MARITIME POWERS BILL 2012

i Maritime Powers Bill 2012 No. , 2012

Contents

Part 1--Introduction

Division 1--Preliminary

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

Act binds the Crown .......................................................................... 2

4 Application

Act

.............................................................................

Effect on executive power ................................................................. 3

Relationship to other laws .................................................................. 3

Division 2--Guide to this Act

Guide to this Act ................................................................................ 4

Division 3--Definitions

8 Definitions

.........................................................................................

Involved in a contravention .............................................................. 12

Actionable contraventions--aircraft ................................................ 13

Continuous exercise of powers ........................................................ 13

Division 4--International agreements and decisions

When international agreements and decisions apply ....................... 14

Treating foreign vessels as Australian vessels ................................. 14

14 Applying

Australian

law

in other places .......................................... 14

Part 2--Exercising powers

Division 1--Introduction

Guide to this Part ............................................................................. 16

Division 2--Authorising the exercise of maritime powers

16 Authorising

officers

.........................................................................

17 Contraventions

.................................................................................

18 Monitoring

laws

...............................................................................

19 International

agreements and decisions ........................................... 18

20 Evidential

material and warrants ..................................................... 19

21 Identifying

vessels

and aircraft ........................................................ 19

22 Seizable

transit

goods--aircraft ....................................................... 20

Division 3--Authorisations and approvals

23 When

authorisations are in force ..................................................... 21

When approvals lapse ...................................................................... 21

Form of authorisations and approvals .............................................. 21

26 Further

authorisations and approvals ............................................... 22

Maritime Powers Bill 2012 No. , 2012 ii

Division 4--Exercising powers

Subdivision A--Effect of Division

27 Effect

Division

............................................................................

Subdivision B--Exercising powers without authorisation

28 Identifying

aircraft

...........................................................................

29 Ensuring

safety

................................................................................

Subdivision C--Exercising powers with authorisation

30 Authorisation

required ..................................................................... 23

Exercising powers for authorised purpose ....................................... 23

Exercising powers for other purposes .............................................. 24

Additional powers and limitations under international

agreements and decisions ................................................................. 25

Subdivision D--Scope of power

Scope of power--vessels, installations, aircraft and protected

land areas ......................................................................................... 26

Warrants not required ...................................................................... 26

36 Enforcing

warrants

...........................................................................

Subdivision E--Using force and assistance

37 Using

force.......................................................................................

38 Requesting

assistance

......................................................................

39 Requiring

assistance

........................................................................

Division 5--Geographical limits

Subdivision A--Exercising powers in other countries

Exercising powers in other countries ............................................... 29

Subdivision B--Exercising powers between countries

Foreign vessels between countries ................................................... 29

42 Meaning

chased without interruption .......................................... 31

43 Foreign

installations

between countries ........................................... 31

Foreign aircraft between countries ................................................... 32

Subdivision C--Exercising powers in Australia

Foreign vessels in Australia--evidence and warrants

authorisations ................................................................................... 32

Vessels, installations and isolated persons in States and

internal Territories ........................................................................... 33

Aircraft in States and internal Territories ........................................ 33

Subdivision D--Requests and agreements of other countries

Manner and form of requests and agreements ................................. 34

Scope of powers under requests and agreements ............................. 34

iii Maritime Powers Bill 2012 No. , 2012

Part 3--Maritime powers

Division 1--Introduction

Guide to this Part ............................................................................. 36

Effect of Part .................................................................................... 36

Division 2--Boarding

Boarding vessels, installations and aircraft ...................................... 37

Requirement to facilitate boarding ................................................... 37

54 Additional

powers--vessels ............................................................ 38

55 Additional

powers--aircraft ............................................................ 39

Division 3--Entering on land

Entering on land ............................................................................... 41

Division 4--Obtaining information

Requiring answers, records and documents ..................................... 42

58 Obtaining

readings

...........................................................................

Division 5--Searching

59 Searching

places

..............................................................................

Lifting persons or things from the sea ............................................. 43

61 Searching

persons

............................................................................

62 Conducting

frisk

searches ................................................................ 44

Division 6--Things found or produced

63 Examining

things

.............................................................................

Securing and marking things ........................................................... 46

65 Copying

records

or documents ........................................................ 47

66 Securing

weapons

............................................................................

67 Seizing

things

...................................................................................

68 Retaining

things

...............................................................................

Division 7--Detaining vessels, aircraft and other conveyances

Vessels and aircraft .......................................................................... 49

70 Other

conveyances ........................................................................... 49

Division 8--Placing and moving persons

71 Placing

persons

................................................................................

Persons on detained vessels and aircraft .......................................... 50

73 Using

detention

provisions .............................................................. 51

74 Safety

persons

..............................................................................

Restraint is not arrest ....................................................................... 51

Division 9--Arrest

Arrest for indictable offences........................................................... 52

Enforcing arrest warrants ................................................................. 52

Maritime Powers Bill 2012 No. , 2012 iv

Division 10--Requiring conduct to cease

78 Requiring

conduct to cease .............................................................. 53

Part 4--Dealing with things taken

Division 1--Introduction

Guide to this Part ............................................................................. 54

Division 2--Notice of seizure, retention or detention

Notice of seizure, retention or detention .......................................... 56

Information about the return of things ............................................. 56

82 Notice

Commonwealth ownership .............................................. 57

Division 3--Using seized things

83 Using

seized

things

..........................................................................

84 Using

seized

things--State and Territory officers ........................... 58

85 Operating

electronic equipment ....................................................... 58

Division 4--Returning things

86 Returning

seized

things

....................................................................

Returning retained and detained things ............................................ 60

Magistrate may extend holding period ............................................. 61

Returning things if notice of Commonwealth ownership

given ................................................................................................ 61

90 Seizing

under

other

Australian laws ................................................ 62

Division 5--Disposing of things

91 Reasons

for

disposal

........................................................................

Methods of disposal ......................................................................... 64

93 Notice

disposal

............................................................................

Part 5--Dealing with persons held

Division 1--Introduction

Guide to this Part ............................................................................. 65

Treatment of persons held ................................................................ 65

Doing things as soon as practicable ................................................. 66

Division 2--Persons detained

Persons on, or from, detained vessels or aircraft taken to

other places ...................................................................................... 67

Persons detained under detention provisions ................................... 67

Division 3--Persons arrested

Application of this Division ............................................................. 68

100

Person to be informed of reason for arrest ....................................... 68

101

Person to be brought before magistrate ............................................ 68

v Maritime Powers Bill 2012 No. , 2012

102

Enforcing arrest warrants ................................................................. 69

Part 6--Failing to comply with requirements

103 Offence

............................................................................................

Part 7--Miscellaneous

Division 1--Maritime officers

104 Maritime

officers

.............................................................................

105

Carrying and using arms .................................................................. 71

106 Identity

cards

...................................................................................

107

Protection from suit ......................................................................... 72

Division 2--Evidentiary certificates

108

Evidence of international agreements and decisions ....................... 73

109

Evidence of approvals ...................................................................... 73

110

Evidence of requests and agreements--geographical limits

on exercise of powers ...................................................................... 73

111

Certificates are prima facie evidence ............................................... 73

Division 3--Recovery of costs

112 Chase

costs.......................................................................................

113 Seizure

costs

....................................................................................

114

Liability to pay costs is a debt to the Commonwealth ..................... 75

Division 4--Gathering and sharing information

115

Copying records or documents for other purposes .......................... 76

116 Sharing

information

.........................................................................

Division 5--Compensation for acquisition of property

117

Compensation for acquisition of property ....................................... 78

118

Compensation for damage to documents ......................................... 78

119

Compensation for damage to equipment ......................................... 78

120

Amount of compensation--proceedings .......................................... 79

Division 6--Delegation and regulations

121 Delegation

........................................................................................

122 Regulations

......................................................................................

Part 1 Introduction

Division 1 Preliminary

Section 2

2 Maritime Powers Bill 2012 No. , 2012

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 and

2 and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Sections 3 to

122

A single day to be fixed by Proclamation.

However, if the provision(s) do not

commence within the period of 12 months

beginning on the day this Act receives the

Royal Assent, they commence on the day

after the end of that period.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Act binds the Crown

This Act binds the Crown in each of its capacities.

4 Application of Act

(1) This Act extends to every external Territory.

(2) This Act extends to acts, omissions, matters and things outside

Australia.

Part 1 Introduction

Division 2 Guide to this Act

Section 7

4 Maritime Powers Bill 2012 No. , 2012

Division 2--Guide to this Act

7 Guide to this Act

This Act provides a broad set of enforcement powers for use in,

and in relation to, maritime areas. Most of these powers are set out

in Part 3.

The powers can be used by maritime officers to give effect to

Australian laws and international agreements and decisions.

The following are maritime officers:

(a)

Customs

officers;

(b)

members of the Australian Defence Force;

(c)

members of the Australian Federal Police;

(d)

other persons appointed by the Minister.

An authorisation is necessary to begin the exercise of powers in

relation to a vessel, installation, aircraft, protected land area or

isolated person. The only exceptions are the exercise of aircraft

identification powers and the exercise of powers to ensure the

safety of persons.

Once an authorisation is in force, maritime officers can exercise

powers for a range of purposes.

In accordance with international law, the exercise of powers is

limited in places outside Australia.

Introduction Part 1

Definitions Division 3

Section 8

Maritime Powers Bill 2012 No. , 2012 5

Division 3--Definitions

8 Definitions

In this Act:

actionable contravention, in relation to an aircraft, has the

meaning given by section 10.

aircraft means any machine or craft that can derive support in the

atmosphere from the reactions of the air, other than the reactions of

the air against the earth's surface.

aircraft identification powers has the meaning given by subsection

55(4).

approval, given by the Minister for the exercise of powers, has the

meaning given by section 24.

archipelagic waters has the same meaning as in the Convention.

Australia, when used in a geographical sense, includes:

(a) the external Territories; and

(b) the territorial seas of Australia and the external Territories;

and

(i) the continental shelf of Australia or an external

Territory; or

(ii) the seabed within the exclusive economic zone of

Australia or an external Territory; and

(d) the safety zone around any such installation; and

(e) the airspace above Australia (including the airspace above

the areas covered by paragraphs (a) to (d)).

Australian aircraft means:

(a) an aircraft registered, or required to be registered, under the

Civil Aviation Safety Regulations 1998

as an Australian

aircraft; or

(b) a Commonwealth aircraft.

Part 1 Introduction

Division 3 Definitions

Section 8

6 Maritime Powers Bill 2012 No. , 2012

Australian law:

(a) means a law of the Commonwealth or a State or Territory,

and includes this Act; but

(b) does not include a law prescribed by the regulations.

Australian national means:

(a) an Australian citizen; or

(b) a body corporate established by or under a law of the

Commonwealth or a State or Territory; or

Australian vessel means:

(a) an Australian ship within the meaning of the Shipping

Registration Act 1981; or

(b) a vessel that is not registered under the law of a foreign

country and is either wholly owned 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.

authorisation has the meaning given by subsection 23(1).

authorising officer has the meaning given by subsection 16(1).

border controlled drug has the same meaning as in Part 9.1 of the

Criminal Code.

border controlled plant has the same meaning as in Part 9.1 of the

Criminal Code.

chased without interruption, in relation to a vessel, has the

meaning given by section 42.

