Bills Digest no. 83 2008–09
Customs Amendment (Enhanced Border Controls and Other
Measures) Bill 2008
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Date
introduced: 3 December
2008
House: House of Representatives
Portfolio: Home Affairs
Commencement:
The formal provisions and
Schedules 1, 2 and 15 commence on Royal Assent; Schedules 3 and 5
11, item 1 of Schedule 12, and Schedules 13 14 and 16 17 commence
28 days after Royal Assent; item 2 of Schedule 12 commences
immediately after the commencement of Schedules 5 11; and Schedule
4 commences on a single day to be fixed by Proclamation or 6 months
after the day after Royal Assent (whichever occurs
first).
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The Bill amends the Customs
Act 1901 (the Customs Act, or the Act) to enhance Australia s
border protection measures.[1] Particularly, the Bill strengthens the law enforcement
and regulatory powers of the Australian Customs Service (Customs),
both by introducing new powers in relation to offshore maritime and
sea port environments, and by ensuring that existing powers are
consistent with other Commonwealth legislation, such as the
Crimes Act 1914 (the Crimes Act).
The Bill contains 17 Schedules of amendments to the Customs Act,
which are said to have been developed in consultation with
Commonwealth agencies and industry.[2] Those amendments are not arranged in any logical,
or sequential way, but by piecemeal revision of the existing law.
For example, a number of amendments deal with Part XII of the Act,
which sets out the powers of Customs officers. However, those
amendments do not appear together in the same Schedule, nor do they
appear in the Bill in the same order as the provisions to be
amended appear in the Act. Further, it cannot be said that the
amendments appear in the Bill in some order of importance.
It is therefore of little value to outline the proposed
amendments (or even themes) at this point they are better explained
in the Main Provisions section of this Digest in the order in which
they appear in the Bill. It is sufficient to foreshadow the fact
that many of the amendments deal with patrol and boarding powers,
search and seizure powers, and powers of arrest. Some of the
amendments bear closer scrutiny, particularly the provisions
dealing with warrants in Schedules 11 and 17.
Other amendments align the powers in the Customs Act with those in
other Commonwealth legislation (particularly the Crimes Act) and
with Australia s obligations under the United Nations Convention on
the Law of the Sea (UNCLOS).
It may assist at this point to provide some detail about UNCLOS
and the meaning of the term exclusive economic zone . Both
of these terms are used in the Bill and/or the Customs Act.
UNCLOS entered into force on 16 November 1994.[3] As stated in the preamble to the
Convention, the parties to UNCLOS believed:
that the codification and progressive
development of the law of the sea achieved in this Convention will
contribute to the strengthening of peace, security, cooperation and
friendly relations among all nations in conformity with the
principles of justice and equal rights and will promote the
economic and social advancement of all peoples of the world, in
accordance with the Purposes and Principles of the United Nations
as set forth in the Charter[4]
As stated on the website of the Department of Agriculture,
Fisheries and Forestry (DAFF):
UNCLOS attempts to regulate all aspects of the
resources of the sea and uses of the ocean it covers everything
from navigational rights to the conservation and management of
living marine resources. One of the most revolutionary features of
UNCLOS is the EEZ, which recognises the right of coastal states to
jurisdiction over all resources in the waters, ocean floor and
subsoil of an area extending 200nm from its shore. Australia
declared its 200nm EEZ in accordance with UNCLOS in 1979.[5]
The term exclusive economic zone , in relation to
Australia, is formally defined in subsection 4(1) of the Customs
Act to have the same meaning as in the Seas and Submerged Lands
Act 1973. There, it is defined in subsection 3(1) as having
the same meaning as in Articles 55 and 57 of UNCLOS, which
provide:
The exclusive economic zone is an area beyond
and adjacent to the territorial sea, subject to the specific legal
regime established in this Part, under which the rights and
jurisdiction of the coastal State and the rights and freedoms of
other States are governed by the relevant provisions of this
Convention.
The exclusive economic zone shall not extend
beyond 200 nautical miles from the baselines from which the breadth
of the territorial sea is measured.[6]
At the time of writing, the Bill has not been referred to any
committee.[7]
According to the Explanatory Memorandum, the Bill has no
financial impact .[8]
Items 1 and 2 of Schedule 1
amend existing subparagraphs 64AA(3)(a)(i) and 64AAA(3)(a)(i) of
the Customs Act by replacing the reference to Sunday or holiday
with a reference to Saturday, Sunday or holiday . Subsection
64AA(3) imposes a requirement for an operator of a ship that has
travelled to Australia from a place outside Australia to make a
report (known as an arrival report ) to Customs within 24 hours of
arrival. In calculating the 24 hour period, any time on a Sunday or
holiday is not counted. The amendment in
item 1 will extend this exception to include
Saturdays. Similarly, subsection 64AAA(3) imposes a requirement for
the operator of a ship that has arrived in Australia from a place
outside Australia to provide particulars of the ship s stores and
of any prohibited goods contained in those stores at the time of
arrival . The report must be made to Customs within 24 hours of
arrival, with any time that occurs on a Sunday or holiday not to be
counted. The amendment in item 2 will extend this
exception to include Saturdays.
The effect of these amendments is that where a ship arrives in
Australia on a Friday evening, or during a weekend, the report can
be made on the next business day.
The amendments in Schedule 1 will apply to
arrivals at Australian ports that occur less than 24 hours before,
at or after, the day when the Bill receives Royal Assent.
