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This is a Bill, not an Act. For current law, see the Acts databases.
CUSTOMS AMENDMENT (ENHANCED BORDER CONTROLS AND OTHER MEASURES) BILL 2008
2008
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Customs Amendment (Enhanced Border
Controls and Other Measures) Bill 2008
No. , 2008
(Home Affairs)
A Bill for an Act to amend the law relating to
customs, and for related purposes
i Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No.
, 2008
Contents
1
Short title ............................................................................................ 1
2
Commencement .................................................................................. 1
3
Schedule(s) ......................................................................................... 3
Schedule 1--Arrival report and re port of stores and prohibited
goods
4
Customs Act 1901
4
Schedule 2--Infringe ment notices
5
Customs Act 1901
5
Schedule 3--Cargo reports
6
Customs Act 1901
6
Schedule 4--Missing goods and goods delivered without
authority
7
Customs Act 1901
7
Schedule 5--Boarding powe rs and the United Nations
Convention on the Law of the Sea
11
Customs Act 1901
11
Schedule 6--Impending arrival reports for pleasure craft
22
Part 1--Amendments
22
Customs Act 1901
22
Part 2--Application provision
24
Schedule 7--Use of devices to stop or impede a ship
25
Customs Act 1901
25
Schedule 8--Powe r to request aircraft to land
26
Customs Act 1901
26
Schedule 9--Seizing unaccounted for goods and storing or
taking custody of prohibited ite ms
27
Customs Act 1901
27
Schedule 10--Powe rs of arrest
30
Part 1--Amendments
30
Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No. ,
2008 ii
Customs Act 1901
30
Financial Transaction Reports Act 1988
34
Part 2--Application provision
35
Schedule 11--Warrants
36
Customs Act 1901
36
Schedule 12--Commonwealth property in Customs places
37
Customs Act 1901
37
Schedule 13--Powe r to moor
38
Customs Act 1901
38
Schedule 14--Facilitation of boarding
39
Customs Act 1901
39
Schedule 15--Ente ring places other than ports or airports
40
Customs Act 1901
40
Schedule 16--Right of access for patrols
41
Customs Act 1901
41
Schedule 17--Search and seizure warrants
43
Customs Act 1901
43
Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No. ,
2008 1
A Bill for an Act to amend the law relating to
1
customs, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Customs Amendment (Enhanced
5
Border Controls and Other Measures) Act 2008.
6
2 Commence ment
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2 Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No.
, 2008
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day on which this Act receives the
Royal Assent.
2. Schedules 1
and 2
The day on which this Act receives the
Royal Assent.
3. Schedule 3
The 28th day after the day on which this Act
receives the Royal Assent.
4. Schedule 4
A single day to be fixed by Proclamation.
However, if any of the provision(s) do not
commence with in the period of 6 months
beginning on the day on which this Act
receives the Royal Assent, they commence
on the first day after the end of that period.
5. Schedules 5 to
11
The 28th day after the day on which this Act
receives the Royal Assent.
6. Schedule 12,
item 1
The 28th day after the day on which this Act
receives the Royal Assent.
7. Schedule 12,
item 2
Immediately after the commencement of the
provisions covered by table item 5.
8. Schedules 13
and 14
The 28th day after the day on which this Act
receives the Royal Assent.
9. Schedule 15
The day on which this Act receives the
Royal Assent.
10. Schedules 16
and 17
The 28th day after the day on which this Act
receives the Royal Assent.
Note:
This table relates only to the provisions of this Act as originally
1
passed by both Houses of the Parliament and assented to. It will not be
2
expanded to deal with provisions inserted in this Act after assent.
3
(2) Column 3 of the table contains additional information that is not
4
part of this Act. Information in this column may be added to or
5
edited in any published version of this Act.
6
Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No. ,
2008 3
3 Schedule(s)
1
Each Act that is specified in a Schedule to this Act is amended or
2
repealed as set out in the applicable items in the Schedule
3
concerned, and any other item in a Schedule to this Act has effect
4
according to its terms.
5
6
Schedule 1 Arrival report and report of stores and prohibited goods
4 Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No.
, 2008
1
Schedule 1
--
Arrival report and report of
2
stores and prohibited goods
3
4
Customs Act 1901
5
1 Subparagraph 64AA(3)(a)(i)
6
Omit "Sunday or holiday", substitute "Saturday, Sunday or holiday".
7
2 Subparagraph 64AAA(3)(a)(i)
8
Omit "Sunday or holiday", substitute "Saturday, Sunday or holiday".
9
3 Application provision
10
The amendments made by items 1 and 2 of this Schedule apply to
11
arrivals at a port in Australia less than 24 hours before, or at or after, the
12
commencement of those items.
13
14
Infringement notices Schedule 2
Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No. ,
2008 5
1
Schedule 2
--
Infringement notices
2
3
Customs Act 1901
4
1 After paragraph 243Z(1)(f)
5
Insert:
6
(fa) state that, if the person pays to the CEO, before the end of the
7
period referred to in paragraph (f):
8
(i) the penalty; and
9
(ii) in the case of an alleged offence against section 243T--
10
any unpaid duty or any unrepaid refund or drawback of
11
duty;
12
the person cannot be prosecuted for the alleged offence and
13
will not be regarded as having been convicted of the offence;
14
and
15
16
Schedule 3 Cargo reports
6 Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No.
, 2008
1
Schedule 3
--
Cargo reports
2
3
Customs Act 1901
4
1 After subsection 64AB(14)
5
Insert:
6
(14A) A cargo reporter who is required to make a cargo report in respect
7
of particular goods is not liable to be prosecuted for, and cannot be
8
served with an infringement notice under Division 5 of Part XIII
9
for, an offence against this section if:
10
(a) the cargo reporter made a cargo report, but contravened
11
subsection (8) because the report was not made before the
12
start of a certain period; and
13
(b) the time (the actual time of arrival) at which the ship or
14
aircraft in question arrived at the first port or airport in
15
Australia since it last departed from a port or airport outside
16
Australia was later than the estimated time of arrival referred
17
to in subsection (8); and
18
(c) the cargo reporter would not have contravened subsection (8)
19
if the estimated time of arrival of the ship or aircraft had been
20
its actual time of arrival.
21
22
Missing goods and goods delivered without authority Schedule 4
Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No. ,
2008 7
1
Schedule 4
--
Missing goods and goods
2
delivered without authority
3
4
Customs Act 1901
5
1 At the end of paragraphs 35A(1)(b), (1A)(c) and (1B)(b)
6
Add "in accordance with section 37".
