under subparagraph 84(1)(k)(ii) and paragraph
84(1)(l) of the Fisheries Management Act 1991, a fisheries officer may
require the master of a boat to bring or take the boat into the migration zone.
Under paragraph 84(1)(m) of that Act, a fisheries officer may bring a boat into
the migration zone.
Note 2: The grant of an enforcement visa effectively cancels
any temporary visa that the non-citizen may have held (see subsection
82(2A)).
Non-citizen in migration zone
(2) 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 paragraph 84(1)(ia) of the Fisheries Management Act
1991.
Note: The grant of an enforcement visa effectively cancels
any temporary visa that the non-citizen may have held (see subsection
82(2A)).
Non-citizen in prescribed circumstances
(3) An enforcement visa is granted to a non-citizen (who does not already
hold 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. The visa is granted at the time
the power is exercised.
Note: The grant of an enforcement visa effectively cancels
any temporary visa that the non-citizen may have held (see subsection
82(2A)).
Non-citizen on foreign boat in prescribed circumstances
(4) An enforcement visa is granted to a non-citizen (who does not already
hold an enforcement visa) who was on a foreign boat when a fisheries officer
exercises under the Fisheries Management Act 1991 a prescribed power in
prescribed circumstances in relation to the boat. The visa is granted at the
time the power is exercised.
Note: The grant of an enforcement visa effectively cancels
any temporary visa that the non-citizen may have held (see subsection
82(2A)).
Enforcement visas granted by force of this section
(5) To avoid doubt, an enforcement visa is granted by force of this
section.
Note: No administrative action under this Act is necessary
to grant the visa.
Exception if Minister’s declaration in force
(6) Despite subsections (1), (2), (3) and (4), a non-citizen is not
granted an enforcement visa if a declaration under subsection (7) is in force in
relation to:
(a) the non-citizen; or
(b) a class of persons of which the non-citizen is a member.
Declaration
(7) 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.
Section does not apply to Australian residents
(8) This section does not apply to non-citizens who are Australian
residents as defined in the Fisheries Management Act 1991.
Non-citizen in fisheries detention
(1) The enforcement visa of a non-citizen who is in fisheries detention
ceases to be in effect:
(a) at the time the non-citizen is released, or escapes, from fisheries
detention; or
(b) at the time the Minister makes a declaration under subsection 164B(7)
in relation to the non-citizen, or a class of persons of which the non-citizen
is a member; or
(c) on the occurrence of a prescribed event;
whichever occurs first.
Non-citizen not in fisheries detention
(2) The enforcement visa of a non-citizen who is not in fisheries
detention ceases to be in effect:
(a) at the time a decision is made not to charge the non-citizen with a
fisheries detention offence; or
(b) at the time the Minister makes a declaration under subsection 164B(7)
in relation to the non-citizen, or a class of persons of which the non-citizen
is a member; or
(c) on the occurrence of a prescribed event.
whichever occurs first.
(1) The holder of an enforcement visa may not apply for a visa other than
a protection visa while he or she is in Australia.
(2) While a non-citizen who has held an enforcement visa remains in
Australia when the visa ceases to be in effect, the non-citizen may not apply
for a visa other than a protection visa.
24 At the end of subsection
193(1)
Add:
; or (d) detained under section 189 who:
(i) held an enforcement visa that has ceased to be in effect;
and
(ii) has not been a lawful non-citizen since the enforcement visa ceased
to be in effect.
25 Paragraph 198(2)(a)
Omit “or (c)”, substitute “, (c) or (d)”.
26 At the end of subsection
229(1)
Add:
; or (d) holds an enforcement visa.
27 At the end of paragraph
229(5)(b)
Add:
(iv) was the holder of an enforcement visa; or
(v) would, when entering Australia, be the holder of an enforcement visa;
or
Division
2—Amendments relating to the Fish Stocks Agreement
28 Subsection 5(1) (definition of fisheries
detention offence)
Omit “or 101B”, substitute “, 101B, 105E or
105F”.
29 At the end of section 43
Add:
(5) The references in subsection (3) to subparagraph 84(1)(k)(ii) and
paragraphs 84(1)(l) and (m) of the Fisheries Management Act 1991 are to
those provisions:
(a) as they apply of their own force; and
(b) as they apply because of section 87B, 87C or 87D of that
Act.
30 After subsection 164B(1)
Insert:
Extended operation of subsection (1)
(1A) The references in subsection (1) to subparagraph 84(1)(k)(ii) and
paragraphs 84(1)(l) and (m) of the Fisheries Management Act 1991 are to
those provisions:
(a) as they apply of their own force; and
(b) as they apply because of section 87B, 87C or 87D of that
Act.
Part
4—Miscellaneous
amendments
31 Subsection 42(1)
Omit “and (3)”, substitute “, (2A) and
(3)”.
32 After subsection 42(2)
Insert:
(2A) Subsection (1) does not apply to a non-citizen in relation to travel
to Australia:
(a) if the travel is by a New Zealand citizen who holds and produces a New
Zealand passport that is in force; or
(b) if the travel is 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; or
(c) if:
(i) the non-citizen is brought to the migration zone under subsection
245F(9) of this Act or 185(3A) of the Customs Act 1901; and
(ii) the non-citizen is a person who would, if in the migration zone, be
an unlawful non-citizen; or
(d) if:
(i) the non-citizen has been removed under section 198 to another country
but has been refused entry by that country; and
(ii) the non-citizen travels to Australia as a direct result of that
refusal; and
(iii) the non-citizen is a person who would, if in the migration zone, be
an unlawful non-citizen; or
(e) if:
(i) the non-citizen has been removed under section 198; and
(ii) before the removal the High Court or the Federal Court had made an
order in relation to the non-citizen, or the Minister had given an undertaking
to the High Court or the Federal Court in relation to the non-citizen;
and
(iii) the non-citizen’s travel to Australia is required in order to
give effect to the order or undertaking; and
(iv) the Minister has made a declaration that this paragraph is to apply
in relation to the non-citizen’s travel; and
(v) the non-citizen is a person who would, if in the migration zone, be an
unlawful non-citizen; or
(f) if:
(i) the travel is from Norfolk Island to Australia; and
(ii) the Minister has made a declaration that this paragraph is to apply
in relation to the non-citizen’s travel; and
(iii) the non-citizen is a person who would, if in the migration zone, be
an unlawful non-citizen.
33 At the end of section 42
Add:
(4) Nothing in subsection (2A) or (3) is to be taken to affect the
non-citizen’s status in the migration zone as an unlawful
non-citizen.
Note: Section 189 provides that an unlawful non-citizen in
the migration zone must be detained.