Item 1 of Schedule 2 inserts
proposed paragraph 243Z(1)(fa) into the Customs
Act. Section 243Z of the Customs Act sets out the matters to be
included in an infringement notice. It appears in Division 5 of
Part XII of the Act. That division deals with penalties in lieu of
prosecution for certain, minor offences. Proposed paragraph
243Z(1)(fa) states that if the person who is served with
an infringement notice pays to the CEO of Customs within the
specified time the penalty and, in the case of an alleged offence
against section 243T, any unpaid duty or any unpaid refund or
drawback of duty, the person cannot be prosecuted for the alleged
offence and will not be regarded as having been convicted of the
offence.[9]
According to the Explanatory Memorandum, this amendment takes up
a recommendation by the Senate s Standing Committee on Regulations
and Ordinances (the Committee) following a review of the
Infringement Notice Guidelines (2006) (the IN Guidelines) issued by
the CEO of Customs under section 43XA of the Customs Act.[10] Clause 4.2 of the IN
Guidelines sets out the matters which may be included in an
infringement notice:
4.2 What else can be
included?
An infringement notice may contain any other
matters that the CEO considers necessary. Relevant matters that
might be considered necessary by a decision-maker include:
- The manner in which payment of the penalty can be made.
- The address or location where payment of the penalty can be
made.
- A telephone number or contact address to obtain further
information about the alleged offence or how to make
representations seeking withdrawal of the notice or request extra
time for payment of the penalty.
- A statement that if the penalty is paid within 28 days of the
service of the notice that the person can not be prosecuted for the
alleged offence and will not be regarded as having been convicted
of the offence.
- Reasons for issuing the notice.
The Committee apparently recommended that the statement
mentioned in the fourth dot-point should in fact be a mandatory
matter to include in the infringement notice.[11]
Item 1 of Schedule 3 to the
Bill inserts proposed subsection 64AB(14A), which
sets out the circumstances when a cargo reporter is not
liable to be prosecuted for, and cannot be served with an
infringement notice under Division 5 of Part XII of the Customs Act
for an offence against existing section 64AB.[12]
Section 64AB deals with cargo reports. It provides that where a
ship or aircraft is due to arrive in its first port of call in
Australia from a place outside Australia, each cargo reporter must
report to Customs certain particulars of all goods that have been
carried in the journey or flight and are to be unloaded in
Australia (except accompanied personal or household effects of a
passenger or member of the crew and ship s stores or aircraft s
stores): subsection 64AB(2).
The amendment provides that a cargo reporter is not liable for
prosecution if the reporter made a cargo report but failed to do so
within the time stipulated in subsection 64AB(8). The time varies
depending on whether the cargo is carried on a ship or aircraft,
and the type of journey involved. If the cargo is carried on a
ship, the cargo report must be made not later than the start of the
prescribed period (unless the journey is of a particular kind, in
which case, a shorter period prescribed in the regulations applies)
before the estimated time of arrival of the ship or aircraft at the
first port in Australia since it last departed from a port outside
Australia. If the cargo is carried on an aircraft, the time limit
for making the report is two hours, or such other time prescribed
by the regulations (unless the journey is of a particular kind, in
which case a shorter period prescribed by the regulations
applies).[13]
Proposed subsection 64AB(14A) applies only if
the reason that the report was not made within the required time
frame is that the actual time of arrival of the ship or
aircraft at the first port or airport in Australia is later than
the estimated time of arrival: proposed paragraphs
64AB(14A)(b) and (c).
Item 1 of Schedule 4 to the
Bill amends existing paragraphs 35A(1)(b), (1A)(c) and (1B)(b) of
the Customs Act. Section 35A provides that certain persons must
keep dutiable goods, which are subject to the control of Customs,
safely. Such a person must account for the goods to a Collector of
Customs when requested to do so. Specifically, subsections 35A(1),
(1A) and (1B) state:
(1) Where a person who has, or has been
entrusted with, the possession, custody or control of dutiable
goods which are subject to the control of the Customs:
- fails to keep those goods safely; or
- when so requested by a Collector, does not account for those
goods to the satisfaction of a Collector;
that person shall, on demand in writing made by
a Collector, pay to the Commonwealth an amount equal to the amount
of the duty of Customs which would have been payable on those goods
if they had been entered for home consumption on the day on which
the demand was made.
(1A) Where:
- dutiable goods subject to the control of the Customs are, in
accordance with authority to deal or by authority of a permission
given under section 71E, taken from a place for removal to another
place;
- the goods are not, or part of the goods is not, delivered to
that other place; and
- when so requested by a Collector, the person who made the entry
or to whom the permission was given, as the case may be, does not
account for the goods, or for that part of the goods, as the case
may be, to the satisfaction of a Collector;
the person shall, on demand in writing made by
a Collector, pay to the Commonwealth an amount equal to the amount
of the duty of Customs which would have been payable on the goods,
or on that part of the goods, as the case may be, if they had been
entered for home consumption on the day on which the demand was
made.
(1B) Where:
- dutiable goods subject to the control of the Customs are, by
authority of a permission given under section 71E, removed to a
place other than a warehouse; and
- the person to whom the permission was given fails to keep those
goods safely or, when so requested by a Collector, does not account
for the goods to the satisfaction of a Collector;
the person shall, on demand in writing made by
a Collector, pay to the Commonwealth an amount equal to the amount
of the duty of Customs which would have been payable on those goods
if they had been entered for home consumption on the day on which
the demand was made.
The purpose of item 1 is to require the person,
where required to account for the goods to the satisfaction of a
Collector of Customs, to do so in accordance with [proposed]
section 37 . Proposed section 37 is inserted
by item 2 of Schedule 1 to the
Bill (see below).
Item 2 of Schedule 4 inserts
proposed sections 36 and 37 into the Customs
Act.
