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2010 - 2011 - 2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MARITIME POWERS (CONSEQUENTIAL AMENDMENTS) BILL 2012
REPLACEMENT EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Nicola Roxon MP)
MARITIME POWERS (CONSEQUENTIAL AMENDMENTS) BILL 2012
OUTLINE
The Maritime Powers (Consequential Amendments) Bill 2012 (the Bill) contains
amendments to legislation arising from the development of the Maritime Powers Bill 2012
(the Maritime Powers Bill).
The Maritime Powers Bill provides a single standard framework for authorising and
exercising maritime enforcement powers. This Bill repeals maritime enforcement powers in
a number of other Acts where they overlap with powers in the Maritime Powers Bill. Those
provisions are replaced in the Maritime Powers Bill.
The Acts amended by the Schedules to this Bill are the following:
· Customs Act 1901
· Environment Protection and Biodiversity Conservation Act 1999
· Fisheries Management Act 1991
· Migration Act 1958; and
· Torres Strait Fisheries Act 1984.
The amendments to the above Acts will commence at the same time as clause 3 of the
Maritime Powers Bill commences.
FINANCIAL IMPACT STATEMENT
There will be financial implications in implementing the Bill, relating to the development of
new operational guidelines and training. These costs will be absorbed within existing
resources.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Maritime Powers (Consequential Amendments) Bill contains consequential amendments
to legislation arising from the development of the Maritime Powers Bill 2012.
This Bill repeals maritime enforcement powers in a number of other Acts where they overlap
with powers in the Maritime Powers Bill. Those provisions are replaced in the Maritime
Powers Bill.
The Acts amended by the Schedules to this Bill are the following:
· Customs Act 1901
· Environment Protection and Biodiversity Conservation Act 1999
· Fisheries Management Act 1991
· Migration Act 1958, and
· Torres Strait Fisheries Act 1984.
None of these amendments make any substantive changes to the law.
Human rights implications
The Bill does not engage any applicable rights or freedoms.
Conclusion
This Bill is compatible with human rights as it does not raise any human rights issues.
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NOTES ON CLAUSES
Clause 1: Short title
This clause specifies that, when the Bill is enacted, it is to be cited as the Maritime Powers
(Consequential Amendments) Act 2012.
Clause 2: Commencement
This clause sets out when the various parts of the Bill are to commence. Clauses 1 to 3 of the
Bill will commence on the day that the Bill receives the Royal Assent. Schedules 1 to 6,
setting out the amendments to other Acts, will commence when clause 3 of the Maritime
Powers Bill commences.
Clause 3: Schedules(s)
This clause explains that the Schedules to this Bill will amend or repeal the Acts set out in
those Schedules in accordance with the provisions of each Schedule.
Schedule 1 provides for amendments to the Customs Act 1901.
Schedule 2 provides for amendments to the Environment Protection and Biodiversity
Conservation Act 1999.
Schedule 3 provides for amendments to the Fisheries Management Act 1991.
Schedule 4 provides for amendments to the Migration Act 1958.
Schedule 5 provides for amendments to the Torres Strait Fisheries Act 1984.
Schedule 6 provides for transitional provisions.
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Schedule 1: Customs Act amendments
Customs Act 1901
Item 1: Subsection 4(1)
This item inserts a new definition of `aircraft identification powers' because the term is used
in the new subsection (4) inserted into section 228 by item 32.
Item 2: Subsection 4(1)
This item inserts a definition of `Australian aircraft' that will apply to the whole of the
Customs Act 1901. The definition replicates the definition contained in subsection 184D(7)
of the Customs Act 1901, which is repealed by item 7 of this Schedule. The definition is
necessary because the term `Australian aircraft' is used in a number of sections throughout
the Act, including the new definition of `foreign aircraft' inserted into subsection 4(1) by
item 4, new paragraphs 203CA(2)(b) and (c) inserted by item 12 and
subparagraphs 228(4)(a)(i), (5)(a)(i) and (6)(a)(i) inserted by item 31.
Item 3: Subsection 4(1)
This item inserts a new definition of `authorising officer' because the term is used in the new
paragraphs (5)(b) and (6)(b) inserted into section 228 by item 31.
Item 4: Subsection 4(1)
This item inserts a new definition of `foreign aircraft' because the term is used in the new
subsections (4), (5) and (6) inserted into section 228 by item 31.
Item 5: Subsection 4(1)
This item inserts a new definition of `maritime officer' because the term is used in several
new provisions added to the Customs Act 1901, including the new paragraph (f) inserted into
subsection 183UA(1) by item 6 and the new paragraph (a) inserted into subsection 203CA(2)
by item 12.
Item 6: Subsection 183UA(1) (paragraph (f) of the definition of authorised person)
This item repeals the existing definition of `authorised person' as it applies in relation to the
exercise of powers under sections 203CA and 203CB of the Customs Act 1901 and provides a
new definition. In relation to powers exercised under sections 203CA and 203CB of the
Customs Act 1901 as amended by this Schedule, an `authorised person' includes a Customs
officer, a police officer, a member of the Australian Defence Force and a maritime officer
within the meaning of the Maritime Powers Bill. This new definition reflects the creation of
maritime officers by the Maritime Powers Bill and the amendments made to sections 203CA
and 203CB by Items 11 to 16 of this Schedule.
Item 7: Sections 184A to 185B
This item repeals sections 184A-185B from the Customs Act 1901. These provisions deal
with a range of maritime enforcement powers relating to: boarding ships in various maritime
zones; chasing ships; identifying and boarding aircraft; searching ships, aircraft and people
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on ships and aircraft; retaining certain items; returning people to ships; and moving or
destroying hazardous ships.
The provisions to be repealed in this item will be replaced by those in the Maritime Powers
Bill. In particular, the Maritime Powers Bill will enable certain officers (clause 16) to
authorise the exercise of maritime powers (clauses 17-22). For instance, authorisations can
be made where there is a reasonable suspicion that there has been a contravention of
Australian law (clause 17 - including any Commonwealth law, unless prescribed) and for the
purposes of administering or ensuring compliance with a monitoring law (clause 18) (the
Customs Act 1901 is listed as a monitoring law in the definition of `monitoring law' in
clause 8). For example, an authorisation could be made for the exercise of maritime powers
with respect to a vessel that is reasonably suspected of smuggling or importing prohibited
imports (see section 233 of the Customs Act 1901).