7
Note:
The heading to section 35A is replaced by the heading "Amount payable for failure to
8
keep dutiable goods safely etc.".
9
2 After section 35A
10
Insert:
11
36 Offences for failure to keep goods safely or failure to account for
12
goods
13
Offences for failure to keep goods safely
14
(1) A person commits an offence if:
15
(a) goods are subject to the control of the Customs; and
16
(b) the person has, or has been entrusted with, the possession,
17
custody or control of the goods; and
18
(c) the person fails to keep the goods safely.
19
Penalty: 500 penalty units.
20
(2) A person commits an offence if:
21
(a) goods are subject to the control of the Customs; and
22
(b) the person has, or has been entrusted with, the possession,
23
custody or control of the goods; and
24
(c) the person fails to keep the goods safely.
25
Penalty: 60 penalty units.
26
(3) An offence against subsection (2) is an offence of strict liability.
27
Note:
For strict liability, see section 6.1 of the Criminal Code.
28
Schedule 4 Missing goods and goods delivered without authority
8 Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No.
, 2008
Offences for failure to account for goods
1
(4) A person commits an offence if:
2
(a) goods are subject to the control of the Customs; and
3
(b) the person has, or has been entrusted with, the possession,
4
custody or control of the goods; and
5
(c) the person, when so requested by a Collector, does not
6
account for the goods to the satisfaction of a Collector in
7
accordance with section 37.
8
Penalty: 500 penalty units.
9
(5) A person commits an offence if:
10
(a) goods are subject to the control of the Customs; and
11
(b) the person has an authority to deal with the goods, or is given
12
a permission under section 71E in relation to the goods; and
13
(c) the goods are taken, in accordance with the authority to deal
14
or by authority of the permission under section 71E, from a
15
place for removal to another place; and
16
(d) the goods are not, or part of the goods is not, delivered to that
17
other place; and
18
(e) the person, when so requested by a Collector, does not
19
account for the goods or for that part of the goods (as the case
20
may be) to the satisfaction of a Collector in accordance with
21
section 37.
22
Penalty: 500 penalty units.
23
(6) A person commits an offence if:
24
(a) goods are subject to the control of the Customs; and
25
(b) the person has, or has been entrusted with, the possession,
26
custody or control of the goods; and
27
(c) the person, when so requested by a Collector, does not
28
account for the goods to the satisfaction of a Collector in
29
accordance with section 37.
30
Penalty: 60 penalty units.
31
(7) A person commits an offence if:
32
(a) goods are subject to the control of the Customs; and
33
(b) the person has an authority to deal with the goods, or is given
34
a permission under section 71E in relation to the goods; and
35
Missing goods and goods delivered without authority Schedule 4
Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No. ,
2008 9
(c) the goods are taken, in accordance with the authority to deal
1
or by authority of the permission under section 71E, from a
2
place for removal to another place; and
3
(d) the goods are not, or part of the goods is not, delivered to that
4
other place; and
5
(e) the person, when so requested by a Collector, does not
6
account for the goods or for that part of the goods (as the case
7
may be) to the satisfaction of a Collector in accordance with
8
section 37.
9
Penalty: 60 penalty units.
10
(8) An offence against subsection (6) or (7) is an offence of strict
11
liability.
12
Note:
For strict liability, see section 6.1 of the Criminal Code.
13
Removal of goods by authority of section 71E permission
14
(9) Without limiting subsection (1), (2), (4) or (6), if goods are
15
removed to a place other than a warehouse by authority of a
16
permission given to a person under section 71E, the person is taken
17
to have, or to have been entrusted with, the possession, custody or
18
control of the goods for the purposes of paragraph (1)(b), (2)(b),
19
(4)(b) or (6)(b).
20
Other liabilities not affected
21
(10) This section does not affect the liability of a person arising under
22
or by virtue of:
23
(a) any other provision of this Act; or
24
(b) a security given under this Act.
25
37 Accounting for goods
26
A person accounts for goods or a part of goods to the satisfaction
27
of a Collector in accordance with this section if, and only if:
28
(a) the Collector sights the goods; or
29
(b) if the Collector is unable to sight the goods--the person
30
satisfies the Collector that the goods have been dealt with in
31
accordance with this Act.
32
3 Subsection 243X(1)
33
Schedule 4 Missing goods and goods delivered without authority
10 Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008
No. , 2008
After "33(2), (3) or (6),", insert "36(2), (6) or (7),".
1
2
Boarding powers and the United Nations Convention on the Law o f the Sea Schedule 5
Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No. ,
2008 11
1
Schedule 5
--
Boarding powers and the United
2
Nations Convention on the Law of the
3
Sea
4
5
Customs Act 1901
6
1 Subsection 184A(1)
7
Repeal the subsection, substitute:
8
General power to board a ship
9
(1) In the circumstances described in subsection (2), (3), (4), (4A), (5),
10
(6), (7), (8) or (9), an officer (within the meaning of section 185)
11
may board a ship.
12
Note:
Sections 185 and 185A give further powers related to boarding a ship.
13
Note:
The heading to section 184A is replaced by the heading "Power to board a ship".
14
2 Subsection 184A(2)
15
Omit "The commander may make the request if", substitute "The
16
officer may board a ship if".
17
3 Paragraphs 184A(2)(a) and (b)
18
Omit "master's".
19
4 Subparagraph 184A(2)(c)(i)
20
Omit "the commander makes the request for the purposes of this Act or
21
an Act prescribed by the regulations consistently with UNCLOS",
22
substitute "the boarding would be for the purposes of this Act or an Act
23
prescribed by the regulations for the purposes of this Subdivision".
24
5 Subparagraph 184A(2)(c)(ii)
25
Omit "the commander reasonably suspects that the master's ship",
26
substitute "the commander of a Commonwealth ship or Commonwealth
27
aircraft reasonably suspects that the ship".
28
6 Subsection 184A(3)
29
Schedule 5 Boarding powers and the United Nations Convention on the Law of the Sea
12 Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008
No. , 2008
Omit "The commander may make the request if", substitute "The
1
officer may board a ship if".
2
7 Paragraphs 184A(3)(a) and (b)
3
Omit "master's".
4
8 Subsection 184A(3)
5
Omit "The commander must not make the request under this subsection
6
if it may be made under", substitute "However, this subsection does not
7
apply if the ship may be boarded under".
