Part 2—Suspected illegal foreign fishers
Division 1—Basic provisions
3 Subsection 4(1)
Insert: Australian resident means:
- (a)
- a person who holds a permanent visa (as defined in the Migration Act 1958
) that is in effect; or
- (b)
- a New Zealand citizen who is usually resident in Australia or a Territory
and who holds a special category visa (as defined in the Migration Act 1958 )
that is in effect; or
- (c)
- any other person who is usually resident in Australia or a Territory and
whose continued presence in Australia or a Territory is not subject to a
limitation as to time imposed by law.
4 After paragraph 84(1)(i)
Insert:
- (ia)
- subject to section 84A, detain a
person in Australia or a Territory for the purposes of determining during the
period of detention whether or not to charge the person with an offence
against section 99, 100, 100A, 101, 101A or 101B, if the officer has
reasonable grounds to believe that the person:
- (i)
- is not an Australian citizen or an Australian resident; and
- (ii)
- was on a foreign boat when it was used in the commission of such an
offence; and
- (ib)
- subject to section 84A:
- (i)
- take a person who has been detained in Australia under paragraph (ia) to
another place in Australia or to a place in an external Territory; and
- (ii)
- take a person who has been detained in an external Territory under
paragraph (ia) to another place in the Territory or to a place in Australia or
another Territory; and
- (ic)
- subject to section 84B, search without warrant:
- (i)
- a person detained under paragraph (ia); and
- (ii)
- the person's clothing; and
- (iii)
- any property under the person's immediate control;
to find out whether a weapon or other thing capable of being used to inflict
bodily injury or to help the person to escape from that detention is hidden on
the person or in the clothing or property; and
- (id)
- do anything reasonably necessary for:
- (i)
- photographing or measuring a person detained under paragraph (ia); or
- (ii)
- otherwise recording matters in relation to such a person;
for the purpose of facilitating the present or future identification of the
person; and
5 Subsection 84(7)
After "this Act" (first occurring), insert "or a
particular provision of this Act".
6 Subsection 84(7)
After "this Act"
(second occurring), insert "or that provision".
7 After section 84
Insert:
84A Detention under paragraph 84(1)(ia)
- (1)
- A person (the detainee )
detained under paragraph 84(1)(ia) must be released from detention:
- (a)
- as soon as an officer knows or reasonably believes that the detainee is an
Australian citizen or an Australian resident; or
- (b)
- at the time the detainee is brought before a magistrate following a
decision to charge the detainee with an offence referred to in paragraph
84(1)(ia); or
- (c)
- at the time a decision is made not to charge the detainee with an offence
referred to in that paragraph; or
- (d)
- at the end of 168 hours after the detention began;
whichever occurs first.
- (2)
- Part IC of the Crimes Act 1914 applies in relation to the detainee while
detained under paragraph 84(1)(ia) of this Act as if:
- (a)
- he or she were under arrest because of paragraph 23B(2)(b) for a
Commonwealth offence for the purposes of that Part; and
- (b)
- an officer were an investigating official for the purposes of that Part.
- (3)
- Subsection (2) does not affect the operation of sections 23C, 23D and 23E
of the Crimes Act 1914 as they apply of their own force in relation to a
person who is lawfully arrested.
- (4)
- Paragraph 84(1)(ia) and this section do not authorise an officer to use
more force in detaining a person than is reasonably necessary.
84B Searches under paragraph 84(1)(ic) - (1)
- A search under paragraph
84(1)(ic) of a person (the detainee ) may only be conducted by an officer of
the same sex as the detainee.
- (2)
- However, if an officer of the same sex as the detainee is not available to
conduct the search, it may be conducted by another person who:
- (a)
- is of the same sex as the detainee; and
- (b)
- agrees, at the request of an officer, to conduct the search.
- (3)
- Paragraph 84(1)(ic) and this section do not authorise the officer or other
person:
- (a)
- to remove any of the detainee's clothing; or
- (b)
- to require the detainee to remove any of his or her clothing; or
- (c)
- to use more force, or subject a detainee to greater indignity, than is
reasonably necessary to conduct the search.
- (4)
- If, in conducting a search, an officer finds a weapon or other thing
mentioned in paragraph 84(1)(ic), an officer may:
- (a)
- take possession of the weapon or other thing; and
- (b)
- keep the weapon or other thing for such time as he or she thinks necessary
for the purposes of this Act.