Once such an authorisation is made, maritime officers (as defined in clause 104) may
exercise maritime powers to do what is required by the authorisation by investigating the
contravention, accessing or seizing evidential material, or taking one of the other actions
listed in clause 31. They can also exercise other maritime powers for other purposes in
certain situations listed in clause 32, such as to seize a weapon or identify a vessel.
Division 5 of Part 2 of the Maritime Powers Bill provides for geographic restrictions on the
exercise of powers under any authorisation. This accounts for the geographic restrictions
contained in the provisions repealed by this item. For example, the power in
subsection184A(9) of the Customs Act 1901 to board a ship without nationality on the high
seas for the purposes of identifying the ship will be repealed and replaced by the same powers
in clause 21, paragraph 41(1)(f) and subclause 52(1) of the Maritime Powers Bill. Where no
geographic restrictions apply, the types of powers set out in Part 3 of the Maritime Powers
Bill may be exercised for the purposes of the authorisation. This accounts for all the powers
contained in the provisions repealed by this item, including, for example: boarding vessels,
installations and aircraft (Division 2 of Part 3); identifying and intercepting aircraft and
requiring them to land (clause 55); searching (clause 59); searching persons (clause 61);
seizing and retaining things (clauses 67 and 68); moving and holding persons (Division 8 of
Part 3); and disposing of things seized, retained or detained (Division 5 of Part 4).
Item 8: Subsection 187(1) and Item 9: Subsection 187(2)
Item 9 repeals subsection 187(2) of the Customs Act 1901, which limits the powers relating to
ships and aircraft in subsection 187(1) to ships and aircraft to which section 185 does not
apply. Section 185 of the Customs Act 1901 is repealed by item 7 of this Schedule.
The removal of section 185 makes the retention of subsection 187(2) unnecessary, as the
effect of subsection 187(2) was to limit the application of subsection 187(1) to a residual base
of powers in Australian waters. When subsection 187(2) is removed, the geographical
restriction will continue to apply by virtue of the Acts Interpretation Act 1901, and the
powers that were exercised under section 185 will be exercised primarily under the Maritime
Powers Bill.
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Item 8 changes the numbering in section 187 to reflect the removal of subsection 187(2).
Item 10: Paragraph 189A(1)(a)
This item amends the part of paragraph 189A(1)(a) of the Customs Act 1901 dealing with the
circumstances in which officers may carry arms. The amendment removes references to
subsections 184B(6) and 184C(3), which are repealed by item 7 of this Schedule. The effect
of the amendment is to permit officers to be issued with arms to enable the safe exercise of
powers conferred upon them under the Customs Act 1901 and `any other Act'. This
amendment to the Customs Act 1901 enables officers to be issued with arms for the purpose
of safely exercising the powers under the Customs Act 1901, the Maritime Powers Bill or any
other Act. This is reinforced by clause 105 of the Maritime Powers Bill, which allows
officers authorised in another capacity to carry and use arms as a maritime officer.
Item 11: Paragraphs 203CA(1)(a) and (b)
This item amends paragraphs 203CA(1)(a) and (b) of the Customs Act 1901. These
paragraphs identify the ships to which section 203CA applies. Section 203CA provides a
power to seize without warrant certain goods reasonably suspected of being special forfeited
goods on ships or aircraft in the Protected Zone that are exempt from particular provisions of
the Customs Act 1901 pursuant to the Torres Strait Treaty (defined in subsection 30A(1) of
the Customs Act 1901).
The unamended paragraph 203CA(1)(a) identifies the ships to which section 203CA applies
by referring to section 185 of the Customs Act 1901. Section 185 is repealed by item 7 of this
Schedule. Consequently, this item replaces paragraph 203CA(1)(a) with a modified
description of the ships to which section 203CA applies: ships that are outside the territorial
sea of a foreign country and which can be boarded under the Maritime Powers Bill. Item 11
also reproduces the content of paragraph 203CA(1)(b) as a new paragraph 203CA(1)(c).
Item 12: Paragraphs 203CA(2)(a) and (b)
This item amends paragraphs 203CA(2)(a) and (b) of the Customs Act 1901. These
paragraphs identify the aircraft to which section 203CA applies. Section 203CA provides a
power to seize without warrant certain goods reasonably suspected of being special forfeited
goods on ships or aircraft in the Protected Zone that are exempt from certain provisions of the
Customs Act 1901 pursuant to the Torres Strait Treaty (defined in subsection 30A(1) of the
Customs Act 1901).
The unamended paragraph 203CA(2)(a) identifies the aircraft to which section 203CA
applies by referring to section 185 of the Customs Act 1901. Section 185 is repealed by
item 7 of this Schedule. Consequently, this item replaces paragraph 203CA(2)(a) with new
paragraphs (a), (b) and (c). The new paragraph 203CA(2)(a) will contain a modified
description of the aircraft to which section 203CA applies: aircraft that have landed in
Australia as a result of the exercise of powers under subclause 55(7) of the Maritime Powers
Bill. The new paragraphs 203CA(2)(b) and (c) set out the geographic circumstances in which
a requirement to land under subclause 55(7) may be given: for Australian aircraft, when the
aircraft is not over a foreign country and, for foreign aircraft, when the aircraft is over
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Australia. This item also reproduces the content of paragraph 203CA(2)(b) as a new
203CA(2)(d).
Item 13: Subsection 203CA(3) (note)
This item amends the note to subsection 203CA(3) of the Customs Act 1901. Section 203CA
provides a power to seize without warrant any goods reasonably suspected of being special
forfeited goods, except narcotic goods, on certain ships and aircraft. The note to
subsection 203CA(3) explains that paragraph 185(2)(e) and section 203C of the Customs
Act 1901 deal with the seizure of narcotic goods. Paragraph 185(2)(e) is repealed by item 7
of this Schedule, given that the power to seize narcotic goods may be exercised pursuant to
subclause 67(1)(b)(ii) of the Maritime Powers Bill. Consequently, this item amends the note
to refer to subclause 67(1)(b)(ii) of the Maritime Powers Bill, instead of paragraph 185(2)(e)
of the Customs Act 1901, for the seizure of narcotic goods.