8
9 Subsection 184A(4)
9
Omit "The commander may make the request if", substitute "The
10
officer may board a ship if".
11
Note:
The heading to subsection 184A(4) is altered by omitting "or near installations".
12
10 Paragraph 184A(4)(a)
13
Omit "master's".
14
11 Paragraph 184A(4)(b)
15
Repeal the paragraph, substitute:
16
(b) the ship is in the contiguous zone of Australia; and
17
12 Paragraph 184A(4)(c)
18
After "commander", insert "of a Commonwealth ship or
19
Commonwealth aircraft".
20
13 Subparagraphs 184A(4)(c)(i) and (ii)
21
Omit "master's".
22
14 Subparagraph 184A(4)(c)(ii)
23
Omit "consistently with UNCLOS", substitute "for the purposes of this
24
Subdivision".
25
15 After subsection 184A(4)
26
Insert:
27
Boarding powers and the United Nations Convention on the Law o f the Sea Schedule 5
Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No. ,
2008 13
Foreign ships near installations
1
(4A) The officer may board a ship if:
2
(a) the ship is a foreign ship; and
3
(b) the ship is within 500 metres of an Australian resources
4
installation or Australian sea installation (the 500 metre
5
zone); and
6
(c) the commander of a Commonwealth ship or Commonwealth
7
aircraft:
8
(i) wishes to establish the identity of the ship; or
9
(ii) reasonably suspects that the ship is, will be or has been
10
involved in a contravention, or an attempted
11
contravention, in the 500 metre zone of this Act,
12
section 72.13 or Division 307 of the Criminal Code or
13
an Act prescribed by the regulations for the purposes of
14
this Subdivision.
15
16 Subsection 184A(5)
16
Omit "The commander may make the request if", substitute "The
17
officer may board a ship if".
18
17 Paragraphs 184A(5)(a) and (b)
19
Omit "master's".
20
18 Subparagraph 184A(5)(b)(ii)
21
Repeal the subparagraph.
22
19 Paragraph 184A(5)(c)
23
Omit "reasonably suspects that the master's ship", substitute "of a
24
Commonwealth ship or Commonwealth aircraft reasonably suspects
25
that the ship".
26
20 Paragraph 184A(5)(c)
27
Omit "consistently with UNCLOS", substitute "for the purposes of this
28
Subdivision".
29
21 Paragraph 184A(5)(d)
30
Repeal the paragraph, substitute:
31
(d) the boarding occurs as soon as practicable after the
32
contravention happens.
33
Schedule 5 Boarding powers and the United Nations Convention on the Law of the Sea
14 Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008
No. , 2008
22 Subsection 184A(6)
1
Omit "The commander may make the request if", substitute "The
2
officer may board a ship if".
3
23 Paragraphs 184A(6)(a) and (b)
4
Omit "master's".
5
24 Paragraph 184A(6)(c)
6
Omit "reasonably suspects that the master's ship", substitute "of a
7
Commonwealth ship or Commonwealth aircraft reasonably suspects
8
that the ship".
9
25 Paragraph 184A(6)(c)
10
Omit "consistently with UNCLOS", substitute "for the purposes of this
11
Subdivision".
12
26 Subsection 184A(7)
13
Omit "The commander may make the request if", substitute "The
14
officer may board a ship if".
15
27 Paragraphs 184A(7)(a) and (b)
16
Omit "master's".
17
28 Subparagraph 184A(7)(b)(ii)
18
Repeal the subparagraph.
19
29 Paragraph 184A(7)(c)
20
Omit "reasonably suspects that the master's ship", substitute "of a
21
Commonwealth ship or Commonwealth aircraft reasonably suspects
22
that the ship".
23
30 Paragraph 184A(7)(c)
24
Omit "consistently with UNCLOS", substitute "for the purposes of this
25
Subdivision".
26
31 Paragraph 184A(7)(d)
27
Repeal the paragraph, substitute:
28
(d) the boarding occurs as soon as practicable after the
29
contravention happens.
30
Boarding powers and the United Nations Convention on the Law o f the Sea Schedule 5
Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No. ,
2008 15
32 Subsection 184A(8)
1
Omit "The commander may make the request if", substitute "The
2
officer may board a ship if".
3
33 Paragraph 184A(8)(a)
4
Omit "master's".
5
34 Paragraph 184A(8)(b)
6
Omit "reasonably suspects that the master's ship", substitute "of a
7
Commonwealth ship or Commonwealth aircraft reasonably suspects
8
that the ship".
9
35 Subsection 184A(8)
10
Omit "The commander must not make the request under this subsection
11
if it may be made under subsection (5), (6) or (7)", substitute "However,
12
this subsection does not apply if the ship may be boarded under
13
subsection (4A), (5), (6) or (7)".
14
36 Subsection 184A(9)
15
Omit "The commander may make the request if", substitute "The
16
officer may board a ship if".
17
37 Paragraph 184A(9)(a)
18
Repeal the paragraph, substitute:
19
(a) the ship is outside the territorial sea of a foreign country; and
20
38 Subparagraph 184A(9)(b)(i)
21
Omit "master's".
22
39 Subparagraph 184A(9)(b)(ii)
23
Omit "master's" (first occurring).
24
40 Subparagraphs 184A(9)(b)(ii) and (iii)
25
Omit "reasonably suspects that the master's ship", substitute "of a
26
Commonwealth ship or Commonwealth aircraft reasonably suspects
27
that the ship".
28
41 Paragraph 184A(9)(c)
29
Repeal the paragraph, substitute:
30
Schedule 5 Boarding powers and the United Nations Convention on the Law of the Sea
16 Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008
No. , 2008
(c) the commander of a Commonwealth ship or Commonwealth
1
aircraft wishes to establish the identity of the ship.
2
42 Subsection 184A(9)
3
Omit "The commander must not make the request under this subsection
4
if it may be made under subsection (5), (6), (7) or (8)", substitute
5
"However, this subsection does not apply if the ship may be boarded
6
under subsection (4A), (5), (6), (7) or (8)".
7
43 Subsections 184A(10) and (11)
8
Repeal the subsections.
9
44 Subsection 184A(12)
10
Omit "comply with a request made under this section (other than
11
subsection (9))", substitute "facilitate, by all reasonable means, the
12
boarding of the master's ship under this section (apart from
13
subsection (9))".
14
Note:
The heading to subsection 184A(12) is altered by omitting "comply with request" and
15
substituting "facilitate boarding".
