Explanatory Memorandum
(Circulated by authority of the Minister for Home Affairs, the Honourable Bob Debus MP)SCHEDULE 10 - POWERS OF ARREST
Part 1 - Amendments
Customs Act 1901
Background
156. Subdivision H of Division 1 of Part XII of the Customs Act sets out the powers of an officer of Customs and police to arrest persons without a warrant in relation to particular offences which have or are being committed.
157. Section 210 of Subdivision H provides that an officer of Customs or police may arrest without a warrant any person that the officer has reasonable grounds to believe is guilty of an offence listed in subsection 210(1). Subsection 210(1) lists offences contained in the Customs Act, such as those relating to the smuggling of and the unlawful importation and exportation of certain goods, and certain offences contained in the Criminal Code , such as those relating to the trafficking and possession of controlled drugs and the importation of plastic explosives.
158. Section 212 of the Customs Act provides that a person arrested under section 210 may be detained until such time as he or she can, without undue delay, be taken before a Justice. Once the person is taken before a Justice, section 213 of the Customs Act provides that the Justice may commit the person to gaol until the hearing of the charge or may release the person on bail until such time as the hearing of the charge can occur.
159. While section 210 of the Customs Act permits an officer of Customs or police to arrest a person without a warrant for an offence listed in section 210, the Customs Act, unlike the arrest powers contained in the Crimes Act 1914 (the Crimes Act), does not specify any matters that must be taken into account by an officer before the arrest is made and does not specifically include any powers that may be exercised, or obligations to be fulfilled, once the arrest has been made.
160. The Crimes Act, in addition to the power to arrest a person without a warrant, contains provisions relating to the level of force that an officer may used when making the arrest the circumstances when a frisk search of an arrested person may be undertaken and the circumstances in which a person who has been arrested can be released. The Crimes Act also requires an officer to inform the person being arrest of the grounds of their arrest.
161. As the Customs Act contains only limited provisions which relate to the arrest of a person without a warrant, the Customs Act is to be amended so that the arrest powers in the Customs Act are consistent with those that are contained in the Crimes Act.
162. As Customs officers often have difficulty with detaining people who they have arrested under section 210 of the Customs Act due to the lack of suitable facilities to detain the person and the length of time that the person may have to be detained until they can be taken before a Justice, sections 212 and 213 of the Customs Act are to be amended so that a Customs officer who has arrested a person under section 210 will be required to deliver that person as soon as practicable to the custody of the police or taken before a magistrate or bail justice.
Item 1 - Subsection 183UA(1)
163. This item inserts a definition for the term " seizable item " into subsection 183UA(1) of the Customs Act. Subsection 183UA(1) is the definition section for Division 1 of Part XII of the Customs Act. The term "seizable item " is defined to mean anything that would present a danger to a person or that could be used to assist a person to escape from lawful custody.
Item 2 - Subdivision H of Division 1 of Part XII
164. This item repeals and substitutes Subdivision H of Division 1 of Part XII of the Customs Act with a new Subdivision H. New Subdivision H outlines new arrest powers and obligations relating to use of that power.
New section 210 - Power of arrest without warrant
165. New section 210 provides the power for an officer of Customs or police to arrest a person without a warrant in certain circumstances. New section 210 specifies when a person may be arrested without a warrant and qualifies when the power of arrest should be exercised. The qualifications contained in new section 210 are consistent with those which are contained in section 3W of the Crimes Act.
166. Subsection 210(1) provides that an officer of Customs or police may without a warrant arrest a person if the officer believes on reasonable grounds that the person has committed, or is committing, one or more of the offences listed in paragraph 210(1)(a) and proceedings by summons against the person would not achieve one or more of the purposes noted in paragraph 210(1)(b).
167. Paragraph 210(1)(a) lists the offences for which the power of arrest without a warrant may be used. The offences in new paragraph 210(1)(a) are the same as the offences in current subsection 210(1) prior to its repeal by this Schedule. The list of offences in new paragraph 210(1)(a) however does include the additional offences which are contained in subsections 33(1) or 33(5) of the Customs Act. The offences under subsections 33(1) and (5) relate respectively to moving, altering or interfering with goods which are subject to the control of Customs or directing or permitting another person to move such goods.