Item 14: Subsection 203CA(4)
This item repeals the reference to section 185 from subsection 203CA(4) of the Customs Act
1901. This is because section 185 has been repealed by item 7 of this Schedule.
Item 15: Subparagraph 203CB(1)(a)(i)
This item replaces the reference to paragraphs 203CA(1)(b) and (2)(b) with references to
paragraphs 203CA(1)(c) and (2)(d) of the Customs Act 1901. This is a consequence of the
amendments made by Items 11 and 12 of this Schedule.
Item 16: Subsection 203CB(2) (note)
This item amends the note to subsection 203CB(2) of the Customs Act 1901. Section 203CB
applies to goods on or located near to certain ships and aircraft. It provides that such
locations may be searched and that any goods reasonably suspected of being special forfeited
goods, except narcotic goods, may be seized without warrant. The note to
subsection 203CB(2) explains that paragraph 185(2)(e) and section 203C of the Customs Act
1901 deal with the seizure of narcotic goods without warrant. Paragraph 185(2)(e) is
repealed by item 7 of this Schedule, given that the power to seize narcotic goods without
warrant may be exercised pursuant to subclause 67(1)(b)(ii) of the Maritime Powers Bill.
Consequently, this item amends the note to subsection 203CB(2) to refer to
subclause 67(1)(b)(ii) of the Maritime Powers Bill, instead of paragraph 185(2)(e) of the
Customs Act 1901, for the seizure of narcotic goods without warrant.
Item 17: Paragraph 207(1)(a)
This item amends paragraph 207(1)(a) of the Customs Act 1901. Subsection 207(1) permits
the disposal of special forfeited goods that are narcotic goods, when they have been seized in
the circumstances set out in paragraph 207(1)(a). Those circumstances include when the
goods have been seized under subsections 185(2) or 185A(6) of the Customs Act 1901, both
paragraphs giving the power to seize narcotic goods when boats have been boarded at sea.
Item 7 repeals both of those subsections, given that the power to seize narcotic goods on
boats boarded at sea may be exercised under clause 67 of the Maritime Powers Bill.
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Consequently, this item amends paragraph 207(1)(a) to refer to clause 67 of the Maritime
Powers Bill, instead of subsections 185(2) and 185A(6) of the Customs Act 1901, for the
seizure of narcotic goods without warrant.
Item 18: Section 208D
This item amends section 208D of the Customs Act 1901. Section 208D prescribes how to
deal with, or dispose of, seized goods that are taken to be condemned as forfeited to the
Crown under section 205C. The chapeau of section 208D specifies that the section applies,
inter alia, to goods seized under subsections 185(2) and 185A(6) of the Customs Act 1901.
These two subsections are repealed by item 7 of this Schedule, given that the power to seize
narcotic goods on boats boarded at sea may be exercised under clause 67 of the Maritime
Powers Bill. Consequently, this item amends section 208D to refer to clause 67 of the
Maritime Powers Bill, instead of subsections 185(2) and 185A(6) of the Customs Act 1901.
Item 19: Paragraph 219L(1A)(a); Item 20: Paragraph 219L(1A)(b) and Item 21:
Paragraph 219L(1A)(c)
Where an officer boards a ship, aircraft or installation under sections 185 or 187 of the
Customs Act 1901, and a person on that ship, aircraft or installation is suspected of carrying
prohibited goods, then subsection 219L(1A) provides the officer with the power to detain that
person for the purpose of searching him or her.
Item 19 repeals the reference to section 185 from paragraph 219L(1A)(a) because section 185
has been repealed by item 7 of this Schedule. As a consequence, subsection 219L(1A) will
only apply to persons on a ship, aircraft or installation where officers have boarded it under
section 187.
Given that item 9 of this Schedule repeals subsection 187(2) such that section 187 will only
apply to ships or aircraft within Australia, the geographical limitations on the use of the
power set out in paragraph 219L(1A)(c) are no longer necessary. Consequently, item 21
removes paragraph (c) from subsection 219L(1A) of the Customs Act 1901. This does not
result in the expansion of the circumstances in which the powers in subsection 219L(1A) can
be used.
Item 20 removes the `and' from paragraph (b) consequent on the removal of paragraph (c).
Item 22: Section 228; Item 23: Subsection 228(1); Item 24: Subsection 228(2); Item 26:
Subsection 228(3); Item 28: Subsection 228(4); Item 29: Subsection 228(5); and Item 30:
Subsection 228(6)
Items 22, 23, 24, 26, 28, 29 and 30 renumber the subsections of section 228 of the Customs
Act 1901. This is because item 31 adds subsections (2)-(7) to section 228. Items 22, 23, 24,
26, 28, 29 and 30 make no substantive amendments.
Item 25: Subsection 228(2)
This item amends subsection 228(2) (which will become paragraph 228(1)(b) in accordance
with item 24) of the Customs Act 1901 by replacing the reference to the power to board ships
under subsections 184A(2) and (3) . Section 228 sets out the circumstances in which ships,
8
boats and aircraft shall be forfeited to the Crown. Subsection 228(2) provides for the
forfeiture of any ship that has failed to facilitate boarding under subsection 184A(2) or (3).
Subsections 184A(2) and (3) are repealed by item 7 of this Schedule, given that the power to
board vessels may be exercised under Division 2 of Part 3 of the Maritime Powers Bill.
Consequently, this item replaces the reference to subsections 184A(2) and (3) with a
reference to the power to board vessels under the Maritime Powers Bill. The effect of this
item is to amend subsection 228(2) to provide for the forfeiture of a ship where the master
fails to facilitate boarding, by all reasonable means, under the Maritime Powers Bill, in the
circumstances set out in subsections 228(2) and (3) as added by item 31 of this Schedule.
Those circumstances broadly reflect the circumstances in which ships could be boarded
pursuant to subsections 184A(2) and (3) of the Customs Act 1901.
