CHAPTER 2


CHAPTER 2

Key provisions of the bills

Maritime Powers Bill 2012

2.1        The Maritime Powers Bill 2012 (Maritime Powers Bill) consists of seven parts, and seeks to provide a comprehensive framework for the exercise of law enforcement powers in Australia's maritime areas.

Key terms

2.2        Clause 8 of the bill defines a number of key terms. Under the bill, certain maritime enforcement powers can be exercised in relation to vessels and aircraft that are involved in a contravention of Australian law, as well as in relation to:

  • installations – artificial islands or structures located in maritime areas, for example an offshore oil rig;
  • protected land areas – land areas that are outside the states and internal territories, such as isolated, uninhabited pieces of land within Australia's maritime zones; and
  • isolated persons – persons who are not on, or in the vicinity of, a vessel, installation, aircraft or protected land area (for example, a scuba diver who has swum directly from shore and is not related to any vessel).

2.3        The powers contained in the bill can be exercised by 'maritime officers', a term which is defined in clause 104, as:

  • a member of the Australian Defence Force (ADF);
  • a Customs officer;
  • a member or special member of the Australian Federal Police (AFP); or
  • a person appointed as a maritime officer by the relevant Minister.

Maritime powers

2.4        Part 3 of the Maritime Powers Bill sets out the maritime powers which can be exercised under the bill. The exercise of these powers is limited by Part 2 of the bill. Broadly, the powers which can be exercised by maritime officers under the bill are powers to:

  • board vessels, installations and aircraft;
  • identify and intercept aircraft;
  • obtain information and readings;
  • search places and persons;
  • examine, secure and mark things;
  • copy or record documents or records;
  • seize or retain weapons and other items;
  • detain vessels, aircraft or people in certain circumstances; and
  • require a person to cease conduct which may constitute a contravention of an Australian law.
Boarding and entry powers

2.5        Under clause 52 of the bill, maritime officers may board a vessel, installation or aircraft. In doing so, the officer may require the person in charge of the vessel, aircraft or installation to take reasonable steps to facilitate the boarding. Officers must show appropriate identification if requested.

2.6        Maritime officers may also require vessels to stop or perform a specified course or speed, and may chase a vessel if that vessel does not comply with a requirement to stop or facilitate boarding the vessel. The chase powers include the power to: obstruct the passage of the vessel; use any reasonable means to halt or slow the vessel; and fire at the vessel to disable it or compel it to be brought near for boarding.[1]

2.7        Under clause 55, maritime officers may exercise powers to request the identification of aircraft, intercept aircraft and request aircraft to land in Australia. Refusal to comply with directions given by a maritime officer to facilitate boarding, perform a specified action in relation to a vessel, identify an aircraft or land an aircraft is an offence.[2]

2.8        While boarding powers are generally limited to maritime environments, clause 56 provides that maritime officers have the power to enter onto land in certain circumstances (for example, to investigate an aircraft which has been directed to land in Australia).

Obtaining information

2.9        A maritime officer may require a person to answer questions or produce records or documents, and may also make readings from navigational or other instruments relating to the operation of a vessel, installation or aircraft.[3] Failure to comply with a requirement under either of these clauses is an offence, with a penalty of two years imprisonment or 120 penalty units. The Explanatory Memorandum (EM) states, however, that 'clause 57 does not displace a person's rights and privileges at common law, including the right to silence, the right not to incriminate oneself or legal professional privilege'.[4]

Search powers

2.10      Clauses 59-60 of the Maritime Powers Bill provide that a maritime officer may conduct a search, and may open or break open any space (such as a hold or compartment) and use a dog or equipment to assist in a search. A maritime officer may also cause a person or thing to be lifted from the sea. Clause 61 provides that officers may search persons through either an 'ordinary search' or a 'frisk search'.[5] Refusal to comply with a requirement for a search under clause 61 is an offence, with a penalty of two years imprisonment or 120 penalty units, or both.