34 At the end of section 48
Add:
(2) For the purposes of this section, a non-citizen who:
(a) has been removed from the migration zone under section 198;
and
(b) is again in the migration zone as a result of travel to Australia that
is covered by paragraph 42(2A)(d) or (e);
is taken to have been continuously in the migration zone despite the
removal referred to in paragraph (a).
Note: Paragraphs 42(2A)(d) and (e) cover limited situations
where people are returned to Australia despite their removal under section
198.
35 After subsection 48A(1)
Insert:
(1A) For the purposes of this section, a non-citizen who:
(a) has been removed from the migration zone under section 198;
and
(b) is again in the migration zone as a result of travel to Australia that
is covered by paragraph 42(2A)(d) or (e);
is taken to have been continuously in the migration zone despite the
removal referred to in paragraph (a).
Note: Paragraphs 42(2A)(d) and (e) cover limited situations
where people are returned to Australia despite their removal under section
198.
36 At the beginning of Subdivision A of Division
12 of Part 2
Insert (before section 229):
This Subdivision applies in and outside Australia.
37 At the end of paragraph
229(1)(a)
Add “or”.
38 At the end of subsection
229(1)
Add:
; or (e) is a non-citizen who is covered by subsection 42(2) or (2A) or by
regulations made under subsection 42(3).
39 Subsections 229(3) and
(4)
Repeal the subsections.
40 Subsection 230(1)
Omit “Australia”, substitute “the migration
zone”.
41 After subsection 230(1)
Insert:
(1A) The master, owner, agent and charterer of a vessel are each guilty of
an offence against this section if:
(a) a person is concealed on the vessel when it arrives in Australia;
and
(b) the person would, if in the migration zone, be an unlawful
non-citizen.
42 Subsection 230(2)
Omit “to an unlawful non-citizen”.
43 Paragraph 230(2)(a)
Omit “at a port”, substitute “in the migration
zone”.
44 After subsection 230(2)
Insert:
(2A) Subsection (1A) does not apply if the master of the vessel:
(a) as soon as it arrives in Australia, gives notice to an officer that
the person is on board; and
(b) prevents the person from leaving the vessel without an officer having
had an opportunity to question the person.
45 Subparagraph 232(a)(ii)
Omit “; or”, substitute “; and”.
46 At the end of paragraph
232(a)
Add:
(iii) is a person to whom subsection 42(1) applies; or
47 At the end of section
232
Add:
(2) It is a defence to a prosecution for an offence against subsection (1)
in relation to the entry of a non-citizen to Australia on a vessel if it is
established:
(a) that the non-citizen was, when he or she boarded or last boarded the
vessel for travel to Australia, in possession of evidence of a visa that was in
effect and that permitted him or her to travel to and enter Australia, being a
visa that:
(i) did not appear to have been cancelled; and
(ii) was expressed to continue in effect until, or at least until, the
date of the non-citizen’s expected entry into Australia; or
(b) that the master of the vessel had reasonable grounds for believing
that, when the non-citizen boarded or last boarded the vessel for travelling to
and entering Australia, the non-citizen:
(i) was eligible for a special category visa; or
(ii) was the holder of a special purpose visa; or
(iii) would, when entering Australia, be the holder of a special purpose
visa; or
(iv) was the holder of an enforcement visa; or
(v) would, when entering Australia, be the holder of an enforcement visa;
or
(c) that the vessel entered Australia from overseas only because
of:
(i) the illness of a person on board the vessel; or
(ii) stress of weather; or
(iii) other circumstances beyond the control of the master.
48 Paragraph 232A(a)
After “more people”, insert “to whom subsection 42(1)
applies”.
49 Paragraph 232A(b)
Repeal the paragraph, substitute:
(b) does so reckless as to whether the people had, or have, a lawful right
to come to Australia;
50 Paragraph 249(1)(a)
Repeal the paragraph, substitute:
(a) prevent a person whom the officer reasonably suspects to be an
unlawful non-citizen from leaving a vessel on which the person arrived in
Australia; or
51 After subsection 249(1)
Insert:
(1AA) 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:
(a) is seeking to enter the migration zone; and
(b) would, if in the migration zone, be an unlawful non-citizen.
52 Subsection 249(1A)
Omit “subsection (1)” (wherever occurring), substitute
“subsections (1) and (1AA)”.
53 Subsection 249(1A)
After “paragraph (1)(a)”, insert “or subsection
(1AA)”.
54 Subsection 249(2)
Omit “subsection (1)”, substitute “subsections (1) and
(1AA)”.
55 Paragraph 262(b)
After “offence”, insert “against this Act
or”.
56 At the end of subsection
271(1)
Add:
; and (j) evidence that a person who travelled to and entered Australia on
board a vessel, when entering, either:
(i) failed to produce to an officer, upon demand by that officer, a
passport; or
(ii) produced to an officer a passport that was not an Australian
passport;
is prima facie evidence that the person was, when entering, a
non-citizen; and
(k) evidence that a non-citizen who entered Australia on board a vessel
failed, when entering, to produce to an officer, upon demand by that officer,
evidence of a visa:
(i) that is in effect; and
(ii) that permits the non-citizen to travel to and enter
Australia;
is prima facie evidence that the non-citizen did not, when entering, hold
such a visa.
57 Paragraph 504(1)(j)
Repeal the paragraph, substitute:
(j) enabling a person who is alleged to have contravened section 229 or
230 to pay to the Commonwealth, as an alternative to prosecution, a prescribed
penalty, not exceeding:
(i) in the case of a natural person—30 penalty units; and
(ii) in the case of a body corporate—100 penalty units;
and
58 Application
(1) The amendments made by items 32, 33, 34, 35, 38, 46 and 48 do not apply
in relation to travel to Australia that occurred before the commencement of
those items.
(2) The amendments made by items 39, 49, 55 and 56 do not apply in relation
to the entry of a person into Australia that occurred before the commencement of
those items.
59 Paragraph 198(2)(c)
Before “either”, insert “who”.
Part
1—Chasing, boarding etc.
ships and aircraft
1 Subsection 4(1)
Insert:
Australian ship means 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 either
wholly owned by, or solely operated by:
(i) one or more residents of Australia; or
(ii) one or more Australian nationals; or
(iii) one or more residents of Australia and one or more Australian
nationals.
For the purposes of this definition, Australian national and
resident of Australia have the same meanings as in the Shipping
Registration Act 1981.
Insert:
Commonwealth aircraft means an aircraft that is in the
service of the Commonwealth and displaying the prescribed ensign or prescribed
insignia.
Insert:
Commonwealth ship means a ship that is in the service of the
Commonwealth and flying the prescribed ensign.
Insert:
exclusive economic zone, in relation to Australia, has the
same meaning as in the Seas and Submerged Lands Act 1973.
