House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Home Affairs, the Honourable Bob Debus MP)

SCHEDULE 5 - BOARDING POWERS AND THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (UNCLOS)

Customs Act 1901

Background

62. The Customs Act contains circumstances in which the commander of a Commonwealth ship or Commonwealth aircraft can make a request to board foreign ships, which empowers officers of Customs, police officers or members of the Australian Defence Force to board and exercise certain powers once the ship has been boarded. These powers are set out in Subdivision B of Division 1 of Part XII of the Customs Act. In originally formulating these powers, the United Nations Convention on the Law Of The Sea (UNCLOS) had to be taken into account. However, since these powers were enacted in 1999, several anomalies with UNCLOS have been identified and the amendments to the Customs Act contained in this Schedule address these anomalies.

Harmonisation of boarding powers

63. Section 184A of the Customs Act sets out the circumstances under which the commander of a Commonwealth ship or Commonwealth aircraft may request the master of a ship to permit the commander, a member of the commander's crew or an officer to board the master's ship. (In this context, an officer means officers of Customs, police officers or members of the Australian Defence Force - see section 185 of the Customs Act.) However, under UNCLOS, there is no requirement that such a request be made before a ship can be boarded in accordance with UNCLOS (except in the case of the commencement of the "hot pursuit" of a ship).

64. The amendments set out in the items of this Schedule, detailed below, amend section 184A to remove the requirement that a request to board must be made by the commander of a Commonwealth ship or aircraft before the ship can be boarded by the commander, a member of the commander's crew or an officer.

Item 1

65. This item repeals and substitutes subsection 184A(1).

66. Current section 184A(1) sets out a summary of when the commander of a Commonwealth ship or aircraft may request the master of ship to permit the ship to be boarded. The new subsection 184A(1) will simply state that, in the circumstances described in subsection 184A(2), (3), (4), (4A), (5), (6), (7), (8) or (9), an officer (within the meaning of section 185) may board a ship, removing the reference to the commander of a Commonwealth ship or aircraft and the master of a ship. These subsections set out the circumstances under which a ship may be boarded, in accordance with UNCLOS. For example, under subsection 184A(2), a foreign ship may be boarded in the territorial sea of Australia if the commander of a Commonwealth ship or aircraft reasonably suspects that the foreign ship is, will be or have been involved in a contravention of Division 307 of the Criminal Code . Division 307 deals with, amongst other things, the importation of border controlled drugs and plants.

Items 2, 6, 8, 9, 16, 22, 26, 32, 35, 36, 42, 52, 53, 54, 61 and 64

67. These items amend subsections 184A(2), (3), (4), (5), (6), (7), (8) and (9) by omitting the opening phrase to each of these subsections, which states that "The commander may make the request if:..." and substituting the phrase "The officer may board a ship if:...". These amendments, in combination with new subsection 184A(1), mean that if the circumstances set out in each of these subsections are satisfied, the ship can be boarded by officers without the commander of a Commonwealth ship or aircraft being required to make a request of a master of a ship.

68. In addition, the following amendments are required to be made to subsections 184A(3), (8) and (9) as a consequence of the removal of the request to board.

69. Item 8 amends subsection 184A(3) to substitute the wording of restriction on the use of the boarding power under subsection 184A(3) so that it no longer refers to the commander making a request to board under this subsection. It will now state that the subsection does not apply if the ship may be boarded under subsection 184A(9).

70. Item 35 amends subsection 184A(8) to also substitute the wording of restriction on the use of the boarding power under subsection 184A(8) so that it no longer refers to the commander making a request to board under this subsection. It will now state that the subsection does not apply if the ship may be boarded under subsections 184A(4A), (5), (6) or (7).

71. Item 42 amends subsection 184A(9) to also substitute the wording of restriction on the use of the boarding power under subsection 184A(9) so that it no longer refers to the commander making a request to board under this subsection. It will now state that the subsection does not apply if the ship may be boarded under subsections 184A(4A), (5), (6), (7) or (8).

72. Items 52 and 53 amend subsection 185(1) by omitting the phrase "a request to board the ship has been made" and substituting "the ship may be boarded" (twice occurring). Section 185 sets out the powers that may be exercised in respect of a ship that may be boarded under section 184A other than on the high seas, and subsection 185(1) currently provides that the section applies to a ship if the request to board has been made under section 184A. As a consequence of the removal of the request to board requirement, this subsection will now provide that section 185 applies to a ship if the ship may be boarded under section 184A. The Note to subsection 185(1) is also repealed by Item 54 and substituted to remove the reference to the request to board.