Proposed section 36 contains new offences of
failing to keep goods safely and/or failing to account for goods.
It falls within Part III of the Act, which deals with customs
control examination and securities generally. There are two
separate offences for failure to keep goods safely in
proposed subsections 36(1) and (2) both offences
are worded identically, but the first offence has a penalty of 500
penalty units, and the second offence has a penalty of 60 penalty
units.[14] Apart
from the penalty for the two offences, the difference between the
two offences is that an offence against subsection 36(2) is stated
to be an offence of strict liability : proposed subsection
36(3). This means that the prosecution does not need to
prove any element of fault on the part of the accused person but
the accused can raise a defence of honest and reasonable mistake of
fact.[15]
In imposing a strict liability offence, the Explanatory
Memorandum states that consideration was given to the Guide to
Framing Commonwealth Offences, Civil penalties and Enforcement
Powers.[16]
Consideration was also given to the Sixth Report of 2002 of the
Senate Standing Committee for the Scrutiny of Bills, entitled
Application of Absolute and Strict Liability Offences in
Commonwealth Legislation (the Senate Committee
report).[17]
The Explanatory Memorandum also states:
It is considered that imposing strict liability
to the new offence contained in subsection 36(2) will ensure the
integrity of the regulatory regime which exists so that goods which
are being imported or exported from Australia are available to be
inspected or examined and dealt with in accordance with the Customs
Act and other legislation.[18]
Presumably, the fact it should be easier for Customs to prove a
strict liability offence than an offence involving a fault element,
is intended to ensure persons responsible for keeping goods safely
or accounting for goods cannot legally evade such responsibilities
through actions that are merely careless or negligent.
Proposed subsections 36(4) and (6) also contain
identically-worded offences of failing, when requested by a
Collector of Customs, to account for goods in accordance with
(proposed) section 37.[19] The offence in proposed subsection
36(4) carries a penalty of 500 penalty units, whereas the
offence in proposed subsection 36(6) carries an
offence of 60 penalty units and is stated to be a strict liability
offence: see proposed subsection 36(8).
Similarly, proposed subsections 36(5) and (7)
also contain identically-worded offences of failing, when requested
by a Collector of Customs, to account for goods in accordance with
(proposed) section 37, where the person has authority to deal with
the goods, or is given permission under section 71E in relation to
the goods, and the goods are taken, in accordance with the
authority to deal or the permission under section 71E from a place
for removal to another place.[20] The offence in proposed subsection
36(5) carries a penalty of 500 penalty units, whereas the
offence in proposed subsection 36(7) carries a
penalty of 60 penalty units and is stated to be a strict liability
offence.
Proposed subsection 36(9) states that if goods
are removed to a place other than a warehouse by authority of a
permission given to a person under section 71E , the person is
taken to have, or to have been entrusted with the possession,
custody or control of the goods for the purposes of the offences in
proposed subsections 36(1), (2), (4) and (6).
Proposed section 37 sets out the test for how a
person accounts for goods (or a part of goods) to the satisfaction
of a Collector of Customs:
- the Collector must sight the goods, or
- (if the Collector is unable to sight the goods), the person
must satisfy the Collector that the goods have been dealt with in
accordance with the Customs Act.
Item 3 of Schedule 4 inserts
reference to proposed subsections 36(2), (6) and
(7) in existing subsection 243X(1) as a consequence of the
insertion of those provisions into the Customs Act. As mentioned
above, section 243X states that Division 5 of Part XIII (which
Division deals with penalties in lieu of prosecution for certain
offences) applies to certain offences under the Act. As a result of
the amendment, Division 5 will also apply to offences under
proposed subsections 36(2), (6) and (7).
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The amendments in Schedule 5 align the boarding
powers of the Customs Service with other powers in Commonwealth
legislation and UNCLOS.
Items 1 49 amend section 184A of the Customs
Act, which currently contains a general power to request to
board a ship. That power is being replaced with a general
power to board a ship, thus giving an officer the
right to board a ship.[21]
Given the large number of minor amendments to section 184A
contained in the Bill, it is not clear why the existing provision
was not repealed in its entirety and a whole new section
substituted in its place. Many of the amendments do no more than
simplify the language used in existing provisions and/or remove the
language of request from the existing provisions. Some, however,
are more substantive, and (for example) align the Customs Act with
requirements under UNCLOS. For example, existing subsections
184A(5) and (7) prevent the commander of a Commonwealth ship or
aircraft from making a request to board a mother ship that is
supporting a contravention of the Customs Act (or a prescribed Act)
in Australia or the EEZ, if the ship is within 500 metres of an
Australian resources installation or Australian sea
installation.[22]
UNCLOS contains no such restriction on mother ships , and thus
items 18 and 28 remove the reference to the ship
being not within 500 metres of an Australian resources installation
or Australian sea installation to align Australian law with the
international convention.
Item 46 amends the definition of
commander in subsection 184A(14) to include a warrant
officer and non-commissioned officer of the Australian Defence
Force. Note there is a typographical error in proposed
paragraph 184A(14)(d): Australia [Defence Force] should
read Australian [Defence Force]. An example of the practical effect
of amending the definition of commander is that a
non-commissioned officer who is in charge of a small, inflatable
boat that has been dispatched from a larger Commonwealth ship or
aircraft (that is commanded by a more senior, commissioned officer)
can exercise the powers in section 184A (boarding a ship).[23]
Items 50 51 amend section 184B of the Customs
Act, largely as a consequence of the proposed amendments to section
184A contained in items 1 49 of Schedule
5. Section 184B contains the power to chase foreign
ships for boarding. The amendments remove the distinction contained
in existing section 184B as to the action that may be taken if a
request to board is made or not made. The amendments in
items 1 49 of Schedule 5 to the
Bill make that distinction unnecessary. While not technically part
of the Act, the subheading to existing subsection 184B(3), being
When foreign ships may be chased without a request being made ,
should also be repealed.