16
45 Subsection 184A(12) (note)
17
Repeal the note, substitute:
18
Note:
The powers related to boarding under section 185 or 185A may still be
19
exercised even though the master has not facilitated the boarding of
20
his or her ship under this section.
21
46 Subsection 184A(14) (at the end of the definition of
22
commander)
23
Add:
24
; (c) a warrant officer of the Australian Defence Force;
25
(d) a non-commissioned officer of the Australia Defence Force.
26
47 Subsection 184A(14) (definition of member of the
27
commander's crew
)
28
Repeal the definition.
29
48 Subsection 184A(14)
30
Insert:
31
Boarding powers and the United Nations Convention on the Law o f the Sea Schedule 5
Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No. ,
2008 17
non-commissioned officer of the Australian Defence Force
1
means a non-commissioned officer within the meaning of the
2
Defence Force Discipline Act 1982.
3
49 Subsection 184A(14)
4
Insert:
5
warrant officer of the Australian Defence Force means a sailor,
6
soldier or airman who holds the rank of warrant officer.
7
50 Subsections 184B(1) and (2)
8
Repeal the subsections, substitute:
9
Generally, a foreign ship may be chased if it may be boarded and
10
an order to stop is given
11
(1) To enable the boarding of a foreign ship under section 184A (apart
12
from subsection 184A(9)), the commander of a Commonwealth
13
ship or Commonwealth aircraft may use it to chase, or continue the
14
chase of, the foreign ship to any place outside the territorial sea of
15
a foreign country if:
16
(a) a visual or auditory signal:
17
(i) to bring the foreign ship to a position to enable
18
boarding; or
19
(ii) to stop the foreign ship;
20
has been given (whether by the commander of the
21
Commonwealth ship or Commonwealth aircraft or
22
otherwise); and
23
(b) the signal was given in such a way that it could be seen or
24
heard (as the case may be) by the foreign ship; and
25
(c) at the time the signal was given, the foreign ship was in a
26
maritime zone in which it could be boarded under
27
section 184A (regardless of the location of the
28
Commonwealth ship or Commonwealth aircraft).
29
Note:
Subsection 184A(9) is about boarding ships without nationality that
30
are on the high seas. Section 185A allows those ships to be boarded,
31
even though the master of the ship has not facilitated the boarding of
32
his or her ship.
33
Schedule 5 Boarding powers and the United Nations Convention on the Law of the Sea
18 Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008
No. , 2008
Signal made even if not seen or heard by foreign ship
1
(1A) To avoid doubt, a visual or auditory signal mentioned in
2
subsection (1) is still made even if no person on board the foreign
3
ship saw, heard or understood the signal.
4
Using different Commonwealth ships or aircraft
5
(2) To avoid doubt, a Commonwealth ship or Commonwealth aircraft
6
may be used in the chase:
7
(a) whether or not it was a Commonwealth ship or
8
Commonwealth aircraft referred to in section 184A in
9
relation to the boarding of the foreign ship under that section;
10
and
11
(b) whether or not the visual or auditory signal referred to in
12
subsection (1) was given from the ship or aircraft.
13
51 Subsection 184B(3)
14
Omit "the commander could have made a request to board the foreign
15
ship", substitute "the foreign ship could have been boarded".
16
52 Paragraph 185(1)(a)
17
Omit "a request to board the ship has been made", substitute "the ship
18
may be boarded".
19
53 Subsection 185(1)
20
Omit "a request to board the ship has been made", substitute "the ship
21
may be boarded".
22
54 Subsection 185(1) (note)
23
Repeal the note, substitute:
24
Note:
Section 185A gives further powers relating to ships that may be
25
boarded under subsection 184A(8) or (9).
26
55 Subparagraph 185(2)(d)(i)
27
Omit "consistently with UNCLOS", substitute "for the purposes of this
28
Subdivision".
29
56 Sub-subparagraph 185(2)(d)(ii)(A)
30
Boarding powers and the United Nations Convention on the Law o f the Sea Schedule 5
Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No. ,
2008 19
Omit "consistently with UNCLOS", substitute "for the purposes of this
1
Subdivision".
2
57 Sub-subparagraph 185(2)(d)(ii)(B)
3
Omit "consistently with UNCLOS", substitute "for the purposes of this
4
Subdivision".
5
58 After subsection 185(2)
6
Insert:
7
(2AA) If one or more officers (other than officers who are members of the
8
Australian Defence Force) board a ship under this section, the most
9
senior of those officers who is an officer of Customs must:
10
(a) if requested to do so by the master of the ship; and
11
(b) as soon as reasonably practicable after boarding;
12
produce, for inspection by the master, written evidence of the fact
13
that the officer is an officer within the meaning of this section.
14
(2AB) If the officer fails to produce the evidence mentioned in
15
subsection (2AA), no officer may remain on board the ship.
16
59 Paragraph 185(3)(a)
17
Omit "an Act prescribed consistently with UNCLOS", substitute "an
18
Act prescribed by the regulations for the purposes of this Subdivision".
19
60 Subparagraphs 185(3)(c)(i) and (ii)
20
Omit "an Act prescribed consistently with UNCLOS", substitute "an
21
Act prescribed by the regulations for the purposes of this Subdivision".
22
61 Subparagraph 185(5)(a)(i)
23
Repeal the subparagraph, substitute:
24
(i) a Commonwealth ship or Commonwealth aircraft
25
referred to in section 184A in relation to the boarding
26
under that section of the ship to which this section
27
applies; or
28
(ia) the aircraft from which the relevant request under
29
section 184D was made; or
30
62 Subsection 185A(1)
31
Repeal the subsection, substitute:
32
Schedule 5 Boarding powers and the United Nations Convention on the Law of the Sea
20 Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008
No. , 2008
(1) This section applies to a ship if:
1
(a) the ship may be boarded under subsection 184A(8) (boarding
2
a ship of a country with which Australia has an agreement),
3
and the ship is:
4
(i) outside the outer edge of the contiguous zone of
5
Australia; and
6
(ii) outside the territorial sea of any country (including
7
Australia); or
8
(b) the ship may be boarded under subsection 184A(9) (boarding
9
a ship without nationality), and the ship is outside the
10
territorial sea of a foreign country.
11
63 After subsection 185A(2)
12
Insert:
13
(2A) If one or more officers (other than officers who are members of the
14
Australian Defence Force) board a ship under this section, the most
15
senior of those officers who is an officer of Customs must:
16
(a) if requested to do so by the master of the ship; and
17
(b) as soon as reasonably practicable after boarding;
18
produce, for inspection by the master, written evidence of the fact
19
that the officer is an officer within the meaning of this section.