5 Subsection 4(1)
Insert:
foreign ship means a ship that is not an Australian
ship.
6 Subsection 4(1)
(subparagraph (c)(ii) of the definition of
Frisk search)
After “219L(1B)”, insert “or (1C)”.
7 Subsection 4(1)
Insert:
UNCLOS means the United Nations Convention on the Law of the
Sea.
Note: The text of the Convention is set out in Australian
Treaty Series 1994 No. 31.
8 After section 4AA
Insert:
(1) If:
(a) this Act would result in an acquisition of property; and
(b) any provision of this Act would not be valid, apart from this section,
because a particular person has not been compensated;
the Commonwealth must pay that person:
(c) a reasonable amount of compensation agreed on between the person and
the Commonwealth; or
(d) failing agreement—a reasonable amount of compensation determined
by a court of competent jurisdiction.
(2) Any damages or compensation recovered, or other remedy given, in a
proceeding begun otherwise than under this section must be taken into account in
assessing compensation payable in a proceeding begun under this section and
arising out of the same event or transaction.
(3) In this section:
acquisition of property has the same meaning as in paragraph
51(xxxi) of the Constitution.
(4) The Consolidated Revenue Fund is appropriated for the purposes of
making payments under this section.
9 Section 59
Repeal the section.
Repeal the section, substitute:
General power to request to board
(1) In the circumstances described in subsection (2), (3), (4), (5), (6),
(7), (8) or (9), the commander of a Commonwealth ship or Commonwealth aircraft
may request the master of a ship to permit the commander, a member of the
commander’s crew or an officer to board the master’s ship.
Note: Sections 185 and 185A give power to board the
master’s ship if a request is made under this section.
Foreign ships in Australian waters
(2) The commander may make the request if the master’s ship is a
foreign ship that is on the landward side of the outer edge of Australia’s
territorial sea. However, the request must be made for the purposes of this Act
or an Act prescribed by the regulations consistently with UNCLOS.
Australian ships outside territorial seas of other
countries
(3) The commander may make the request if:
(a) the master’s ship is an Australian ship; and
(b) the master’s ship is outside the territorial sea of any foreign
country.
The commander must not make the request under this subsection if it may be
made under subsection (9).
Foreign ships in contiguous zone or near installations
(4) The commander may make the request if:
(a) the master’s ship is a foreign ship; and
(b) the master’s ship is either:
(i) in the contiguous zone of Australia; or
(ii) within 500 metres of an Australian resources installation or
Australian sea installation; and
(c) the commander:
(i) wishes to establish the identity of the master’s ship;
or
(ii) reasonably suspects that the master’s ship is, will be or has
been involved in a contravention, or an attempted contravention, in Australia of
this Act or an Act prescribed by the regulations consistently with
UNCLOS.
Mother ships on high seas supporting contraventions in
Australia
(5) The commander may make the request if:
(a) the master’s ship is a foreign ship; and
(b) the master’s ship is:
(i) outside the outer edge of the contiguous zone of Australia;
and
(ii) not within 500 metres of an Australian resources installation or
Australian sea installation; and
(iii) outside the territorial sea of a foreign country; and
(c) the commander reasonably suspects that the master’s ship is
being or was used in direct support of, or in preparation for, a contravention
in Australia of this Act or an Act prescribed by the regulations consistently
with UNCLOS, where the contravention involves another ship (whether a foreign
ship or an Australian ship); and
(d) the request is made as soon as practicable after the contravention
happens.
Suspicious foreign ships in EEZ
(6) The commander may make the request if:
(a) the master’s ship is a foreign ship; and
(b) the master’s ship is in the exclusive economic zone of
Australia; and
(c) the commander reasonably suspects that the master’s ship is,
will be or has been involved in a contravention, or an attempted contravention,
in Australia’s exclusive economic zone of an Act prescribed by the
regulations consistently with UNCLOS.
Mother ships on high seas supporting contraventions in EEZ
(7) The commander may make the request if:
(a) the master’s ship is a foreign ship; and
(b) the master’s ship is:
(i) outside the outer edge of the exclusive economic zone of Australia;
and
(ii) not within 500 metres of an Australian resources installation or
Australian sea installation; and
(iii) outside the territorial sea of a foreign country; and
(c) the commander reasonably suspects that the master’s ship is
being or was used in direct support of, or in preparation for, a contravention
in Australia’s exclusive economic zone of an Act prescribed by the
regulations consistently with UNCLOS, where the contravention involves another
ship (whether a foreign ship or an Australian ship); and
(d) the request is made as soon as practicable after the contravention
happens.
Foreign ships on high seas and covered by an agreement
etc.
(8) The commander may make the request if:
(a) the master’s ship is:
(i) outside the outer edge of the contiguous zone of Australia;
and
(ii) outside the territorial sea of a foreign country; and
(b) the commander reasonably suspects that the master’s ship is a
foreign ship that is entitled to fly the flag of a country; and
(c) Australia has an agreement or arrangement with that country which
enables the exercise of Australian jurisdiction over ships of that
country.
The commander must not make the request under this subsection if it may be
made under subsection (5), (6) or (7).
Ships without nationality on high seas
(9) The commander may make the request if:
(a) the master’s ship is:
(i) outside the outer edge of the contiguous zone of Australia;
and
(ii) outside the territorial sea of a foreign country; and
(b) any of the following applies:
(i) the master’s ship is not flying a flag of a country;
(ii) the master’s ship is flying a flag of a country and the
commander reasonably suspects that the master’s ship is not entitled to
fly that flag;
(iii) the commander reasonably suspects that the master’s ship is
not entitled to fly the flag of a country or has been flying the flag of more
than one country; and
(c) the Commander wishes to establish the identity of the master’s
ship.
The commander must not make the request under this subsection if it may be
made under subsection (5), (6), (7) or (8).
Means of making request
(10) The commander of a Commonwealth ship or Commonwealth aircraft may use
any reasonable means to make a request under this section.
Request still made even if no master on the ship etc.
(11) To avoid doubt, a request is still made under this section even
if:
(a) there was no master on board the ship to receive the request;
or
(b) the master did not receive or understand the request.
Master must comply with request
(12) The master of a ship must comply with a request made under this
section (other than subsection (9)) unless he or she has a reasonable
excuse.
Penalty: Imprisonment for 2 years.
Note: The master’s ship can still be boarded under
section 185 or 185A even though the master has not complied with a request to
board under this section.
Generally, foreign ships may be chased if request to board is
made
(1) To enable the boarding of a foreign ship whose master has not complied
with a request to board under section 184A (other than subsection 184A(9)), the
commander of a Commonwealth ship or Commonwealth aircraft may use it to chase,
or continue the chase of, the master’s ship to any place outside the
territorial sea of a foreign country.