Examining, securing and retaining things

2.11      Under clause 63, a maritime officer may examine a thing or object.[6] If necessary, force may be used to open things in the process of examination. Under clause 64, an officer may seal, mark, lock up or secure a thing. This incorporates the ability to label or tag a live plant or animal, including by implanting a scannable device in an animal. Clause 65 provides that a maritime officer may copy or record a document, or part thereof.[7]

2.12      Clauses 66-68 deal with the securing of weapons and other items. Under these clauses, officers may secure weapons temporarily, or seize weapons or anything that the officer suspects, on reasonable grounds, is evidential material, a border controlled drug or plant, or a thing owned by the Commonwealth or a state or territory. Officers may also retain a thing which the officer suspects could be seized under an Australian law.[8] Clause 83 provides that officers may use seized things for law enforcement purposes.

2.13      Under clauses 69-70, a maritime officer may detain a vessel, aircraft or other vehicle on land and cause it to be taken to and held at a port, airport or other relevant place until it is released or disposed of.

2.14      Under clause 80, written notice must be given to the owner or possessor of a thing that has been seized or retained within 14 days of this occurring. The notice must contain details relating to what has been seized or retained, the purpose for this action and relevant information about its return. In addition to this written notice, a notice of Commonwealth ownership of a thing may be given at any time. Once a notice of Commonwealth ownership has been given, the thing no longer needs to be returned to its prior owner; however, a person claiming ownership of the thing may apply to a court for an order for the return of the thing.[9]

 Detaining or arresting people in certain circumstances

2.15      Clause 71 provides that an officer exercising maritime powers may require a person to stay in a particular place on the vessel, installation, aircraft or land which is subject to the use of powers. Clause 72 provides that persons on a detained vessel or aircraft may be required by officers to stay on board until it reaches a port, airport or other place, and may also be taken by an officer to another place inside or outside Australia. Failure to comply with such a requirement is an offence, with a penalty of two years imprisonment or 120 penalty units, or both.

2.16      Maritime officers may also detain a person under the detention provisions in several other Commonwealth Acts, as if they were an officer for the purposes of those detention provisions.[10] Any detention of persons must only occur where the detainee's safety is assured (clause 74), and detention under clauses 71-73 does not constitute arrest (clause 75).

2.17      Under clauses 76-78, maritime officers may arrest a person if they suspect, on reasonable grounds, that the person has committed an indictable offence against an Australian law, and may also arrest a person for whom an arrest warrant is in force under an Australian law. A maritime officer may also require a person to cease particular conduct if the officer believes on reasonable grounds that the conduct constitutes a contravention of Australian law. Failure to cease conduct when required by an officer is an offence carrying a penalty of two years imprisonment or 120 penalty units, or both.

2.18      Under clause 95, a person detained or arrested under the bill must be treated with humanity and respect for human dignity, and must not be subject to cruel, inhuman or degrading treatment.

Authorising the use of maritime powers

2.19      In order to provide a safeguard against unnecessary or excessive use of maritime powers, the majority of powers established under the bill can only be exercised after authorisation for their use is given by an authorising officer. Clause 16 provides that, for the purpose of exercising powers in a specific instance, the authorising officer is generally the most senior maritime officer who is either present and able to exercise the powers in person, or is able to direct or coordinate the exercise of powers (for example, from an established operations room or from the command of a Commonwealth vessel or aircraft).

2.20      Clauses 17-22 outline the circumstances in which certain authorisations may be made for the exercise of powers. Authorisations for the exercise of specific powers may be made if an authorising officer:

  • suspects, on reasonable grounds, that a vessel, aircraft, installation, protected land area or isolated person is involved in a contravention of Australian law (clause 17);[11]
  • determines the authorisation is necessary for the purposes of administering or monitoring compliance with a monitoring law (clause 18);[12]
  • suspects, on reasonable grounds, that a vessel, installation or aircraft is subject to a relevant international agreement or international decision which necessitates the authorisation (clause 19);
  • suspects, on reasonable grounds, that there is evidentiary material on a vessel, installation or protected land area (paragraph 20(1)(a));
  • believes, on reasonable grounds, that the exercise of powers is necessary to enforce a warrant that is in force under an Australian law (paragraph 20(1)(b));
  • suspects, on reasonable grounds, that an authorisation is necessary to identify a vessel or aircraft which has not properly identified its nationality (clause 21); or
  • suspects, on reasonable grounds, that an aircraft is carrying seizable transit goods (clause 22).

