Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (INTERCEPTION OF VESSELS) REGULATIONS 2001 2001 NO. 267

STATUTORY RULES 2001 No. 267

Issued by the Authority of the Minister for Justice and Customs

Customs Act 1901

Customs (Interception of Vessels) Regulations 2001

Section 270 of the Customs Act 1901 (the 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.

Section 185 of the Act provides the power for officers, including members of the Australian Defence Force, to board and search ships and aircraft in certain circumstances. In particular, subsection 185(3F) of the Act provides that if the ship is a foreign ship that is entitled to fly the flag of a country and Australia has an agreement or arrangement with that country which enables the exercise of Australian jurisdiction over ships of that country; then the officer may exercise any powers prescribed by the regulations. Subsection 185(3F) also provides that the powers may only be exercised in a manner consistent with the agreement or arrangement in relation to the ship or persons found on the ship.

Section 185A of the Act allows the boarding of certain ships on the high seas, and includes provisions similar to that described above.

The purpose of the new Regulations is to provide search powers that may be exercised at sea in relation to persons found on board ships attempting to enter Australian waters without lawful authority, and to also allow for the detention, search and movement of the ship involved.

More specifically, the new Regulations provide that the powers may only be exercised where:

•       the ship is one that is entitled to fly the flag of a foreign country, and

•       Australia has an agreement or arrangement with that country which enables the exercise of Australian jurisdiction over the ship.

The powers will not purport to apply generally in all circumstances where a ship is boarded at sea under powers found in the Act and must also be exercised consistently with the agreement or arrangement itself.

The new Regulations also provide for the protection of officers and others acting in good faith from actions and proceedings (whether civil or criminal) flowing from the exercise of the proposed powers.

The new Regulations are part of a package of legislative amendments in response to the unauthorised arrival in Australia by groups of non-citizens. They are intended to strengthen the legal framework by which the Government can protect its borders.

Details of the amending Regulations are set out in the Attachment.

The amending Regulations commenced on gazettal.

ATTACHMENT

Customs (Interception of Vessels) Regulations 2001

Part 1 - Preliminary

Regulation 1 - Name of Regulations

Regulation 1 provides that these Regulations are the Customs (Interception of Vessels) Regulations 2001 (the Interception of Vessels Regulations).

Regulation 2 - Commencement

Regulation 2 provides that these Regulations commence on gazettal.

Regulation 3 - Definitions

Regulation 3 sets out definitions of Act, place and weapon, for the purposes of the Interception of Vessels Regulations.

"Act" is defined to mean the Customs Act 1901.

"Place" is defined to mean any place in or outside Australia. Therefore, under paragraphs 7(e) and 8(1)(f), a ship can be brought to a place in or outside Australia that the officer considers appropriate.

"Weapon" is defined to mean any thing capable of being used to inflict bodily injury or to help an individual escape from restraint. The new definition relates to the ability of an officer or an individual assisting an officer to search an individual under regulation 5 (see subregulation 5(2)).

In addition, the new definition relates to the ability of an officer to take possession of a weapon under paragraphs 7(b) and 8(1)(c).

Part 2 - Powers under an agreement or arrangement with a foreign country

Regulation 4 - Exercise of power to restrain an individual

Regulation 4 sets out the extent to which powers to restrain an individual may be exercised.

Under paragraph 4(1)(a), an officer or individual who assists the officer in the exercise of the power to restrain an individual must not use more force, or subject a person to greater indignity, than is reasonably necessary to exercise this power.

Under paragraph 4(1)(b), an officer or individual who assists the officer in the exercise of this power must not do anything likely to cause the person (in relation to whom the power is being exercised) grievous bodily harm unless the officer or individual assisting the officer believes on reasonable grounds that doing the thing is necessary to protect life or prevent serious injury to the person or another person (including the officer or the other person assisting the officer).

Regulation 5 - Exercise of power to search an individual

Regulation 5 sets out the extent to which search powers relating to individuals, the clothing of an individual, or property under the immediate control of individuals, may be exercised.

The purpose for which the new search power may be exercised is set out in subregulation 5(2). It provides that a search of an individual or property under the immediate control of an individual may be conducted under the relevant powers in regulations 7 and 8 to find out whether a person is carrying, or there is hidden on a person, in his or her clothing or in his or her property, a weapon (see also definition of "weapon" in regulation 3).

Subregulation 5(3) makes it clear that the new search power is only a pat-down search power. In other words, the search powers do not authorise an officer, or another person conducting a search of an individual under subregulation 5(4), to remove a person's clothing or to require a person to remove his or her clothing.