Note: Subsection 184A(9) is about requests to board ships
without nationality that are on the high seas. Section 185A allows those ships
to be boarded, even though the master of the ship has not complied with the
request to board.
Using different Commonwealth ships or aircraft to continue
chase
(2) To avoid doubt, a Commonwealth ship or Commonwealth aircraft may be
used in the chase even if its commander did not make the request under section
184A.
When foreign ships may be chased without a request being
made
(3) The commander of a Commonwealth ship or Commonwealth aircraft may use
it to chase, or continue the chase of, a foreign ship to a place outside the
territorial sea of a foreign country to enable the boarding of the foreign ship
if, immediately before the start of the chase, the commander could have made a
request to board the foreign ship under subsection 184A(5) or (7).
Chase may continue even if the foreign ship is out of
sight
(4) A chase under this section may continue even if the crew of all of the
Commonwealth ships and Commonwealth aircraft involved in the chase lose sight of
the chased ship or lose trace of it from radar or other sensing
devices.
Chase may not continue after interruption
(5) The commander of a Commonwealth ship or Commonwealth aircraft must not
use it to chase, or continue the chase of, a foreign ship under this section if
the chase is interrupted (within the meaning of Article 111 of UNCLOS) at a
place outside the outer edge of the contiguous zone. This subsection has effect
despite subsections (1), (3) and (4).
Means that may be used to enable boarding of the foreign
ship
(6) Anywhere outside the territorial sea of a foreign country, the
commander of a Commonwealth ship or Commonwealth aircraft chasing a ship under
this section may use any reasonable means consistent with international law to
enable boarding of the chased ship, including:
(a) using necessary and reasonable force; and
(b) where necessary and after firing a gun as a signal, firing at or into
the chased ship to disable it or compel it to be brought to for
boarding.
Australian ships may be chased
(1) To enable the boarding of an Australian ship, the commander of a
Commonwealth ship or Commonwealth aircraft may use it to chase, or continue the
chase of, the Australian ship to any place outside the territorial sea of a
foreign country.
Chase may continue even if the Australian ship is out of
sight
(2) A chase under this section may continue even if the crew of all of the
Commonwealth ships and Commonwealth aircraft involved in the chase lose sight of
the chased ship or lose trace of it from radar or other sensing
devices.
Means that may be used to enable boarding of the Australian
ship
(3) Anywhere outside the territorial sea of a foreign country, the
commander of a Commonwealth ship or Commonwealth aircraft chasing a ship under
this section may use any reasonable means to enable boarding of the chased ship,
including:
(a) using necessary and reasonable force; and
(b) where necessary and after firing a gun as a signal, firing at or into
the chased ship to disable it or compel it to be brought to for
boarding.
Application of section
(1) This section allows the commander of a Commonwealth aircraft to make
requests of the pilot of another aircraft that:
(a) if the other aircraft is an Australian aircraft—is over anywhere
except a foreign country; and
(b) if the other aircraft is not an Australian aircraft—is over
Australia.
Requesting information to identify an aircraft
(2) If the commander cannot identify the other aircraft, the commander
may:
(a) use his or her aircraft to intercept the other aircraft in accordance
with the practices recommended in Annex 2 (headed “Rules of the
Air”) to the Convention on International Civil Aviation done at Chicago on
7 December 1944 (that was adopted in accordance with that Convention);
and
(b) request the pilot of the other aircraft to disclose to the
commander:
(i) the identity of the other aircraft; and
(ii) the identity of all persons on the other aircraft; and
(iii) the flight path of the other aircraft; and
(iv) the flight plan of the other aircraft.
Requesting aircraft to land for boarding
(3) The commander may request the pilot of the other aircraft to land it
at the nearest airport, or at the nearest suitable landing field, in Australia
for boarding for the purposes of this Act if:
(a) the pilot does not comply with a request under subsection (2);
or
(b) the commander reasonably suspects that the other aircraft is or has
been involved in a contravention, or attempted contravention, of this
Act.
Note: Section 185 gives power to board the aircraft and
search it once it has landed.
Means of making request
(4) Any reasonable means may be used to make a request under this
section.
Request still made even if pilot did not receive etc.
request
(5) To avoid doubt, a request is still made under this section even if the
pilot did not receive or understand the request.
Pilot must comply with request
(6) The pilot of the other aircraft must comply with a request made under
this section unless he or she has a reasonable excuse.
Penalty: Imprisonment for 2 years.
Definition
(7) In this section, Australian aircraft means an aircraft
that:
(a) is an Australian aircraft as defined in the Civil Aviation Act
1988; or
(b) is not registered under the law of a foreign country and is either
wholly owned by, or solely operated by:
(i) one or more residents of Australia; or
(ii) one or more Australian nationals; or
(iii) one or more residents of Australia and one or more Australian
nationals.
For the purposes of this definition, Australian national and
resident of Australia have the same meanings as in the Shipping
Registration Act 1981.
Repeal the subsection, substitute:
Application of section to ships
(1) This section applies to a ship that is outside the territorial sea of
a foreign country if:
(a) a request to board the ship has been made under section 184A;
or
(b) the ship is a foreign ship described in subsection 184B(3) (which
allows foreign ships on the high seas to be chased); or
(c) the ship is an Australian ship.
However, this section does not apply to a ship if a request to board the
ship has been made under subsection 184A(8) or (9) (certain ships on the high
seas), unless an officer is satisfied under subsection 185A(3) that the ship is
an Australian ship.
Note: Section 185A deals with the boarding of ships where a
request has been made under subsection 184A(8) or (9).
Application to aircraft
(1A) This section applies to an aircraft that has landed in Australia for
boarding as a result of a request made under section 184D.
Note 1: The heading to section 185 is replaced by the
heading “Power to board and search etc. ships and
aircraft”.
Note 2: The following heading to subsection 185(2) is
inserted “Officer’s powers”.
Note 3: The following heading to subsection 185(4) is
inserted “Complying with requirement by
officer”.
Note 4: The following heading to subsection 185(6) is
inserted “Interpretation”.
12 At the end of paragraph
185(2)(a)
Add “and”.
13 Paragraph 185(2)(b)
After “search”, insert “and examine”.
14 At the end of paragraphs 185(2)(b) and
(ba)
Add “and”.
15 Paragraph 185(2)(c)
After “in relation to”, insert “the
following”.
16 Subparagraph
185(2)(c)(i)
Omit “; or”, substitute “;”.
17 Subparagraph
185(2)(c)(ii)
Before “presence”, insert “identity and”.
18 Subparagraph
185(2)(c)(ii)
Omit “and”.