Item 27: Subsection 228(3)
This item amends subsection 228(3) (which will become paragraph 228(1)(c) in accordance
with item 26) of the Customs Act 1901 by replacing the reference to the power to request
aircraft to land under section 184D. Section 228 sets out the circumstances in which ships,
boats and aircraft shall be forfeited to the Crown. Subsection 228(3) provides for the
forfeiture of any aircraft that has failed to land following a request made under section 184D.
Section 184D is repealed by item 7 of this Schedule, given that the power to require aircraft
to land may be exercised under subclause 55(7) of the Maritime Powers Bill. Consequently,
this item replaces the reference to section 184D with a reference to the requirement for
aircraft to land under the Maritime Powers Bill. The effect of this item is to amend
subsection 228(3) to provide for the forfeiture of an aircraft which fails to land for boarding
upon its pilot being required to land under the Maritime Powers Bill, in the circumstances set
out in subsections 228(4), (5) and (6) as added by item 31 of this Schedule. Those
circumstances broadly reflect the circumstances in which aircraft could be requested to land
for boarding pursuant to section 184D of the Customs Act 1901.
Item 31: At the end of section 228
This item adds new subsections (2)-(7) to the end of section 228 of the Customs Act 1901.
The new subsections 228(2) and (3) as added by this item set out the circumstances in which
a ship, which has failed to facilitate boarding under the Maritime Powers Bill, shall be
forfeited to the Crown pursuant to the existing subsection 228(2) (to become
paragraph 228(1)(b)) as amended by item 24. Those circumstances reflect the circumstances
in which ships could be boarded pursuant to subsections 184A(2) and (3) of the Customs Act
1901, which are repealed by item 7.
Subsections 228(4)-(7) as added by this item set out the circumstances in which an aircraft,
which has failed to land for boarding in accordance with a requirement made under the
Maritime Powers Bill, shall be forfeited to the Crown pursuant to subsection 228(3) as
amended by item 27. Those circumstances broadly reflect the circumstances in which aircraft
could be requested to land for boarding pursuant to section 184D of the Customs Act 1901,
which is repealed by item 7.
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Schedule 2: EPBC Act amendments
Environment Protection and Biodiversity Conservation Act 1999
Item 1: Division 11 of Part 17 of Chapter 6
This item repeals Division 11 of Part 17 of Chapter 6 of the Environment Protection and
Biodiversity Conservation Act 1999. Division 11 only contains section 457 (Power to pursue
persons etc.) When an authorised officer pursues a foreign person or vessel without
interruption to a place outside the territorial sea of another country, then section 457 permits
an authorised officer to exercise powers in relation to that person or vessel under sections 403
(Boarding of vessels etc. by authorised officers), 406 (Powers of authorised officers) or 430
(Powers of arrest) of the Environment Protection and Biodiversity Conservation Act 1999.
Those three sections encompass powers to board vessels, search persons and vessels, and
arrest persons.
Division 11 will be replaced by provisions in the Maritime Powers Bill which allow a
maritime officer to exercise maritime powers in relation to foreign vessels when the foreign
vessel has been `chased without interruption' to a place outside the territorial sea of another
country (in accordance with subclause 41(1)(i)). `Chased without interruption' is defined in
clause 42 of the Maritime Powers Bill and reflects the requirements for conducting a hot
pursuit of a foreign vessel under international law, particularly under the United Nations
Convention on the Law of the Sea 1982.
The powers that a maritime officer can exercise in relation to the pursuit of a foreign vessel
on the high seas encompass the powers exercisable under sections 403, 406 and 430 of the
Environment Protection and Biodiversity Conservation Act 1999. Specifically, Part 3 of the
Maritime Powers Bill includes powers to board vessels (clause 52), conduct searches of
vessels (clause 59) and persons (clause 61) and arrest persons (clause 76). The maritime
powers contained in the Maritime Powers Bill may be exercised for the purpose for which the
exercise of powers was authorised, and for other purposes set out in the Maritime
Powers Bill.
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Schedule 3: Fisheries Management Act amendments
Fisheries Management Act 1991
Item 1: Paragraphs 84(1)(aa), (a), (aaa), (b), (c), (k), (l), (m), (q) and (r)
This item repeals paragraphs 84(1)(aa), (a), (aaa), (b), (c), (k), (l), (m), (q) and (r) of the
Fisheries Management Act 1991. These provisions deal with a range of maritime
enforcement powers relating to boarding, searching and directing vessels in various maritime
zones, searching people, examining, seizing and securing items, causing things to be lifted
from the sea and requiring persons to answer questions.
The provisions to be repealed in this item will be replaced by equivalent powers in the
Maritime Powers Bill, including the powers to board vessels (clause 52); search people
(clause 61); examine items (clause 63); detain vessels (subclause 69(1)); direct vessels
(subclause 69(2)); lift things from the sea (clause 60) and require persons to answer questions
(clause 57). In particular, the Maritime Powers Bill will enable certain authorising officers
(clause 16) to make authorisations for the exercise of maritime powers (clauses 17-22). For
example, authorisations can be made where there is a reasonable suspicion that there has been
a contravention of Australian law (clause 17 - i.e. any Commonwealth law, unless
prescribed) and for the purposes of administering or ensuring compliance with a monitoring
law (clause 18) (the Fisheries Management Act 1991, for example, is listed as a `monitoring
law' (clause 8)). Once such an authorisation is made, maritime officers (clause 104) may
exercise maritime powers to do whatever is required by the authorisation (clause 31). They
can also exercise other maritime powers for other purposes in certain situations (clause 32).
Division 5 of Part 2 of the Maritime Powers Bill provides for geographic limits on the
exercise of powers under any authorisation, which accounts for the geographic limits
contained in the provisions repealed by this item. Provided no geographic limits apply, the
types of powers set out in Part 3 of the Maritime Powers Bill may be exercised for the
purposes of the authorisation. This accounts for all of the powers contained in the provisions
repealed by this item. Parts 4 and 5 of the Maritime Powers Bill concern how things taken
and people held must be treated.
Item 2: Subsection 84(1BA)
This item amends subsection 84(1BA) of the Fisheries Management Act 1991 to omit the
references to paragraphs (k), (l) or (m) of subsection 84(1), as those three paragraphs have
been repealed by item 1 of this Schedule.
