Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS AMENDMENT REGULATIONS 1999 (NO. 5) 1999 NO. 323

STATUTORY RULES 1999 No. 323

Issued by the Authority of the Minister for Justice and Customs

Customs Act 1901

Customs Amendment Regulations 1999 (No. 5)

Section 270 of the Customs Act 1901 ("the Customs Act") provides in part that the Governor-General may make regulations not inconsistent with the Act prescribing all matters which by the Act are required or permitted to be prescribed for giving effect to the Act.

Subsection 4(1) of the Acts Interpretation Act 1901 provides in part that where an Act is expressed to confer power, or to amend another Act in such a manner that the other Act, as amended, will confer power, to make an instrument of a legislative or administrative character (including rules, regulations or by-laws), then, unless the contrary intention appears, the power may be exercised, and anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment or instrument into effect, before the Act concerned comes into operation as if it had come into operation.

These regulations insert a new regulation into the Customs Regulations 1926 ("the Regulations") which prescribe Commonwealth legislation in relation to which Customs officers will be able to exercise certain powers (new regulation 167). The regulations also prescribe two kinds of firearms that Customs officers on board Customs vessels will be able to carry in limited circumstances (new regulation 168).

The Border Protection Legislation Amendment Act 1999 ("the Border Protection Act") implemented the recommendations of the report of the Prime Minister's Coastal Surveillance Task Force to strengthen legislative provisions relating to people smug ling in order to maintain the integrity of Australia's borders.

In particular, the Border Protection Act amended the Customs Act to extend the circumstances in which commanders on board Commonwealth vessels ("commanders") can request to board ships. Before these amendments were made, requests to board could only be made in the Australia's territorial sea (12 nautical miles). The amendments in the Border Protection Act allow commanders to request to board ships in Australia's territorial sea, contiguous zone. exclusive economic zone and on the high seas. Whether a request can be made in each of those maritime zones depends on whether certain conditions are met before the request is made. Those conditions are set out in the amendments contained in the Border Protection Act and are consistent with the United Nations Convention on the Law of the Sea ("UNCLOS").

The Border Protection Act also extends the circumstances in which a commander may make a request to board so that commanders can now make requests to board for the purposes of other Acts (other than the Customs Act). Whether a request can be made for purposes of those other Acts depends on whether those Acts can be enforced in the relevant maritime zone in accordance with UNCLOS. For example, Article 56 of UNCLOS provides in part that in a countries exclusive economic zone the country has "sovereign rights for the purposes of exploring and exploiting, conserving and managing the natural resources, whether living or non-living...". Hence, commanders will be able to make requests to board a ship in Australia's exclusive economic zone if the commander reasonably suspects that the ship is, will be or has been involved in a contravention, or an attempted contravention, in Australia's exclusive economic zone of certain fishing and environmental legislation. However, in the exclusive economic zone the commander cannot make a request to board if he or she suspects a contravention of migration or quarantine laws.

Once officers have boarded the ship they can exercise certain powers. These powers are also consistent with UNCLOS. Some of those powers, such as the power of arrest, can only be exercised in certain circumstances. As with the power to request to board ships, some of those powers can be exercised in respect of other Acts.

Rather than set out each of the relevant Acts in the Customs Act, the relevant provisions allow the Acts to be prescribed in regulations. Regulation 167 prescribes the relevant Acts.

The amendments in the Border Protection Act also provide for Customs officers to carry and use approved firearms and other approved items of personal defence equipment in certain circumstances. Those approved firearms must be prescribed before they can be used. Regulation 168 prescribes two firearms for these purposes.

Details of the regulations are set out in the Attachment.

The regulations commence on the date of commencement of Schedule 2 to the Border Protection Act.

ATTACHMENT

Customs Amendment Regulations 1999 (No. 5)

Regulation 1 - Name of Regulations

Regulation 1 provides that the proposed regulations are named the "Customs Amendment Regulations 1999 (No. 5)".

Regulation 2 - Commencement

Regulation 2 provides that the proposed regulations are to commence on the date of commencement of Schedule 2 to the Border Protection Legislation Amendment Act 1999.

Regulation 3 - Amendment of Customs Regulations 1926

Regulation 3 provides that Schedule 1 amends the Customs Regulations 1926 ("the Regulations").

Schedule 1        Amendments

Item 1 - After regulation 166A

Item 1 inserts a new regulation 167 into the Regulations.

The Fisheries Management Act 1991, the Migration Act 1958 and the Quarantine Act 1908 are prescribed for the purposes of a number of provisions in the Customs Act (new subregulation 167(1) refers).