However, subregulation 5(3) does permit the removal of a person's outer garments (including but not limited to the person's overcoat, coat, jacket, gloves, shoes and head covering).

Subregulation 5(4) imposes a same-sex requirement in relation to the officer or person who conducts a search of a person under regulation 5.

Paragraph 5(4)(a) provides that a search of a person, and that person's clothing, must be conducted by an officer of the same sex as the person.

Paragraph 5(4)(b) provides for the situation where an officer of the same sex as the person to be searched is not available to conduct the search. It allows any other person, who is of the same sex as the person to be searched, to conduct the search if requested by an officer.

Regulation 6 - Protection of persons when acts done in good faith

Subregulation 6(1) provides that an action or proceeding (whether civil or criminal) does not lie against the Commonwealth, an officer, or any person assisting an officer who restrains a person. This is the case as long as the officer, or any person assisting an officer, who took the action acted in good faith and does not contravene regulation 4.

Subregulation 6(2) provides that an action or proceeding (whether civil or criminal) does not lie against a person who, at the request of an officer under subregulation 5(4), conducts a search under that subregulation. This is the case as long as the person acts in good faith and does not contravene subregulation 5(5).

Regulation 7 - Powers when boarding certain foreign ships (Act s 185(3F))

Regulation 7 prescribes powers pursuant to subsection 185(3F) of the Act. Section 185 deals, in part, with the power to board and search a ship that is outside the territorial sea of a foreign country. Subsection 185(3F) allows an officer to exercise any powers prescribed by the regulations in certain circumstances, including where Australia has an agreement or arrangement with a foreign country, the flag of which the ship is flying.

The new powers in regulation 7 are only able to be exercised where they are consistent with the agreement or arrangement with the foreign country.

Paragraph 7(a) allows a person on the ship, his or her clothing and any property under the immediate control of the person, to be searched without a warrant.

If a weapon is found in the course of a search, paragraph 7(b) allows an officer to take possession of the weapon for such time as he or she thinks necessary for the purposes of this regulation.

Paragraph 7(c) allows an officer to restrain any person on board the ship for such time as he or she thinks necessary for the purposes of this regulation.

Paragraph 7(d) allows the officer to detain the ship for as long as he or she thinks necessary for the purposes of this regulation.

Paragraph 7(e) allows the officer to bring the ship, or cause it to be brought, to a place that he or she considers to be appropriate.

Regulation 8 - Powers when boarding certain foreign ships on the high seas (Act s185(4))

Regulation 8 prescribes powers pursuant to subsection 185A(4) of the Act. Section 185A deals, in part, with the power to board a ship on the high seas. Subsection 185A(4) allows an officer to exercise any powers prescribed by the regulations in certain circumstances, including where Australia has an agreement or arrangement with a foreign country, the flag of which the ship is flying.

The new powers in regulation 8 are only able to be exercised where they are consistent with the agreement or arrangement with the foreign country.

Paragraph 8(1)(a) allows an officer to search the ship.

Paragraph 8(1)(b) allows a person on the ship, his or her clothing and any property under the immediate control of the person, to be searched without a warrant.

If a weapon is found in the course of a search, paragraph 8(1)(c) allows an officer to take possession of the weapon or other thing for such time as he or she thinks necessary for the purposes of this regulation.

Paragraph 8(1)(d) allows an officer to restrain any person on board the ship for such time as he or she thinks necessary for the purposes of this regulation.

Paragraph 8(1)(e) allows the officer to detain the ship for as long as he or she thinks necessary for the purposes of this regulation.

Paragraph 8(1)(f) allows the officer to bring the ship, or cause it to be brought, to a port or other place that he or she considers to be appropriate.

Paragraph 8(1)(g) introduces a new power to return a person who leaves a ship, where the person was on the ship when it was detained under paragraph 8(1)(e).

However, under subregulation 8(4), a person may only be returned to a ship under paragraph 8(1)(g) if the officer is satisfied that it is safe to return the person to the ship.

Under subregulation 8(2), an officer may use such force as is necessary and reasonable in the exercise of a power under this regulation.

Subregulation 8(3) provides that in searching the ship, the officer must not damage the ship or any goods on the ship by forcing open a part of the ship or the goods unless the individual (if any) apparently in charge of the ship has been given a reasonable opportunity to open that part of the ship or the goods, or it is not reasonably practical to give that individual such an opportunity.