The powers in paragraphs (k), (l) and (m) removed from subsection 84(1) will be replaced by
powers in the Maritime Powers Bill, and the substance of subsection 84(1BA) will also be
replicated in the Maritime Powers Bill to apply to the Maritime Powers Bill powers.
Paragraph 84(1BA)(a) provides that any restraint on the liberty of a person on a boat, as a
result of the exercise of particular maritime powers, is not unlawful. This is replaced by
clause 75(1) (Restraint is not arrest) of the Maritime Powers Bill. Paragraph 84(1BA)(b)
provides that civil or criminal proceedings with respect to the restraint on liberty may not be
commenced against the relevant officer, person assisting the officer in the exercise of the
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maritime powers, the Australian Fisheries Management Authority or the Commonwealth.
This is replaced by clause 75(2), which provides that neither civil nor criminal proceedings
may be instituted in respect of restraint on the liberty of persons.
Item 3: Subsections 84(1C) to (4)
This item repeals subsections 84(1C) to (4) of the Fisheries Management Act 1991.
Subsection 84(1C) provides further detail regarding the powers in paragraphs (1)(k) and (l) of
section 84. Both of those paragraphs are repealed by item 1 and replaced by the powers in
the Maritime Powers Bill which relate to boarding (clauses 52 and 53) and directing vessels
(clause 54) and foreign vessels (clauses 8 and 41).
Subsections 84(2) and (3) provide for the exercise of certain powers by officers of the parties
to the Treaty on Fisheries between the Governments of Certain Pacific Island States and the
Government of the United States of America that was signed at Port Moresby on
2 April 1987. The Maritime Powers Bill will enable the Minister to appoint individuals as
authorising officers in relation to a specific treaty (subparagraph 16(2)(a)(ii)) and
international agreements will also apply to vessels (clause 12).
Subsection 84(4) deals with the requirement for an officer to produce evidence of their
identity when boarding a boat. This is replicated in subclause 52(2) of the Maritime
Powers Bill.
Item 4: Section 84AA
This item repeals section 84AA of the Fisheries Management Act 1991. This provision sets
out the powers and obligations of officers conducting searches of persons under
paragraph 84(1)(aaa) of the Fisheries Management Act 1991. As item 1 repeals
paragraph 84(1)(aaa), this section is repealed as a consequence.
However, the power to search persons under paragraph 84(1)(aaa) will be replaced by powers
in Part 3 of the Maritime Powers Bill, and section 84AA's rules and powers relating to
searches will be replicated in other parts of the Maritime Powers Bill. For instance,
section 84AA's requirements regarding the gender of the officer conducting a search are
replicated in clause 62 of the Maritime Powers Bill (Conducting frisk searches).
Paragraph 84AA(3)(c)'s requirement that a person is not subject to greater indignity or force
than is necessary is replicated in clause 37 of the Maritime Powers Bill. The powers under
subclause 61(4) of the Maritime Powers Bill are similar to paragraphs 84AA(3)(a) and (b).
Similarly, the powers in subclauses 84A(4), (5) and (6) to take possession of a weapon is
substantively replaced by clause 66 of the Maritime Powers Bill, which allows an officer to
take temporary possession of the weapon.
Item 5: Subsection 84B(4)
This item amends subsection 84B(4) of the Fisheries Management Act 1991 by omitting the
reference to subsection 84(4) which is to be repealed by item 3.
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Item 6: Sections 87 to 87HA
This Item repeals sections 87 to 87HA of the Fisheries Management Act 1991. These
provisions deal with a range of maritime enforcement powers relating to vessels and foreign
vessels in various maritime zones and under international agreements and arrangements.
These provisions will be replaced in the Maritime Powers Bill by provisions that deal with
the exercise of maritime powers in relation to vessels (clauses 52, 53 and 54), foreign vessels
(clauses 8 and 41) and under international decisions and international agreements (clauses 8,
12 and 33). Further, the Maritime Powers Bill provides for the exercise of maritime powers
in various maritime zones with geographic limits on the exercise of powers set out in
Division 5 of Part 2 of the Maritime Powers Bill.
Item 7: Section 87J (heading)
This item removes the words "relating to boat" in the heading. Section 87J limits an officer's
use of force pursuant to sections 84 or 87H. Item 1 repeals paragraphs 84(1)(aa), (a), (aaa),
(b), (c), (k), (l), (m), (q) and (r) of the Fisheries Management Act 1991, which enable an
officer to use a range of maritime enforcement powers relating to boats. The remaining
powers in section 84 do not relate exclusively to boats. Item 6 repeals section 87H, which
also enables an officer to use a range of maritime enforcement powers relating to boats. The
title in section 87H will be amended to confirm that the section does not relate exclusively
to boats.
Item 8: Subsection 87J(1)
This item amends subsection 87J(1) of the Fisheries Management Act 1991 by omitting
references to section 87G, 87HA and 87H which are to be repealed by item 6.
Item 9: Subsection 88(1)
This item amends subsection 88(1) of the Fisheries Management Act 1991 by omitting
references to sections 87, 87G and 87HA which are to be repealed by item 6.
Item 10: Paragraph 88(1)(e)
This item repeals paragraph 88(1)(e) of the Fisheries Management Act 1991 and substitutes a
new paragraph. This provision enables a foreign boat in the control of an officer to be
released to cover the liability of the Commonwealth for pursuit costs. This provision will be
replaced by a provision that enables the Commonwealth to recoup costs incurred for chasing
a vessel under the Maritime Powers Bill (clause 112).
Item 11: Paragraph 88(2)(b) and Item 12: Paragraph 88(2)(c)
Item 12 repeals paragraph 88(2)(c) of the Fisheries Management Act 1991. This paragraph
deals with references to pursuit costs in relation to foreign vessels. Repeal of the paragraph is
consistent with the repeal by item 10.
Item 11 removes the `and' from the end of paragraph 88(2)(b) to reflect the repeal of the
following paragraph, paragraph 88(2)(c), by item 12.