Civil Aviation Regulations means regulations made under the Civil

Aviation Act 1988, and includes any of those regulations as in force

under the law of a State.

Commonwealth aircraft means an aircraft that is owned by, or in

the possession or control of, the Commonwealth or a

Commonwealth authority.

Introduction Part 1

Definitions Division 3

Section 8

Maritime Powers Bill 2012 No. , 2012 7

Commonwealth officer means a person who:

(a) holds, or performs the duties of, an appointment, office or

position under a law of the Commonwealth; or

(b) is otherwise in the service of the Commonwealth.

Commonwealth ship means a vessel that is owned by, or in the

possession or control of, the Commonwealth or a Commonwealth

authority.

contiguous zone has the same meaning as in the Convention.

continental shelf has the same meaning as in the Convention.

continuous exercise of powers has the meaning affected by

section 11.

contravention, of a law, includes an offence against the law.

Convention means the United Nations Convention on the Law of

the Sea done at Montego Bay on 10 December 1982.

Note:

The text of the Convention is set out in Australian Treaty Series 1994

No. 31 ([1994] ATS 31). In 2012, the text of a Convention in the

Australian Treaty Series was accessible through the Australian

Treaties Library on the AustLII website (www.austlii.edu.au).

conveyance includes a vessel, aircraft or vehicle.

cooperating agency has the meaning given by subsection 116(4).

country, when used in a geographical sense, includes:

(a) the territorial sea, and any archipelagic waters, of the

country; and

(b) any installation attached to the continental shelf, or the

seabed within the exclusive economic zone, of the country;

and

(d) the airspace above the country (including the airspace above

the areas covered by paragraphs (a) to (c)).

detained aircraft has the meaning given by subsection 69(5).

detained vessel has the meaning given by subsection 69(4).

Part 1 Introduction

Division 3 Definitions

Section 8

8 Maritime Powers Bill 2012 No. , 2012

detention provision has the meaning given by subsection 73(2).

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

evidence and warrants authorisation has the meaning given by

subsection 20(2).

evidential material means any thing that may afford evidence of a

contravention of an Australian law, including such a thing in

electronic form.

exclusive economic zone has the same meaning as in the

Convention.

Foreign Affairs Minister means the Minister administering the

Diplomatic Privileges and Immunities Act 1967.

foreign aircraft means an aircraft other than an Australian aircraft.

foreign installation means an installation controlled by a foreign

country.

foreign vessel means a vessel other than an Australian vessel.

frisk search has the meaning given by subsection 61(5).

installation:

(a)

means:

(i) an artificial island within the meaning of the

Convention; or

(ii) an installation within the meaning of the Convention; or

(iii) a structure within the meaning of the Convention; but

(b) does not include a thing that has been, or could be, such an

island, installation or structure but is not installed.

international agreement means an agreement or arrangement

between Australia and one or more other countries.

international decision means a decision made by:

(a) the Security Council of the United Nations; or

Introduction Part 1

Definitions Division 3

Section 8

Maritime Powers Bill 2012 No. , 2012 9

(b) another international body that, under international law,

makes decisions that are binding on its members.

involved, in a contravention of a law, has the meanings given by

section 9.

isolated person means a person who is not on, or in the vicinity of,

a vessel, installation, aircraft or protected land area.

maritime officer has the meaning given by subsection 104(1).

maritime powers means the powers in Part 3.

migration zone has the same meaning as in the Migration Act

1958.

monitoring law means:

(a)

the

Customs Act 1901; or

(b)

the

Fisheries Management Act 1991; or

(c)

the

Migration Act 1958; or

(d)

the

Torres Strait Fisheries Act 1984; or

(e) section 72.13 or Division 307 of the Criminal Code; or

(f) clause 8 of Schedule 1 to the Environment Protection and

Biodiversity Conservation Act 1999; or

(g) a law prescribed by the regulations.

ordinary search has the meaning given by subsection 61(4).

personal information has the same meaning as in the Privacy Act

1988.

person assisting, in the exercise of powers under this Act, has the

meaning given by subsection 38(5).

person in charge, in relation to the exercise of powers by a

maritime officer:

(a) in relation to a vessel, installation or aircraft--means the

person who appears to the officer to be in charge of the

vessel, installation or aircraft; or

Part 1 Introduction

Division 3 Definitions

Section 8

10 Maritime Powers Bill 2012 No. , 2012

(b) in relation to a protected land area--means the person who

appears to the officer to be in control, possession or

occupation of the land, or any premises on the land.

protected land area means an area of land that is:

(a) outside the States and internal Territories; and

(b) prescribed by the regulations.

resident of Australia means:

(a) an individual who is usually resident in Australia and whose

continued presence in Australia is not subject to a limitation

as to time imposed by law; or

(b) a body corporate that has its principal place of business in

Australia.

retained thing has the meaning given by subsection 68(3).

safety zone, in relation to an installation:

(a) has the same meaning as in the Convention; and

(b) includes the column of water below that zone.

seizable transit goods means:

(a) goods that are connected, either directly or indirectly, with

the carrying out of a terrorist act, whether the terrorist act has

occurred, is occurring or is likely to occur; or

(b) goods, the existence or the shipment of which, prejudices, or

is likely to prejudice, Australia's defence or security or

international peace and security.

Note:

Seizable transit goods may be forfeited to the Commonwealth under

the Customs Act 1901.

seized thing has the meaning given by subsection 67(3).

support vessel has the meaning given by subsection 9(4).

territorial sea has the same meaning as in the Convention.

terrorist act has the same meaning as in Part 5.3 of the Criminal

Code.

thing includes a record or document.

Introduction Part 1

Definitions Division 3

Section 8

Maritime Powers Bill 2012 No. , 2012 11

this Act includes the regulations.

vessel means a vessel or boat of any description and includes a

hovercraft and any floating structure, but does not include an

installation.

vessel identification powers means the powers set out in the

following provisions:

(a) section 52 (boarding vessels, installations and aircraft);

(b) section 53 (requirement to facilitate boarding);

(d) section 57 (requiring answers, records and documents);

(e) section 58 (obtaining readings);

(f) section 59 (searching places);

(g) section 61 (searching persons);

(h) section 63 (examining things);

(i) section 66 (securing weapons).

vessels without nationality authorisation has the meaning given

by subsection 21(2).

weapon includes a thing that:

(a) is capable of being used to inflict bodily injury (including

ammunition); or

(b) is capable of being used to help a person escape from

detention or custody; or

installation or aircraft; or

(d) except for the absence of, or a defect in, a part of the thing,

would be a weapon of a kind mentioned in paragraph (a), (b)

or (c); or

(e) is reasonably capable of being converted into a weapon of a

kind mentioned in paragraph (a), (b) or (c).

Part 1 Introduction

Division 3 Definitions

Section 9

12 Maritime Powers Bill 2012 No. , 2012

9 Involved in a contravention

Vessels, installations, aircraft and protected land areas

(1) A vessel, installation, aircraft or protected land area is involved in a

contravention of a law, if:

(a) the law has been, is being, or is intended to be, contravened

on, or in the vicinity of, the vessel, installation, aircraft or

land; or

(b) there is some other connection between the vessel,

installation, aircraft or land and a contravention, or intended

contravention, of the law.

Vessels, installations and aircraft

(2) A vessel, installation or aircraft is involved in a contravention of a

law, if the vessel, installation or aircraft has been, is being, or is

intended to be, used in contravention of the law.

Support vessels

(3) A vessel is involved in a contravention of a law if it has been, is

being, or is intended to be, used:

(a) in direct support of another vessel or aircraft that is involved

in a contravention of the law; or

(b) in preparation for a contravention of the law in which another

vessel or aircraft is involved.

(4) A vessel involved in a contravention of a law within the meaning

of subsection (3) is a support vessel.

Isolated persons

(5) An isolated person is involved in a contravention of a law if:

(a) the law has been, is being, or is intended to be, contravened

by the person; or

(b) there is some other connection between the person and a

contravention, or intended contravention, of the law.

Introduction Part 1

Definitions Division 3

Section 10

Maritime Powers Bill 2012 No. , 2012 13

10 Actionable contraventions--aircraft

A contravention of a law is an actionable contravention in relation

to an aircraft if:

(a) the law is prescribed by the regulations; or

(b) the Minister has approved the exercise of maritime powers in

relation to the aircraft for the purposes of investigating the

contravention, or contraventions in general, and the approval

has not lapsed.

Note: For

approval by the Minister, see Division 3 of Part 2.

11 Continuous exercise of powers

For the purposes of this Act, the continuous exercise of powers

does not end only because there is a period of time between the

exercise of one or more of those powers.

Part 1 Introduction

Division 4 International agreements and decisions

Section 12

14 Maritime Powers Bill 2012 No. , 2012

Division 4--International agreements and decisions

12 When international agreements and decisions apply

An international agreement or international decision applies to a

vessel, installation or aircraft at a particular time if:

(a) the agreement or decision provides for the exercise of powers

by Australia in relation to the vessel, installation or aircraft at

that time; and

(b)

either:

(i) the agreement or decision is prescribed by the

regulations; or

(ii) the Minister has approved the exercise of powers under

the agreement or decision in relation to the vessel,

installation or aircraft, and the approval has not lapsed.

Note 1:

For international agreement and international decision, see

section 8.

Note 2:

For approval by the Minister, see Division 3 of Part 2.

13 Treating foreign vessels as Australian vessels

An Australian law applies in relation to a foreign vessel as if the

foreign vessel were an Australian vessel if:

(a) an international agreement provides for the law to so apply;

and

(b) the country of the vessel's nationality is a party to the

agreement.

Note: For

international agreement, see section 8.

14 Applying Australian law in other places

Places in other countries

(1) An Australian law applies in, or in relation to, a place in another

country as if that place were in Australia if an agreement or

arrangement between Australia and the other country provides for

the law to so apply.

Introduction Part 1

International agreements and decisions Division 4

Section 14

Maritime Powers Bill 2012 No. , 2012 15

Places in exclusive economic zones of other countries

(2) An Australian law applies in, or in relation to, a place in the

exclusive economic zone of another country as if that place were in

the exclusive economic zone of Australia if an agreement or

arrangement between Australia and the other country provides for

the law to so apply.

Places on or above the continental shelves of other countries

(3) An Australian law applies in, or in relation to, a place on or above

the continental shelf of another country as if that place were on or

above the continental shelf of Australia if an agreement or

arrangement between Australia and the other country provides for

the law to so apply.

Part 2 Exercising powers

Division 1 Introduction

Section 15

16 Maritime Powers Bill 2012 No. , 2012

Part 2--Exercising powers

Division 1--Introduction

15 Guide to this Part

This Part provides for the exercise of maritime powers and powers

specified in international agreements and decisions.

An authorisation must be given by an authorising officer before

powers can be exercised in relation to a vessel, installation,

aircraft, protected land area or isolated person. The only exceptions

are:

(a)

the exercise of aircraft identification powers to

identify aircraft; and

(b)

the exercise of maritime powers to ensure the

safety of a maritime officer or any other person.