19 At the end of paragraph
185(2)(c)
Add:
(iii) a contravention, an attempted contravention or an involvement in a
contravention or attempted contravention, either in or outside Australia, of
this Act; and
20 After paragraph
185(2)(c)
Insert:
(ca) copy, or take extracts from, any document:
(i) found on the ship or aircraft; or
(ii) produced by a person found on the ship or aircraft as required under
paragraph (c); and
21 Paragraph 185(2)(d)
Omit all the words after “aircraft”, substitute:
if:
(i) in the case of a person found on a ship that is in Australia—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 this Act or an Act prescribed by the regulations
consistently with UNCLOS; or
(ii) in the case of a person found on a ship that is outside
Australia—the officer reasonably suspects that the person has committed,
is committing or attempting to commit, or is involved in the commission
of:
(A) an offence in Australia against this Act or an Act prescribed by the
regulations consistently with UNCLOS; or
(B) an offence in Australia’s exclusive economic zone against an Act
prescribed by the regulations consistently with UNCLOS; or
(iii) in the case of a person found on an aircraft that is in
Australia—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 this Act; and
22 At the end of subsection
185(2)
Add:
(e) seize without warrant any narcotic goods found on the ship or
aircraft.
23 Subsection 185(2A)
Omit “or convention or other agreement”, substitute “,
convention or other agreement or arrangement”.
24 Before subsection 185(3)
Insert:
Help to search
(2B) Without limiting the generality of paragraph (2)(a), an officer may
use a dog to assist in searching the ship or aircraft.
Help to examine goods
(2C) In the exercise of the power under paragraph (2)(b) to examine goods,
the officer may do, or arrange for another officer or other person having the
necessary experience to do, whatever is reasonably necessary to permit the
examination of the goods.
Examples of examining goods
(2D) Without limiting the generality of subsection (2C), examples of what
may be done in the examination of goods include the following:
(a) opening any package in which goods are or may be contained;
(b) using a device, such as an X-ray machine or ion scanning equipment, on
the goods;
(c) testing or analysing the goods;
(d) measuring or counting the goods;
(e) if the goods are a document—reading the document either directly
or with the use of an electronic device;
(f) using a dog to assist in examining the goods.
25 Subsection 185(3)
Repeal the subsection, substitute:
Power to detain and move ship or aircraft
(3) An officer may detain the ship or aircraft and bring it, or cause it
to be brought, to a port, airport or other place that he or she considers
appropriate if:
(a) in the case of a ship that is in Australia—the officer
reasonably suspects that the ship is or has been involved in a contravention,
either in or outside Australia, of this Act or an Act prescribed consistently
with UNCLOS; and
(b) in the case of an Australian ship that is outside Australia—the
officer reasonably suspects that the ship is, will be or has been involved in a
contravention, either in or outside Australia, of this Act or any other Act;
and
(c) in the case of a foreign ship that is outside Australia—the
officer reasonably suspects that the ship is, will be or has been involved in a
contravention:
(i) in Australia of this Act or an Act prescribed consistently with
UNCLOS; or
(ii) in Australia’s exclusive economic zone of an Act prescribed
consistently with UNCLOS; and
(d) in the case of an aircraft that is in Australia—the officer
reasonably suspects that the aircraft is or has been involved in a
contravention, either in or outside Australia, of this Act.
However, a ship need not be brought to a port or other place if the CEO
makes a direction in relation to the ship under section 185B.
Power to detain people on detained ships or aircraft
(3A) If an officer detains a ship or aircraft under this section, the
officer may also detain any person who is found on the ship or aircraft and
bring the person, or cause the person to be brought, to the migration zone
(within the meaning of section 5 of the Migration Act 1958).
Use of necessary and reasonable force
(3B) An officer may use such force as is necessary and reasonable in the
exercise of a power under this section.
Limit on use of force to board and search ships or
aircraft
(3C) In boarding and searching the ship or aircraft and searching or
examining goods found on the ship or aircraft, an officer must not damage the
ship, aircraft or goods by forcing open a part of the ship, aircraft or goods
unless:
(a) the person (if any) apparently in charge of the ship or aircraft has
been given a reasonable opportunity to open that part or the goods; or
(b) it is not reasonably practicable to give that person such an
opportunity.
This subsection has effect despite paragraphs (2)(a) and (b) and subsection
(3B).
Limit on use of force to arrest or detain person on ships or
aircraft
(3D) In arresting or detaining a person found on the ship or aircraft, an
officer:
(a) must not use more force, or subject the person to greater indignity,
than is necessary and reasonable to make the arrest or detention or to prevent
the person escaping after the arrest or detention; and
(b) must not do anything likely to cause the person grievous bodily harm
unless the officer believes on reasonable grounds that doing the thing is
necessary to protect life or prevent serious injury of another person (including
the officer).
This subsection has effect despite paragraph (2)(d) and subsection
(3B).
Limit on use of force to arrest fleeing
person
(3E) In arresting a person found on the ship or aircraft who is fleeing to
escape arrest, an officer must not do anything likely to cause the person
grievous bodily harm unless:
(a) the person has, if practicable, been called on to surrender and the
officer believes on reasonable grounds that the person cannot be apprehended in
any other way; or
(b) the officer believes on reasonable grounds that doing the thing is
necessary to protect life or prevent serious injury of another person (including
the officer).
This subsection applies in addition to subsection (3D) and has effect
despite paragraph (2)(d) and subsection (3B).
If ship covered by agreement, officer may exercise other
powers
(3F) If:
(a) an officer is satisfied that the ship is a foreign ship that is
entitled to fly the flag of a country; and
(b) Australia has an agreement or arrangement with that country which
enables the exercise of Australian jurisdiction over ships of that
country;
then the officer may exercise any powers prescribed by the regulations
consistently with the agreement or arrangement in relation to the ship or
persons found on the ship.
26 Subsection 185(4)
Omit “$1,000”, substitute “100 penalty
units”.
27 After subsection 185(4)
Insert:
Evidence may be used in prosecutions etc.
(4A) To avoid doubt, if, when exercising powers under this section, an
officer obtains evidence of the commission of an offence against a law of the
Commonwealth, a State or a Territory, then that evidence may be used, or given
to another body for use, in:
(a) investigating the offence; or
(b) proceedings for the prosecution for the offence.
However, this subsection does not override or limit the operation of a law
of a State about the evidence that may be used in proceedings for the
prosecution for an offence against a law of that State.
28 Subsection 185(5)
Repeal the subsection, substitute:
Definition of officer
(5) In this section, officer means an officer within the
meaning of subsection 4(1), and includes:
(a) any person who is in command, or a member of the crew, of:
(i) the ship or aircraft from which the relevant request under section
184A or 184D was made; or
(ii) a ship or aircraft that was used under section 184B or 184C to chase
the ship in relation to which this section applies; and
(b) a police officer or a member of the Australian Defence
Force.