13
Item 13: Paragraph 102(1)(c)
This item amends paragraph 102(1)(c) of the Fisheries Management Act 1991. The
amendment omits references to officers exercising powers under section 84, as the relevant
powers will be replaced by the Maritime Powers Bill, and also removes references to sections
87, 87G and 87HA, provisions that are to be repealed by Items 1 and 6.
Item 14: Paragraphs 106A(2)(b) and (3)(b) and 106AA(1)(b)
This item amends paragraphs 106A(2)(b) and (3)(b) and 106AA(1)(b) of the Fisheries
Management Act 1991 to add a reference to clause 67 of the Maritime Powers Bill after the
reference to paragraph 84(1)(ga). These provisions deal with the forfeiture of things, and the
inclusion of the reference to clause 67 of the Maritime Powers Bill will ensure that things
seized under that Bill will also be forfeited.
Item 15: Subdivision CA of Division 6 of Part 6
This item repeals Subdivision CA of Division 6 of Part 6 of the Fisheries Management Act
1991. Provisions in this subdivision deal with the recovery of pursuit costs in relation to
foreign vessels and will be replaced under the Maritime Powers Bill with provisions relating
to the recovery of the costs of chasing vessels (clause 112).
Item 16: Paragraphs 108(1)(c) and 168(2)(l)
This item amends paragraphs 108(1)(c) and 168(2)(l) of the Fisheries Management Act 1991
by omitting references to sections 87, 87G and 87HA of the Act as these provisions are to be
repealed by item 6.
14
Schedule 4 -Migration Act Amendments
Migration Act 1958
Item 1: Subsection 5(1) (definition of foreign boat) and Item 2: Subsection 5(1)
Item 1 repeals the definition of `foreign boat' and item 2 adds a definition of `foreign vessel'.
The repeal of `foreign boat' and the addition of `foreign vessel' are consequent on changes to
the rest of the Migration Act 1958, in which all references to `foreign boat' will either be
repealed or replaced with references to a `foreign vessel'. The definition of `foreign vessel'
is from the Maritime Powers Bill, and the uniform definition and use of this term will ensure
consistency between the Migration Act 1958 and the Maritime Powers Bill.
Item 3: Subsection 5(1)
This item inserts a new definition of `maritime officer' because the term is used in several
new provisions added to the Migration Act 1958, including the new paragraph 43(3)(c)
inserted by item 6, the new subsections 164B(3) and (4) inserted by item 12, the new
subsection 164BA(1) inserted by item 13, as well as the new subsections 164BA(3) and (4)
inserted by item 14. This definition of `maritime officer' cross-references the definition in
the Maritime Powers Bill, to ensure consistency between the Migration Act 1958 and the
Maritime Powers Bill.
Item 4: Subsection 5(1) (paragraph (b) of the definition of transitory person)
This item amends the definition of `transitory person' in the Migration Act 1958 to include
persons held under paragraph 72(4)(b) of the Maritime Powers Bill. This amendment will
ensure that if a maritime officer transports or moves a person without a visa, that person will
be considered a `transitory person' for the purpose of the Migration Act 1958. The effect of
this amendment is that a maritime officer will not be breaching the restrictions in the
Migration Act 1958 by transporting such persons.
Item 5: Subparagraph 42(2A)(c)(i)
This item will amend subparagraph 42(2A)(c)(i) to replace the reference to
subsection 185(3A) of the Customs Act 1901 with a reference to subclause 72(4) of the
Maritime Powers Bill. Subsection 185(3A) of the Customs Act 1901 is repealed by item 7 of
Schedule 1 of this Bill, and the powers contained in that section will be exercised by
maritime officers under subclause 72(4) of the Maritime Powers Bill.
Item 6: Paragraphs 43(3)(b) and (c)
Paragraphs 43(3)(b) and (c) provide that people detained for certain fisheries or
environmental offences, are exempted from the Migration Act 1958's general requirement
that an individual entering Australia must enter via a port. The amendment of this paragraph
by this item will not change the substance of the exemption. The amendment to
paragraph 43(3)(b) reflects the position that maritime officers, instead of fisheries officers,
will be the individuals detaining and transporting people for fisheries offences. The
amendment to paragraph 43(3)(c) similarly reflects that maritime officers may enforce the
environmental laws under clause 69 of the Maritime Powers Bill, as well as exercise powers
15
under the Environment Protection and Biodiversity Conservation Act 1999 in addition to
environment officers and commanders of Commonwealth vessels or aircraft.
Item 7: Subsection 43(4) (definition of master)
This item repeals the definition of `master' because the only use of this term in the Migration
Act 1958 will be removed from paragraph 43(3)(b) in the amendment made by item 6.
Item 8: Subsection 43(5)
This item repeals subsection 43(5) consequent on the changes to subsection 43(3).
Subsection 43(3), as amended, will no longer reference the parts of the Fisheries
Management Act included in subsection 43(5).
Item 9: Section 164A (definition of master)
This item repeals the definition of `master' because this term `master' will no longer be used
in Division 4A of Part 2 following the amendment to paragraph 164B(1)(a) contained in
item 10.
Item 10: Subsections 164B(1) and (1A)
This item repeals subsection 164B(1) and (1A), and replaces them with a new
subsection 164B(1). This change is consequent on changes to the Fisheries Management Act
1991 and the Torres Strait Fisheries Act 1984, which remove some powers from those acts
where those powers will be exercised under the Maritime Powers Bill instead.
Item 11: Subsection 164B(2)
This item omits the term `by a fisheries officer' from subsection 164B(2), as the powers
referred to in this section will no longer be exercised solely by fisheries officers, but may be
exercised by maritime officers as well. This amendment does not otherwise change the
substance of this subsection.
Item 12: Subsections 164B(3) and (4)
This item repeals subsections 164B(3) and (4), and substitutes two new subsections (3)
and (4). The amendment of these subsections is a consequence of the fact that maritime
officers, in addition to fisheries officers, will exercise powers under the Fisheries
Management Act 1991 and the Torres Strait Fisheries Act 1984. These amendments do not
otherwise change the substance of these subsections.
Item 13: Subsection 164BA(1)
This item repeals subsection 164BA(1) and inserts a new subsection (1). The amendment of
this subsection is a consequence of the fact that maritime officers will exercise powers
relating to environment matters, in addition to the environment officers and other persons in
command of a Commonwealth ship or aircraft. This amendment does not otherwise change
the substance of this subsection.
