House of Representatives

Explanatory Memorandum

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

SCHEDULE 14 - FACILITATION OF BOARDING

Customs Act 1901

Background

216. Section 61 of the Customs Act currently places an obligation on the master of an arriving ship, the master of a resources installation or the owner of a sea installation to facilitate the boarding of the ship or installation by all reasonable means. In particular, Customs is required to board ships on arrival in Australia to:

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conduct Customs and Immigration clearance of the ship and crew; and

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verify advance crew and ship information previously provided by the ship's master or the ship's agent prior to arrival.

217. In some situations, due to the location and design of the berth, the master of a ship is unable to facilitate boarding in accordance with section 61. In such cases, the Customs officers rely on the port loading cranes (with personnel cages) or other port owned facilities to board the vessel. In these situations, the port operator or the port facility operator is often the only entity with the ability to facilitate the boarding.

218. However, there is no legislative obligation placed on the owner or operator of a port or port facility to facilitate the boarding of Customs officials in circumstances such as those above.

Item 1 - After section 61

219. This item amends the Customs Act by inserting new section 61A. This new section imposes such an obligation on the owner or operator of a port or port facility.

220. New subsection 61A(1) provides that an officer of Custom may request an owner or operator of a port or of a port facility to facilitate, by any reasonable means, the boarding of a ship that is in the port by any person who is authorised under the Customs Act to board the ship.

221. New subsection 61A(2) provides that the owner or operator commits an offence if the owner or operator fails to comply with the request. The offence is punishable by a penalty of 30 penalty units. This is not a strict liability offence.

222. New subsection 61(3) provides that a port facility is an area of land or water, or land and water, (including any buildings, installations or equipment in or on the area) used either wholly or partly in connection with the docking, mooring, loading and unloading of ships.

223. This amendment seeks to address the rare circumstances where, as outlined above, the master of a ship is unable to lower equipment such as a gangway to enable Customs officers to board the vessel (for example, due to the design of the berth). An example of such a situation is where a bulk carrier ship is berthed in a port where there is either no or limited access to infrastructure at the berth that is suitable for the master to lower a gangway onto. As mentioned above, in such circumstances Customs would require the use of port facilities such as personnel cages attached to loading cranes to facilitate the boarding of the ship by Customs officers.

224. As a matter of general practice, Customs will continue to seek to use the boarding infrastructure provided by the master of a ship (for example, a gangway or pilot ladder) before seeking the assistance of a port or port facility owner or operator. As stated above, it is expected that the need to seek this alternative assistance will rarely arise.

225. The obligation on a port or port facility owner operator will be to facilitate, by any reasonable means, the boarding of a ship that is located anywhere within the limits of the appointed port. What constitutes "reasonable means" will need to be determined based on the boarding considerations and requirements associated with each particular port or port facility. Customs will negotiate suitable arrangements with port or port facility owners and operators for use of equipment suitable to facilitate the boarding of ships by Customs officers. An example of such assistance may include making personnel cages attached to loading cranes available for use or, if port-side access is not feasible, making a ship available to enable Customs officers to board from a rope ladder lowered on the seaward side of the ship. In addition, exceptional high risk circumstances may arise where a port or port facility owner or operator may be required to immediately cease other loading or unloading activities in order to facilitate a boarding.