Once an authorisation is in force, a maritime officer may exercise

powers for the purposes of the authorisation, and for other

purposes set out in Division 4.

The exercise of powers in relation to a vessel, installation, aircraft

or protected land area extends to persons and things with a

connection to the vessel, installation, aircraft or protected land

area.

Powers can be exercised in, and in relation to, maritime areas, but

their exercise is limited in places outside Australia (see

Division 5).

Exercising powers Part 2

Authorising the exercise of maritime powers Division 2

Section 16

Maritime Powers Bill 2012 No. , 2012 17

Division 2--Authorising the exercise of maritime powers

16 Authorising officers

(1) For the purposes of authorising the exercise of maritime powers in

relation to a vessel, installation, aircraft, protected land area or

isolated person, each of the following is an authorising officer:

(a) the most senior maritime officer who is in a position to

exercise any of the maritime powers in person;

(b) the most senior member or special member of the Australian

Federal Police who is in a position to exercise any of the

maritime powers in person;

operations room;

(d) the person in command of a Commonwealth ship or

Commonwealth aircraft from which the exercise of powers is

to be directed or coordinated;

(e) a person appointed in writing by the Minister.

Limited appointments

(2) The Minister may appoint a person under paragraph (1)(e) as an

authorising officer:

(a) for the purposes of authorising the exercise of powers in

relation to one or more of the following only:

(i) a specified law;

(ii) a specified international agreement or international

decision; and

(b) subject to any other conditions specified in the appointment.

Purported authorisations

(3) A purported authorisation given by a person who reasonably

believed that he or she was an authorising officer has effect as if it

were an authorisation.

Part 2 Exercising powers

Division 2 Authorising the exercise of maritime powers

Section 17

18 Maritime Powers Bill 2012 No. , 2012

17 Contraventions

Vessels, installations, protected land areas and isolated persons

(1) An authorising officer may authorise the exercise of maritime

powers in relation to a vessel, installation, protected land area or

isolated person if the officer suspects, on reasonable grounds, that

the vessel, installation, land or person is involved in a

contravention of an Australian law.

Note: For

involved in a contravention of a law, see section 9.

Aircraft--actionable contraventions

(2) An authorising officer may authorise the exercise of maritime

powers in relation to an aircraft if:

(a) the officer suspects, on reasonable grounds, that the aircraft is

involved in a contravention of an Australian law; and

(b) the contravention is an actionable contravention in relation to

the aircraft.

Note 1:

For involved in a contravention of a law, see section 9.

Note 2:

For actionable contravention, see section 10.

18 Monitoring laws

Vessels, installations, protected land areas and isolated persons

An authorising officer may authorise the exercise of maritime

powers in relation to a vessel, installation, protected land area or

isolated person for the purposes of administering or ensuring

compliance with a monitoring law.

Note: For

monitoring law, see section 8.

19 International agreements and decisions

Vessels, installations and aircraft

An authorising officer may authorise the exercise of maritime

powers in relation to a vessel, installation or aircraft if the officer

Exercising powers Part 2

Authorising the exercise of maritime powers Division 2

Section 20

Maritime Powers Bill 2012 No. , 2012 19

suspects, on reasonable grounds, that an international agreement or

international decision applies to the vessel, installation or aircraft.

Note 1:

For when international agreements and international decisions apply,

see section 12.

Note 2:

The regulations may provide for additional powers, or for limited

powers, to be exercised under an international agreement or

international decision: see section 33.

20 Evidential material and warrants

Vessels, installations and protected land areas

(1) An authorising officer may authorise the exercise of maritime

powers in relation to a vessel, installation or protected land area if

the officer:

(a) suspects, on reasonable grounds, that there is evidential

material on the vessel, installation or land; or

(b) believes, on reasonable grounds, that the exercise of the

powers is necessary to enforce a warrant that is in force under

an Australian law.

Meaning of evidence and warrants authorisation

(2) An authorisation under this section is an evidence and warrants

authorisation.

21 Identifying vessels and aircraft

Vessels without nationality

(1) An authorising officer may authorise the exercise of maritime

powers in relation to a vessel if:

(a) the vessel is not flying the flag of a State; or

(b) the officer suspects, on reasonable grounds, that the vessel:

(i) has been flying the flag of more than one State; or

(ii) is flying the flag of a State that it is not entitled to fly; or

(iii) is not entitled to fly the flag of any State.

Part 2 Exercising powers

Division 2 Authorising the exercise of maritime powers

Section 22

20 Maritime Powers Bill 2012 No. , 2012

Meaning of vessels without nationality authorisation

(2) An authorisation under subsection (1) is a vessels without

nationality authorisation.

Aircraft that fail to meet identification requirements

(3) An authorising officer may authorise the exercise of maritime

powers in relation to an aircraft if:

(a) a requirement made in the exercise of aircraft identification

powers in relation to the aircraft has not been complied with;

(b) the officer suspects, on reasonable grounds, that information

given in response to such a requirement is false or misleading

in a material particular.

Note 1:

Aircraft identification powers can be exercised without authorisation:

see section 28.

Note 2:

For aircraft identification powers, see subsection 55(4).

22 Seizable transit goods--aircraft

An authorising officer may authorise the exercise of maritime

powers in relation to an aircraft if the officer suspects, on

reasonable grounds, that the aircraft is carrying seizable transit

goods.

Note: For

seizable transit goods, see section 8.

Exercising powers Part 2

Authorisations and approvals Division 3

Section 23

Maritime Powers Bill 2012 No. , 2012 21

Division 3--Authorisations and approvals

23 When authorisations are in force

(1)

authorisation given by an authorising officer under Division 2

is in force until:

(a) it is spent; or

(b)

lapses.

When authorisation is spent

(2) An authorisation is spent when the continuous exercise of powers

under the authorisation ends.

Note:

The continuous exercise of powers does not end only because there is

a period of time between the exercise of one or more of those powers:

see section 11.

When authorisation lapses

(3) An authorisation lapses if powers have not been exercised under

the authorisation within 72 hours after it is given.

24 When approvals lapse

approval given by the Minister for the purposes of one of the

following provisions lapses 14 days after it is given:

(a) paragraph 10(b) (actionable contraventions);

(b) subparagraph 12(b)(ii) (when international agreements and

decisions apply).

25 Form of authorisations and approvals

(1) An authorisation or approval need not be in writing.

(2) An authorisation or approval in writing is not a legislative

instrument.

Exercising powers Part 2

Exercising powers Division 4

Section 27

Maritime Powers Bill 2012 No. , 2012 23

Division 4--Exercising powers

Subdivision A--Effect of Division

27 Effect of Division

This Division has effect subject to Division 5 (geographical limits).

Subdivision B--Exercising powers without authorisation

28 Identifying aircraft

A maritime officer may, without authorisation, exercise aircraft

identification powers to identify an aircraft.

Note: For

aircraft identification powers, see subsection 55(4).

29 Ensuring safety

A maritime officer may, without authorisation, exercise maritime

powers to ensure the safety of the officer or any other person.

Subdivision C--Exercising powers with authorisation

30 Authorisation required

If an authorisation is in force in relation to a vessel, installation,

aircraft, protected land area or isolated person, a maritime officer

may exercise powers in relation to the vessel, installation, aircraft,

land or person in accordance with this Subdivision.

31 Exercising powers for authorised purpose

The maritime officer may exercise maritime powers to do

whichever of the following applies in accordance with the

authorisation:

(a) investigate the contravention;

(b) administer or ensure compliance with the monitoring law;

Part 2 Exercising powers

Division 4 Exercising powers

Section 32

24 Maritime Powers Bill 2012 No. , 2012

contravention of the international agreement or international

decision;

(d) access or seize the evidential material;

(e) enforce the warrant that is in force under an Australian law;

(f) identify the vessel or aircraft;

(g) retain the seizable transit goods.

32 Exercising powers for other purposes

(1) The maritime officer may also exercise maritime powers as

follows:

(a) to investigate or prevent any contravention of an Australian

law that the officer suspects, on reasonable grounds, the

vessel, installation, aircraft, protected land area or isolated

person to be involved in;

(b) to administer or ensure compliance with any monitoring law;

ensure compliance with or investigate a contravention of any

international agreement or international decision that the

officer suspects, on reasonable grounds, applies to the vessel,

installation or aircraft;

(d) to access or seize any thing that the officer suspects, on

reasonable grounds, is:

(i) evidential material; or

(ii) a border controlled drug or border controlled plant; or

(iii) owned by the Commonwealth or a State or Territory;

(e) to arrest any person whom the officer suspects, on reasonable

grounds, has committed an indictable offence against an

Australian law;

(f) to enforce any warrant that is in force under an Australian

law;

(g) to retain any thing that the officer believes, on reasonable

grounds, could be seized under an Australian law;

(h) in the case of a vessel or aircraft--to identify the vessel or

aircraft.

Exercising powers Part 2

Exercising powers Division 4

Section 33

Maritime Powers Bill 2012 No. , 2012 25

Exception--aircraft in flight

(2) Subsection (1) does not apply in relation to an aircraft in flight.

33 Additional powers and limitations under international

agreements and decisions

Additional powers

(1) The maritime officer may also exercise powers in the case of a

vessel, installation or aircraft if the powers are:

(a) specified in an international agreement or international

decision that applies to the vessel, installation or aircraft; and

(b) prescribed by the regulations as powers that may be exercised

in relation to vessels, installations or aircraft of that kind; and

compliance with or investigating a contravention of the

agreement or decision.

Limitations on powers

(2) However, the officer must not exercise a power in relation to a

vessel, installation or aircraft to administer, ensure compliance

with or investigate a contravention of an international agreement or

international decision if:

(a) the power is prescribed by the regulations as a power that

must not be exercised under the agreement or decision in

relation to vessels, installations or aircraft of that kind; or

(b) the officer is of a kind prescribed by the regulations as

officers who must not exercise powers under the agreement

or decision in relation to vessels, installations or aircraft of

that kind.

(3) Subsection (2) has effect despite any other provision of this

Subdivision.

Part 2 Exercising powers

Division 4 Exercising powers

Section 34

26 Maritime Powers Bill 2012 No. , 2012

Subdivision D--Scope of power

34 Scope of power--vessels, installations, aircraft and protected

land areas

A maritime officer exercising powers in relation to a vessel,

installation, aircraft or protected land area may exercise the

powers:

(a) on or in any part of the vessel, installation, aircraft or land; or

(b) in relation to any person or thing on, or in the vicinity of, the

vessel, installation, aircraft or land; or

reasonable grounds, was on or is intending to go onto the

vessel, installation, aircraft or land; or

(d) in relation to any thing that the officer suspects, on

reasonable grounds:

(i) was on or is to be taken onto the vessel, installation,

aircraft or land; or

(ii) is, was or is to be, attached to or controlled or directed

from the vessel, installation, aircraft or land.

35 Warrants not required

A maritime officer is not required to obtain a warrant to exercise

any power under this Act.