20
(2B) If the officer fails to produce the evidence mentioned in
21
subsection (2AA), no officer may remain on board the ship.
22
64 Subsection 185A(7)
23
Repeal the subsection, substitute:
24
(7) In this section:
25
officer has the meaning given by subsection 4(1), and includes:
26
(a) any person who is in command, or a member of the crew, of:
27
(i) a Commonwealth ship or Commonwealth aircraft
28
referred to in section 184A in relation to the boarding
29
under that section of a ship; or
30
(ii) a ship that was used under section 184B to chase the
31
ship in relation to which this section applies; and
32
(b) a police officer; and
33
(c) a member of the Australian Defence Force.
34
Boarding powers and the United Nations Convention on the Law o f the Sea Schedule 5
Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No. ,
2008 21
65 Subsection 228(1)
1
Omit "(1) The following", substitute "The following".
2
66 Paragraph 228(1)(2)
3
Omit "refused to permit his or her ship to be boarded following a
4
request properly made of him or her", substitute "failed to facilitate, by
5
all reasonable means, the boarding of his or her ship".
6
67 At the end of section 270
7
Add:
8
(6) Regulations for the purposes of Subdivision B of Division 1 of
9
Part XII must not prescribe an Act unless the Act deals with a
10
subject matter in relation to which UNCLOS gives Australia
11
jurisdiction.
12
13
Schedule 6 Impending arrival reports for pleasure craft
Part 1 A mend ments
22 Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008
No. , 2008
1
Schedule 6
--
Impending arrival reports for
2
pleasure craft
3
Part 1
--
Amendments
4
Customs Act 1901
5
1 Subsection 4(1)
6
Insert:
7
pleasure craft means a ship that from the time of its arrival at its
8
first port of arrival in Australia from a place outside Australia until
9
the time of its departure from its last port of departure in Australia
10
is:
11
(a) used or intended to be used wholly for recreational activities,
12
sporting activities or both; and
13
(b) not used or intended to be used for any commercial activity;
14
and
15
(c) not offered or intended to be offered for sale or disposal.
16
2 Subsection 64(5)
17
After "a ship", insert "(other than a pleasure craft)".
18
3 After subsection 64(5)
19
Insert:
20
(5A) A report of the impending arrival of a pleasure craft must be made:
21
(a) not earlier than the prescribed number of days before the time
22
stated in the report to be the estimated time of arrival of the
23
pleasure craft; and
24
(b) not later than:
25
(i) the start of the prescribed period before its estimated
26
time of arrival; or
27
(ii) if the journey is of a kind described in regulations made
28
for the purposes of this subparagraph--the start of the
29
shorter period specified in those regulations before its
30
estimated time of arrival.
31
Impending arrival reports for pleasure craft Schedule 6
Amend ments Part 1
Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No. ,
2008 23
4 Subsection 64(6)
1
After "paragraph (5)(b)", insert "or (5A)(b)".
2
3
Schedule 6 Impending arrival reports for pleasure craft
Part 2 Application provision
24 Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008
No. , 2008
1
Part 2
--
Application provision
2
5 Application
3
The amendments made by this Schedule apply in relation to a pleasure
4
craft if the start of the period, referred to in subparagraph 64(5A)(b)(i)
5
or (ii) (as the case requires) of the Customs Act 1901 as in force after
6
the commencement of this Schedule, is on or after the day on which this
7
Schedule commences.
8
9
Use of devices to stop or impede a ship Schedule 7
Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No. ,
2008 25
1
Schedule 7
--
Use of devices to stop or impede
2
a ship
3
4
Customs Act 1901
5
1 At the end of subsection 184B(6)
6
Add:
7
; and (c) where necessary, using a device designed to stop or impede a
8
ship.
9
2 At the end of subsection 184C(3)
10
Add:
11
; and (c) where necessary, using a device designed to stop or impede a
12
ship.
13
14
Schedule 8 Po wer to request aircraft to land
26 Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008
No. , 2008
1
Schedule 8
--
Power to request aircraft to land
2
3
Customs Act 1901
4
1 At the end of subsection 184D(3)
5
Add:
6
; or (c) the commander reasonably suspects that the other aircraft is
7
carrying goods satisfying either or both of the following
8
subparagraphs:
9
(i) the goods are connected, whether directly or indirectly,
10
with the carrying out of a terrorist act, whether a
11
terrorist act has occurred, is occurring or is likely to
12
occur;
13
(ii) the existence or the shipment of the goods prejudices, or
14
is likely to prejudice, Australia's defence or security or
15
international peace and security.
16
17
Seizing unaccounted for goods and storing or taking custody of prohibited items
Schedule 9
Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No. ,
2008 27
1
Schedule 9
--
Seizing unaccounted for goods
2
and storing or taking custody of
3
prohibited items
4
5
Customs Act 1901
6
1 Subsection 183UA(1) (definition of special forfeited goods)
7
Omit "(b) or (n)", substitute "(b), (e) or (n)".
8
2 Part XIIA (heading)
9
Repeal the heading, substitute:
10
Part XIIA--Special provisions relating to
11
prohibited items
12
3 Section 227A
13
Omit "weapons", substitute "items".
14
4 Paragraphs 227A(a) and (b)
15
Omit "the weapon", substitute "the item".
16
5 Section 227B
17
Insert:
18
prohibited item means a thing to which this Part applies because of
19
section 227D.
20
6 Section 227B (definition of prohibited weapon)
21
Repeal the definition.
22
7 Section 227D
23
Repeal the section, substitute:
24
227D Items to which this Part applies
25
This Part applies to any thing if:
26
Schedule 9 Seizing unaccounted for goods and storing or taking custody of prohibited
items
28 Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008
No. , 2008
(a) it is on board a ship or an aircraft to which this Part applies;
1
and
2
(b) its importation is:
3
(i) prohibited absolutely by the Customs (Prohibited
4
Imports) Regulations 1956; or
5
(ii) prohibited by those regulations unless a licence,
6
permission, consent, approval or other document
7
(however described) is granted or given, and such a
8
licence, permission, consent, approval or other
9
document has not been granted or given; and
10
(c) either:
11
(i) it is, or should have been, specified in a report given by
12
the operator under section 64AAA as part of the stores
13
of the ship or aircraft; or
14
(ii) it is part of the personal effects of the crew of the ship
15
or aircraft.