16
Item 14: Subsections 164BA(3) and (4)
This item repeals subsections 164BA(3) and (4), and substitutes two new subsections (3)
and (4). The amendment of these subsections is a consequence of the fact that maritime
officers will exercise powers relating to environment matters, in addition to the environment
officers and other persons in command of a Commonwealth ship or aircraft. These
amendments do not otherwise change the substance of these subsections.
Items 15-50: Division 12A of Part 2 (heading)
Division 12A will be amended so that the powers in this Division will apply to aircraft only
and not to ships. This is because these aircraft powers are required on land in some
circumstances. The only reference to ships that will remain will be in subsection 245F(9A),
allowing a person who has been detained under one of the other subsections to be moved to
another vessel or aircraft. The reason for the removal of the references to ships in this
Division is that these powers will be contained in the Maritime Powers Bill.
Items 16 to 21 repeal definitions of terms that are no longer used in the Division due to the
removal of the substantive powers regarding ships.
Items 22 and 50 will repeal sections 245B and 245G, because an equivalent power to board
vessels under section 245B and section 245G will be contained in clause 52 (Boarding
vessels, installations and aircraft) and clause 53 (Requirement to facilitate boarding) of the
Maritime Powers Bill. The geographical restrictions on sections 245B and 245G are covered
by Division 5 of Part 2 of the Maritime Powers Bill, with the result that the powers will be
exercisable in the same types of places.
Item 22 will also repeal sections 245C and 245D, because the Maritime Powers Bill permits
maritime officers to chase foreign ships and Australian ships outside Australia's territorial
seas, where a maritime officer has chased that vessel without interruption. The ability to
chase foreign ships is specifically enabled by clause 41, which permits the exercise of
maritime powers against a foreign vessel outside another country's territorial sea. The
Maritime Powers Bill also allows for the chasing of an Australian ship to a place anywhere
outside the territorial sea of another country.
Section 245F of the Migration Act sets out broad powers to search, examine goods, secure
goods, require persons to answer questions, take copies of documents, and to detain and
arrest persons. Items 23 to 48 will remove the references to `ships' in this section because all
of these powers are contained in Part 3 of the Maritime Powers Bill. The relevant powers in
the Maritime Powers Bill include the powers to search places in clause 59 (Searching places),
search persons in clause 61 (Searching persons), examine goods in clause 63 (Examining
things), secure goods in clause 64 (Securing and marking things), copy documents in
clause 65 (Copying records or documents) and arresting persons in clause 76 (Arrest--
indictable offences) and clause 77 (Enforcing arrest warrants). The power in
subsection 245F(8) to detain and move ships is covered by clause 69 (Detaining vessels and
aircraft), and the power to detain persons and move them to other places in
subsection 245F(9) is covered by clause 72 (Persons on detained vessels and aircraft).
17
Item 49 removes the reference to a ship in paragraph 245FA(1)(a) consequent on the changes
to subsection 245F(8), which no longer refers to ships.
Item 50 repeals section 245FB in its entirety because the power to return persons to ships is
specifically covered by subclause 72(2) of the Maritime Powers Bill.
Section 245H empowers the Secretary to order that a ship be moved or destroyed. Item 50
will repeal this section because these powers are covered by two separate powers in the
Maritime Powers Bill. Clause 69 (Detaining vessels and aircraft) of the Maritime
Powers Bill enables a maritime officer to detain a vessel and cause it to be taken to a place
the officer considers appropriate. The destruction of vessels is dealt with in Division 5 of
Part 4 of the Maritime Powers Bill, which empowers the Minister to order the disposal of a
vessel in certain circumstances.
Item 51: Subsection 251(1)
Paragraph 251(1)(a) provides that the section applies where section 245F does not apply.
This item repeals paragraph (a), because that limitation is no longer relevant. In most
geographical locations, including the high seas, the power to board and search a vessel will
be covered by the Maritime Powers Bill. Without the limitation in paragraph 251(1)(a), the
powers in section 251 to search and board will be a residual power that can be exercised
within Australia.
Item 52: Paragraph 252(1)(a)
This item amends paragraph 252(1)(a) to remove the power to search persons on vessels at
sea, which will be covered by the Maritime Powers Bill. However, the reference to detention
in Australia is retained in paragraph 252(1)(a), as the Migration Act still enables individuals
in detention in Australia to be searched.
Item 53: Section 261J
This item repeals the reference to section 245G, as that section has been repealed.
18
Schedule 5 - Torres Strait Fisheries Act amendments
Torres Strait Fisheries Act 1984
Item 1: Paragraphs 42(1)(a), (aa), (c), (e), (g), (h), (ha), (hb), (o), (p)
This item repeals paragraphs 42(1)(a), (aa), (c), (e), (g), (h), (ha), (hb), (o) and (p) of the
Torres Strait Fisheries Act 1984. These provisions give powers to officers where a vessel is
suspected of being involved in fishing, or in a suspected or actual contravention of certain
fisheries related legislation. The paragraphs include powers relating to boarding vessels in
and in the vicinity of the Torres Strait Protected Zone; searching people; examining items;
detaining vessels; moving vessels and requiring vessels to be moved; requiring certain
equipment to be lifted from the sea; and requiring persons on board vessels to state whether
they have engaged in fishing on the boat during the vessel voyage.
The powers to be repealed in this item will be replaced by equivalent powers in the Maritime
Powers Bill, including the powers to board vessels (clause 52); search people (clause 61);
examine items (clause 63); detain vessels (subclause 69(1)); move vessels and require vessels
to be moved (subclause 69(2)); lift things from the sea (clause 60) and require persons to
answer questions (clause 57). The Maritime Powers Bill will enable certain authorising
officers (clause 16) to make an authorisation for the exercise of these maritime powers
(clauses 17-22) where, for example, there is a reasonable suspicion that there has been a
contravention of Australian law (clause 17 - i.e. any Commonwealth law, unless prescribed)
and for the purposes of administering or ensuring compliance with a monitoring law
(clause 18) (the Torres Strait Fisheries Act 1984 is listed as a monitoring law (clause 8)).