Items 52 61 amend existing section 185 of the
Customs Act, which contains the power to board and search ships and
aircraft. Items 52-54 and 61 make minor amendments
as a consequence of the proposed revision of section 184A (that is,
mainly the removal of references to the making of a
request to board and replacing them with the fact that a
ship may be boarded).
Items 55 57 and 59 60 replace
references in section 185 to Acts prescribed
consistently with UNCLOS with references
to Acts prescribed for the purposes of this
Subdivision (being Subdivision B of Part XII of the
Customs Act, which contains general regulatory powers of officers).
In a way these amendments may seem a little odd, given that one of
the main purposes of the Bill is to align Australian law with
UNCLOS, but it should be easier to identify if Acts are prescribed
for the purposes of Subdivision B than to identify if they are
prescribed consistently with UNCLOS.
Items 62 64 amend section 185A, which deals
with boarding of certain ships on the high seas. Again, the
amendments are a consequence of the proposed revision of section
184A. Particularly the amendments:
- make consequential amendments to subsection 185A(1), setting
out the ships to which the section applies
- insert proposed subsection 185(2A), which
provides that:
- if requested to do so by the master of the ship, the most
senior officer of Customs who boards a ship must produce written
evidence of the fact he or she is an officer , and
- if no such evidence is produced, no officer may remain on board
the ship, and
- amend the definition of officer in subsection 185A(7)
to make it clear that police officers and members of the Australian
Defence Force may exercise the powers of officers in section
185A.
Items 65 66 amend section 228 of the Customs
Act, which deals with types of ships and aircraft which can be
forfeited to the Crown. The amendment in item 65
seems intended to correct any confusion which may arise because of
the subsection/paragraph numbering system used in the section. The
amendment in item 66 arises as a consequence of
the proposed revision of section 184A.
Item 67 amends section 270 of the Customs Act,
which is the regulation-making power in the Act, to include the
stipulation that regulations made for the purposes of Subdivision B
of Division 1 of Part XII (which, as mentioned above, contains
general regulatory powers of officers) must not prescribe an Act,
unless the Act deals with a subject matter in relation to which
UNCLOS gives Australia jurisdiction . Under section 184A (as it
will appear if the proposed amendments elsewhere in
Schedule 5 to the Bill occur), an officer may
board a ship if the boarding would be for the purposes of this Act
or an Act prescribed by the regulations for the purposes of this
Subdivision noting that the existing provision is not all that
different (except for the present need to make a request to board
the ship, and with the current section referring to Acts prescribed
consistently with UNCLOS ).
Regulation 167 of the Customs Regulations 1926 currently
prescribes a number of Acts for the purposes of Subdivision B of
Division 1 of Part XII (particularly, sections 184A, 185, 185B and
186A): Fisheries Management Act 1991, Migration Act
1958, Quarantine Act 1908, Torres Strait
Fisheries Act 1984, Aviation Transport Security Act
2004, Family Law Act 1975, Crimes Act 1914,
Crimes (Aviation) Act 1991, Crimes (Internationally
Protected Persons) Act 1976, Criminal Code Act 1995,
Proceeds of Crime Act 1987, Financial Transaction
Reports Act 1988, Crimes (Hostages) Act 1989,
Crimes (Ships and Fixed Platforms) Act 1992, Geneva
Conventions Act 1957, Crimes (Torture) Act 1988, and
Bankruptcy Act 1966.[24] Not all of these Acts are prescribed for all of
the purposes in Subdivision B. For example, while an officer may
board a ship in the situations described in subsections 184A(2),
(4) and (5) of the Customs Act for the purposes of the
Fisheries Management Act 1991, Migration Act
1958, Quarantine Act 1908, Torres Strait
Fisheries Act 1984 (in addition to the purposes of the Customs
Act itself), the officer may only board a ship in the situations
described in subsections 184A(6) and (7) of the Customs Act for the
purposes of the Fisheries Management Act 1991 and the
Torres Strait Fisheries Act 1984.
Item 1 of Schedule 6 inserts a
definition of the term pleasure craft into section 4 of
the Customs Act, which is the interpretation provision for the Act.
The term is defined as a ship that, from the time it arrives at a
port in Australia until the time it leaves Australia, is used (or
intended to be used) wholly for recreational and/or sporting
activities; is not used (or intended to be used) for any commercial
activity; and is not offered (or intended to be offered) for sale
or disposal.
Items 2 4 amend section 64 of the Customs Act,
which deals with impending arrival reports. Currently, subsection
64(5) provides:
(5) A report of the impending arrival of a ship
must be made:
- not earlier than 10 days before the time stated in the report
to be the estimated time of arrival of the ship; and
- not later than:
- the start of the prescribed period before its estimated time of
arrival; or
- if the journey is of a kind described in regulations made for
the purposes of this subparagraph--the start of the shorter period
specified in those regulations before its estimated time of
arrival.