16
8 Subsection 227E(1)
17
Omit "prohibited weapon", substitute "prohibited item".
18
Note:
The heading to section 227E is altered by omitting "weapons" and substituting "items".
19
9 Paragraph 227E(2)(b)
20
Omit "weapon", substitute "item".
21
10 Subsection 227E(5)
22
Omit "prohibited weapon", substitute "prohibited item".
23
11 Paragraph 227E(5)(b)
24
Omit "weapon", substitute "item".
25
12 Subsection 227F(1)
26
Omit "weapon" (wherever occurring), substitute "item".
27
Note:
The heading to section 227F is altered by omitting "weapons" and substituting "items".
28
13 Subsections 227F(2), (4), (5) and (6)
29
Omit "weapon", substitute "item".
30
14 Subsection 227F(7)
31
Seizing unaccounted for goods and storing or taking custody of prohibited items
Schedule 9
Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No. ,
2008 29
Omit "weapon" (wherever occurring), substitute "item".
1
15 Subsection 227G(1)
2
Omit "weapon" (wherever occurring), substitute "item".
3
Note:
The heading to section 227G is altered by omitting "weapons" and substituting "items".
4
5
Schedule 10 Powers of arrest
Part 1 A mend ments
30 Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008
No. , 2008
1
Schedule 10
--
Powers of arrest
2
Part 1
--
Amendments
3
Customs Act 1901
4
1 Subsection 183UA(1)
5
Insert:
6
seizable item means anything that would present a danger to a
7
person or that could be used to assist a person to escape from
8
lawful custody.
9
2 Subdivision H of Division 1 of Part XII
10
Repeal the Subdivision, substitute:
11
Subdivision H--Arrest and related matters
12
210 Powe r of arrest without warrant
13
(1) An officer of Customs or police may without warrant arrest a
14
person if the officer believes on reasonable grounds that:
15
(a) the person has committed or is committing one or more of the
16
following offences:
17
(i) an offence against subsection 33(1) or 33(5);
18
(ii) an offence against section 231 or 233;
19
(iii) an offence against subsection 233BAA(4) or (5),
20
233BAB(5) or (6), 233BABAB(1) or 233BABAC(1);
21
(iv) an offence against section 72.13 or Division 307 of the
22
Criminal Code;
23
(v) an offence against section 308.2 of the Criminal Code
24
where the substance involved in the offence is
25
reasonably suspected of having been imported into
26
Australia, or being intended for export from Australia,
27
in contravention of this Act;
28
(vi) an offence against section 147.1, 147.2 or 149.1 of the
29
Criminal Code in relation to an officer of Customs; and
30
(b) proceedings by summons against the person would not
31
achieve one or more of the following purposes:
32
Powers of arrest Schedule 10
Amend ments Part 1
Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No. ,
2008 31
(i) ensuring the appearance of the person before a court in
1
respect of the offence;
2
(ii) preventing a repetition or continuation of the offence or
3
the commission of another offence;
4
(iii) preventing the concealment, loss or destruction of
5
evidence relating to the offence;
6
(iv) preventing harassment of, or interference with, a person
7
who may be required to give evidence in proceedings in
8
respect of the offence;
9
(v) preventing the fabrication of evidence in respect of the
10
offence;
11
(vi) preserving the safety or welfare of the person.
12
(2) A person commits an offence if the person resists, obstructs or
13
prevents the arrest of any person under this section.
14
Penalty: 10 penalty units.
15
(3) If:
16
(a) a person has been arrested for an offence under
17
subsection (1); and
18
(b) before the person is charged with the offence, the officer of
19
Customs or police in charge of the investigation ceases to
20
believe on reasonable grounds:
21
(i) that the person committed the offence; or
22
(ii) that holding the person in custody is necessary to
23
achieve a purpose referred to in paragraph (1)(b);
24
the person must be released.
25
(4) An officer of Customs or police may without warrant arrest a
26
person whom he or she believes on reasonable grounds has escaped
27
from lawful custody to which the person is still liable under this
28
Subdivision.
29
210A Use of force in making arrest
30
(1) An officer of Customs or police must not, in the course of arresting
31
a person under section 210, use more force, or subject the person to
32
greater indignity, than is necessary and reasonable to make the
33
arrest or to prevent the escape of the person after the arrest.
34
Schedule 10 Powers of arrest
Part 1 A mend ments
32 Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008
No. , 2008
(2) Without limiting the operation of subsection (1), an officer of
1
Customs or police must not, in the course of arresting a person
2
under section 210, do anything that is likely to cause the death of,
3
or grievous bodily harm to, the person unless:
4
(a) the officer believes on reasonable grounds that doing that
5
thing is necessary to protect life or to prevent serious injury
6
to another person (including the officer); or
7
(b) if the person is attempting to escape arrest by fleeing:
8
(i) the officer believes on reasonable grounds that doing
9
that thing is necessary to protect life or to prevent
10
serious injury to another person (including the officer);
11
and
12
(ii) the person has, if practicable, been called on to
13
surrender and the officer believes on reasonable grounds
14
that the person cannot be apprehended in any other
15
manner.
16
210B Person to be informed of grounds of arrest
17
(1) An officer of Customs or police who arrests a person under
18
section 210 must inform the person, at the time of the arrest, of the
19
offence for which the person is being arrested.
20
(2) It is sufficient if the person is informed of the substance of the
21
offence, and it is not necessary that this be done in language of a
22
precise or technical nature.
23
(3) Subsection (1) does not apply to the arrest of the person if:
24
(a) the person should, in the circumstances, know the substance
25
of the offence for which he or she is being arrested; or
26
(b) the person's actions make it impracticable for the officer to
27
inform the person of the offence for which he or she is being
28
arrested.
29
211 Powe r to conduct a frisk search of an arrested person
30
An officer of Customs or police who arrests a person under
31
section 210, or who is present at such an arrest, may, if the officer
32
suspects on reasonable grounds that it is prudent to do so in order
33
to ascertain whether the person is carrying any seizable items:
34
(a) conduct a frisk search of the person at or soon after the time
35
of arrest; and
36
Powers of arrest Schedule 10
Amend ments Part 1
Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No. ,
2008 33
(b) seize any seizable items found as a result of the search.
1
211A Powe r to conduct an ordinary search of an arrested person
2
An officer of Customs or police who arrests a person under
3
section 210, or who is present at such an arrest, may, if the officer
4
suspects on reasonable grounds that the person is carrying:
5
(a) evidential material in relation to the offence for which the
6
person is arrested or another offence; or
7
(b) a seizable item;
8
conduct an ordinary search of the person at or soon after the time
9
of arrest, and seize any such thing found as a result of the search.