168. New paragraph 210(1)(b) qualifies the power of arrest contained in paragraph 210(1)(a). Paragraph 210(1)(b) requires the officer before arresting a person without a warrant to be of the view that proceedings by summons would not achieve one or more of the purposes noted in paragraph 210(1)(b). The purposes specified in paragraph 210(1)(b) are the same as those that are contained in subsection 3W(2) of the Crimes Act.
169. Paragraph 210(1)(b) specifies the following purposes:
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- ensuring the appearance of the person before a court in respect of the offence;
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- preventing a repetition or continuation of the offence or the commission of another offence;
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- preventing the concealment, loss or destruction of evidence relating to the offence;
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- preventing harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence;
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- preventing the fabrication of evidence in respect of the offence; and
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- preserving the safety or welfare of the person.
170. New subsection 210(2) provides that it is an offence if a person resists, obstructs or prevents the arrest of any person under new section 210. The offence is punishable by a penalty of 10 penalty units.
171. New subsection 210(3) sets out when a person arrested under section 210 must be released. Subsection 210(3) provides that if the officer of Customs or police no longer has reasonable grounds to believe that the person has committed the offence for which they were arrested, and the person has not be charged, and the holding of the person in custody is no longer necessary to achieve a purpose noted in paragraph 210(1)(b), the person must be released.
172. New subsection 210(4) provides power for an officer of Customs or police to arrest without a warrant a person who the officer believes on reasonable grounds has escaped from lawful custody where the person is still liable under Subdivision H of Part XII of the Customs Act.
New section 210A - Use of force in making arrest
173. New section 210A, which is consistent with the use of force provisions contained in section 3ZC of the Crimes Act, sets out the force that may be used in the course of an arrest under section 210.
174. Subsection 210A(1) provides that an officer of Customs or police must not, in the course of an arrest under section 210, use more force or subject the person to greater indignity then is necessary and reasonable to make the arrest or to prevent the escape of the person after the arrest.
175. New subsection 210A(2) further provides that an officer of Customs or police must not use force which is likely to cause death or grievous body harm to the person being arrested unless the officer believes on reasonable grounds that:
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- the use of such harm is necessary to protect the life or to prevent serious injury to another person including the officer; or
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- the use of such harm, if the person is attempting to escape arrest by fleeing, is necessary to protect the life or to prevent serious injury to another person including the officer; or
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- the use of such harm, where the person is attempting to escape arrest by fleeing and the person has, if practicable, been called on to surrender, is considered necessary if the person cannot be apprehended in any other manner.
New section 210B - Person to be informed of grounds of arrest
176. New section 210B, which is consistent with the requirement in section 3ZD of the Crimes Act that a person be informed of the grounds of their arrest, requires an officer who has made the arrest under section 210 of the Customs Act to inform the person being arrested of the offence that they have been arrested for. Subsection 210B(1) requires the person arrested to be informed at the time of their arrest.
177. Subsection 210B(2) clarifies what a person being arrested under section 210 is required to be informed of. Subsection 210B(2) provides that officer need only inform the person of the substance of the offence and when informing the person of the substance of the offence the officer is not required to use language of a precise or technical nature to describe the offence.
178. Subsection 210B(3) provides that an officer is not required to inform a person being arrested of the grounds for their arrest if the person being arrested should, because of the circumstances of the arrest, know the substance of the offence or the person's action made it impracticable for the officer to inform the person.
New section 211 - Power to conduct a frisk search on an arrested person
179. New section 211, which is consistent with the frisk search powers contained in section 3ZE of the Crimes Act, allows an officer of Customs or police who arrests a person under section 210, or who is present at the arrest of the person, to conduct a frisk search of the person arrested. Section 211 requires the frisk search to occur at or as soon after the time of arrest and should only be done if the officer suspects on reasonable grounds that it is prudent to do the search in order to ascertain if the person is carrying any seizable items. If seizable items are found, section 211 allows those items to be seized.
180. Item 1 of this Schedule inserts a definition for the term " seizable item " in subsection 183UA(1) of the Customs Act. " Seizable item " is defined to mean anything that would represent a danger to a person or that could be used to assist a person to escape from lawful custody.