36 Enforcing warrants

In enforcing a warrant that is in force under an Australian law, a

maritime officer must comply with any requirements in the warrant

that would have to be complied with by a person executing the

warrant.

Exercising powers Part 2

Exercising powers Division 4

Section 37

Maritime Powers Bill 2012 No. , 2012 27

Subdivision E--Using force and assistance

37 Using force

(1) In exercising powers under this Act, a maritime officer may use

such force against a person or thing as is necessary and reasonable

in the circumstances.

(2) The maritime officer must not:

(a) subject a person to greater indignity than is necessary and

reasonable to exercise the powers; or

(b) do anything that is likely to cause the death of, or grievous

bodily harm to, a person unless:

(i) the officer believes on reasonable grounds that doing

that thing is necessary to protect life or prevent serious

injury to another person (including the officer); and

(ii) if the person is attempting to escape arrest by fleeing--

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

manner.

38 Requesting assistance

(1) A maritime officer may request the assistance of any other person

(including an officer of another country).

(2) The request may include a request to:

(a) operate a vessel, aircraft or installation in a particular

manner; or

(b) operate machinery or equipment on a vessel, aircraft,

installation or land in a particular manner; or

(d) assist the officer to access data held in, or accessible from, an

electronic device that is on a vessel, aircraft, installation or

land.

(3) Subsection (2) does not limit subsection (1).

(4) The person may refuse to assist.

Part 2 Exercising powers

Division 4 Exercising powers

Section 39

28 Maritime Powers Bill 2012 No. , 2012

(5) If the person agrees to assist, he or she:

(a) must follow any directions given by the officer; and

(b)

person assisting.

Use of force by person assisting

(6) A person assisting may use such force against a thing as is

necessary and reasonable in the circumstances.

39 Requiring assistance

(1) A maritime officer exercising powers in relation to a vessel,

installation, aircraft or protected land area may require the

assistance of a person who is on, in or in the vicinity of the vessel,

installation, aircraft or land.

Note:

It is an offence to fail to comply with a requirement under this

subsection: see section 103.

(2) The requirement may include a requirement to:

(a) operate the vessel, installation or aircraft in a particular

manner; or

(b) operate machinery or equipment on the vessel, installation,

aircraft or land in a particular manner; or

electronic device or any other equipment on the vessel,

installation, aircraft or land; or

(d) use such force against a thing as is necessary and reasonable

in the circumstances.

(3) Subsection (2) does not limit subsection (1).

(4) However, the officer must not require the person to do anything

that would endanger the health or safety of the person or any other

person.

Exercising powers Part 2

Geographical limits Division 5

Section 40

Maritime Powers Bill 2012 No. , 2012 29

Division 5--Geographical limits

Subdivision A--Exercising powers in other countries

40 Exercising powers in other countries

This Act does not authorise the exercise of powers at a place in

another country unless the powers are exercised:

(a) at the request or with the agreement of the other country; or

(b) to administer, ensure compliance with or investigate a

contravention of an international agreement or international

decision that applies in that place; or

(i) applies in that place; and

(ii) is prescribed by the regulations; or

(d) to administer or ensure compliance with a monitoring law

that:

(i) applies in that place; and

(ii) is prescribed by the regulations; or

(e) in connection with the exercise of powers in accordance with

this section, to ensure the safety of a maritime officer or any

other person.

Subdivision B--Exercising powers between countries

41 Foreign vessels between countries

(1) This Act does not authorise the exercise of powers in relation to a

foreign vessel at a place between Australia and another country

unless the powers are exercised:

(a) to investigate a contravention of a law that applies to foreign

vessels, or persons on foreign vessels, in that place; or

(b) in relation to a contravention covered by paragraph (a), to:

(i) arrest a person; or

(ii) require a person to cease conduct; or

Part 2 Exercising powers

Division 5 Geographical limits

Section 41

30 Maritime Powers Bill 2012 No. , 2012

(i) investigate a contravention of a customs, fiscal,

immigration or sanitary law prescribed by the

regulations that occurred in Australia; or

(ii) prevent a contravention of such a law occurring in

Australia; or

(d) to administer or ensure compliance with a monitoring law

that applies to foreign vessels, or persons on foreign vessels,

in that place; or

(e) to administer, ensure compliance with or investigate a

contravention of an international agreement or international

decision that applies to foreign vessels, or persons on foreign

vessels, in that place; or

(f) to identify the vessel under a vessels without nationality

authorisation; or

(g) in relation to a support vessel supporting a vessel involved in

a contravention in Australia; or

(h) in relation to a support vessel supporting a vessel that is:

(i) an Australian vessel involved in a contravention within

the exclusive economic zone, or waters above the

continental shelf, of Australia; or

(ii) a foreign vessel involved in a contravention of a law

that applies to the foreign vessel, or persons on the

foreign vessel, in that place; or

(i) after the vessel has been chased without interruption to that

place; or

(j) at the request or with the agreement of the country of the

vessel's nationality; or

(k) to seize a border controlled drug or border controlled plant;

(l) in connection with the exercise of powers in accordance with

this section, to ensure the safety of a maritime officer or any

other person.

Note: For

chased without interruption, see section 42.

(2) Only vessel identification powers may be exercised under

paragraph (1)(f).

Note: For

vessel identification powers, see section 8.

Exercising powers Part 2

Geographical limits Division 5

Section 42

Maritime Powers Bill 2012 No. , 2012 31

42 Meaning of chased without interruption

(1) A vessel is chased without interruption if:

(a) at a place where a maritime officer may exercise powers in

relation to the vessel without having chased the vessel, a

maritime officer requires the person in charge of the vessel

to:

(i) stop the vessel; or

(ii) facilitate boarding of the vessel; and

(b) the requirement is not complied with; and

(d) the chase is not interrupted.

Note:

For requirements to facilitate boarding and stop, see sections 53 and

54.

(2) The chase is not interrupted only because:

(a) it is continued by another maritime officer; or

(b) it is begun, or taken over, by a vessel or aircraft (including a

vessel or aircraft of a foreign country) other than the vessel or

aircraft from which the requirement was made; or

country--there is no maritime officer on board the vessel or

aircraft; or

(d) the vessel is out of sight of any or all of the maritime officers,

or officers of a foreign country, involved in the chase; or

(e) the vessel cannot be tracked by remote means, including

radio, radar, satellite or sonar.

43 Foreign installations between countries

This Act does not authorise the exercise of powers in relation to a

foreign installation at a place between Australia and another

country unless the powers are exercised:

(a) to administer, ensure compliance with or investigate a

contravention of an international agreement or international

decision that applies to foreign installations, or persons on

foreign installations, in that place; or

Part 2 Exercising powers

Division 5 Geographical limits

Section 44

32 Maritime Powers Bill 2012 No. , 2012

(b) at the request or with the agreement of the country that

controls the installation; or

this section, to ensure the safety of a maritime officer or any

other person.

44 Foreign aircraft between countries

This Act does not authorise the exercise of powers, other than

aircraft identification powers, in relation to a foreign aircraft at a

place between Australia and another country unless the powers are

exercised:

(a) to investigate a contravention of a law that applies to foreign

aircraft, or persons on foreign aircraft, in that place; or

(b) to administer, ensure compliance with or investigate a

contravention of an international agreement or international

decision that applies to foreign aircraft, or persons on foreign

aircraft, in that place; or

aircraft's nationality; or

(d) in connection with the exercise of powers in accordance with

this section, to ensure the safety of a maritime officer or any

other person.

Subdivision C--Exercising powers in Australia

45 Foreign vessels in Australia--evidence and warrants

authorisations

(1) This Act does not authorise the exercise of powers in relation to a

foreign vessel under an evidence and warrants authorisation at a

place in Australia unless:

(a) the vessel is at a place in the internal waters of Australia; or

(b) the vessel is passing through the territorial sea of Australia

after leaving the internal waters of Australia; or

(i) at the request or with the agreement of the country of

the vessel's nationality; or

Exercising powers Part 2

Geographical limits Division 5

Section 46

Maritime Powers Bill 2012 No. , 2012 33

(ii) in connection with the exercise of powers in accordance

with this section, to ensure the safety of a maritime

officer or any other person.

(2) Subsection (1) has effect subject to section 46.

46 Vessels, installations and isolated persons in States and internal

Territories

This Act does not authorise the exercise of powers in relation to a

vessel, installation or isolated person in a State or internal Territory

unless the powers are exercised:

(a)

both:

(i) as part of the continuous exercise of powers begun

outside the State or internal Territory; and

(ii) in relation to conduct that occurred outside a State or

internal Territory; or

(b) in relation to a law of the Commonwealth in waters navigable

from waters of the sea; or

this section, to ensure the safety of a maritime officer or any

other person.

Note:

The continuous exercise of powers does not end only because there is

a period of time between the exercise of one or more of those powers:

see section 11.

47 Aircraft in States and internal Territories

This Act does not authorise the exercise of powers in relation to an

aircraft in a State or internal Territory unless the powers are

exercised:

(a) as part of the continuous exercise of powers begun outside

the State or internal Territory in relation to conduct that

occurred outside a State or internal Territory; or

(b) in relation to a law of the Commonwealth; or

this section, to ensure the safety of a maritime officer or any

other person.

Part 2 Exercising powers

Division 5 Geographical limits

Section 48

34 Maritime Powers Bill 2012 No. , 2012

Note:

The continuous exercise of powers does not end only because there is

a period of time between the exercise of one or more of those powers:

see section 11.

Subdivision D--Requests and agreements of other countries

48 Manner and form of requests and agreements

(1) For the purposes of this Division, a request or agreement of another

country:

(a) need not be in writing; and

(b) includes the following:

(i) a standing request or agreement;

(ii) a request or agreement relating to particular

circumstances;

(iii) a request or agreement that covers a particular period of

time.

(2) The request or agreement may be made or given by any of the

following:

(a) the head of state of the country;

(b) the head of the government of the country;

responsible for foreign affairs;

(d) the minister of the government of the country who is

responsible for defence;

(e) any official or body of the country that has, or could be

expected to have, authority to make or give such a request or

agreement.

49 Scope of powers under requests and agreements

(1)

If:

(a) the request or agreement of another country is made or given

for the exercise of powers in relation to a vessel, installation,

aircraft or isolated person for a particular purpose (the agreed

purpose); and

(b) the request or agreement is relied on for the purposes of this

Division;

Part 3 Maritime powers

Division 1 Introduction

Section 50

36 Maritime Powers Bill 2012 No. , 2012

Part 3--Maritime powers

Division 1--Introduction

50 Guide to this Part

This Part sets out maritime powers.

Maritime powers may be exercised only in accordance with Part 2

and include the following:

(a)

boarding and entry powers;

(b)

information gathering powers;

(c)

powers;

(d)

powers to seize and retain things;

(e)

powers to detain vessels and aircraft;

(f)

powers to place, detain, move and arrest persons;

(g)

the power to require persons to cease conduct that

contravenes Australian law.

51 Effect of Part

The powers in this Part may be exercised only in accordance with

Part 2.