29 After section 185
Insert:
Application of section
(1) This section applies to a ship if:
(a) a request has been made under:
(i) subsection 184A(8) (request to board a ship of a country with which
Australia has an agreement); or
(ii) subsection 184A(9) (request to board a ship without nationality);
and
(b) the ship is:
(i) outside the outer edge of the contiguous zone of Australia;
and
(ii) outside the territorial sea of any country (including
Australia).
Powers to establish the identity of the ship
(2) An officer may:
(a) board the ship; and
(b) ask all persons found on the ship questions about:
(i) the identity of the ship; and
(ii) the voyage of the ship; and
(c) require all persons found on the ship to produce documents relevant
to:
(i) finding out the identity of the ship; or
(ii) the voyage of the ship; and
(d) require the master or a member of the master’s crew to show the
commander or a member of the commander’s crew readings of the ship’s
navigation instruments relating to the voyage of the ship.
Officer discovers that the ship is an Australian ship
(3) If, after exercising the powers in subsection (2), the officer is
satisfied that the ship is an Australian ship, then section 185 applies to the
ship.
Note: If section 185 applies to a ship, then the officer
will be able to exercise all of the powers under that section in relation to the
ship.
Officer confirms that the ship is covered by an agreement
etc.
(4) If:
(a) after exercising the powers in subsection (2), the officer is
satisfied that the ship is a foreign ship that is entitled to fly the flag of a
country; and
(b) Australia has an agreement or arrangement with that country which
enables the exercise of Australian jurisdiction over ships of that
country;
then the officer may exercise the powers prescribed by the regulations
consistently with that agreement or arrangement.
Officer discovers that the ship is not covered by an agreement
etc.
(5) If:
(a) after exercising the powers in subsection (2), the officer is
satisfied that the ship is a foreign ship that is entitled to fly the flag of a
country; and
(b) Australia does not have an agreement or arrangement with that country
which enables the exercise of Australian jurisdiction over ships of that
country;
then the officer must leave the ship as soon as is practicable.
Officer confirms that the ship is without nationality
(6) If, after exercising the powers in subsection (2), the officer is
satisfied that the ship is a foreign ship that:
(a) is not entitled to fly the flag of a country; or
(b) has been flying the flag of a country that it is not entitled to fly;
or
(c) has been flying the flag of more than one country;
then the officer may search the ship and seize without warrant any narcotic
goods found on the ship.
Definition of officer
(7) In this section, officer has the meaning given by
subsection 4(1), and includes any person who is in command, or a member of the
crew, of:
(a) the ship from which the relevant request under section 184A was made;
or
(b) a ship that was used under section 184B to chase the ship in relation
to which this section applies.
Application of section to ships in Australia
(1) This section applies to a ship that is in Australia and that an
officer reasonably suspects is or has been involved in a contravention or an
attempted contravention, either in or outside Australia, of this Act or a
prescribed Act.
Application of section to ships outside Australia
(2) This section also applies to a ship that is outside Australia
if:
(a) an officer has detained it under subsection 185(3); and
(b) in the case of an Australian ship—the officer reasonably
suspects it is or has been involved in a contravention or an attempted
contravention, either in or outside Australia, of this Act or a prescribed Act;
and
(c) in the case of a foreign ship—the officer reasonably suspects it
is or has been involved in a contravention:
(i) in Australia of this Act or a prescribed Act; or
(ii) in Australia’s exclusive economic zone of a prescribed
Act.
When ship may be destroyed or moved
(3) The CEO may direct an officer to move, destroy, or move and destroy
the ship, or cause such thing to be done, if the CEO has reasonable grounds to
believe any of the following:
(a) that the ship is unseaworthy;
(b) that the ship poses a serious risk to navigation, quarantine, safety
or public health;
(c) that the ship poses a serious risk of damage to property or the
environment;
(d) if the ship is to be destroyed, or removed and destroyed—that
the expenses of custody or maintenance of the ship before its destruction are
likely to be greater than its value.
Giving of notice after the ship has been destroyed
(4) As soon as practicable, but not later than 7 days after the ship has
been destroyed, the CEO must give a written notice to:
(a) the owner of the ship; or
(b) if the owner cannot be identified after reasonable inquiry—the
person in whose possession or under whose control the ship was when it was
detained or located.
(5) The notice must state:
(a) that the ship has been destroyed under subsection (3); and
(b) the reason for the destruction; and
(c) that compensation may be payable under section 4AB.
Note: A person may be paid compensation under section 4AB if
the destruction of the ship results in an acquisition of property (within the
meaning of paragraph 51(xxxi) of the Constitution).
Failure to give notice not to affect validity
(6) A failure to give a notice under this section does not affect the
validity of the ship’s destruction.
Section to override certain other provisions
(7) This section applies despite Subdivisions D and G (other than section
205G) of Division 1 of Part XII.
30 Paragraph 186A(1)(b)
Repeal the paragraph, substitute:
(b) as a result of that examination, an officer of Customs is satisfied
that the document or part of the document may contain information relevant
to:
(i) an importation or exportation, or to a proposed importation or
exportation, of prohibited goods; or
(ii) the commission or attempted commission of any other offence against
this Act or of any offence against a prescribed Act;
31 At the end of section
187
Add:
(2) A reference in subsection (1) to a ship or aircraft is a reference to
a ship or aircraft to which section 185 does not apply.
32 After section 189
Insert:
(1) Subject to any directions from the CEO, the commander of a Customs
vessel:
(a) may issue approved firearms and other approved items of personal
defence equipment to officers under his or her command for the purpose
of:
(i) enabling the use, by such officers, of a firearm in the circumstances
set out in subsection 184B(6) or 184C(3); or
(ii) enabling the safe exercise, by such officers, of powers conferred on
them under this Act, including powers related to the suspected commission or
attempted commission of an offence against another Act; and
(b) must take all reasonable steps to ensure that approved firearms, and
other approved items of personal defence equipment, that are available for issue
under paragraph (a), are kept in secure storage at all times when not required
for use.
(2) Without limiting the matters that may be the subject of directions
under subsection 4(4) of the Customs Administration Act 1985 as modified
by section 183UC, the CEO may give directions under that modified subsection
relating to the deployment of approved firearms and other approved items of
personal defence equipment under this section. The directions may deal
with:
(a) the circumstances in which approved firearms and other approved items
of personal defence equipment may be issued; and
(b) the circumstances in which such firearms and other items of equipment
are to be recalled; and
(c) the circumstances in which such firearms and other items of equipment
can be used and the manner of their use; and
(d) the nature of the secure storage of such firearms and other items of
equipment when recalled; and
(e) any other matters relating to the deployment of such firearms and
other items of equipment the CEO thinks appropriate.