Thus, maritime officers will be able to board and detain vessels and exercise other powers for
the purpose of monitoring and enforcing compliance with relevant fisheries legislation.
Division 5 of Part 2 of the Maritime Powers Bill provides for geographic limits on the
exercise of powers under any authorisation, which accounts for the geographic limits
contained in the provisions repealed by this item.
Item 2: Subsection 42(2)
Subsection 42(2) of the Torres Strait Fisheries Act 1984 prescribes where the powers in
subsection 42(1) may be exercised. Paragraph (a) of subsection 42(2) provides that the
powers `may be exercised in Australia, in an external Territory, in an area of Australian
jurisdiction, or in an area of waters in relation to which the Fisheries Management Act 1991
applies.' Paragraph (b) of subsection 42(2) provides that the power in paragraph 42(1)(g)
(requiring vessels to be moved) may be exercised in waters in Papua New Guinea's as well as
in the areas described in paragraph (a).
As item 1 repeals paragraph (g) from subsection 42(1), this item removes all of paragraph (b)
of subsection 42(2) (as paragraph (b) only applies to paragraph 42(1)(g)) and also removes
the reference to paragraph 42(1)(g) from paragraph 42(2)(a). The numbering of the clause is
adjusted to reflect this.
19
The extraterritorial application of paragraph 42(1)(g) may be replicated in the application of
the Maritime Powers Bill, in accordance with clause 14 (Applying Australian law in other
places).
Item 3: Subsection 42(2AAA)
This item repeals the references to paragraphs 42(1)(e), (g) and (h) from
subsection 42(2AAA) of the Torres Strait Fisheries Act 1984, because these paragraphs have
been repealed by item 1 of this Schedule.
The powers in paragraphs (e), (g) and (h) removed from subsection 42(1) will be replaced by
powers in the Maritime Powers Bill, and the substance of subsection 42(2AAA) will also be
replicated in the Maritime Powers Bill to apply to the Maritime Powers Bill powers.
Paragraph 42(2AAA)(a) provides that any restraint on the liberty of a person on a boat, as a
result of the exercise of particular maritime powers, is not unlawful. This is replaced by
clause 75(1) (Restraint is not arrest) of the Maritime Powers Bill. Paragraph 42(2AAA)(b)
provides that civil or criminal proceedings with respect to the restraint on liberty may not be
commenced against the relevant officer, person assisting the officer in the exercise of the
maritime powers, the Australian Fisheries Management Authority or the Commonwealth.
This is replaced by clause 75(2), which provides that neither civil nor criminal proceedings
may be instituted in respect of restraint on the liberty of persons.
Item 4: Section 42A
This item repeals section 42A of the Torres Strait Fisheries Act 1984. This provision sets out
the powers and obligations of officers conducting searches of persons under
paragraph 42(1)(aa) of the Torres Strait Fisheries Act 1984. As item 1 repeals
paragraph 42(1)(aa), this section is repealed as a consequence.
However, the power to search persons under paragraph 42(1)(aa) will be replaced by powers
in Part 3 of the Maritime Powers Bill, and section 42A's rules and powers relating to searches
will be replicated in other parts of the Maritime Powers Bill. For instance, section 42A's
requirements regarding the gender of the officer conducting a search are replicated in
clause 62 of the Maritime Powers Bill (Conducting frisk searches). Paragraph 42A(3)(c)'s
requirement that a person is not subject to greater indignity or force than is necessary is
replicated in clause 37 of the Maritime Powers Bill. The powers under subclause 61(4) of the
Maritime Powers Bill are similar to paragraphs 42A(3)(a) and (b). Similarly, the powers in
subclauses 42(4), (5) and (6) to take possession of a weapon is substantively replaced by
clause 66 of the Maritime Powers Bill, which allows an officer to take temporary possession
of the weapon.
Item 5: Paragraphs 43(1)(a) and (ca)
This item repeals paragraphs 43(1)(a) and (ca) from the Torres Strait Fisheries Act 1984.
Paragraph 43(1)(a) requires an individual to facilitate an officer's boarding of a boat under
section 42, and paragraph 43(1)(ca) prohibits a person from refusing permission to inspect a
boat under paragraph 42(1)(ha). It is an offence to contravene either of these paragraphs.
20
This item repeals these paragraphs of subsection 43(1) as the underlying powers to board
boats under section 42 and to inspect a boat under paragraph 42(1)(ha) have been removed by
item 1, and replaced by Part 3 of the Maritime Powers Bill. Corresponding offences for
obstructing officers will be created by Part 6 of the Bill, including an offence for failing to
facilitate boarding under subclause 53(1), and an offence of failing to assist a maritime
officer under subclause 39(1).
Item 6: Subsection 43(1A)
This item repeals the reference to paragraph 43(1)(ca) from section 43(1A) of the Torres
Strait Fisheries Act 1984. This is because this subsection has been repealed by item 5 of this
Schedule.
Item 7: Paragraphs 52A(2)(b) and (3)(b) and 52AA(1)(b)
This item inserts `or section 67 of the Maritime Powers Act 2012' after `under
paragraph 42(1)(ea)' where it appears in paragraphs 52A(2)(b) and (3)(b) and 52AA(1)(b) of
the Torres Strait Fisheries Act 1984. These provisions deal with the automatic forfeiture of
things used in certain offences, including vessels, and the forfeiture of things on vessels.
Item 7 inserts a reference to the Maritime Powers Act 2012 in paragraphs 52A(2)(b) and
(3)(b) and 52AA(1)(b) so that these provisions will also apply to seized things under the
Maritime Powers Act 2012, which contains seizure powers equivalent to paragraph 42(1)(ea).
21
Schedule 6 - Transitional Provisions
Item 1: Exercise of powers begun before commencement
Under this item, an exercise of powers begun under any of the legislation amended by
Schedules 1 to 5 of this Bill may be continued under that legislation. This ensures that any
existing maritime operations that are ongoing at the time of the Bill's commencement may
continue validly under the existing legal frameworks.
Item 2: Regulations
This item provides that the Governor-General may make regulations prescribing matters of a
transitional nature relating to the amendments in the Bill.
22
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