73. Items 61 and 64 amend subsections 185(5) and 185A(7) by omitting references in these subsections to the ship from which the relevant request under section 184A and substituting references to a Commonwealth ship referred to in section 184A, as a consequence of the removal of the request to board requirement. These items also amend these subsections to include specific references to a Commonwealth ship and a Commonwealth aircraft as a consequence of the repeal and substitution of subsection 184A(1). As the new subsection 184A(1) will no longer refer to the commander of a Commonwealth ship or Commonwealth aircraft, it is necessary to insert this reference into these subsections. These subsections set out the definition of officer for the purposes of each section.

Items 5, 12, 19, 24, 29, 34, 40 and 41

74. Items 5, 19, 24, 29 and 34 amend subsections 184A(2), (5), (6), (7) and (8) by omitting the phrases "the commander reasonably suspects" or "reasonably suspects that the master's ship" (where relevant) in each of these subsections and substituting either "the commander of a Commonwealth ship or Commonwealth aircraft reasonably suspects" or "of a Commonwealth ship or Commonwealth aircraft reasonably suspect that the ship" (where appropriate).

75. Item 12 amends paragraph 184A(4)(c) by inserting the phrase "of a Commonwealth ship or Commonwealth aircraft" after "commander".

76. Item 40 amends subparagraphs 184A(9)(b)(ii) and (iii) by omitting the phrase "reasonably suspects that the master's ship" and substitutes "of a Commonwealth ship or aircraft reasonably suspects that the ship".

77. Item 41 amends paragraph 184A(9)(c) by repealing the phrase "the Commander wishes to establish the identity of the master's ship" and substituting the phrase "the commander of a Commonwealth ship or Commonwealth aircraft wishes to establish the identity of the ship".

78. All of these amendments are a consequence of the repeal and substitution of subsection 184A(1), which contains the reference to the commander being the commander of a Commonwealth ship or Commonwealth aircraft, for the purposes of section 184A. As the new subsection 184A(1) will no longer refer to the commander of a Commonwealth ship or Commonwealth aircraft, it is necessary to insert this reference into each of the relevant subsections of section 184A.

Items 3, 7, 10, 13, 17, 23, 27, 33, 38 and 39

79. These items amend subsections 184A(2), (3), (4), (5), (6), (7), (8) and (9) to omit all reference to "master's" in respect of a ship. These amendments are also the consequence of the repeal and substitution of subsection 184A(1) where the reference to the request being made to a master of a ship to permit the master's ship to be board is being removed. This means that it is no longer necessary to refer to a master in respect of a ship that may be boarded in the remaining subsections of section 184A.

Items 21 and 31

80. These items amend subparagraphs 184A(5)(d) and (7)(d) to repeal and substitute these subparagraphs. These subparagraphs currently require that a request to board be made as soon as practicable after the contravention referred to in these subsections happens. New subparagraphs (b) require that the boarding occurs as soon as practicable after the contravention happens. These amendments are a consequence of the removal of the request to board requirement.

Item 43

81. This item repeals subsections 184A (10) and (11). Subsection (10) provides that a commander may use reasonable means to make a request to board and subsection (11) provides that a request to board will still be made even if there is no master on board to received the request or the master did not receive or understand the request. As a consequence of the removal of the request to board, these provisions are no longer required.

Items 44 and 45

82. Item 44 amends the offence provision in subsection 184A(12). Currently, it is an offence under this provision for a master to fail to comply with a request made under section 184A (other than a request made under subsection 184A(9)). As a consequence of the removal of the request to board requirement, the reworded offence will apply where the master of a ship does not facilitate, by all reasonable means, the boarding of the master's ship under section 184A (apart from subsection (9)).

83. Item 45 repeals and substitutes the Note to subsection 184A(12) as a consequence of the amendment to that provision. The new Note provides that the powers related to boarding under section 185 or 185A may still be exercised even though the master has not facilitated the boarding of his or her ship under this section (i.e. section 184A). This new Note removes the reference to a request to board which is contained in the current Note.

Item 51

84. This item amends section 184B of the Customs Act. Section 184B sets out the circumstances in which a foreign ship may be the subject of a "hot pursuit". (Further amendments are being made to section 184B by other items of this Schedule and are explained below.)