(3) An officer is not required under, or by reason of, a law of a State or
Territory:
(a) to obtain a licence or permission for the possession or use of an
approved firearm or approved item of personal defence equipment; or
(b) to register such a firearm or other item of equipment.
(4) Nothing in this section affects the operation of any other provision
of, or of the regulations under, this Act to the extent that that provision
relates to the use of firearms in circumstances other than the circumstances
referred to in this section.
(5) In this section:
approved firearm means a firearm of a kind declared by the
regulations to be an approved firearm for the purposes of this
section.
approved item of personal defence equipment means an
extendable baton, an oleoresin capsicum spray or anti-ballistic clothing, and
includes any other item that is declared by the regulations to be an approved
item of personal defence equipment for the purposes of this section.
Customs vessel means a Commonwealth ship that is under the
command of a Customs officer and flying a Customs flag within the meaning of
section 14.
33 Paragraph 207(1)(a)
After “subsection”, insert “185(2),
185A(6),”.
34 Section 208D
After “subsection”, insert “185(2),
185A(6),”.
35 After paragraph
219L(1A)(b)
Insert:
and (c) in the case where the person is on board a ship—the
ship:
(i) is an Australian ship that is outside the territorial sea of a foreign
country; or
(ii) is a foreign ship that is on the landward side of the outer edge of
Australia’s territorial sea;
36 Paragraph 219L(1B)(b)
Repeal the paragraph, substitute:
(b) a detention officer suspects on reasonable grounds that a person who
is 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
conducting that search or exercising that other power; and
(c) in the case where the person is on board a ship—the
ship:
(i) is an Australian ship that is outside the territorial sea of a foreign
country; or
(ii) is a foreign ship that is on the landward side of the outer edge of
Australia’s territorial sea;
37 After subsection
219L(1B)
Insert:
(1C) If:
(a) a person has boarded a Customs vessel or Commonwealth ship for a
purpose connected with the conduct of a search or the exercise of any other
power under section 185; and
(b) a detention officer suspects on reasonable grounds that the person is
carrying on his or her body any weapon or thing that is capable or being used to
inflict bodily injury on an officer conducting that search or exercising that
other power;
the detention officer may detain the person for the purpose of being
searched under this Subdivision.
38 Subsection 219L(2)
Omit “or (1B)”, substitute “, (1B) or
(1C)”.
39 Subsection 219M(4)
After “219L(1B)”, insert “or (1C)”.
40 Section 219NA
After “219L(1B)” (wherever occurring), insert “or
(1C)”.
41 Paragraph 219ZE(1)(cb)
After “219L(1B)”, insert “or 219L(1C)”.
42 Subsection 228(1)
Omit “or boats not exceeding 80 metres in overall length and the
following”, substitute “, boats and”.
43 Paragraph 228(1)(2)
After “his”, insert “or her”.
After “him”, insert “or her”.
45 Paragraph 228(1)(2)
Omit “59(1) or (2)”, substitute “184A(2) or
(3)”.
46 Paragraph 228(1)(3)
After “airport”, insert “or landing
field”.
47 Paragraph 228(1)(3)
Omit “59”, substitute “184D”.
Omit “in pursuance of section 59, 185 or 187”.
49 Subsection 228(1)
Omit all the words from and including “The owner” to and
including “its payment”.
50 Subsection 228(2)
Repeal the subsection.
51 Transitional and saving provisions for this
Part
(1) For the purposes of the definition of Commonwealth ship
in subsection 4(1) of the Customs Act 1901, the ensign prescribed for a
class of ships consisting of ships of a kind described in regulations in force
for the purposes of section 59 of that Act immediately before the commencement
of this Schedule is the ensign prescribed by those regulations for a ship of
that kind.
(2) Subitem (1) ceases to have effect on the commencement of regulations
made under the Customs Act 1901 prescribing ensigns for the purposes of
the definition of Commonwealth ship in subsection 4(1) of that
Act.
(3) For the purposes of the definition of Commonwealth
aircraft in subsection 4(1) of the Customs Act 1901, the ensign
and insignia prescribed for a class of aircraft consisting of aircraft of a kind
described in regulations in force for the purposes of section 59 of that Act
immediately before the commencement of this Schedule are the ensign and insignia
prescribed by those regulations for an aircraft of that kind.
(4) Subitem (3) ceases to have effect on the commencement of regulations
made under the Customs Act 1901 prescribing ensigns for the purposes of
the definition of Commonwealth aircraft in subsection 4(1) of that
Act.
(5) Despite the amendment made by this Part to subsection 185(4) of the
Customs Act 1901, that subsection continues to apply in relation to
offences committed before the commencement of this Part as if the amendment had
not been made.
Part
2—Transfer of goods into or
out of coasting trade
52 Subsection 175(1)
(definition of Australian
ship)
Repeal the definition.
Insert:
(2A) Subsection (2) applies to a coastal ship that is an Australian ship
if the ship is anywhere outside the territorial sea of a foreign
country.
Insert:
(3AA) Subsection (3) applies to a ship that is an Australian ship if the
ship is anywhere outside the territorial sea of a foreign country.
Insert:
(3AAA) Subsection (3A) applies to an Australian ship described in
paragraph (3A)(a) if the ship is anywhere outside the territorial sea of a
foreign country.
Part
1—Customs officers to be
fisheries officers
1
Subsection 4(1) (at the end of the definition of
officer)
Add:
; or (d) an officer of Customs (as defined in the Customs Act
1901).
2
Subsection 84(8) (at the end of the definition of
prescribed
person)
Add “or an officer of Customs (as defined in the Customs Act
1901)”.
Part
2—Suspected illegal foreign
fishers
3 Subsection 4(1)
Insert:
Australian resident means:
(a) a person who holds a permanent visa (as defined in the Migration
Act 1958) that is in effect; or
(b) a New Zealand citizen who is usually resident in Australia or a
Territory and who holds a special category visa (as defined in the Migration
Act 1958) that is in effect; or
(c) any other person who is usually resident in Australia or a Territory
and whose continued presence in Australia or a Territory is not subject to a
limitation as to time imposed by law.