10
212 How arrested person to be dealt with
11
An officer of Customs who arrests a person under section 210 must
12
ensure that the person is either:
13
(a) delivered into the custody of a police officer; or
14
(b) taken before a magistrate or bail justice;
15
as soon as practicable to be dealt with according to law.
16
213 Requirement to provide name etc.
17
(1) An officer of Customs or police may request a person arrested
18
under section 210 to provide his or her name or address, or name
19
and address, to the officer if the person's name or address is, or
20
name and address are, unknown to the officer.
21
(2) A person commits an offence if:
22
(a) an officer of Customs or police:
23
(i) has made a request of a person under subsection (1); and
24
(ii) has complied with any request that the person has made
25
under paragraph (4)(b); and
26
(b) the person refuses or fails to comply with the request, or
27
gives a name or address that is false in a material particular.
28
Penalty: 5 penalty units.
29
(3) Subsection (2) does not apply if the person has a reasonable
30
excuse.
31
Schedule 10 Powers of arrest
Part 1 A mend ments
34 Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008
No. , 2008
Note:
A defendant bears an evidential burden in relation to the matter in
1
subsection (3) (see subsection 13.3(3) of the Criminal Code).
2
(4) An officer of Customs or police commits an offence if:
3
(a) the officer makes a request of a person under subsection (1);
4
and
5
(b) the person requests the officer to provide to the person:
6
(i) his or her name or the address of his or her place of
7
duty; or
8
(ii) his or her name and that address; or
9
(iii) if he or she is not in uniform and it is practicable for the
10
officer to provide the evidence--evidence that he or she
11
is an officer; and
12
(c) the officer refuses or fails to comply with the request, or
13
gives a name or address that is false in a material particular.
14
Penalty: 5 penalty units.
15
Financial Transaction Reports Act 1988
16
3 Subsection 33A(4)
17
Omit "sections 212 and 213 of the Customs Act 1901 apply", substitute
18
"section 212 of the Customs Act 1901 applies".
19
20
Powers of arrest Schedule 10
Application provision Part 2
Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No. ,
2008 35
1
Part 2
--
Application provision
2
4 Application to arrests made before commencement of this
3
Schedule
4
(1)
The amendments made by this Schedule do not affect the validity of an
5
arrest made before the commencement of this Schedule.
6
(2)
Subject to subitem (3), the amendments made by this Schedule do not
7
apply in relation to an arrest made before the commencement of this
8
Schedule.
9
(3)
Subsections 210(3) and (4) of the Customs Act 1901 as in force after the
10
commencement of this Schedule apply in relation to a person arrested
11
under section 210 of that Act before the commencement of this
12
Schedule as if he or she had been arrested under that section after that
13
commencement.
14
15
Schedule 11 Warrants
36 Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008
No. , 2008
1
Schedule 11
--
Warrants
2
3
Customs Act 1901
4
1 Subsection 203G(5) (paragraph (a) of the definition of a
5
copy of the warrant)
6
Omit "and the seal of the relevant court".
7
8
Co mmonwealth property in Customs places Schedule 12
Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No. ,
2008 37
1
Schedule 12
--
Commonwealth property in
2
Customs places
3
4
Customs Act 1901
5
1 After section 33B
6
Insert:
7
33C Obstructing or interfering with Commonwealth property in a
8
Customs place
9
(1) A person commits an offence if:
10
(a) the person intentionally obstructs or interferes with the
11
operation of a thing; and
12
(b) the thing belongs to the Commonwealth; and
13
(c) the thing is located in a Customs place.
14
Penalty: 60 penalty units.
15
(2) Absolute liability applies to paragraph (1)(b).
16
Note:
For absolute liability, see section 6.2 of the Criminal Code.
17
(3) In this section:
18
Customs place has the same meaning as in section 183UA.
19
2 Subparagraph 210(1)(a)(ii)
20
Omit "231", substitute "33C, 231".
21
22
Schedule 13 Power to moor
38 Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008
No. , 2008
1
Schedule 13
--
Power to moor
2
3
Customs Act 1901
4
1 Section 194
5
Repeal the section, substitute:
6
194 Ships on service may be moored in any place
7
(1) The officer in charge of a ship employed in the service of the
8
Customs may:
9
(a) moor, or haul up and moor, the ship to:
10
(i) any part of the coast or the shores, banks or beaches of
11
any port, bay, harbour, lake or river; or
12
(ii) any man-made structure at or in any of the places
13
mentioned in subparagraph (i); or
14
(iii) any man-made structure anywhere in the territorial sea
15
of Australia, the contiguous zone of Australia, or the
16
exclusive economic zone of Australia; and
17
(b) remain at the mooring as long as the officer considers
18
necessary.
19
(2) A person commits an offence if:
20
(a) the person is an owner, occupier or operator of any of the
21
places mentioned in paragraph (1)(a); and
22
(b) the person does not provide the officer with all reasonable
23
facilities and assistance that the person is reasonably capable
24
of providing; and
25
(c) the person does not do so in circumstances where the officer
26
is exercising, or attempting to exercise, his or her powers
27
under this section.
28
Penalty: 30 penalty units.
29
30
Facilitation of boarding Schedule 14
Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No. ,
2008 39
1
Schedule 14
--
Facilitation of boarding
2
3
Customs Act 1901
4
1 After section 61
5
Insert:
6
61A Owne r or operator of port etc. to facilitate boarding
7
(1) An officer of Customs may request an owner or operator of a port
8
or of a port facility to facilitate, by any reasonable means, the
9
boarding of a ship that is in the port or port facility by any person
10
who is authorised under this Act to board the ship.
11
(2) The owner or operator commits an offence if the owner or operator
12
fails to comply with the request.
13
Penalty: 30 penalty units.
14
(3) In this section:
15
port facility means an area of land or water, or land and water,
16
(including any buildings, installations or equipment in or on the
17
area) used either wholly or partly in connection with the loading,
18
unloading, docking or mooring of ships.
19
20
Schedule 15 Entering places other than ports or airports
40 Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008
No. , 2008
1
Schedule 15
--
Entering places other than
2
ports or airports
3
4
Customs Act 1901
5
1 Subsection 58(1)
6
Omit "suffer his or her ship or aircraft to enter any", substitute "bring
7
his or her ship or aircraft to a".