Maritime powers Part 3

Boarding Division 2

Section 52

Maritime Powers Bill 2012 No. , 2012 37

Division 2--Boarding

52 Boarding vessels, installations and aircraft

(1) A maritime officer may board a vessel, installation or aircraft.

(2) If the person in charge of the vessel, installation or aircraft requests

the officer to produce identification, the officer must produce:

(a) the officer's identity card; or

(b) other written evidence of the fact that the officer is a

Commonwealth officer.

(3) If the officer fails to produce the identity card or other written

evidence, the officer must:

(a) leave the vessel, installation or aircraft; and

(b) not re-board the vessel, installation or aircraft without

producing the identity card or other written evidence.

(4) Subsections (2) and (3) do not apply if the officer is one of the

following in uniform:

(a) a member of the Australian Defence Force;

(b) an officer of Customs (within the meaning of the Customs

Act 1901);

Police;

(d) an officer prescribed by the regulations.

53 Requirement to facilitate boarding

(1) A maritime officer may require the person in charge of a vessel,

installation or aircraft to take reasonable steps to facilitate the

boarding of the vessel, installation or aircraft.

Note:

It is an offence to fail to comply with a requirement under this

subsection: see section 103.

(2) The requirement may be made by any reasonable means.

(3) The requirement is made whether or not the person in charge of the

vessel, installation or aircraft understands or is aware of the

requirement.

Part 3 Maritime powers

Division 2 Boarding

Section 54

38 Maritime Powers Bill 2012 No. , 2012

54 Additional powers--vessels

Stopping, manoeuvring etc.

(1) A maritime officer may require the person in charge of a vessel to

do one or more of the following:

(a) stop or manoeuvre the vessel;

(b) adopt a specified course or speed;

Note:

It is an offence to fail to comply with a requirement under this

subsection: see section 103.

(2) The requirement is made whether or not the person in charge of the

vessel understands or is aware of the requirement.

Chasing

(3) If the person in charge of a vessel does not comply with a

requirement to stop or facilitate boarding of the vessel, a maritime

officer may do one or more of the following:

(a)

chase

the

vessel;

(b) use any reasonable means to obstruct the passage of the

vessel;

vessel, including by fouling the propellers of the vessel;

(d) after firing a warning shot, fire at or into the vessel to disable

it or compel it to be brought to for boarding.

Requirement taken to be made to support vessels

(4) A requirement made to a person in charge of a vessel (the

supported vessel) to stop or facilitate boarding of the supported

vessel, is taken to have been made also to the person in charge of

any vessel supporting the supported vessel.

Maritime powers Part 3

Boarding Division 2

Section 55

Maritime Powers Bill 2012 No. , 2012 39

55 Additional powers--aircraft

Identifying

(1) A maritime officer may require the person in charge of an aircraft

to disclose any or all of the following to the officer:

(a) the identity of the aircraft;

(b) the identity of all persons on the aircraft;

(d) the flight plan of the aircraft.

Note:

It is an offence to fail to comply with a requirement under this

subsection: see section 103.

(2) The requirement may be made by any reasonable means.

(3) The requirement is made whether or not the person in charge of the

aircraft understands or is aware of the requirement.

(4) The powers in subsection (1) are aircraft identification powers.

Intercepting

(5) A maritime officer who is on board an aircraft may use his or her

aircraft to intercept another aircraft.

(6) The interception must be 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).

Note:

The text of the Convention is set out in Australian Treaty Series 1957

No. 5 ([1957] ATS 5). In 2012, the text of a Convention in the

Australian Treaty Series was accessible through the Australian

Treaties Library on the AustLII website (www.austlii.edu.au).

Landing

(7) A maritime officer may require the person in charge of an aircraft

to land the aircraft:

(a) at the nearest airport in Australia; or

Maritime powers Part 3

Entering on land Division 3

Section 56

Maritime Powers Bill 2012 No. , 2012 41

Division 3--Entering on land

56 Entering on land

(1) A maritime officer may enter onto land.

(2) If the person in charge of the land requests the officer to produce

identification, the officer must produce:

(a) the officer's identity card; or

(b) other written evidence of the fact that the officer is a

Commonwealth officer.

(3) If the officer fails to produce the identity card or other written

evidence, the officer must:

(a) leave the land; and

(b) not re-enter the land without producing the identity card or

other written evidence.

(4) Subsections (2) and (3) do not apply if the officer is one of the

following in uniform:

(a) a member of the Australian Defence Force;

(b) an officer of Customs (within the meaning of the Customs

Act 1901);

Police;

(d) an officer prescribed by the regulations.

Note:

The exercise of powers on land is limited: see the definition of

protected land area in section 8 and the geographical limits on the

exercise of powers set out in sections 46 and 47.

Part 3 Maritime powers

Division 4 Obtaining information

Section 57

42 Maritime Powers Bill 2012 No. , 2012

Division 4--Obtaining information

57 Requiring answers, records and documents

(1) A maritime officer may require a person to answer questions or

produce records or documents.

Note:

It is an offence to fail to comply with a requirement under this

subsection: see section 103.

(2) The questions, records or documents may be about, or relate to:

(a) a vessel, installation, aircraft or land; or

(b) the operations of a vessel, installation or aircraft, or activities

conducted on a vessel, installation, aircraft or land; or

or land (including stores and cargo); or

(d) the identity of the person or any other person; or

(e) the reasons for the person or any other person being on or in

the vicinity of a vessel, installation, aircraft or land; or

(f) any journey undertaken by the person or any other person; or

(g) any contravention, or suspected contravention, of an

Australian law.

(3) Subsection (2) does not limit subsection (1).

58 Obtaining readings

A maritime officer may read, make readings from, or require the

person in charge of a vessel, installation or aircraft to show the

officer readings of, navigational or other instruments that relate to

the operations of a vessel, installation or aircraft.

Note:

It is an offence to fail to comply with a requirement under this section:

see section 103.

Maritime powers Part 3

Searching Division 5

Section 59

Maritime Powers Bill 2012 No. , 2012 43

Division 5--Searching

59 Searching places

(1) A maritime officer may conduct a search, including a search of

private living quarters.

Opening holds etc.

(2) In conducting a search, a maritime officer may break open any

space (including a hold, compartment, container, receptacle or any

place that could be used as a receptacle).

(3) Before breaking open a space, a maritime officer must give the

person in charge of the vessel, installation, aircraft or land

concerned a reasonable opportunity to open the space.

(4) Subsection (3) does not apply if it is not reasonably practicable to

give the person such an opportunity.

Use of dogs, equipment etc.

(5) A maritime officer may use a dog or any equipment or other thing

to assist in a search.

60 Lifting persons or things from the sea

A maritime officer may cause a person or thing to be lifted from

the sea.

61 Searching persons

(1) A maritime officer may search a person.

(2) The search may be either or both of the following:

(a) an ordinary search;

(b) a frisk search.

(3) The officer may require the production of any thing found as a

result of the search.

Part 3 Maritime powers

Division 5 Searching

Section 62

44 Maritime Powers Bill 2012 No. , 2012

Note:

It is an offence to fail to comply with a requirement under this

subsection: see section 103.

Meanings of ordinary search and frisk search

(4)

ordinary search is a search of a person, or of articles in the

possession of a person, that may include:

(a) requiring the person to remove his or her overcoat, coat or

jacket and any gloves, shoes or hat; and

(b) an examination of those items.

(5)

frisk search is:

(a) a search of a person conducted by quickly running hands

over the person's outer garments; and

(b) an examination of anything worn or carried by the person

that is conveniently and voluntarily removed by the person.

62 Conducting frisk searches

(1) A frisk search must be conducted by a maritime officer or person

assisting who is of the same sex as the person being searched.

Note: For

person assisting, see paragraph 38(5)(b).

(2) If the search is conducted by a person assisting, the search must be

conducted in the presence of a maritime officer.

(3)

If:

(a) there is no maritime officer of the same sex available; and

(b) no other suitable person of the same sex will agree to assist;

any maritime officer may conduct the search.

Maritime powers Part 3

Things found or produced Division 6

Section 63

Maritime Powers Bill 2012 No. , 2012 45

Division 6--Things found or produced

63 Examining things

Maritime officer may examine things

(1) A maritime officer may examine a thing.

Examples of examining

(2) The officer may do the following:

(a) open any package in which the thing is or may be contained;

(b) use a device, such as an X-ray machine or ion scanning

equipment, on the thing;

(d) measure or count the thing;

(e) take samples of the thing (even if the sampling destroys the

thing);

(f) operate the thing;

(g) if the thing is or contains a record or document--read the

record or document either directly or with the use of an

electronic device;

(h) use a dog to assist in examining the thing;

(i) take photographs or a video recording of the thing;

(j) make sketches of the thing.

(3) Subsection (2) does not limit subsection (1).

Use of force to examine

(4) The officer may use force to open the thing, or any part of the

thing.

(5) However, before doing so, the officer must give a reasonable

opportunity to open the thing, or the part of the thing, to:

(a) the person in whose possession the thing was found; and

(b) if the thing was found on a vessel, installation, aircraft or

land--the person in charge of the vessel, installation, aircraft

or land.

Part 3 Maritime powers

Division 6 Things found or produced

Section 64

46 Maritime Powers Bill 2012 No. , 2012

(6) Subsection (5) does not apply if it is not reasonably practicable to

give such an opportunity.

64 Securing and marking things

(1) A maritime officer may do one or more of the following:

(a)

seal

thing;

(b) mark a thing;

a vessel or aircraft);

(d) if the thing is a live plant:

(i) mark or label a cage or container in which the plant is

kept or in which the plant is growing; or

(ii) place a label or tag on the plant;

(e) if the thing is a live animal:

(i) implant a scannable device in the animal; or

(ii) place a band on any part of the animal; or

(iii) place (whether by piercing or otherwise) a tag or ring on

any part of the animal; or

(iv) mark or label a cage or container within which the

animal is kept.

Offences

(2) A person commits an offence if:

(a) in the exercise of powers in relation to a vessel, installation,

aircraft or land, a maritime officer seals, marks, labels, locks

up or secures a thing; and

(b) the continuous exercise of those powers has not ceased; and

(c)

the

person:

(i) breaks or defaces the seal; or

(ii) erases or defaces the mark or label; or

(iii) breaks or unlocks the lock or otherwise causes the thing

to be unsecured; and

(d) the person does so without the consent of a maritime officer.

Penalty: 50 penalty units.

Maritime powers Part 3

Things found or produced Division 6

Section 65

Maritime Powers Bill 2012 No. , 2012 47

Note:

The continuous exercise of powers does not end only because there is

a period of time between the exercise of one or more of those powers:

see section 11.

(3) A person commits an offence if:

(a) in the exercise of powers in relation to a vessel, installation,

aircraft or land, a maritime officer:

(i) implants a scannable device in an animal; or

(ii) places a band on any part of an animal; or

(iii) places (whether by piercing or otherwise) a tag or ring

on any part of an animal; and

(b) the continuous exercise of those powers has not ceased; and

or ring; and

(d) the person does so without the consent of a maritime officer.

Penalty: 50 penalty units.

Note:

The continuous exercise of powers does not end only because there is

a period of time between the exercise of one or more of those powers:

see section 11.

