Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
1. The purpose of these amendments is to extend the range of offences in relation to which the powers in Schedule 1 to the Customs Legislation Amendment (Airport, Port and Cargo Security) Bill 2004 (the Bill) may be exercised.
2. Schedule 1 to the Bill inserts Division 1BA into Part XII of the Customs Act 1901 (the Customs Act). Division 1BA will allow a Customs officer to detain a person in a designated place in the following circumstances:
a) the officer suspects on reasonable grounds that the person has committed, or is committing, a serious Commonwealth offence;
b) there is a warrant for the persons arrest in relation to a Commonwealth offence; or
c) the person is on bail subject to a condition that the person not leave Australia and the bail relates to a Commonwealth offence.
3. ‘Serious Commonwealth offence’ has the same meaning as in section 15HB of the Crimes Act 1914 (the Crimes Act). ‘Commonwealth offence’ has the same meaning as in Part 1C of the Crimes Act. The definition of Commonwealth offence is proposed to be amended to include State and Territory offences with a federal aspect (see the Australian Federal Police and Other Legislation Amendment Bill 2004). This will not cover all State offences.
4. For example, if a person was suspected of murdering someone in New South Wales and the person arrives at an airport to leave Australia, Customs could not detain the person whilst the police arrived to arrest the person. Further, if the person was subject to a warrant for their arrest in relation to that offence, Customs could not detain the person.
5. It is proposed to amend the Bill so that officers will be able to detain people in those three circumstances described above for prescribed State or Territory offences.
6. The State or Territory offences would only be able to be prescribed if the Minister responsible for the administration of the State’s or Territory’s police force and the Attorney-General of the State or Territory have requested the Minister that the offence be prescribed for this purpose and the offence is punishable on conviction by imprisonment for a term of at least three years.
7. These amendments have no financial impact.
8. Amendment 1 inserts a subdivision heading into new Division 1BA.
9. Amendment 2 inserts a definition of ‘prescribed State or Territory offence’ into new section 219ZJA of the Customs Act, as contained in the Bill. A ‘prescribed State or Territory offence’ means an offence prescribed for the purposes of section 219ZJAA which is being inserted by amendment 3.
10. Amendment 3 inserts new section 219ZJAA into new Division 1BA. New subsection 219ZJAA(1) will allow State or Territory offences to be prescribed for the purposes of new Division 1BA. Those offences must be punishable on conviction by imprisonment for a term of at least 3 years. This will ensure that the power to detain will not be used to detain a person suspected of committing minor offences, eg parking infringements. It is expected that serious offences such as murder would be prescribed for this purpose. This also mirrors the imprisonment restriction in the definition of ‘serious Commonwealth offence’ in the Crimes Act.
11. New subsection 219ZJAA(2) provides that an offence must not be prescribed unless:
a) the Attorney-General of a State or Territory and the Minister responsible for the administration of that State’s or Territory’s police force (the Police Minister) have jointly requested the Minister that the offence be prescribed for the purposes of new Division 1BA; or
b) if the Attorney-General of the State or Territory is also the Police Minister of the State or Territory - the Attorney-General has requested the Minister that the offence be prescribed for the purposes of that Division.
12. This will ensure that Customs is focused on those offences that the relevant State or Territory Police Minister and Attorney-General consider serious and that people should be prevented from leaving a designated place (eg airport, port etc) if they have committed, or are committing, that offence, are on bail, subject to a condition that they not leave Australia, for that offence or are subject to an arrest warrant in respect of that offence.
13. Amendment 3 also inserts a heading for Subdivision B.
14. Amendment 4 amends the heading of section 219ZJB of the Customs Act, as contained in the Bill, to reflect the changes to cover prescribed State or Territory offences.
15. Section 219ZJB of the Customs Act, as contained in the Bill, allows a Customs officer to detain a person in a designated place if the officer has reasonable grounds to suspect that the person has committed, or is committing a serious Commonwealth offence.
16. Amendment 5 replaces new subsection 219ZJB(1) to extend that power so that a Customs officer will be able to detain a person in a designated place if the officer has reasonable grounds to suspect that the person has committed, or is committing a prescribed State or Territory offence.
17. Amendment (6) amends new subsection 219ZJB(4) of the Customs Act, as contained in the Bill, so that if a person is detained because a Customs officer has reasonable grounds to suspect that the person has committed, or is committing a prescribed State or Territory offence and the officer ceases to have reasonable grounds to suspect that, the person must be released from detention immediately.
18. New section 219ZJC of the Customs Act, as contained in the Bill, in part, allows a Customs officer to detain a person in a designated place if the officer has reasonable grounds to suspect that the person intends to leave the designated place and there is a warrant for the arrest of the person in relation to a Commonwealth offence.
19. Amendment (7) amends new subparagraph 219ZJC(1)(c)(i) to extend the power to detain so that it may also be exercised in respect of a person who is subject to an arrest warrant for a prescribed State or Territory offence.
20. New section 219ZJC of the Customs Act, as contained in the Bill, also allows a Customs officer to detain a person in a designated place if the officer has reasonable grounds to suspect that the person intends to leave the designated place and the person is on bail subject to a condition that the person not leave Australia and the bail relates to a Commonwealth offence.
21. Amendment 8 amends new subparagraph 219ZJC(1)(c)(ii) to extend the power to detain so it also applies to people on bail subject to that condition relating to a prescribed State or Territory offence.
22. Amendment 9 inserts a heading for Subdivision C.