- (5)
- If, in conducting a search, the other person finds a weapon or other thing
mentioned in subsection (4):
- (a)
- he or she must take possession of it and give it to an officer; and
- (b)
- an officer may keep it for such time as he or she thinks necessary for the
purposes of this Act.
8 At the end of Division 4 of Part 6
Add: 98A Escape from detention
- (1)
- A
person is guilty of an offence if:
- (a)
- the person is in detention under paragraph 84(1)(ia) and is reckless as to
that fact; and
- (b)
- the person intentionally escapes from that detention.
- (2)
- The offence is punishable on conviction by imprisonment for up to 2 years.
Division 2—Amendments relating to the Fish Stocks Agreement
9 Paragraph 84(1)(ia)
Omit "section 84A", substitute "sections 84A and 87E".
10 Paragraph 84(1)(ia)
Omit "or 101B", substitute ", 101B, 105E or 105F".
11
Paragraph 84(1)(ib)
Omit "section 84A", substitute "sections 84A and 87E".
12 After paragraph 87E(1)(a)
Insert:
- (aa)
- detain under paragraph 84(1)(ia)
a person whom the officer has reasonable grounds to believe was on an FSA boat
when it was used in the commission of an offence against section 105E or 105F;
or
- (ab)
- take from one place to another under paragraph 84(1)(ib) a person
detained under paragraph 84(1)(ia) because an officer had reasonable grounds
to believe the person was on an FSA boat when it was used in the commission of
an offence against section 105E or 105F; or
13 At the end of section 87E
Add:
- (5)
- Subsection (1) does not limit an
officer's power under paragraph 84(1)(ia) or (ib) in relation to a person if
the officer has reasonable grounds to believe that the person was on an FSA
boat when it was used in the commission of an offence against section 99, 100,
100A, 101, 101A or 101B.
- Note: Section 84A affects the officer's power in that situation.
Part 3—Customs officers exercising powers as fisheries officers may carry
arms
14 Before section 85
Insert: 84C Customs officers may carry arms in exercise
of powers under this Act
- (1)
- Subject to any directions from the Chief
Executive Officer of Customs ( CEO ), the commander of a Customs vessel:
- (a)
- may issue approved firearms and other approved items of personal defence
equipment to officers of Customs under his or her command for the purpose of
enabling the safe exercise, by such officers, of powers conferred on them as
officers within the meaning of section 4; and
- (b)
- must take all reasonable steps to ensure that approved firearms, and other
approved items of personal defence equipment, that are available for issue
under paragraph (1)(a), are kept in secure storage at all times when not
required for use.
- (2)
- Directions given by the CEO for the purposes of subsection 189A(2) of the
Customs Act 1901 relating to the deployment of approved firearms and other
approved items of personal defence equipment may extend to the deployment of
such firearms and other items of equipment under this section.
- (3)
- If:
- (a)
- approved firearms and other approved items of personal defence equipment
are issued to officers of Customs in accordance with subsection 189A(1) of the
Customs Act 1901 ; and
- (b)
- those officers are subsequently required, while carrying such firearms or
other items of equipment, to exercise powers conferred on them under this Act;
then:
- (c)
- the deployment of such firearms or other items of equipment has effect as
if the firearms or other items of equipment had been issued under this
section; and
- (d)
- any directions given by the CEO that relate to any aspect of that
deployment have effect accordingly.
- (4)
- An officer of Customs is not required under, or by reason of, a law of a
State or Territory:
- (a)
- to obtain a licence or permission for the possession or use of an approved
firearm or approved item of personal defence equipment in the circumstances
set out in this section; or
- (b)
- to register such a firearm or other item of equipment.
- (5)
- In this section:
approved firearm means a firearm that is an approved firearm for the purposes
of section 189A of the Customs Act 1901.
approved item of personal defence equipment means an item that is an approved
item of personal defence equipment for the purposes of section 189A of the
Customs Act 1901 .
Customs vessel means a Commonwealth ship (within the meaning of the
Customs Act 1901 ) that is under the command of an officer of Customs
(including an officer of Customs exercising powers as an officer within the
meaning of this Act) and flying a Customs flag within the meaning of section
14 of the Customs Act 1901 .
[ Minister's second reading speech made in—
House of Representatives on
22 September 1999
Senate on 23 November 1999 ]
(179/99)
Commonwealth Numbered Acts