65 Copying records or documents

A maritime officer may copy a record or document, or a part of a

record or document.

66 Securing weapons

(1) A maritime officer may secure a weapon.

(2)

The

officer

may:

(a) take temporary possession of the weapon; or

(b) give temporary possession of the weapon to another person;

(d) disarm or dismantle the weapon.

(3) Subsection (2) does not limit subsection (1).

Note:

A weapon can be seized under section 67 (seizing things), and could

be retained under section 68 (retaining things).

Part 3 Maritime powers

Division 6 Things found or produced

Section 67

48 Maritime Powers Bill 2012 No. , 2012

67 Seizing things

(1) A maritime officer may seize:

(a) a weapon; or

(b) any thing that the officer suspects, on reasonable grounds:

(i) is evidential material; or

(ii) is a border controlled drug or border controlled plant; or

(iii) is owned by the Commonwealth or a State or Territory.

Note:

Written notice must be given if a thing is seized: see section 80.

(2) To avoid doubt, a thing owned by the Commonwealth or a State or

Territory includes a thing that has been forfeited to the

Commonwealth or the State or Territory.

(3) A thing seized under subsection (1) is a seized thing.

68 Retaining things

(1) A maritime officer may retain any thing that the officer suspects,

on reasonable grounds, could be seized under an Australian law.

Note:

Written notice must be given if a thing is retained: see section 80.

(2) The officer may retain the thing even if a warrant would be

required to take possession of the thing under that law.

(3) A thing retained under subsection (1) is a retained thing.

Maritime powers Part 3

Detaining vessels, aircraft and other conveyances Division 7

Section 69

Maritime Powers Bill 2012 No. , 2012 49

Division 7--Detaining vessels, aircraft and other

conveyances

69 Vessels and aircraft

(1) A maritime officer may detain a vessel or aircraft.

(2)

The

officer

may:

(a) take the vessel or aircraft, or cause the vessel or aircraft to be

taken, to a port, airport or other place that the officer

considers appropriate; and

(b) remain in control of the vessel or aircraft, or require the

person in charge of the vessel or aircraft to remain in control

of the vessel or aircraft, at that place until the vessel is

released or disposed of.

Note 1:

Written notice must be given if a vessel or aircraft is detained: see

section 80.

Note 2:

It is an offence to fail to comply with a requirement under

paragraph (b): see section 103.

(3) The officer may take the vessel or aircraft, or cause it to be taken,

to the port, airport or other place even if it is necessary for the

vessel or aircraft to travel outside Australia to reach the port,

airport or other place.

(4) A vessel detained under subsection (1) is a detained vessel.

(5) An aircraft detained under subsection (1) is a detained aircraft.

70 Other conveyances

A maritime officer may detain a vehicle or other conveyance on

land.

Part 3 Maritime powers

Division 8 Placing and moving persons

Section 71

50 Maritime Powers Bill 2012 No. , 2012

Division 8--Placing and moving persons

71 Placing persons

A maritime officer exercising powers in relation to a vessel,

installation, aircraft or land may place or keep a person in a

particular place on the vessel, installation, aircraft or land.

Note 1:

The exercise of powers under this Act must be for a purpose set out in

Division 4 of Part 2.

Note 2:

A maritime officer must not subject a person to greater indignity than

is necessary and reasonable in the exercise of powers: see section 37.

Note 3:

A person arrested, detained or otherwise held under this Act must be

treated with humanity and respect for human dignity, and must not be

subject to cruel, inhuman or degrading treatment: see section 95.

72 Persons on detained vessels and aircraft

(1) This section applies to a person:

(a) on a detained vessel or detained aircraft; or

(b) whom a maritime officer reasonably suspects was on a vessel

or aircraft when it was detained.

Note:

For detaining vessels and aircraft, see section 69.

(2) A maritime officer may return the person to the vessel or aircraft.

(3) A maritime officer may require the person to remain on the vessel

or aircraft until it is:

(a) taken to a port, airport or other place (see section 69); or

(b) permitted to depart from the port, airport or other place.

Note:

It is an offence to fail to comply with a requirement under this

subsection: see section 103.

(4) A maritime officer may detain the person and take the person, or

cause the person to be taken:

(a) to a place in the migration zone; or

(b) to a place outside the migration zone, including a place

outside Australia.

(5) For the purposes of taking the person to another place, a maritime

officer may within or outside Australia:

Maritime powers Part 3

Placing and moving persons Division 8

Section 73

Maritime Powers Bill 2012 No. , 2012 51

(a) place the person on a vessel or aircraft; or

(b) restrain the person on a vessel or aircraft; or

73 Using detention provisions

(1) A maritime officer may detain a person under a detention provision

as if the officer were an officer (however described) within the

meaning of that provision.

Note:

For dealing with a person who has been detained under a detention

provision, see section 98.

(2) Each of the following is a detention provision:

(a) clause 8 of Schedule 1 to the Environment Protection and

Biodiversity Conservation Act 1999;

(b) clause 8 of Schedule 1A to the Fisheries Management Act

1991;

1984;

(d) a provision prescribed by the regulations.

74 Safety of persons

A maritime officer must not place or keep a person in a place,

unless the officer is satisfied, on reasonable grounds, that it is safe

for the person to be in that place.

75 Restraint is not arrest

(1) Any restraint on the liberty of a person that results from the

operation of this Division does not constitute arrest, and is not

unlawful.

(2) Proceedings, whether civil or criminal, in respect of that restraint

may not be instituted or continued in any court against the

Commonwealth, a maritime officer or a person assisting.

Note:

This section does not affect the jurisdiction of the High Court under

section 75 of the Constitution.

Part 3 Maritime powers

Division 9 Arrest

Section 76

52 Maritime Powers Bill 2012 No. , 2012

Division 9--Arrest

76 Arrest for indictable offences

(1) A maritime officer may arrest a person if the officer suspects, on

reasonable grounds, that the person has committed an indictable

offence against an Australian law.

Note:

For dealing with a person who has been arrested, see section 100.

Release from arrest

(2) The person must be released from arrest if, before the person is

charged with the offence, the officer ceases to suspect, on

reasonable grounds, that the person committed the offence.

77 Enforcing arrest warrants

A maritime officer may arrest a person for whom an arrest warrant

is in force under an Australian law.

Note:

For dealing with a person who has been arrested, see section 100.

Part 4 Dealing with things taken

Division 1 Introduction

Section 79

54 Maritime Powers Bill 2012 No. , 2012

Part 4--Dealing with things taken

Division 1--Introduction

79 Guide to this Part

This Part sets out processes for dealing with things taken in the

exercise of powers under this Act.

Things taken fall into the following 3 categories:

(a)

seized

things;

(b)

retained

things;

(c)

detained vessels and aircraft.

Written notice must be given to the owner or person who was in

possession or control of a seized, retained or detained thing.

Seized things may be used for certain purposes, but must be

returned unless:

(a)

they are required for proceedings; or

(b)

they have been disposed of under an Australian

law; or

(c)

they are seized under another Australian law; or

(d)

the Commonwealth claims ownership of them.

Retained and detained things must be returned unless:

(a)

they have been disposed of under an Australian

law; or

(b)

they are seized under an Australian law; or

Part 4 Dealing with things taken

Division 2 Notice of seizure, retention or detention

Section 80

56 Maritime Powers Bill 2012 No. , 2012

Division 2--Notice of seizure, retention or detention

80 Notice of seizure, retention or detention

(1) If a maritime officer seizes or retains a thing, or detains a vessel or

aircraft (also the thing), the officer must give written notice, within

14 days, to:

(a) the owner of the thing; or

(b) the person who had possession or control of the thing

immediately before it was seized, retained or detained.

Note:

Things may be seized under section 67 and retained under section 68.

Vessels and aircraft may be detained under section 69.

(2) If the officer cannot conveniently give the notice in person, the

officer may give the notice by fixing the notice to a prominent part

of the thing, unless the thing is perishable.

(3) The notice must:

(a) identify the thing; and

(b) state that the thing has been seized, retained or detained; and

(d) specify contact details of an officer who can provide further

information; and

(e) include information about the return of the thing.

81 Information about the return of things

Seized things

(1) Information about the return of a seized thing must state that the

thing will be returned within 120 days of its seizure unless:

(a) the thing is required for the purposes of proceedings that

have been instituted, or an appeal arising from such

proceedings; or

(b) the period of 120 days is extended by a magistrate under

section 88; or

(d) the thing is seized under another Australian law; or

Dealing with things taken Part 4

Notice of seizure, retention or detention Division 2

Section 82

Maritime Powers Bill 2012 No. , 2012 57

(e) notice of Commonwealth ownership of the thing is given.

Retained things and detained vessels and aircraft

(2) Information about the return of a retained thing, or a detained

vessel or detained aircraft (also the thing), must state that the thing

will be returned within 28 days of its retention or detention unless:

(a) the period of 28 days is extended by a magistrate under

section 88; or

(b) the thing is disposed of under an Australian law; or

(d) notice of Commonwealth ownership of the thing is given.

82 Notice of Commonwealth ownership

(1) Notice of Commonwealth ownership of a thing may be given at

any time.

(2) The notice must:

(a) state that the Commonwealth claims ownership of the thing;

and

(b) state that any other person who claims ownership or

possession of the thing may apply to a court of competent

jurisdiction, within 30 days after the notice is given, for an

order for the return of the thing.

(3) If the notice cannot conveniently be given in person, the officer

may give the notice by fixing the notice to a prominent part of the

thing, unless the thing is perishable.

Part 4 Dealing with things taken

Division 3 Using seized things

Section 83

58 Maritime Powers Bill 2012 No. , 2012

Division 3--Using seized things

83 Using seized things

(1) A maritime officer may use a seized thing, or make a seized thing

available to another Commonwealth officer to use as follows:

(a) to prevent, investigate or prosecute a contravention of:

(i) an Australian law; or

(ii) an international agreement or international decision;

(b) to administer or ensure compliance with:

(i) a monitoring law; or

(ii) an international agreement or international decision;

thing had been seized, produced or required (however

described) under that law;

(d) to decide whether to use the thing as mentioned in any of

paragraphs (a) to (c).

(2) To avoid doubt, paragraph (1)(c) applies even if a warrant would

have been required to seize or access the thing under that law.

Note:

The thing will have to be returned in accordance with section 86,

unless an exception under subsection 86(3) applies.

84 Using seized things--State and Territory officers

A Commonwealth officer may make a seized thing available to an

officer of a State or Territory to be:

(a) seized under a law of the State or Territory; or

(b) used for any other purpose under a law of the State or

Territory.

Note:

The thing will have to be returned in accordance with section 86,

unless an exception under subsection 86(3) applies.

85 Operating electronic equipment

If:

(a) a seized thing may be used under this Division for a

particular purpose; and

Part 4 Dealing with things taken

Division 4 Returning things

Section 86

60 Maritime Powers Bill 2012 No. , 2012

Division 4--Returning things

86 Returning seized things

(1) If a seized thing is no longer required for a purpose mentioned in

Division 3 (using seized things), the person who has control of the

thing must take reasonable steps to return the thing to:

(a) the owner of the thing; or

(b) the person who had possession or control of the thing

immediately before it was seized.