The amendments exempt a pleasure craft from the operation of
subsection 64(5), but impose the specific requirements in
proposed subsection 64(5A) on such a craft
instead. A report of the impending arrival of a pleasure craft will
have to be made not earlier than the prescribed number of days
before the craft s estimated time or arrival, but not later than
the start of the prescribed period before its estimated time of
arrival. The Explanatory Memorandum suggests that the amendment is
necessary to address difficulties experienced by some yacht masters
(that is, not operators of commercial vessels) who were unable to
comply with existing subsection 64(5) due to lack of
facilities.[25] It
also suggests that if a longer, say 3-month, period were to be
prescribed (in place of the 10 day requirement that exists at
present), the master of a yacht could report the impending arrival
of the pleasure craft before setting out on a 6-week journey from a
foreign country to Australia.[26]
It is not clear why the proposed amendment in item
4 refers only to proposed paragraph
64(5A)(b), given that proposed paragraph
64(5A)(a) also refers to a prescribed number of days its
inclusion seems to be important, given that the difference between
existing subsection 64(5) and proposed subsection
64(5A) is the fact that instead of a pleasure craft
complying with the requirement in existing subsection 64(5)(a) that
the report must be made not earlier than 10 days before the time
stated in the report to be the estimated time of arrival of the
ship , the operator of a pleasure craft will have to make an
impending arrival report not earlier than the prescribed number of
days before the time stated in the report to be the estimated time
of arrival of the pleasure craft .
Item 5 deals with the application of the
amendments made by Schedule 6. The amendments will
apply to pleasure craft if the start of the prescribed period
referred to in proposed subparagraphs 64(5A)(b)(i) or
(ii) (whichever applies to the journey in question) is on
or after 28 days after the proposed Act receives Royal Assent. As
the Explanatory Memorandum notes, if the amendments commence on a
Monday, and the prescribed period is 48 hours, then the amendments
apply to any pleasure craft which has an estimated time of arrival
on Wednesday. However, in any event, the Customs Regulations 1926
will need to be amended before the commencement of the amendments
in Schedule 6 in order that proposed subsection
64(5A) may operate.[27]
Item 1 amends subsection 184B(6) to permit the
Commander of a Commonwealth ship or aircraft (that is chasing a
foreign ship for the purpose of boarding the ship) to use
a device designed to stop or impede the ship where necessary.
Currently, subsection 186B(6) provides:
(6) Anywhere outside the territorial sea of a
foreign country, the commander of a Commonwealth ship or
Commonwealth aircraft chasing a ship under this section may use any
reasonable means consistent with international law to enable
boarding of the chased ship, including:
- using necessary and reasonable force; and
- where necessary and after firing a gun as a signal, firing at
or into the chased ship to disable it or compel it to be brought to
for boarding.
According to the Explanatory Memorandum, an example of a device
which the Commander could use under proposed paragraph
184B(6)(c) is a propeller entrapment device .[28] The power of Customs
officers to use such a device is consistent with the power of
officers (including Customs officers) under subsection 84(1) of the
Fisheries Management Act 1991, which provides:
(1) An officer may:
(aa) for the purposes of boarding a boat that
is at a place where the officer may board it under paragraph (a) or
(b):
- require the master to stop the boat at such a place to allow
the officer to board it; and
- if the master does not stop the boat as required and the boat
is not an Australian‑flagged boat, use any reasonable means
consistent with international law to stop the boat (including
firing at or into the boat after firing a warning shot, and using a
device to prevent or impede use of the system for propelling the
boat); and
Similarly, item 2 inserts proposed
paragraph 184C(3)(c) to permit the Commander of a
Commonwealth ship or aircraft (that is chasing an
Australian ship for the purpose of boarding the ship) to
use a device designed to stop or impede the ship where
necessary.
Item 1 of Schedule 8 inserts
proposed paragraph 184D(3)(c). As mentioned
earlier in a footnote, section 184D allows the commander of a
Commonwealth aircraft to make requests of the pilot of another
aircraft. Existing subsection 184D(3) provides:
(3) The commander may request the pilot of the
other aircraft to land it at the nearest airport, or at the nearest
suitable landing field, in Australia for boarding for the purposes
of [the Customs Act] if:
- the pilot does not comply with a request under subsection (2)
[being a request to disclose to the commander the identity of the
other aircraft; the identity of all persons on the other aircraft;
the flight path of the other aircraft; and the flight plan of the
other aircraft]; or
- the commander reasonably suspects that the other aircraft is or
has been involved in a contravention, or attempted contravention,
of this Act or section 72.13 or Division 307 of the Criminal Code
.
Note: Section 185 gives power to board the
aircraft and search it once it has landed.[29]
The proposed amendment provides additional circumstances when
the commander may request the pilot of the other aircraft to land,
being when the commander reasonably suspects that the other
aircraft is carrying goods that:
- are connected (directly or indirectly) with a terrorist act (
whether or not that act has occurred, is occurring or is likely to
occur ), and/or
- the existence or the shipment of the goods prejudices, or is
likely to prejudice, Australia s defence or security or
international peace and security .
Such circumstances would not fall within existing paragraph
184D(3)(b).
The term terrorist act is defined in subsection 183UA
of the Customs Act as follows:
(1)
terrorist act means
an action or threat of action where:
- the action falls within subsection (4) and does not fall within
subsection (4A); and
- the action is done or the threat is made with the intention of
advancing a political, religious or ideological cause; and
- the action is done or the threat is made with the intention of:
- coercing, or influencing by intimidation, the government of the
Commonwealth or a State, Territory or foreign country, or of part
of a State, Territory or foreign country; or
- intimidating the public or a section of the public.
It is immaterial whether the action or threat,
or any part of the action or threat or anyone or anything affected
by the action or threat is within or outside Australia.
(4) For the purposes of the definition of
terrorist act in subsection (1), action falls within this
subsection if it:
- causes serious harm that is physical harm to a person; or
- causes serious damage to property; or
- causes a person's death; or
- endangers a person's life, other than the life of the person
taking the action; or
- creates a serious risk to the health or safety of the public or
a section of the public; or
- seriously interferes with, seriously disrupts, or destroys, an
electronic system including, but not limited to:
- an information system; or
- a telecommunications system; or
- a financial system; or
- a system used for the delivery of essential government
services; or
- a system used for, or by, an essential public utility; or
- a system used for, or by, a transport system.