4 After paragraph 84(1)(i)
Insert:
(ia) subject to section 84A, detain a person in Australia or a Territory
for the purposes of determining during the period of detention whether or not to
charge the person with an offence against section 99, 100, 100A, 101, 101A or
101B, if the officer has reasonable grounds to believe that the
person:
(i) is not an Australian citizen or an Australian resident; and
(ii) was on a foreign boat when it was used in the commission of such an
offence; and
(ib) subject to section 84A:
(i) take a person who has been detained in Australia under paragraph (ia)
to another place in Australia or to a place in an external Territory;
and
(ii) take a person who has been detained in an external Territory under
paragraph (ia) to another place in the Territory or to a place in Australia or
another Territory; and
(ic) subject to section 84B, search without warrant:
(i) a person detained under paragraph (ia); and
(ii) the person’s clothing; and
(iii) any property under the person’s immediate control;
to find out whether a weapon or other thing capable of being used to
inflict bodily injury or to help the person to escape from that detention is
hidden on the person or in the clothing or property; and
(id) do anything reasonably necessary for:
(i) photographing or measuring a person detained under paragraph (ia);
or
(ii) otherwise recording matters in relation to such a person;
for the purpose of facilitating the present or future identification of
the person; and
5 Subsection 84(7)
After “this Act” (first occurring), insert “or a
particular provision of this Act”.
6 Subsection 84(7)
After “this Act” (second occurring), insert “or that
provision”.
7 After section 84
Insert:
(1) A person (the detainee) detained under paragraph
84(1)(ia) must be released from detention:
(a) as soon as an officer knows or reasonably believes that the detainee
is an Australian citizen or an Australian resident; or
(b) at the time the detainee is brought before a magistrate following a
decision to charge the detainee with an offence referred to in paragraph
84(1)(ia); or
(c) at the time a decision is made not to charge the detainee with an
offence referred to in that paragraph; or
(d) at the end of 168 hours after the detention began;
whichever occurs first.
(2) Part IC of the Crimes Act 1914 applies in relation to the
detainee while detained under paragraph 84(1)(ia) of this Act as if:
(a) he or she were under arrest because of paragraph 23B(2)(b) for a
Commonwealth offence for the purposes of that Part; and
(b) an officer were an investigating official for the purposes of that
Part.
(3) Subsection (2) does not affect the operation of sections 23C, 23D and
23E of the Crimes Act 1914 as they apply of their own force in relation
to a person who is lawfully arrested.
(4) Paragraph 84(1)(ia) and this section do not authorise an officer to
use more force in detaining a person than is reasonably necessary.
(1) A search under paragraph 84(1)(ic) of a person (the
detainee) may only be conducted by an officer of the same sex as
the detainee.
(2) However, if an officer of the same sex as the detainee is not
available to conduct the search, it may be conducted by another person
who:
(a) is of the same sex as the detainee; and
(b) agrees, at the request of an officer, to conduct the search.
(3) Paragraph 84(1)(ic) and this section do not authorise the officer or
other person:
(a) to remove any of the detainee’s clothing; or
(b) to require the detainee to remove any of his or her clothing;
or
(c) to use more force, or subject a detainee to greater indignity, than is
reasonably necessary to conduct the search.
(4) If, in conducting a search, an officer finds a weapon or other thing
mentioned in paragraph 84(1)(ic), an officer may:
(a) take possession of the weapon or other thing; and
(b) keep the weapon or other thing for such time as he or she thinks
necessary for the purposes of this Act.
(5) If, in conducting a search, the other person finds a weapon or other
thing mentioned in subsection (4):
(a) he or she must take possession of it and give it to an officer;
and
(b) an officer may keep it for such time as he or she thinks necessary for
the purposes of this Act.
8 At the end of Division 4 of Part
6
Add:
(1) A person is guilty of an offence if:
(a) the person is in detention under paragraph 84(1)(ia) and is reckless
as to that fact; and
(b) the person intentionally escapes from that detention.
(2) The offence is punishable on conviction by imprisonment for up to 2
years.
Division
2—Amendments relating to the Fish Stocks Agreement
9 Paragraph 84(1)(ia)
Omit “section 84A”, substitute “sections 84A and
87E”.
10 Paragraph 84(1)(ia)
Omit “or 101B”, substitute “, 101B, 105E or
105F”.
11 Paragraph 84(1)(ib)
Omit “section 84A”, substitute “sections 84A and
87E”.
12 After paragraph
87E(1)(a)
Insert:
(aa) detain under paragraph 84(1)(ia) a person whom the officer has
reasonable grounds to believe was on an FSA boat when it was used in the
commission of an offence against section 105E or 105F; or
(ab) take from one place to another under paragraph 84(1)(ib) a person
detained under paragraph 84(1)(ia) because an officer had reasonable grounds to
believe the person was on an FSA boat when it was used in the commission of an
offence against section 105E or 105F; or
13 At the end of section
87E
Add:
(5) Subsection (1) does not limit an officer’s power under paragraph
84(1)(ia) or (ib) in relation to a person if the officer has reasonable grounds
to believe that the person was on an FSA boat when it was used in the commission
of an offence against section 99, 100, 100A, 101, 101A or 101B.
Note: Section 84A affects the officer’s power in that
situation.
Part
3—Customs officers
exercising powers as fisheries officers may carry arms
Insert:
(1) Subject to any directions from the Chief Executive Officer of Customs
(CEO), the commander of a Customs vessel:
(a) may issue approved firearms and other approved items of personal
defence equipment to officers of Customs under his or her command for the
purpose of enabling the safe exercise, by such officers, of powers conferred on
them as officers within the meaning of section 4; and
(b) must take all reasonable steps to ensure that approved firearms, and
other approved items of personal defence equipment, that are available for issue
under paragraph (1)(a), are kept in secure storage at all times when not
required for use.
(2) Directions given by the CEO for the purposes of subsection 189A(2) of
the Customs Act 1901 relating to the deployment of approved firearms and
other approved items of personal defence equipment may extend to the deployment
of such firearms and other items of equipment under this section.
(3) If:
(a) approved firearms and other approved items of personal defence
equipment are issued to officers of Customs in accordance with subsection
189A(1) of the Customs Act 1901; and
(b) those officers are subsequently required, while carrying such firearms
or other items of equipment, to exercise powers conferred on them under this
Act;
then:
(c) the deployment of such firearms or other items of equipment has effect
as if the firearms or other items of equipment had been issued under this
section; and
(d) any directions given by the CEO that relate to any aspect of that
deployment have effect accordingly.
(4) An officer of Customs is not required under, or by reason of, a law of
a State or Territory:
(a) to obtain a licence or permission for the possession or use of an
approved firearm or approved item of personal defence equipment in the
circumstances set out in this section; or
(b) to register such a firearm or other item of equipment.
(5) In this section:
approved firearm means a firearm that is an approved firearm
for the purposes of section 189A of the Customs Act 1901.
approved item of personal defence equipment means an item
that is an approved item of personal defence equipment for the purposes of
section 189A of the Customs Act 1901.
Customs vessel means a Commonwealth ship (within the meaning
of the Customs Act 1901) that is under the command of an officer of
Customs (including an officer of Customs exercising powers as an officer within
the meaning of this Act) and flying a Customs flag within the meaning of section
14 of the Customs Act 1901.