Commonwealth Consolidated Acts

FISHERIES MANAGEMENT ACT 1991 - SECT 84

             (1)  An officer may:

                    (aa)  for the purposes of boarding a boat that is at a place where the officer may board it under paragraph (a) or (b):

                              (i)  require the master to stop the boat at such a place to allow the officer to board it; and

                             (ii)  if the master does not stop the boat as required and the boat is not an Australian‑flagged boat, use any reasonable means consistent with international law to stop the boat (including firing at or into the boat after firing a warning shot, and using a device to prevent or impede use of the system for propelling the boat); and

                     (a)  board a boat in the AFZ or in Australia or an external Territory or a boat that the officer has reasonable grounds to believe has been used, is being used, or is intended to be used, for fishing in the AFZ and may:

                              (i)  search the boat for fish, for equipment that has been used, is being used, is intended to be used or is capable of being used for fishing or for any document or record relating to the fishing operations of the boat; and

                             (ii)  break open any hold, compartment, container or other receptacle on the boat that the officer has reasonable grounds to believe contains anything that may afford evidence as to the commission of an offence against this Act; and

                  (aaa)  subject to section 84AA, search without warrant:

                              (i)  a person on a boat that the officer reasonably suspects is a foreign boat used in an offence against subsection 95(2) or section 99, 100, 100A, 100B, 101, 101A or 101AA or a foreign boat used as the support boat in an offence against section 101B; and

                             (ii)  the person's clothing;

                            to find out whether there is hidden on the person or in the clothing:

                            (iii)  a weapon; or

                            (iv)  a thing capable of being used to inflict bodily injury on another person; or

                             (v)  a thing that may afford evidence as to the commission of an offence against subsection 95(2) or section 99, 100, 100A, 100B, 101, 101A, 101AA or 101B; and

                     (b)  board a boat in relation to which a fishing concession is in force for the purpose of ascertaining whether a condition of the fishing concession or a provision of a temporary order is being, or has been, complied with and, in furtherance of that purpose, may search the boat and break open any hold, compartment, container or other receptacle on the boat; and

                     (c)  examine anything found by action taken under paragraph (a), (aaa) or (b); and

                     (d)  where the officer has reasonable grounds to believe that there is on any land or in any premises anything that may afford evidence as to the commission of an offence against this Act, with the consent of the owner or occupier of the land or premises or under a warrant issued under section 85:

                              (i)  enter the land or premises; and

                             (ii)  search the land or premises and break open and search any cupboard, drawer, chest, trunk, box, package or other receptacle, whether a fixture or not, in which the officer has reasonable grounds to believe that there is any such thing; and

                            (iii)  examine and take possession of, or secure against interference, any such thing that the officer has reasonable grounds to believe may afford evidence as to the commission of an offence against this Act; and

                     (e)  where the officer has reasonable grounds to believe that there is in any vehicle or aircraft anything that may afford evidence as to the commission of an offence against this Act, and subject to subsections (1AA) and (1AB):

                              (i)  stop and detain the vehicle or detain the aircraft, as the case may be; and

                             (ii)  enter and search the vehicle or aircraft; and

                            (iii)  break open and search any compartment, container or other receptacle in which the officer has reasonable grounds to believe there is any such thing; and

                            (iv)  examine and take possession of, or secure against interference, any such thing that the officer has reasonable grounds to believe may afford evidence as to the commission of an offence against this Act; and

                      (f)  examine any equipment found in any place, being equipment that the officer has reasonable grounds to believe has been used, is being used, or is intended to be used, for fishing in the AFZ; and

                    (fa)  if a fishing concession provides for the use of equipment of a particular type--require the holder of the concession to give the officer such help as the officer reasonably requires for the purpose of measuring the equipment; and

                     (g)  subject to subsection (1A), seize, detain, remove or secure:

                              (i)  any fish that the officer has reasonable grounds to believe has been taken, processed, carried or landed in contravention of this Act; or

                             (ii)  any boat, net, trap or other equipment that the officer has reasonable grounds to believe has been used, is being used or is intended to be used in contravention of this Act; or

                            (iii)  any document or other thing that the officer has reasonable grounds to believe may afford evidence as to the commission of an offence against this Act; and

                    (ga)  seize all or any of the following that are forfeited to the Commonwealth under section 106A or that the officer has reasonable grounds to believe are forfeited under that section:

                              (i)  a boat;

                             (ii)  a net, trap or other equipment;

                            (iii)  fish; and

                    (gb)  seize all or any of the following that are forfeited to the Commonwealth under section 106AA or that the officer has reasonable grounds to believe are forfeited under that section:

                              (i)  a net, trap or other equipment;

                             (ii)  fish; and

                    (gc)  seize any fish that are the property of the Commonwealth because of the operation of section 106AC or that the officer has reasonable grounds to believe are the property of the Commonwealth because of the operation of that section; and

                    (gd)  seize anything:

                              (i)  that is on, in or attached to a boat and that forms part of the boat; and

                             (ii)  that is the property of the Commonwealth because of the operation of section 106AD or that the officer has reasonable grounds to believe is the property of the Commonwealth because of the operation of that section; and