(4A) For the purposes of the definition of terrorist act in
subsection (1), action falls within this subsection if it:
- is advocacy, protest, dissent or industrial action; and
- is not intended:
- to cause serious harm that is physical harm to a person;
or
- to cause a person's death; or
- to endanger the life of a person, other than the person taking
the action; or
- to create a serious risk to the health or safety of the public
or a section of the public.
(5) In subsections (4) and (4A) :
- a reference to any person or property is a reference to any
person or property wherever situated, within or outside Australia;
and
- a reference to the public includes a reference to the public of
a country other than Australia.
This definition is substantively identical to the definition of
terrorist act in section 100.1 of the Criminal Code.
Schedule 9 amends various provisions in
existing Part XIIA of the Customs Act, including the heading, to
make it clear that the Part deals with prohibited
items (and not just prohibited weapons ).
Currently, the term prohibited weapon is defined in
section 227B as a thing that is a firearm, firearm accessory,
firearm part, firearm magazine or ammunition to which [Part XIIA]
applies because of section 227D . However, after the proposed
revisions to Part XIIA contained in Schedule 9, a
much broader range of goods than firearms will become
prohibited items . Further, a Customs officer will be able
to approve a place for the thing to be stored under existing
section 227E, and take custody of the prohibited item under
existing section 227F if no approval has been given.
Particularly, a thing will be a prohibited
item if revised section 227D (contained in
item 7 of Schedule 9) applies to
it. That is, a thing will be a prohibited item if:
- the thing is on board a ship or aircraft that is in Australia
after arriving in Australia from a place outside Australia,
- the importation of the thing is either prohibited absolutely by
the Customs (Prohibited Imports) Regulations 1956, or is prohibited
under those regulation unless a licence, permission, consent or
other approval has been granted or given, and
- the thing is, or should have been, specified in a report of
stores and prohibited goods given by the operator of the ship or
aircraft under section 64AAA (unless the thing is part of the
personal effects of the crew).
The amendments in Schedule 10, particularly the
revisions to Subdivision H, tidy up the language (and formatting)
used in the existing provisions setting out the powers of arrest of
Customs officers in Part XII of the Customs Act. They also align
the powers of arrest in the Customs Act with the powers of arrest
in the Crimes Act. For example proposed section
210 of the Customs Act (contained in item
2 of Schedule 10) is almost the same as
existing section 210, except that it now provides that:
- in addition to arresting a person for a suspected breach of
smuggling or importation law, a Customs or police officer may
arrest a person for a suspected breach of subsection 33(1) or (5),
which deal with persons moving goods that are subject to the
control of Customs,
- in addition to believing on reasonable grounds that the person
has committed or is committing an offence, the officer must believe
on reasonable grounds that proceedings by summons against the
person would not achieve one or more of six specified purposes (set
out in proposed subparagraphs 210(1)(b)(i) to
(vi)), and
- the arrested person must be released if the officer in charge
of the investigation no longer believes on reasonable grounds that
the person committed the offence or that holding the person in
custody is necessary to achieve one of the purposes in
proposed paragraph 210(1)(b).
The requirements in the second and third dot-points currently
appear in section 3W of the Crimes Act (which sets out the power of
arrest without warrant by constables) and section 3Z (which sets
out the power of arrest without warrant by other persons).
Similarly proposed sections 210A (use of force
in making arrest), 210B (person to be informed of
grounds of arrest), 211 (power to conduct a frisk
search of an arrested person), 211A (power to
conduct an ordinary search of an arrested person), and
213 (requirement to provide name etc) reflect
powers and requirements in the Crimes Act (namely, sections 3ZC,
3ZD, 3ZE, 3ZF and 3V). Proposed section
212 (how arrested person is to be dealt with) does
not have an exact counterpart in the Crimes Act, but is an amalgam
of existing section 212 of the Customs Act (which requires that
[e]very person arrested may be detained until such time as he or
she can without undue delay be taken before a Justice) and
subsections 3Y(2) and 3Z(2) of the Crimes Act (which require that
an arrested person must be delivered in to the custody of a
magistrate or constable as soon as practicable after the
arrest).
With the exception of section 3V of the Crimes Act, the other
relevant powers in the Crimes Act have not been amended since they
were inserted by the Crimes (Search Warrants and Powers of
Arrest) Amendment Act 1994. It is therefore unnecessary to
comment further on the powers contained in either the Crimes Act or
Schedule 10 to the Bill.
Item 1 of Schedule 10 inserts
a definition of the term seizable item into
subsection 183UA. This term is used in proposed
sections 211 and 211A (which contain the power to conduct
a frisk search, or an ordinary search, of an arrested person), but
is not currently defined in the Customs Act.[30]
Item 4 of Schedule 10 provides
that the amendments made by Schedule 10 will apply
to any person arrested before the commencement of the
Schedule (28 days after the proposed Act receives Royal Assent).
Despite this retrospective operation of Schedule
10, it is hard to see how the rights of someone arrested
before the commencement of the Schedule will be adversely affected,
particularly because subsection 3D(2) of the Crimes Act states:
To avoid any doubt, it is declared that even
though another law of the Commonwealth [such as the Customs
Act] provides power to do one or more of the things referred
to in subsection (1) [which mentions the search of premises;
arrest and related matters; the stopping, detaining or searching of
conveyances or persons; the seizure of things; and the requesting
of information or documents from persons], a similar power
conferred by this Part may be used despite the existence of the
power under the other law.