(2) The thing must be returned within:

(a) 120 days after it is seized; or

(b) that period as extended under section 88.

(3) Subsections (1) and (2) do not apply if:

(a) the thing is required for the purposes of proceedings that

have been instituted, or an appeal arising from such

proceedings; or

(b) the thing has been disposed of under an Australian law; or

(d) notice of Commonwealth ownership of the thing has been

given.

87 Returning retained and detained things

(1) A retained thing, or a detained vessel or detained aircraft (also the

thing), must be returned to:

(a) the owner of the thing; or

(b) the person who had possession or control of the thing

immediately before it was retained or detained.

(2) The thing must be returned within:

(a) 28 days after it is retained or detained; or

(b) that period as extended under section 88.

(3) Subsections (1) and (2) do not apply if:

(a) the thing has been disposed of under an Australian law; or

(b) the thing has been seized under an Australian law; or

Dealing with things taken Part 4

Returning things Division 4

Section 88

Maritime Powers Bill 2012 No. , 2012 61

given.

88 Magistrate may extend holding period

(1) The person who has control of a seized thing or retained thing, or a

detained vessel or detained aircraft (also the thing), may apply to a

magistrate for an order extending, or further extending, the period

for which the thing may be held.

(2) The magistrate may make an order extending the period for which

the thing may be held if the magistrate is satisfied that:

(a) the thing is required for a purpose mentioned in Division 3

(using seized things); or

(b) there are other grounds for extending the period.

(3) Before making the application, the person who has control of the

thing must:

(a) take reasonable steps to discover who has an interest in the

thing; and

(b) if it is practicable to do so, notify each such person of the

proposed application.

89 Returning things if notice of Commonwealth ownership given

Application to court

(1) If notice of Commonwealth ownership of a thing is given, a person

who claims ownership or possession of the thing may apply to a

court of competent jurisdiction for an order for the return of the

thing.

(2) The application must be made within 30 days after the notice of

Commonwealth ownership is given.

Order for return of thing

(3) The court may order the return of the thing if:

(a) the court is not satisfied that the Commonwealth owns the

thing; and

Part 4 Dealing with things taken

Division 4 Returning things

Section 90

62 Maritime Powers Bill 2012 No. , 2012

(b) the thing has not been:

(i) seized under another Australian law; or

(ii) disposed of under an Australian law.

90 Seizing under other Australian laws

(1) If a seized thing is seized under another Australian law, its seizure

under this Act does not:

(a) count as seizure under the other law; or

(b) remove or fulfil any requirement under the other law to:

(i) give notice or information; or

(ii) act under a warrant; or

(iii) do any other thing in relation to the seizure under the

other law.

(2) If a retained thing, or a detained vessel or detained aircraft (also the

thing), is seized under an Australian law (the other law), its

retention or detention under this Act does not:

(a) count as seizure under the other law; or

(b) remove or fulfil any requirement under the other law to:

(i) give notice or information; or

(ii) act under a warrant; or

(iii) do any other thing in relation to the seizure under the

other law.

(3) Subsections (1) and (2) have effect subject to any express provision

to the contrary in an Australian law.

Dealing with things taken Part 4

Disposing of things Division 5

Section 91

Maritime Powers Bill 2012 No. , 2012 63

Division 5--Disposing of things

91 Reasons for disposal

(1) The Minister may dispose of a seized thing or retained thing, or a

detained vessel or detained aircraft (also the thing), if:

(a) custody or maintenance (including any necessary movement

or transport) of the thing creates serious difficulties; or

(b) the expenses of custody or maintenance (including any

necessary movement or transport) of the thing are likely to

exceed its value; or

environment would be beneficial to its survival; or

(d) if notice of Commonwealth ownership of the thing has been

given:

(i) an application for an order for the return of the thing has

not been made within the time allowed under

section 89; or

(ii) proceedings in relation to such an application have been

finally determined without an order for the return of the

thing being made.

(2) For the purposes of paragraph (1)(a), the custody or maintenance

of the thing is taken to create serious difficulties if:

(a) the thing is perishable; or

(b) storage of the thing would be impractical; or

or public health; or

(d) the thing poses a serious risk of damage to property or the

environment; or

(e) if the thing is a vessel--it is unseaworthy; or

(f) despite reasonable efforts, it has not been possible to return

the thing.

(3) Subsection (2) does not limit paragraph (1)(a).

Part 4 Dealing with things taken

Division 5 Disposing of things

Section 92

64 Maritime Powers Bill 2012 No. , 2012

92 Methods of disposal

(1) The thing may be:

(a)

sold;

(b)

destroyed;

environment; or

(d) disposed of in any other way.

(2) The regulations may prescribe the way in which a thing prescribed

by the regulations must be disposed of.

93 Notice of disposal

(1) If the thing is disposed of under paragraph 91(1)(a), (b) or (c)

(reasons for disposal), the Minister must give written notice, as

soon as practicable after the disposal, to the person who:

(a) owned the thing; or

(b) had possession or control of the thing immediately before it

was seized, retained or detained.

(2) The notice must state:

(a) that the thing has been disposed of; and

(b) the reason for the disposal; and

Note:

A person may be paid compensation under section 117 if the disposal

of the thing results in an acquisition of property otherwise than on just

terms.

(3) Subsection (1) does not apply if, despite making reasonable efforts,

the Minister cannot locate the person.

Dealing with persons held Part 5

Introduction Division 1

Section 94

Maritime Powers Bill 2012 No. , 2012 65

Part 5--Dealing with persons held

Division 1--Introduction

94 Guide to this Part

This Part sets out requirements for dealing with persons held in the

exercise of powers under this Act.

Persons arrested, detained or otherwise held:

(a)

must not be subject to greater indignity than is

necessary and reasonable (see section 37); and

(b)

must be treated with humanity and respect for

human dignity, and must not be subject to cruel,

inhuman or degrading treatment (see section 95).

Persons from detained vessels and aircraft may be required to

remain on the vessel or aircraft, or may be taken to another place.

Persons detained under provisions of other Acts must be dealt with

under those Acts.

Persons arrested must, as soon as practicable, be:

(a)

taken before a magistrate; or

(b)

delivered to a police officer or other appropriate

person.

95 Treatment of persons held

A person arrested, detained or otherwise held under this Act must

be treated with humanity and respect for human dignity, and must

not be subject to cruel, inhuman or degrading treatment.

Part 5 Dealing with persons held

Division 1 Introduction

Section 96

66 Maritime Powers Bill 2012 No. , 2012

96 Doing things as soon as practicable

The following are to be taken into account in determining whether

a maritime officer has done something as soon as practicable under

this Part:

(a) the location of the place where a person is arrested or

detained;

(b) the weather conditions at the time;

(d) the need to proceed or continue with the exercise of powers

under this Act;

(e) the need to ensure the safety of a vessel, installation or

aircraft;

(f) the need to take action to:

(i) protect human life, animal life or the environment; or

(ii) aid a vessel in distress; or

(iii) obtain medical assistance for any person.

Dealing with persons held Part 5

Persons detained Division 2

Section 97

Maritime Powers Bill 2012 No. , 2012 67

Division 2--Persons detained

97 Persons on, or from, detained vessels or aircraft taken to other

places

(1) If a person is detained and taken to another place under subsection

72(4) (persons on detained vessels and aircraft), the detention ends

at that place.

(2) Subsection (1) does not prevent:

(a) the person being taken to different places on the way to the

other place; or

(b) the arrest of the person; or

(d) the exercise of any other power in relation to the person.

98 Persons detained under detention provisions

Person must be delivered into custody

(1) If a maritime officer detains a person under a detention provision,

the officer must deliver the person, or make arrangements for the

person to be delivered, as soon as practicable, into the custody of

an officer (however described) within the meaning of the detention

provision.

Note:

For detention under detention provisions, see section 73.

How detention law applies

(2) The Act in which the detention provision is contained has effect as

if the officer to whom the person is delivered had detained the

person at the time when the person is delivered into the officer's

custody.

Part 5 Dealing with persons held

Division 3 Persons arrested

Section 99

68 Maritime Powers Bill 2012 No. , 2012

Division 3--Persons arrested

99 Application of this Division

This Division applies to a person arrested under this Act.

100 Person to be informed of reason for arrest

(1) A maritime officer must inform the person, at the time of the arrest,

of the offence for which the person is being arrested.

Note:

For arrest powers, see sections 76 and 77.

(2) It is sufficient if the person is informed of the substance of the

offence, and it is not necessary that this be done in language of a

precise or technical nature.

Person need not be informed if impracticable etc.

(3) Subsection (1) does not apply if:

(a) the person should, in the circumstances, know the substance

of the offence for which he or she is being arrested; or

(b) the person's actions make it impracticable for the officer to

inform the person of the offence for which he or she is being

arrested; or

does not speak English and it is not practicable for the officer

to inform the person, in a language he or she understands, of

the offence for which he or she is being arrested.

101 Person to be brought before magistrate

The

officer

must:

(a) take the person, or make arrangements for the person to be

taken, as soon as practicable, before a magistrate; or

(b) deliver the person, or make arrangements for the person to be

delivered, on land, as soon as practicable, to:

(i) the Australian Federal Police; or

(ii) the police force of a State or Territory; or

Dealing with persons held Part 5

Persons arrested Division 3

Section 102

Maritime Powers Bill 2012 No. , 2012 69

(iii) if the arrest relates to an offence against another law--a

person with the power to arrest, or the power to deal

with a person who has been arrested, under that law.

102 Enforcing arrest warrants

If the person is arrested for the purposes of enforcing an arrest

warrant that is in force under an Australian law (see section 77),

the arresting officer:

(a) must, as soon as practicable, comply with any requirements

in the warrant that would have to be complied with by a

person executing the warrant; and

(b) need not comply with section 101 (person to be brought

before magistrate) to the extent that it is inconsistent with any

such requirements.

Part 6 Failing to comply with requirements

Section 103

70 Maritime Powers Bill 2012 No. , 2012

Part 6--Failing to comply with requirements

103 Offence

A person commits an offence if:

(a) a requirement is made under a provision mentioned in the

table below; and

(b) the person engages in conduct; and

complied with.

Penalties

Item

If the requirement is made under ...

The penalty is ...