                     (h)  enter on land or premises specified in a fish receiver permit for the purpose of finding out whether a condition of the permit is being, or has been, complied with or whether a person is contravening or has contravened a provision of this Act and, in furtherance of that purpose:

                              (i)  search the land or premises for, and examine, fish; and

                             (ii)  search the land or premises for, inspect, take extracts from, and make copies of, any documents relating to the receiving of fish; and

                            (iii)  if the officer finds, during the course of the search, any thing that he or she believes, on reasonable grounds, may provide evidence of a contravention of a provision of this Act, secure the thing pending the obtaining of a warrant to seize it; and

                      (i)  with the consent of the holder of a fish receiver permit or under a warrant issued under section 85, seize any thing found during the course of a search that the officer believes, on reasonable grounds, may provide evidence of a contravention of this Act; and

                      (j)  without warrant, arrest a person whom the officer has reasonable grounds to believe has committed an offence against this Act; and

                     (k)  if the officer has reasonable grounds to believe that a boat has been used, is being used or is intended to be used in contravention of this Act, require the master of the boat:

                              (i)  if the boat is at a place in Australia or a Territory--to remain in control of the boat at that place; or

                             (ii)  if the boat is not at a place in Australia or a
Territory--to bring the boat to such a place, or to a place at sea, specified by the officer and to remain in control of the boat at that place;

                            until an officer permits the master to depart from that place; and

                      (l)  require the master of a boat who, because of a requirement under paragraph (k) or a previous requirement under this paragraph, is in control of the boat at a place to take the boat to another place in Australia or in a Territory, or to a place at sea, specified by the officer and to remain in control of the boat at that place until an officer permits the master to depart from that place; and

                    (m)  bring a boat that the officer has reasonable grounds to believe has been used, is being used or is intended to be used in contravention of this Act to a place in Australia or in a Territory (whether or not the boat has previously been brought to another place or other places) and may remain in control of that boat pending the taking and determination of proceedings in respect of that contravention; and

                     (n)  require the master of a boat to produce any fishing concession or Treaty licence, or evidence of the grant of any such concession or licence, for or in respect of the boat; and

                     (o)  take copies of, or extracts from, a fishing concession, Treaty licence or any other document produced in accordance with a requirement under paragraph (n); and

                     (p)  require the master of a boat in relation to which a fishing concession is in force under this Act or a Treaty boat in respect of which a Treaty licence is in force to give information concerning the boat and its crew and any person on board the boat; and

                     (q)  require the master of a boat to cause to be lifted from the sea any equipment that the officer has reasonable grounds to believe is being, or has been, used by a person on board the boat in contravention of this Act; and

                      (r)  require a person who is on board a boat in relation to which a fishing concession under this Act is in force, or a Treaty boat in respect of which a Treaty licence is in force, or who is engaged in fishing in the AFZ, or whom he or she reasonably suspects of having committed an offence against this Act, to state the person's name and address; and

                      (s)  require a person found on any land or premises entered under paragraph (d) or in any vehicle or aircraft detained or searched under paragraph (e):

                              (i)  to state the person's name and address; or

                             (ii)  to produce any documents in the person's possession or under the person's control relating to any fish found on the land or in the premises, vehicle or aircraft; or

                            (iii)  to give information concerning any such fish; and

                      (t)  sell or otherwise dispose of any fish seized by him or her under this Act.

Note:          Schedule 1A gives officers powers relating to detention of suspected illegal foreign fishers.

       (1AA)  Subject to subsection (1AB), the powers of an officer under paragraph (1)(e) in respect of any vehicle or aircraft must not be exercised without either:

                     (a)  the consent of the owner or person in charge of the vehicle or aircraft to the exercise of those powers; or

                     (b)  the obtaining of a warrant under section 85 or 86 authorising the exercise of those powers.

        (1AB)  If:

                     (a)  the owner or person in charge of a vehicle or aircraft referred to in subsection (1AA) refuses to consent to the exercise by an officer of powers under paragraph (1)(e); and

                     (b)  an officer seeking to exercise those powers believes, on reasonable grounds:

                              (i)  that there is in the vehicle or aircraft anything that may afford evidence of an offence against this Act; and

                             (ii)  that the delay that would occur if an application for a warrant were made (either in person or under section 86) would frustrate the effective execution of the warrant;

those powers may be exercised without a warrant but, if that is done, the officer must:

                     (c)  if it is practicable to do so, notify the owner or person in charge of a vehicle or aircraft that the officer will be exercising powers under paragraph (1)(e) without a warrant and that the reasons for the exercise of those powers may be requested; and

                     (d)  as soon as reasonably practicable, record the reasons for the exercise of those powers without a warrant; and

                     (e)  upon request by the owner or person in charge of the vehicle or aircraft--provide the record of those reasons to the person affected by the exercise of those powers.