85. Item 51 amends subsection 184B(3) by omitting the phrase "the commander could have made a request to board the foreign ship" and substituting "the foreign ship could have been boarded". Again, as a consequence of the removal of the request to board, this subsection is being updated so that it refers the fact that the ship could be boarded (without a request having to be made).

Item 65

86. This item removes from section 228 of the Customs Act the reference to subsection 228(1). This amendment is a technical amendment to correct the numbering of the subsection.

Item 66

87. This item amends paragraph 228(1)(2) of the Customs Act, which sets out the circumstances under which a ship is forfeited to the Crown. Currently, a ship is forfeited if it is a ship the master of which has refused to permit his ship to be boarded following a request properly made of the master under subsection 184A(2) or (3). As a consequence of the removal of the request to board requirement, the reworded forfeiture circumstance will apply where the master of a ship has failed to facilitate, by all reasonable means, the boarding of the master's ship under subsection 184A(2) or (3).

New identification requirement as a consequence of the removal of the request to board

88. As a consequence of the removal of the request to board requirement, a new identification requirement is to be included in sections 185 and 185A of the Customs Act once the ship has been boarded. Section 185 sets out the powers that may be exercised in respect of a ship that may be boarded under section 184A other than on the high seas and section 185A sets out the powers that may be exercised in respect of a ship that may be boarded under section 184A on the high seas.

Items 58 and 63

89. Item 58 inserts new subsection 185(2AA) and (2AB). New subsection 185(2AA) provides that if one or more officers (as defined in this section) board a ship under section 185, the most senior of those officers who is an officer of Customs must:

a)

if requested to do so by the master of the ship; and

b)

as soon as reasonably practicable after boarding;

produce, for inspection by the master, written evidence of the fact that the officer is an officer within the meaning of section 185. However, this requirement does not apply in relation to officers who are members of the Australian Defence Force.

The most senior of the officers will be the person assigned as Boarding Team Leader of the boarding team and is the person with the highest rank in that team.

90. Under subsection 185(2AB), if the officer fails to produce the evidence mentioned in subsection (2AA), no officer may remain on the ship. This means that all officers, including officers who are members of the Australian Defence Force must leave the ship.

91. Identical provisions are also being inserted into section 185A by item 63.

Hot pursuit

92. As previously mentioned, section 184B sets out the circumstances in which a foreign ship may be the subject of a "hot pursuit". Subsection 184B(1) also requires amendment to account of the removal of the request to board. (The amendments in item 49 are more detailed than the other amendments to section 184B set out above.) Subsection 184B(1) is also being amended to ensure that the circumstances in which a "hot pursuit" may be undertaken, and the requirements that must be met before the pursuit can be commenced, are set out in more detail, consistent with UNCLOS.

Item 50

93. This item repeals and substitutes subsections 184B(1) and (2). New subsection 184B(1) provides that to enable the boarding of a foreign ship under section 184A (apart from under subsection 184A(9), the commander of a Commonwealth ship or Commonwealth aircraft may use it to chase, or continue the chase of, the foreign ship to any place outside the territorial sea of a foreign country if:

a)

a visual or auditory signal to bring the foreign ship to a position to enable boarding or to stop the foreign ship has been given (whether by the commander of the Commonwealth ship or Commonwealth aircraft or otherwise) - this requirement is required under UNCLOS and is currently satisfied by the making of the request to board. However, as a result of the alignment of the Customs Act with UNCLOS by the removal of the formal request to board, it is necessary to expressly include the requirement for a visual or auditory signal to be made in section 184B;

b)

the signal was given in such a way that it could be seen or heard (as the case may be) by the foreign ship; and

c)

at the time the signal was given, the foreign ship was in a maritime zone in which it could be boarded under section 184A (regardless of the location of the Commonwealth ship or Commonwealth aircraft) - again this is required under UNCLOS and the requirement is currently satisfied by the making of the request to board. However, it is now necessary to expressly include it in section 184B as a consequence of the removal of the request to board.

94. New subsection 184B(1A) provides that to avoid doubt, a visual or auditory signal mentioned in subsection 184B(1) is still made even if no person on board the foreign ship saw, heard or understood the signal. This qualification is in accordance with UNCLOS.