In other words, the powers of arrest in the Crimes Act have long
existed in parallel with those in the Customs Act. The specific
powers which the Bill seeks to include in the Customs Act are
already available to appropriate officers instead of, and in
addition to, those in the Customs Act.
Item 1 of Schedule 11 amends
paragraph (a) of the definition of the term copy of the
warrant in subsection 203G(5) of the Customs Act by removing
the phrase and the seal of the relevant court . Section
203G sets out the details of the search or seizure warrant which
must be given to an occupier when the warrant is being executed.
Currently, paragraph (a) provides:
- in relation to a warrant issued under section 198, 203 or 203DA
--a copy that includes the signature of the judicial officer who
issued the warrant and the seal of the relevant court;
Apparently a number of courts (such as the State courts of
Queensland) no longer use court seals.[31] It is therefore impossible for that
part of the requirements in existing paragraph (a) of the
definition of copy of the warrant to be met where the
warrant in issued in Queensland.
By comparison, section 3H of the Crimes Act provides that the
warrant need not include the signature of the issuing officer or
the seal of the relevant court .[32] It is not clear from the explanatory material why
a warrant issued under the relevant provisions of the Customs Act
must include a signature under the proposed revision, but it could
be summised that at least the signature of the judicial officer who
issued the warrant provides greater (immediate) proof to the
occupier that the warrant has indeed been issued by the relevant
court than the situation under the Crimes Act.
Item 1 of Schedule 12 inserts
a new offence of obstructing or interfering with Commonwealth
property in a Customs place.
Section 29 of the Crimes Act contains an offence that is
committed where a person intentionally destroys or damages
Commonwealth property.[33] However, it does not apply where a person engages in
behaviour that interferes with, but does not damage or destroy,
that property. Thus the offence in proposed section
33C of the Customs Act will apply where a person
intentionally obstructs, or interferes with, the operation
Commonwealth property (such as CCTV cameras) located in a
Customs place .
The term Customs place is already defined in section
183UA of the Customs Act to mean:
(aa) a place owned or occupied by Customs;
or
- a port, airport or wharf that is appointed, and the limits of
which are fixed, under section 15; or
- a place that is the subject of a permission under subsection
58(2); or
- a boarding station that is appointed under section 15; or
- a place described in a depot licence that is granted under
section 77G; or
- a place described in a licence for warehousing goods that is
granted under subsection 79(1); or
- a place that is approved, in writing, by the CEO as a place for
the examination of international mail; or
- a place from which a ship or aircraft that is the subject of a
permission under section 175 is required to depart, between the
grant of that permission and the departure of the ship or aircraft;
or
- a place to which a ship or aircraft that is the subject of a
permission under section 175 is required to return, while that ship
or aircraft remains at that place; or
- a section 234AA place that is not a place, or a part of a
place, referred to in paragraph (aa), (a), (b), (c), (d), (g) or
(h).
Absolute liability applies to paragraph (1)(b) of the offence,
with the effect that the Crown does not need to prove that offender
knew that the property belongs to the Commonwealth. Also, under
paragraph 6.2(2)(b) of the Criminal Code, the defence of mistake of
fact under section 9.2 of the Criminal Code is unavailable in
relation to that physical element.
Item 2 includes reference to proposed
section 33C in proposed subsection
210(1)(a) of the Customs Act (see item 2
of Schedule 10 above), with the effect that a
Customs or police officer may arrest a person without warrant if
the officer believes on reasonable grounds that the person is
obstructing or interfering with Commonwealth property in a Customs
place (provided the officer also believes on reasonable grounds
that proceedings by summons would not achieve one of the purposes
listed in proposed paragraph 210(1)(b)).
Item 1 of Schedule 13 amends
section 194 of the Customs Act, which currently provides:
The officer in charge for the time being of any
ship employed in the service of the Customs may haul any such ship
upon any part of the coast or the shores banks or beaches of any
port bay harbour lake or river and may moor any such ship thereon
and continue such ship so moored as aforesaid for such time as he
or she shall deem necessary.
The amendments in proposed subsection 194(1)
make clear that the officer in charge of a Customs vessel has the
authority to moor the vessel to:
- any part of the coast, or the shores, banks or beaches of any
port, bay, harbour, lake or river (proposed subparagraph
194(1)(a)(i))
- any man-made structure at those locations (proposed
subparagraph 194(1)(a)(ii)), and
- any man-made structure in Australian territorial seas, the
contiguous zone of Australia and Australia s EEZ (proposed
subparagraph 194(1)(a)(iii)).
Proposed subsection 194(2) creates a new
offence that is committed if the owner, occupier or operator of any
of the places mentioned in proposed paragraph
194(1)(a) does not provide all reasonable facilities and
assistance that the person is reasonably capable of providing to
the officer who is exercising, or attempting to exercise, his or
her powers under the section. The offence is punishable by a
maximum penalty of 30 penalty units (or $3 300). In some
circumstances, the owner, occupier or operator may have to provide
assistance to Customs ahead of commercial vessels. According to the
Explanatory Memorandum, these circumstances would be extremely rare
,[34] but that
expectation does not negate the possibility that the owner of land
may be liable under a contract to pay compensation to the
commercial vessel it would of course depend on matters such as the
terms of the contract, the length of time for which the mooring
spot is required for use by Customs, and any alternative
arrangements which can be made.