Subsection 39(1) (requirement to assist)

Imprisonment for 2 years or

120 penalty units, or both

Subsection 53(1) (requirement to facilitate

boarding)

Imprisonment for 2 years or

120 penalty units, or both

Subsection 54(1) (additional powers--

vessels)

Imprisonment for 2 years or

120 penalty units, or both

Subsection 55(1) (additional powers--

aircraft)

Imprisonment for 2 years or

120 penalty units, or both

Subsection 55(7) (additional powers--

aircraft)

Imprisonment for 2 years or

120 penalty units, or both

Subsection 57(1) (requiring answers,

records and documents)

Imprisonment for 2 years or

120 penalty units, or both

Section 58 (obtaining readings)

Imprisonment for 2 years or

120 penalty units, or both

Subsection 61(3) (searching persons)

Imprisonment for 2 years or

120 penalty units, or both

Paragraph 69(2)(b) (detaining vessels and

aircraft)

Imprisonment for 2 years or

120 penalty units, or both

Subsection 72(3) (persons on detained

vessels and aircraft)

Imprisonment for 2 years or

120 penalty units, or both

Section 78 (requirement to cease conduct)

Imprisonment for 2 years or

120 penalty units, or both

Miscellaneous Part 7

Maritime officers Division 1

Section 104

Maritime Powers Bill 2012 No. , 2012 71

Part 7--Miscellaneous

Division 1--Maritime officers

104 Maritime officers

(1) Each of the following is a maritime officer:

(a) a member of the Australian Defence Force;

(b) an officer of Customs (within the meaning of the Customs

Act 1901);

Police;

(d) a person appointed as a maritime officer by the Minister.

Limited appointments

(2) The Minister may appoint a person under paragraph (1)(d) as a

maritime officer:

(a) in relation to one or more of the following only:

(i) a specified law;

(ii) a specified international agreement or international

decision; and

(b) subject to any other conditions specified in the appointment.

(3) The appointment may limit the exercise of powers by the person as

a maritime officer.

(4) Subsection (3) does not limit paragraph (2)(b).

105 Carrying and using arms

(1) A maritime officer who is authorised in another capacity as an

officer (however described) of the Commonwealth or a State or

Territory to carry and use arms may carry and use arms as a

maritime officer.

(2) Any conditions applying to the carriage or use of arms by the

officer in the officer's other capacity apply in like manner to the

carriage and use of arms by the officer as a maritime officer.

Part 7 Miscellaneous

Division 1 Maritime officers

Section 106

72 Maritime Powers Bill 2012 No. , 2012

106 Identity cards

(1) The Minister may issue an identity card to a maritime officer.

(2) The identity card must:

(a) contain a recent photograph of the officer; and

(b) be in a form approved in writing by the Minister.

(3) A person commits an offence if:

(a) the person has been issued with an identity card under

subsection (1); and

(b) the person ceases to be a maritime officer; and

the Minister or a person nominated by the Minister.

Penalty: 1 penalty unit.

107 Protection from suit

None of the following is liable to an action, suit or proceeding for

or in relation to an act done, or omitted to be done, in good faith in

the exercise or performance, or the purported exercise or

performance, of a power or function under this Act:

(a) an authorising officer;

(b) a maritime officer;

(d) any other person acting under the direction or authority of a

maritime officer.

Note: For

person assisting, see subsection 38(5).

Miscellaneous Part 7

Evidentiary certificates Division 2

Section 108

Maritime Powers Bill 2012 No. , 2012 73

Division 2--Evidentiary certificates

108 Evidence of international agreements and decisions

The Foreign Affairs Minister may, by signed writing, certify that,

at a particular time, an international agreement or international

decision provided for the exercise of powers by Australia in

relation to a particular vessel, installation or aircraft.

Note:

Certificates under this section relate to requirements set out in

paragraph 12(a).

109 Evidence of approvals

The Minister may, by signed writing, certify that the Minister had,

at a particular time, approved without writing one or more of the

following:

(a) the exercise of maritime powers in relation to a particular

aircraft for the purposes of investigating a particular

contravention, or contraventions in general;

(b) the exercise of powers under a particular international

agreement or international decision in relation to a particular

vessel, installation or aircraft.

Note:

Certificates under this section relate to requirements set out in

paragraph 10(b) and subparagraph 12(b)(ii).

110 Evidence of requests and agreements--geographical limits on

exercise of powers

The Foreign Affairs Minister may, by signed writing, certify:

(a) that a particular country requested or agreed to the exercise

of powers as required by a provision of Division 5 of Part 2

(geographical limits); and

(b) the conditions or restrictions (if any) on which the request or

agreement was made or given.

111 Certificates are prima facie evidence

For all purposes and in all proceedings, a certificate under this

Division is prima facie evidence of the matters certified.

Part 7 Miscellaneous

Division 3 Recovery of costs

Section 112

74 Maritime Powers Bill 2012 No. , 2012

Division 3--Recovery of costs

112 Chase costs

(1) This section applies if a maritime officer chases a vessel under

subsection 54(3).

(2) The owner of the vessel or, if the vessel is owned by the

Commonwealth or a State or Territory, any person who purports to

own the vessel is liable to pay to the Commonwealth an amount

equal to the reasonable costs incurred by the Commonwealth in

conducting the chase.

(3) If the vessel has more than one owner or purported owner, the

owners or purported owners are jointly and severally liable.

113 Seizure costs

(1) This section applies if:

(a) notice of Commonwealth ownership of a thing is given; and

(b) an application for an order for the return of the thing is made

under section 89; and

determined without such an order being made.

(2) The person who made the application is liable to pay to the

Commonwealth an amount equal to the sum of the costs reasonably

incurred by the Commonwealth in relation to the following:

(a) the custody of the thing;

(b) the maintenance of the thing;

(d) the costs of disposal of the thing.

(3) However, subsection (2) does not apply in relation to any costs:

(a) met by the person who made the application; and

(b) incurred with the agreement of the Commonwealth officer

who has control of the thing.

Miscellaneous Part 7

Recovery of costs Division 3

Section 114

Maritime Powers Bill 2012 No. , 2012 75

(4) For the purposes of meeting such costs, the thing may be released

into the custody of the person on such conditions as the

Commonwealth officer thinks appropriate.

114 Liability to pay costs is a debt to the Commonwealth

(1) An amount payable by a person under this Division is a debt due

by the person to the Commonwealth.

(2) The amount may be recovered by action in a court of competent

jurisdiction.

(3) The Commonwealth's right to recover the whole or a part of the

amount may be waived by:

(a) the Chief Executive Officer of Customs; or

(b) the Secretary of the Department administered by the Minister

who administers the Naval Defence Act 1910.

Part 7 Miscellaneous

Division 4 Gathering and sharing information

Section 115

76 Maritime Powers Bill 2012 No. , 2012

Division 4--Gathering and sharing information

115 Copying records or documents for other purposes

A maritime officer may copy a record or document, or a part of a

record or document, found or produced in the exercise of powers

under this Act if the officer is satisfied, on reasonable grounds, that

the record or document may contain information relevant to:

(a) security (within the meaning of section 4 of the Australian

Security Intelligence Organisation Act 1979); or

(b) the performance of functions under section 17 of the

Australian Security Intelligence Organisation Act 1979; or

Intelligence Services Act 2001.

116 Sharing information

(1) A maritime officer may give information, a record or document, or

a copy of a record or document, obtained in the exercise of powers

under this Act (the maritime information) to a cooperating agency

for use by that agency in relation to:

(a) matters concerning maritime security, maritime safety or

maritime domain awareness; or

(b) the exercise of the functions or powers of the agency.

(2) The maritime information may be or include personal information.

Note:

The use or disclosure of personal information obtained under this

section is regulated under the Privacy Act 1988.

(3) A maritime officer who is an officer (however described) of the

Commonwealth in another capacity may disclose or provide

maritime information as if the maritime information had been

obtained by the officer in that other capacity.

(4) Each of the following is a cooperating agency:

(a) the Australian Defence Force;

(b) the Australian Federal Police;

Miscellaneous Part 7

Gathering and sharing information Division 4

Section 116

Maritime Powers Bill 2012 No. , 2012 77

(d) any other agency of the Commonwealth, or a State or

Territory, responsible for:

(i) investigating contraventions of laws; or

(ii) administering or ensuring compliance with laws; or

(iii) gathering or evaluating intelligence; or

(iv)

security;

(v)

defence;

(e) an international body responsible for:

(i) investigating contraventions of international agreements

or international decisions; or

(ii) administering or ensuring compliance with international

agreements or international decisions;

(f) any other body or agency prescribed by the regulations.

Part 7 Miscellaneous

Division 5 Compensation for acquisition of property

Section 117

78 Maritime Powers Bill 2012 No. , 2012

Division 5--Compensation for acquisition of property

117 Compensation for acquisition of property

(1) If the operation of this Act would result in an acquisition of

property from a person otherwise than on just terms, the

Commonwealth is liable to pay a reasonable amount of

compensation to the person.

(2) In this section:

acquisition of property has the same meaning as in paragraph

51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the

Constitution.

118 Compensation for damage to documents

(1) This section applies if:

(a) as a result of the exercise of powers under this Act, a

document is lost, destroyed or damaged; and

(b) the loss, destruction or damage occurred wholly or partly as a

result of:

(i) insufficient care being taken in selecting the person to

exercise the powers; or

(ii) insufficient care being taken by the person exercising

the powers.

(2) The Commonwealth is liable to pay the owner of the document a

reasonable amount of compensation.

119 Compensation for damage to equipment

(1) This section applies if:

(a) as a result of equipment being operated in the exercise of

powers under this Act:

(i) damage is caused to the equipment; or

Miscellaneous Part 7

Compensation for acquisition of property Division 5

Section 120

Maritime Powers Bill 2012 No. , 2012 79

(ii) damage is caused to any data recorded on the equipment

or data access to which was obtained from the operation

of the equipment; or

(iii) programs associated with the use of the equipment, or

with the use of the data, are damaged or corrupted; and

(b) the damage or corruption occurs because:

(i) insufficient care was exercised in selecting the person

who was to operate the equipment; or

(ii) insufficient care was exercised by the person operating

the equipment.

(2) The Commonwealth is liable to pay the owner of the equipment, or

the user of the data or programs, a reasonable amount of

compensation.

(3) If the equipment was moved or seized, then, in determining the

amount of compensation payable, regard is to be had to whether a

person responsible for the equipment at the time provided any

appropriate warning or guidance on the operation of the equipment.

(4) In this section:

damage, in relation to data, includes damage by erasure of data or

addition of other data.

120 Amount of compensation--proceedings

If the Commonwealth does not agree with a person on the amount

of the compensation to be paid under this Division, the person may

institute proceedings in a court of competent jurisdiction for the

recovery from the Commonwealth of such reasonable amount of

compensation as the court determines.

Part 7 Miscellaneous

Division 6 Delegation and regulations

Section 121

80 Maritime Powers Bill 2012 No. , 2012

Division 6--Delegation and regulations

121 Delegation

(1) The Minister may, by writing, delegate any or all of his or her

functions and powers under this Act to:

(a) the Chief of the Defence Force, the Chief of Navy, the Chief

of Army or the Chief of Air Force; or

(b) the Commissioner or a Deputy Commissioner of the

Australian Federal Police; or

Act 1999); or

(d) an officer of the Australian Navy who holds a rank not below

Commodore; or

(e) an officer of the Australian Army who holds a rank not below

Brigadier; or

(f) an officer of the Australian Air Force who holds a rank not

below Air Commodore; or

(g) an SES employee with a classification not below Senior

Executive Band 1 or equivalent.

(2) In exercising functions or powers delegated under subsection (1),

the delegate must comply with any directions of the Minister.

122 Regulations

The Governor-General may make regulations prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

Commonwealth of Australia Bills

MARITIME POWERS BILL 2012