          (1A)  If an officer takes any action under subparagraph (1)(g)(i) or (ii), the officer must, within 7 days after the action is taken, give written notice of the grounds for the taking of the action to the person believed by the officer:

                     (a)  if the action is taken in relation to any fish--to have taken, processed, carried or landed the fish, as the case may be; or

                     (b)  if the action is taken in relation to any boat--to be the owner of the boat; or

                     (c)  if the action is taken in relation to any net, trap or other equipment--to have used, to be using or to be intending to use the net, trap or other equipment, as the case may be.

Note:          Subdivision C of Division 6 deals with notice of seizure of things under paragraph 84(1)(ga), (gb), (gc) or (gd).

          (1B)  To avoid doubt, the validity of the seizure of a boat by an officer under paragraph (1)(g) is not affected merely because:

                     (a)  the boat is brought or taken under escort to a place; and

                     (b)  the boat had to travel on the high seas to reach the place.

        (1BA)  If there is a restraint on the liberty of a person on a boat resulting from an officer's exercise of a power under paragraph (1)(g), (k), (l) or (m) (applying of its own force or because of another provision of this Act) in relation to a boat:

                     (a)  the restraint is not unlawful; and

                     (b)  civil or criminal proceedings in respect of the restraint may not be instituted or continued in any court against:

                              (i)  the officer; or

                             (ii)  any person assisting the officer in the exercise of the power; or

                            (iii)  AFMA; or

                            (iv)  the Commonwealth.

This subsection is not intended to affect the jurisdiction of the High Court under section 75 of the Constitution.

          (1C)  To avoid doubt, paragraphs (1)(k) and (l) allow an officer to require the master of a boat to bring or take the boat to a specified place and remain in control of the boat there even if it is necessary for the boat to travel on the high seas to reach the place.

          (1D)  To avoid doubt, paragraph (1)(m) allows an officer to bring a boat to a place and remain in control of it there even if it is necessary for the boat to travel on the high seas to reach the place.

             (2)  Subject to subsection (3), a Pacific Island party officer may, for a relevant Treaty purpose, exercise any of the powers described in paragraphs (1)(a), (c), (g), (k), (l), (n), (o), (p), (q) and (r) and, where a Pacific Island party officer exercises such a power, he or she is taken, for the purposes of this Act, to have exercised the power as an officer.

             (3)  Subsections (4) and (6) apply in relation to the exercise of powers under this section by Pacific Island party officers as if:

                     (a)  references in those subsections to an officer were references to a Pacific Island party officer; and

                     (b)  references in those subsections to an officer's identity card were references to a document:

                              (i)  issued to a person by a Pacific Island party; and

                             (ii)  identifying the person as a Pacific Island party officer authorised to perform the functions and duties of an observer on a Treaty boat.

             (4)  Where an officer (other than a member of the Defence Force who is in uniform) boards a boat, the officer must:

                     (a)  in the case of a prescribed person--produce, for inspection by the master of the boat, written evidence of the fact that the officer is a prescribed person; or

                     (b)  in any other case--produce, for inspection by the master of the boat, the officer's identity card;

and, if the officer fails to do so, the officer is not authorised to remain on board the boat.

             (5)  Where an officer (other than a member of the Defence Force who is in uniform) proposes to enter and search, or to detain, a vehicle or aircraft, the officer must, if there is a person in charge of the vehicle or aircraft:

                     (a)  where the officer is a prescribed person--produce, for inspection by the person in charge of the vehicle or aircraft, written evidence of the fact that the officer is a prescribed person; or

                     (b)  in any other case--produce, for inspection by the person in charge of the vehicle or aircraft, the officer's identity card;

and, if the officer fails to do so, the officer is not authorised to enter and search, or to detain, the vehicle or aircraft.

             (6)  Where an officer (other than a member of the Defence Force who is in uniform) makes a requirement of a person (in this subsection called the relevant person ) under subsection (1) the officer must make all reasonable efforts to identify himself or herself and must, unless subsection (6A) applies:

                     (a)  in the case of a prescribed person--produce, for inspection by the relevant person, written evidence of the fact that the officer is a prescribed person; or

                     (b)  in any other case--produce, for inspection by the relevant person, the officer's identity card;

and, if the officer fails to do so, the relevant person is not obliged to comply with the requirement.

          (6A)  If the requirement under subsection (1) is made in such circumstances that it is impossible to produce the written evidence referred to in paragraph (6)(a) or the identity card referred to in paragraph (6)(b), as the case requires, at the time of making the requirement, that evidence or identity card must be produced for inspection by the relevant person at the first available opportunity after the making of the requirement.

             (7)  A reference in this section to an offence against, or a contravention of, this Act or a particular provision of this Act includes a reference to an offence against, or a contravention of:

                     (a)  section 6 of the Crimes Act 1914 ; or

                     (b)  section 11.1, 11.4 or 11.5 of the Criminal Code ;

that relates to this Act or that provision.

             (8)  In this section:

"examine" includes count, measure, weigh, grade or gauge.

"prescribed person" means a member or special member of the Australian Federal Police or a member of the police force of a State or Territory or an officer of Customs (as defined in the Customs Act 1901 ).

"this Act" includes the regulations.