Item 1 of Schedule 14 inserts
proposed section 61A, which creates an offence
that is committed if the owner or operator of a port or port
facility fails to comply with a request by a Customs officer to
facilitate by any reasonable means the boarding of a ship in the
port or facility by a person authorised under the Customs Act to
board the ship. The offence is punishable by a maximum penalty of
30 penalty units (or $3 300). While existing section 61 obliges the
master of a ship (or resources installation etc) to facilitate the
boarding of the ship (or installation etc) for the purpose of
allowing an officer to conduct customs and immigration clearance,
the master may in fact be unable to facilitate the boarding (which
must be carried out by crane operators etc in the port or port
facility, but who are not currently obliged by law to facilitate
the boarding). The amendment in Schedule 14
contains such an obligation.
Item 1 of Schedule 15 updates
the old-fashioned, somewhat biblical, language of existing
subsection 58(1), which currently provides: The master of a ship or
the pilot of any aircraft shall not suffer his or her ship or
aircraft to enter any place other than a port or airport unless
from stress of weather or other reasonable cause . It replaces the
phrase suffer his or her ship or aircraft to enter any with the
phrase bring his or her ship or aircraft to a . According to the
Explanatory Memorandum, the amendment is made at the request of
industry.[35]
Item 1 of Schedule 16 amends
existing section 193, which currently provides:
Any officer and any person in his or her aid
when on duty may patrol upon and pass freely along and over any
part of the coast or any railway or any airport or the shores,
banks, or beaches of any port bay harbour lake or river.
The proposed amendments are similar to those made by
item 1 of Schedule 13 in relation
to the power to moor in section 194 of the Customs Act, and further
comment is unnecessary. It is sufficient to say that the existing
power to patrol and pass freely along and over any part of the
coast, railway , airport, shores etc, is replaced with a more
specific power of entering and remaining upon certain places,
including man-made structures on those places.
Items 1 3 of Schedule 17 amend
sections 198 and 199 (which deal with the making of a warrant to
search premises) to allow an officer to conduct an ordinary search
or a frisk search of a person at or near the premises, if the
executing officer or a person assisting suspects on reasonable
grounds that the person has any evidential material or seizable
item in his or her possession.[36]
Items 5 6 amend section 203 (which deals with
when seizure warrants for forfeited goods can be issued) to insert
reference to the phrase relevant evidential material .
That phrase is defined in proposed subsection
203(10) to mean evidential material in relation to an
offence by reason of the commission of which goods are believed to
be forfeited goods (of the kind specified in paragraph
203(5)(a)), or special forfeited goods . Subsection 203(5)
provides:
(5) If a judicial officer issues a warrant, the
judicial officer is to state in the warrant:
- a description of the goods to which the warrant relates;
and
- a description of the premises on or in which the goods are
believed to be located; and
- the name of the authorised person who, unless that authorised
person inserts the name of another authorised person in the
warrant, is to be responsible for executing the warrant; and
- the time at which the warrant expires (see subsection (5A));
and
- whether the warrant may be executed at any time or only during
particular hours.
The term special forfeited goods is defined in
subsection 183UA(1) as meaning forfeited goods that are referred to
in paragraph 229(1)(b) or (n) . Section 229 sets out the goods that
are forfeited to the Crown under the Customs Act. Paragraphs
229(1)(b) and (n) provide as follows:
(b) All prohibited imports.
(n) All prohibited exports put on any ship boat
or aircraft for export or brought to any wharf or place for the
purpose of export.
Items 7 10 amend section 203A of the Customs
Act, which sets out the things that are authorised by seizure
warrants for forfeited goods. The amendments permit the conduct of
a frisk search or ordinary search if the officer executing the
warrant reasonably believes that a person has in his or her
possession any relevant evidential material . That phrase
is defined in proposed subsection 203A(7) to mean
evidential material in relation to an offence the commission of
which goods are believed to be goods that are the subject of the
warrant or special forfeited goods (see above).
Item 11 inserts proposed section
203HA which requires a person to provide his or her name
and/or address, if the person is at or near premises where a search
or seizure warrant is being executed, and the executing officer
reasonably believes that the person may be able to assist the
officer. Interestingly, while the power is considered by Customs to
be essential ,[37]
the offence carries a penalty of only 5 penalty units (which, when
expressed as $550, may seem great to an office worker found guilty
of the offence). The person does not commit an offence if he or she
has a reasonable excuse (for example, he or she may not hear or
understand the request). The designated warrant officer also
commits an offence if he or she fails to comply with the
requirements in proposed subsection 203HA(4), such
as providing to the person on request details such as his or her
name and/or the address of his or her place of duty, and evidence
(if the officer is not in uniform and it is practicable to do so)
of the fact the officer is an officer. Again, that offence is
punishable by a maximum penalty of 5 penalty units.
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Concluding comments
The amendments are designed to ensure the proper functioning of
the Australian Customs Service, particularly its role in border
control. As discussed above, many of the proposed amendments do no
more than align the Customs Act with provisions in other
Commonwealth legislation, particularly the Crimes Act, and UNCLOS,
to which Australia is party. Some of these powers, while they do
not exist specifically in the Customs Act at present, are already
available to Customs officers.
This is not to say that none of the amendments is controversial.
Indeed the provisions dealing with warrants in Schedules 11
and 17 bear closer scrutiny and/or explanation see Main
Provisions section above.
Item 46 of Schedule 5 contains
a typographical error that needs to be corrected before the Bill is
passed. Item 46 amends the definition of
commander in subsection 184A(14) to include a warrant
officers and non-commissioner officer of the Australian Defence
Force. In proposed paragraph 184A(14)(d), the word
Australia [Defence Force] should read Australian [Defence
Force].
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277
2795.
Morag Donaldson
30 January 2009
Bills Digest Service
Parliamentary Library
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