95. Subsection 184B(2) currently clarifies that a Commonwealth ship or aircraft may be used to chase a foreign ship even if it is not the ship or aircraft from which the request to board was made. As a consequence of the removal of the request to board, new subsection 184B(2) clarify that a Commonwealth ship or aircraft may be used in the chase:

a)

whether or not it was the Commonwealth ship or aircraft referred to in section 184A in relation to the boarding of the foreign ship under that section; and

b)

whether or not the visual or auditory signal referred to in new subsection 184A(1) was given from the ship or aircraft.

Safety zones around resources and sea installations

96. Under subsection 184A(4) of the Customs Act, the commander of a Commonwealth ship or aircraft may request the master of a foreign ship to permit the ship to be boarded where the ship is within 500 metres of an Australian resources installation or an Australia sea installation. This is the area that may be declared a safety zone for the installation, in accordance with UNCLOS. The purpose of this power to board is to enable the enforcement of relevant laws in the safety zones around installations, including installations in Australia's Exclusive Economic Zone (EEZ).

97. However, currently the commander may only make a request if he or she reasonably suspects that the master's ship has been involved in a contravention in Australia of the Customs Act, specified provisions of the Criminal Code or prescribed Acts. Restricting the application of this power to contraventions that occur in Australia (which for the purposes of Subdivision B of Division 1 of Part XII of the Customs Act includes the territorial sea) means that ships suspected of contraventions of the above-mentioned Acts that occur in safety zones around Australian resources and sea installations could not technically be boarded under subsection 184A(4). Items 11 and 15 of Schedule 5 amend section 184A to address this anomaly.

Items 11 and 15

98. Item 11 amends paragraph 184A(4)(b) to remove the references to an Australian resources or Australian sea installation from this subsection. The amended subsection 184A(4) only applies to foreign ships in the contiguous zone of Australia.

99. Item 15 inserts new subsection 184A(4A) which sets out the circumstances in which a ship that is within 500 metres of an Australian resources or Australian sea installation may be boarded (which also takes account of the removal of the request to board). New subsection 184A(4A) provides that the officer may board a ship if:

a)

the ship is a foreign ship; and

b)

the ship is within 500 metres of an Australian resources installation or Australian sea installation (the 500 metre zone ); and

c)

the commander of a Commonwealth ship or Commonwealth aircraft:

(i)

wishes to establish the identity of the ship; or

(ii)

reasonably suspects that the ship is, will be or has been involved in a contravention or an attempted contravention in the 500 metre zone of the Customs Act, section 72.13 or Division 307 of the Criminal Code or an Act prescribed by the regulations for the purposes of Subdivision B of Division 1 of Part XII of the Customs Act.

Boarding of mother ships

Items 18 and 28

100. Subsections 184A(5) and (7) of the Customs Act allow the commander to make a request to board in respect of "mother ships" that are supporting contraventions of specified Acts in either Australia or Australia's Exclusive Economic Zone (the EEZ). However, currently such a request cannot be made if the "mother ship" is within 500 metres of an Australian resources installation or Australian sea installation. UNCLOS does not contain such a restriction in relation to "mother ships" and this restriction is to be removed.

101. Item 18 amends subsection 184A(5) by repealing subparagraph 184A(5)(b)(ii). The restriction relating to boarding in the 500 metre zone is contained in this subparagraph.

102. Item 28 amends subsection 184A(7) by repealing subparagraph 184A(7)(b)(ii). The restriction relating to boarding in the 500 metre zone is contained in this subparagraph.

Boarding of stateless vessels on the high seas

103. Under current subsection 184A(9), ships without nationality (for example a ship not flying a flag of a country) can only be boarded if they are outside the contiguous zone of Australia and outside the territorial sea of another country. However, the limitation in relation to being outside Australia's contiguous zone does not exist under UNCLOS so this restriction is also being removed.

Items 37 and 62

104. Item 37 amends subsection 184A(9) by repealing and substituting paragraph 184A(9)(a). This paragraph currently contains the restriction that a ship without nationality must be outside the outer edge of the contiguous zone of Australia and the territorial sea of a foreign country before it can be boarded. New paragraph (a) contains the restriction that the ship without nationality must be simply outside the territorial sea of a foreign country before such a ship can be boarded under subsection 184A(9).

105. Item 62 repeals and substitutes 185A(1). This section sets out the powers that may be exercised in respect of a ship that may be boarded on the high seas and subsection 185A(1) sets out the ships to which the section applies. The repeal and substitution of subsection 185A(1) will merely clarify that section 185A applies to a ship that may be boarded under subsection 184A(9) where the ship is outside the territorial sea of a foreign country and removes the reference to the contiguous zone restriction. New subsection 185A(1) also removes references to a request to board being made under section 184A, as a consequence of the removal of the request to board requirement. This provision will simply refer to a ship that may be boarded under the relevant provisions of section 184A.