A commander will be able to make a request to board a foreign ship in Australia's territorial sea for the purposes of these three Acts (subsection 184A(2) of the Customs Act and new paragraph 167(1)(a) of the Regulations refer).

A commander will also be able to make a request to board a foreign ship in Australia's contiguous zone if he or she reasonably suspects the other ship is, will be or has been involved in a contravention, or an attempted contravention, in Australia of these three Acts (subsection 184A(4) of the Customs Act and new paragraph 167(1)(a) of the Regulations refer).

A request to board a mothership, outside Australia's contiguous zone, will be able to be made where the commander reasonably suspects that the mothership is supporting the contravention of those three Acts (subsection 184A(5) of the Customs Act and new paragraph 167(1)(a) of the Regulations refer).

An officer will be able to arrest a person on board a ship in certain circumstances if the officer reasonably suspects the person has committed, is committing or attempted to commit, or is involved in the commission of, an offence, against these three Acts (subparagraph 185(2)(d)(i) and subparagraph 185(2)(d)(ii)(A) of the Customs Act and new paragraphs 167(1)(b) and (c) of the Regulations refer).

An officer will be able to detain a ship in Australia and bring it, or cause it to be brought to a port or other place if the officer suspects that the ship is or has been involved in a contravention of these three Acts (paragraph 185(3)(a) of the Customs Act and new paragraph 167(1)(d) of the Regulations refer).

An officer has the same powers in relation to ships outside Australia if the officer suspects that the ship is, will be or has been involved, in Australia, of a contravention of these three Acts (subparagraph 185(3)(c)(i) of the Customs Act and new paragraph 167(1)(e) of the Regulations refer).

Australian ships and ships inside Australia's territorial seas will be able to be moved, moved and destroyed or destroyed in certain circumstances, if an officer reasonably suspects it is or has been involved in a contravention or an attempted contravention of the three Acts (subsection 185B(1) and paragraph 185B(2)(b) of the Customs Act and new paragraphs 167( 1)(f) and (g) of the Regulations refer).

Those same powers will be able to be exercised in relation to foreign ships outside Australia if the officer reasonably suspects it is or has been involved in a contravention of the three Acts in Australia (subparagraph 185B(2)(c)(i) of the Customs Act and new paragraph 167(1)(h) of the Regulations refer).

Officers will be able to copy or take extracts from documents in certain circumstances if an officer is satisfied that the document or part of the document may contain information relevant to the commission or attempted commission of an offence against these three Acts (subparagraph 186A(1)(b)(ii) of the Customs Act and new paragraph 167(1)(i) of the Regulations refers).

The Fisheries Management Act 1991 is prescribed for the purposes of a number of additional provision in the Customs Act (new subregulation 167(2) refers). These additional provisions relate to powers that can be exercised in Australia's exclusive economic zone.

Commanders will be able to request to board ships in Australia's exclusive economic zone or motherships outside that zone if the commander reasonably suspects the ship of certain contraventions of the Fisheries Management Act 1991 (subsections 184A(6) and (7) of the Customs Act and new paragraph 167(2)(a) of the Regulations refer).

Officers will be able to arrest people without warrant if the officer reasonably suspects that the person has committed, is committing or attempting to commit, or is involved in the commission of an offence in Australia's exclusive economic zone against the Fisheries Management Act 1991 (subsubparagraph 18 5(2)(d)(ii)(B) of the Customs Act and new paragraph 167(2)(b) of the Regulations refer).

Officers will also be able to detain and move foreign ships outside Australia if the officer reasonably suspects that the ship is, will be or has been involved in a contravention in Australia's exclusive economic zone of the Fisheries Management Act 1991 (subparagraph 185(3)(c)(ii) of the Customs Act and new paragraph 167(2)(c) of the Regulations refer).

Ships will be able to be moved, moved and destroyed or destroyed if an officer reasonably suspects that it is or has been involved in a contravention of the Fisheries Management Act 1991 in Australia's exclusive economic zone (subparagraph 185B(2)(c)(ii) of the Customs Act and new paragraph 167(2)(d) of the Regulations refer).

The copying powers discussed under subparagraph 186A(1)(b)(ii) of the Customs Act above will also be able to be exercised in relation to offences against the Air Navigation Act 1920, 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 Convention Act 1957, Crimes (Torture) Act 1988 and Bankruptcy Act 1966 (new subregulation 167(3) of the Regulations refers).

New regulation 168 proposes to prescribe two kinds of firearms for the purposes of subsection 189A(5) of the Customs Act. These are the Colt M16 automatic rifle and the Glock 9mm semiautomatic pistol.