8
9
Right of access for patrols Schedule 16
Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No. ,
2008 41
1
Schedule 16
--
Right of access for patrols
2
3
Customs Act 1901
4
1 Section 193
5
Repeal the section, substitute:
6
193 Officers may enter and remain upon coasts etc.
7
(1) An officer of Customs may, for the purpose of performing the
8
officer's duties and functions as an officer, and a person assisting
9
an officer of Customs may, for the purpose of assisting the officer
10
to perform those duties and functions, enter and remain upon any
11
part of the following:
12
(a) the coast, including but not limited to:
13
(i) the shores, banks and beaches of the coast; and
14
(ii) any man-made structure in or on the coast;
15
(b) a port, bay or harbour, including but not limited to:
16
(i) the shores, banks and beaches of the port, bay or
17
harbour; and
18
(ii) any man-made structure in or on the port, bay or
19
harbour;
20
(c) an airport (including an airport that has not been appointed
21
under section 15) or airstrip;
22
(d) a lake or river, including but not limited to:
23
(i) the shores, banks and beaches of the lake or river; and
24
(ii) any man-made structure in or on the lake or river;
25
(e) for the purpose of entering and remaining upon a place
26
mentioned in paragraph (a), (b), (c), or (d)--an area of land
27
or water that is adjacent to that place.
28
For this purpose, reasonable means, including reasonable force,
29
may be used by the officer or the person assisting the officer.
30
(2) A person commits an offence if:
31
(a) the person is an owner, occupier or operator of any of the
32
places mentioned in subsection (1); and
33
(b) the person is present at the place mentioned in subsection (1)
34
at the time the officer, or the person assisting an officer, is
35
Schedule 16 Right of access for patrols
42 Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008
No. , 2008
exercising, or attempting to exercise, his or her powers under
1
this section; and
2
(c) the person does not provide the officer, or the person
3
assisting the officer, with all reasonable facilities and
4
assistance, including a means of access to the place, that the
5
person is reasonably capable of providing.
6
Penalty: 30 penalty units.
7
8
Search and seizure warrants Schedule 17
Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No. ,
2008 43
1
Schedule 17
--
Search and seizure warrants
2
3
Customs Act 1901
4
1 Paragraph 198(4)(b)
5
After "material", insert "or seizable items".
6
2 Subparagraph 199(1)(e)(i)
7
After "material", insert "or seizable items".
8
3 Subparagraph 199(1)(e)(ii)
9
After "material", insert "or items".
10
4 Paragraph 203(6)(b)
11
Omit "or any special forfeited goods", substitute ", special forfeited
12
goods or seizable items".
13
5 At the end of subsection 203(6)
14
Add:
15
; and (c) whether the warrant authorises an ordinary search or a frisk
16
search of a person who is at or near the premises when the
17
warrant is executed, if the executing officer or a person
18
assisting suspects on reasonable grounds that the person has
19
in his or her possession any relevant evidential material.
20
6 At the end of section 203
21
Add:
22
(10) In this section:
23
relevant evidential material means evidential material in relation
24
to an offence by reason of the commission of which goods are
25
believed to be:
26
(a) forfeited goods of the kind referred to in paragraph (5)(a); or
27
(b) special forfeited goods.
28
7 Subparagraph 203A(1)(e)(i)
29
Schedule 17 Search and seizu re warrants
44 Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008
No. , 2008
Omit "or special forfeited goods", substitute ", special forfeited goods
1
or seizable items".
2
8 Subparagraph 203A(1)(e)(ii)
3
After "goods", insert "or items".
4
9 At the end of subsection 203A(1)
5
Add:
6
; and (f) if the warrant so allows:
7
(i) to conduct an ordinary search or a frisk search of a
8
person who is at or near the premises if the executing
9
officer or a person assisting suspects on reasonable
10
grounds that the person has in his or her possession any
11
relevant evidential material; and
12
(ii) to seize any relevant evidential material found in the
13
course of that search.
14
10 At the end of section 203A
15
Add:
16
(7) In this section:
17
relevant evidential material means evidential material in relation
18
to an offence by reason of the commission of which goods are
19
believed to be:
20
(a) goods that are the subject of the warrant; or
21
(b) special forfeited goods.
22
11 After section 203H
23
Insert:
24
203HA Requirement to provide name or address etc.
25
Request to provide name or address etc.
26
(1) If:
27
(a) a search warrant or seizure warrant in relation to premises is
28
being executed; and
29
Search and seizure warrants Schedule 17
Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008 No. ,
2008 45
(b) the designated warrant officer believes on reasonable grounds
1
that a person who is at or near the premises may be able to
2
assist the officer in the execution of the warrant;
3
the officer may request the person to provide his or her name or
4
address, or name and address, to the officer.
5
Offence--person's refusal or failure to comply with request etc.
6
(2) A person commits an offence if:
7
(a) a designated warrant officer:
8
(i) has made a request of the person under subsection (1);
9
and
10
(ii) has informed the person of the reason for the request;
11
and
12
(iii) has complied with any request that the person has made
13
under paragraph (4)(b); and
14
(b) the person refuses or fails to comply with the request, or
15
gives a name or address that is false in a material particular.
16
Penalty: 5 penalty units.
17
(3) Subsection (2) does not apply if the person has a reasonable
18
excuse.
19
Note:
A defendant bears an evidential burden in relation to the matter in
20
subsection (3) (see subsection 13.3(3) of the Criminal Code).
21
Offence--designated warrant officer's refusal or failure to comply
22
with request etc.
23
(4) A designated warrant officer commits an offence if:
24
(a) the officer makes a request of a person under subsection (1);
25
and
26
(b) the person requests the officer to provide to the person:
27
(i) his or her name or the address of his or her place of
28
duty; or
29
(ii) his or her name and that address; or
30
(iii) if the officer is not in uniform and it is practicable for
31
the officer to provide the evidence--evidence that he or
32
she is an officer; and
33
(c) the officer refuses or fails to comply with the request, or
34
gives a name or address that is false in a material particular.
35
Schedule 17 Search and seizu re warrants
46 Customs Amendment (Enhanced Border Controls and Other Measures) Bill 2008
No. , 2008
Penalty: 5 penalty units.
1
Definition
2
(5) In this section:
3
designated warrant officer, in relation to a search warrant or
4
seizure warrant, means:
5
(a) the executing officer; or
6
(b) a person who is an authorised person and who is assisting in
7
the execution of the warrant.
8