Acts prescribed for the purposes of section 184A

106. Under section 184A, several of the circumstances in which the boarding powers may be exercised are for the purposes of an Act prescribed consistently with UNCLOS, or where the commander of a Commonwealth ship or aircraft suspects on reasonable grounds that the ship has been involved in the contravention of an Act prescribed consistently with UNCLOS. These Acts have been prescribed in the Customs Regulations 1926 (the Customs Regulations).

107. As previously referred to, section 185 sets out the powers that Customs officers may exercise once on board a ship that is not on the high seas. Similar to section 184A, some of those powers are linked to suspected contraventions of an Act prescribed by the Customs Regulations consistently with UNCLOS.

108. However, UNCLOS does not restrict which Acts can be prescribed - it only requires that a law to be enforced must deal with a subject matter in relation to which UNCLOS give a country jurisdiction. Therefore, amendments to sections 184A and 185 of the Customs Act remove all references to the requirement that an Act be prescribed consistently with UNCLOS and instead refer to Acts prescribed by the regulations for the purposes of Subdivision B of Division 1.

Items 4, 14, 20, 25, 30, 55, 56, 57, 59, 60 and 67

109. Items 14, 20, 25, 30, 55, 56, 57, 59 and 60 amend subsections 184A(2), (4), (5), (6) and (7), and subsections 185 (2) and (3) by omitting the references to "consistently with UNCLOS" and "an Act prescribed consistently with UNCLOS", and substituting with references to "for the purposes of this Subdivision" and "an Act prescribed by the regulations for the purposes of this Subdivision" respectively.

110. Item 4 amends subparagraph 184A(2)(c)(i) to omit the reference to "the commander makes the request for the purposes of this Act or an Act prescribed consistently with UNCLOS" and substitutes the phrase "the boarding would be for the purposes of this Act or an Act prescribed by the regulations for the purposes of this Subdivision". This amendment combines the amendment required to the regulation making power in relation to UNCLOS as well as the amendment required as a consequence of the removal of the request to board.

111. Item 67 amends section 270 of the Customs Act, which sets out the regulation making power, by inserting new subsection (6). This new subsection provides that regulations for the purposes of Subdivision B of Division 1 of Part XII must not prescribe an Act unless the Act deals with a subject matter in relation to which UNCLOS gives Australia jurisdiction.

Definition of "commander"

112. The commander of a Commonwealth ship or Commonwealth aircraft is defined in subsection 184A(14) of the Customs Act and includes a commissioned officer of the Australian Defence Force (the ADF). However, in some circumstances, the boarding of a ship may take place from an inflatable ship that has been launched from a larger Commonwealth ship and the person in charge of the inflatable ship may not be a commissioned officer. The definition is to be extended so that it also includes a warrant officer, and a non-commissioned officer, of the ADF.

Items 46, 47, 48 and 49

113. Item 46 amends the definition of "commander" in subsection 184A(14) by inserting new paragraphs (c) and (d), which refer to a warrant officer of the Australian Defence Force and a non-commissioned officer of the Australian Defence Force respectively. Each of these officers will be a commander for the purposes of section 184A.

114. Item 47 repeals the definition of member of the commander's crew . This term is currently only used in subsection 184A(1) and as a consequence of the repeal and substitution of subsection 184A(1), this term is no longer in section 184A and the definition in no longer required.

115. Items 48 and 49 insert two new definitions for the purposes of the amendments made by item 46. Non-commissioned officer of the Australian Defence Force means a non-commissioned officer within the meaning the Defence Force Discipline Act . Warrant officer of the Australian Defence Force means a sailor, soldier or airman who holds the rank of warrant officer.

Definition of "officer"

116. In subsections 185(5) and 185A(7), the term officer is defined for each of those sections. In subsection 185(5), officer expressly includes a police officer or a member of the Australian Defence Force. However, these positions have not been expressly included in subsection 185A(7) even though the current definition in subsection 185A(7) covers them. Subsection 185A(7) is to be amended to include an express reference to these officers and ensure consistency with the wording of the definition in subsection 185(5).

Item 64

117. This item amends subsection 185A(7) by inserting new paragraph (c). New paragraph (c) refers to a police officer or a member of the Australian Defence Force.