Customs Amendment Regulations 2003 (No. 2) 2003 No. 51
EXPLANATORY STATEMENT
STATUTORY RULES 2003 No. 51
Issued by the Authority of the Minister for Justice and Customs
Customs Act 1901
Customs Amendment Regulations 2003 (No. 2)
Section 270 of the Customs Act 1901 (the Customs Act) provides in part that the Governor-General may make regulations not inconsistent with the Customs Act prescribing all matters which by the Customs Act are required or permitted to be prescribed for giving effect to the Customs Act.
Under sections 184A, 185B and 186A, and subsections 185(2) and (3) of the Customs Act, officers of Customs are given various powers to deal with persons or ships reasonably suspected of being involved in a contravention of a prescribed Act or an Act prescribed consistently with the United Nations Convention on the Law of the Sea (UNCLOS). Regulation 167 of the Customs Regulations 1926 prescribes certain Acts for the purposes of the abovementioned provisions of the Customs Act.
The Torres Strait Fisheries Act 1984 (the TS Fisheries Act) regulates local and commercial fishing activities in the Torres Strait Protected Zone. Officers of Customs in the National Marine Unit were recently authorised to perform enforcement duties under the TS Fisheries Act.
The purpose of the amending Regulations is to allow officers of Customs to use the powers set out in the Customs Act to deal with persons or ships reasonably suspected of being involved in a contravention of a prescribed Act or an Act prescribed consistently with UNCLOS, to enforce the provisions of the TS Fisheries Act.
The amending Regulations amended regulation 167 to insert the TS Fisheries Act as a prescribed Act for the purposes of sections 184A, 185B and 186A, and subsections 185(2) and (3) of the Customs Act.
Details of the amending Regulations are set out in the Attachment.
The amending Regulations commenced on gazettal.
ATTACHMENT
CUSTOMS AMENDMENT REGULATIONS 2003 (No. 2)
Regulation 1 - Name of Regulations
Regulation 1 provides for the Regulations to be named the Customs Amendment Regulations 2003 (No. 2).
Regulation 2 - Commencement
Regulation 2 provides that the Regulations commence on gazettal.
Regulation 3 - Amendment of Customs Regulations 1926
Regulation 3 provides that Schedule 1 amends the Customs Regulations 1926.
SCHEDULE 1 - AMENDMENTS
Items 1 and 2 - Regulation 167
The Australian Fisheries Management Authority (AFMA) recently authorised Customs officers in the National Marine Unit as a class of persons authorised to perform enforcement duties under the Torres Strait Fisheries Act 1984 (the TS Fisheries Act). This authorisation allows Customs to take enforcement action under the TS Fisheries Act against illegal foreign fishing in and adjacent to the Torres Strait Protected Zone.
In conjunction with AFMA's authorisation, Customs intended to enable the use of certain powers as set out in sections 184A, 185, 185B and 186A of the Customs Act 1901 (the Customs Act) to enforce the TS Fisheries Act.
Section 184A
Generally, section 184A of the Customs Act allows the commander of a Commonwealth ship to request the master of a ship to permit the commander, a member of the commander's crew or an officer to board the master's ship, if the commander reasonably suspects that the master's ship is, will be or has been involved in a contravention, or an attempted contravention, in Australia of the Customs Act or an Act prescribed by the regulations consistently with United Nations Convention on the Law of tile Sea (UNCLOS).
Section 185
Once a request under section 184A has been made, subsection 185(2) allows an officer of Customs, among other things, to:
...
(d) arrest without warrant any person found on the ship or aircraft if:
(i) in the case of a person found on a ship that is in Australia the officer reasonably suspects that the person has committed, is committing or attempting to commit, or is involved in the commission of, an offence, either in or outside Australia, against this Act or an Act prescribed by the regulations consistently with UNCLOS; or
(ii) in the case of a person found on a ship that is outside Australia the officer reasonably suspects that the person has committed, is committing or attempting to commit, or is involved in the commission of:
(A) an offence in Australia against this Act or an Act prescribed by the regulations consistently with UNCLOS; or
(B) an offence in Australia's exclusive economic zone against an Act prescribed by the regulations consistently with UNCLOS;
...
Further, subsection 185(3) of the Customs Act provides that:
(3) An officer may also detain the ship or aircraft and bring it, or cause it to be brought, to a port or airport, or to another place (including, in relation to a ship, a place within the territorial sea or the contiguous zone in relation to Australia), that he or she considers appropriate if:
(a) in the case of a ship that is in Australia-the officer reasonably suspects that the ship is or has been involved in a contravention, either in or outside Australia, of this Act or an Act prescribed consistently with UNCLOS; and
...
(c) in the case of a foreign ship that is outside Australia-the officer reasonably suspects that the ship is, will be or has been involved in a contravention:
(i) in Australia of this Act or an Act prescribed consistently with UNCLOS; or
(ii) in Australia's exclusive economic zone of an Act prescribed consistently with UNCLOS.
Section 185B
Section 185B enables the Chief Executive Officer of Customs to direct an officer to move, destroy or move and destroy a ship under certain circumstances. The section applies to the following ships:
Application of section to ships in Australia
(1) This section applies to a ship that is in Australia and that an officer reasonably suspects is or has been involved in a contravention or an attempted contravention, either in or outside Australia, of this Act or a prescribed Act.
Application of section to ships outside Australia
(2) This section also applies to a ship that is outside Australia if:
(a) an officer has detained it under subsection 185(3); and
(b) in the case of an Australian ship-the officer reasonably suspects it is or has been involved in a contravention or an attempted contravention, either in or outside Australia, of this Act or a prescribed Act; and
(c) in the case of a foreign ship-the officer reasonably suspects it is or has been involved in a contravention:
(i) in Australia of this Act or a prescribed Act; or
(ii) in Australia's exclusive economic zone of a prescribed Act.
Section 186A
Under section 186A of the Customs Act, an officer of Customs may make a copy of, or to take an extract of a document examined under section 186, if the officer is satisfied that the document or part of the document is relevant to the commission or attempted commission of any other offence against this Act or of any offence against a prescribed Act.
Subregulations 167(1) and 167(2) prescribe certain Acts for the purposes of the following provisions of the Customs Act:
(a) subsections 184A(2), 184A(4), 184A(5), 184A(6) and 184A(7);
(b) subparagraph 185(2)(d)(i);
(c) sub-subparagraphs 185(2)(d)(ii)(A) and 185(2)(d)(ii)(B);
(d) paragraph 185(3)(a);
(e) subparagraphs 185(3)(c)(i) and 185(3)(c)(ii);
(f) subsection 185B(1);
(g) paragraph 185B(2)(b);
(h) subparagraphs 185B(2)(c)(i) and 185B(2)(c)(ii);
(i) subparagraph 186A(1)(b)(ii).
Items 1 and 2 inserts the TS Fisheries Act as one of the Acts prescribed under subregulations 167(1) and 167(2).