Explanatory Memorandum
(Circulated by authority of the Minister for Home Affairs, the Honourable Bob Debus MP)SCHEDULE 16 - RIGHT OF ACCESS FOR PATROLS
Customs Act 1901
Background
229. As part of performing their functions and carrying out their duties, officers of Customs require access to certain areas for patrolling and for the purpose of detecting and/or dealing with arriving or departing ships or aircraft and the people or goods associated with such ships and aircraft.
230. Section 15 of the Customs Act enables the CEO of Customs to appoint specific ports and airports for the purposes of the Customs Act. Ships and aircraft arriving from overseas or departing for overseas are required to report to Customs at these appointed ports or airports.
231. The existing power for officers of Customs to patrol areas under section 193 of the Customs Act includes access to any part of the coast, railways and airports and the shores, banks or beaches of any port bay harbour or lake. This power allows Customs to detect and deal with individuals, ships or aircraft within appointed ports and airports as well as those attempting to circumvent the Customs Act by arriving or departing from areas that are not section 15 appointed ports or airports.
232. However, several limitations have been identified in relation to the operation of current section 193. For example:
- a)
- the provision does not clearly indicate whether this power includes the ability to access and patrol man-made structures such as piers, docks, breakwaters, loading, assembly and other similar areas, that are located at or in the places mentioned in section 193;
- b)
- whilst the provision provides the power to patrol any part of the coast, there is no guarantee that access may be gained to areas that are fenced or contain features that may obstruct an ability to gain access and patrol;
- c)
- section 193 does not require an owner, occupier or person who controls such an area to facilitate access to an officer of Customs. This may limit the effectiveness of the power in section 193 to provide officers of Customs with access to areas which need to be patrolled;
- d)
- officers of Customs have experienced difficulties in gaining access to places mentioned in section 193 that are completely surrounded by private property.
Item 1 - Section 193
233. Current section 193 is to be repealed and replaced by item 1 of this Schedule to address these limitations.
234. New subsection 193(1) provides that an officer of Customs may, for the purposes of the performance of the duties and functions of an officer of Customs, enter and remain upon any part of:
- a)
- the coast, including but not limited to the shores, banks, beaches and any man-made structure in or on the coast;
- b)
- any part of a port, bay or harbour, including but not limited to the shores, banks, beaches and any man-made structure in or on the port, bay or harbour;
- c)
- an airport or airstrip, including an airport that has not been appointed as an airport under section 15 of the Customs Act;
- d)
- a lake or river, including but not limited to the shores, banks, beaches and any man-made structure in or on the lake or river; or
- e)
- any area of land or water that is adjacent to, any of these places listed in paragraphs (a) to (d) for the purposes of entering and remaining upon these places in (a) to (d).
This power will also be extended to a person assisting an officer of Customs, for the purpose of assisting the officer to perform the officer's functions and duties.
235. An officer of Customs, or a person assisting the officer, may use all reasonable means, including the use of reasonable force, for the purposes of entering any of the places referred to above. Customs will develop policies and procedures in relation to the use of the powers in subsection 193(1) through the use of reasonable means.
236. New subsection 193(2) provides that a person commits an officer if:
- a)
- the person is the owner, occupier or operator of any of the places referred to in subsection 193(1); and
- b)
- the person is present at that place at the time an officer of Customs, or person assisting an officer, seeks to exercise the power to enter that place; and
- c)
- the person does not provide the officer, or person assisting the officer with all reasonable facilities and assistance, including means of access to the place, that the person is reasonably capable of providing.
The offence is punishable by a penalty of 30 penalty units.
237. This new power will not derogate from the powers of an officer of Customs under section 152 of the Maritime Transport and Offshore Facilities Security Act 2003 and Customs will continue to manage the requirements of this Act in accordance with existing arrangements, policies and procedures.
238. As a matter of general practice, Customs will seek to obtain the consent and assistance of the owner, occupier or operator of places mentioned in subsection 193(1) before exercising the powers under subsection 193(1). However, if consent cannot be obtained, it is foreseeable that Customs officers may need to gain entry by force (for example, breaking a padlock or removing a section of a fence). Customs does note that operational flexibility is required and in certain circumstances there may be an operational imperative for Customs to enter a place without prior notification to the owner/occupier/operator. However, Customs anticipates that the circumstances requiring such action would however be extremely rare.
239. Customs also notes that the obligation on an owner, occupier and operator of relevant places will be to provide a Customs officer with all reasonable facilities and assistance, including a means of access to the place, that the person is reasonably capable of providing. This will be determined on a case by case basis, taking account of the requirements for access to each relevant place.