New section 211A - Power to conduct an ordinary search of an arrested person
181. New section 211A, which is consistent with the power to conduct an ordinary search on a person arrested contained in section 3ZF of the Crimes Act, allows an officer of Customs or police who has arrested a person under section 210 or who is present at the arrest, to conduct an ordinary search of the arrested person. Section 211A requires the ordinary search to be conducted at or as soon after the time of arrest and only if the officer suspects on reasonable grounds that the person is carrying either evidential material in relation to the offence or another offence or the person is carrying seizable items. Section 211A permits the seizure of evidential material and seizable items which are found during the ordinary search.
New section 212 - How arrested person to be dealt with
182. New section 212 requires the officer of Customs who arrested a person under section 210 to ensure the person is either delivered into the custody of a police officer or is taken before a magistrate or bail justice as soon as practicable. New section 212 avoids the office having to detain the person arrested for lengthy periods of time until the person is able to be taken before a judicial officer. The ability for the person arrested to be delivered into the custody of a police office will mean that if the arrest under section 210 is made outside normal business hours, as frequently occurs, the person under arrest will be able to be held in appropriate police facilitates until the person arrested can be dealt with in accordance with the law.
News section 213 Requirement to furnish name etc
183. New section 213, which is consistent with section 3V of the Crimes Act, requires a person arrested and the officer making the arrest to furnish their name and other information when requested.
184. New section 213 provides that an officer of Customs or police may request a person arrested under new section 210 of the Customs Act to provide his or her name or address or his or her name and address, if the person's name or address is not known to the officer.
185. If is an offence under subsection 213(2), to which a penalty of 5 penalty units apply, for a person arrested under section 210 to refuse to give his or her name and address or to give a name and address that is false in a material particular. It is however not an offence if the person arrested refuses to give his or her name and address or gives a false name and address if the person has a reasonable excuse or the officer fails to furnish, when requested, his or her name, his or her place of duty or evidence that the officer (if the officer is not uniformed and it is practicable for the officer to provide evidence) is a Customs or police officer.
186. Subsection 213(4) further creates a new offence, to which a penalty of 5 penalty units apply, if an officer has requested the person arrested to provide his or her name and address and the officer refuses or fails, when requested by the person arrested, to give his or her name, his or her place of duty or evidence that the officer (if the officer is not uniformed and it is practicable for the officer to provide evidence) is a Customs or police officer.
Financial Transactions Report Act 1988
Item 3 - Subsection 33A(4)
187. This item omits in subsection 33A(4) of the Financial Transactions Reports Act 1988 (the Financial Act) the words "section 212 and 213 of the Customs Act 1901 apply" and substitutes the omitted words with "section 212 of the Customs Act 1901 applies".
188. Section 33A of the Financial Act provides for a person to be arrested without a warrant where the officer making the arrest has grounds to believe that the person is guilty of an offence against section 15 of the Financial Act. Section 15 of the Financial Act relates to the reporting of the transfer of currency into or out of Australia.
189. Subsection 33A(4) provides, before the amendments made by this Schedule commence, that sections 212 and 213 of the Customs Act apply to a person arrested without a warrant under section 33A of the Financial Act as though the person had been arrested under section 210 of the Customs Act.
190. As a consequence of the repeal and substitution of Division H of Division 1 of Part XII of the Customs Act by Item 2 of this Schedule, the Financial Act also requires amendment. The amended subsection 33A(4) provides that where a person is arrested under section 33A, new section 212 of the Customs Act, insert by item 2 of this Schedule, applies as though the person arrested under section 33A had been arrested under section 210 of the Customs Act.
Part 2 - Application provision
Item 4 - Application to arrest made before commencement of this Schedule
191. This item sets out an application provision in relation to the amendments being made by this Schedule. The application provision provides that the amendments made by this Schedule, with the exception of new subsection s210(3) and (4), will not affect the validity of and will not apply to an arrest made under section 210 before the amendments in this Schedule commence.
192. Subsection 210(3) and (4), which relate respectively to the power to release of a person arrested if there is no longer reasonable grounds to detain the person and the power to arrest a person who is believed to have escaped from lawful custody, will apply to a person who has been arrested under section 210 before the amendments in this Schedule commenced, as if the person was arrested after the commencement of the amendments in this Schedule.