2.21      As there is already legislation dealing with the aviation environment, subclause 17(2) limits the ability of officers to issue authorisations in relation to aircraft to situations involving 'actionable contraventions' against an Australian law.[13] Subclause 32(2) provides that the exercise of powers related to an aircraft in flight is confined to those that were made for the purposes of the authorisation only.

2.22      Clauses 28-29 of the bill deal with circumstances in which authorisation is not required in order for an officer to exercise maritime powers. Under these provisions a maritime officer may, without authorisation:

  • exercise powers to identify an aircraft; and
  • exercise maritime powers to ensure the safety of the officer or any other person.
Process of authorisations and approvals

2.23      Clause 23 outlines that an authorisation given by an authorising officer remains in force until it is spent or it lapses. The EM explains that an authorisation is 'spent' when the continuous exercise of powers under the authorisation ceases (that is, when the exercise of specific powers in a situation is no longer required).[14] An authorisation lapses if powers have not been exercised under the authorisation within 72 hours of the authorisation being given.[15]

2.24      Clause 25 details that authorisations and approvals do not have to be in writing. The EM explains that, in the maritime context, authorisations may need to be made urgently; for example, via an oral direction from the commander of a Commonwealth vessel. The EM notes that the approach taken by the bill is consistent with existing arrangements for maritime environments, and that an authorising officer may later be required to give evidence about an orally‑made authorisation for the purposes of prosecuting an offence enforced under the bill.[16]

Exercise of additional powers after an authorisation

2.25      Clause 31 enables maritime officers to exercise maritime powers in accordance with an authorisation that has been given. Clause 32 provides that once an authorisation has been given, a maritime officer may exercise additional maritime powers as necessary during the course of exercising powers under the initial authorisation. The EM explains that this provision allows for operational flexibility in the maritime environment:

The benefits of maritime officers being able to operate flexibly and quickly in the maritime environment, particularly in circumstances of urgency, outweigh the reduced oversight of maritime officers resulting from not obtaining further authorisations.[17]

Limitations on the exercise of maritime powers

2.26      Division 4 of Part 2 of the Maritime Powers Bill sets out how the maritime powers authorised under the bill are to be exercised. Clause 34 provides that maritime officers may exercise the powers on or in any part of the relevant vessel, installation, aircraft or land, and may exercise powers in relation to any people or items relating thereto. Clause 35 provides that a warrant is not required for the exercise of powers under the bill by a marine officer. The EM notes that warrants are not currently required for the use of maritime enforcement powers under existing legislation.[18]

2.27      Clause 37 provides that, in exercising powers under the Bill, a maritime officer may use such force against a person or thing as is necessary and reasonable in the circumstances. This provision also specifies that an officer must not subject a person to greater indignity than is necessary or reasonable, and must not do anything likely to cause the death of, or grievous bodily harm to, any person, unless:

  • the officer believes on reasonable grounds that such actions are necessary to protect life or prevent serious injury to another person; and
  • if the person is attempting to escape arrest—the person has been called to surrender and the officer believes that the person cannot be apprehended in any other manner.

2.28      Clause 38 enables an officer to request any person for assistance in the course of exercising maritime powers, a request which the person may refuse. Clause 39 provides that a maritime officer exercising powers may require a person on or in the vicinity of a relevant vessel, installation, aircraft or protected land area, to provide assistance.  The EM explains that forcing individuals to assist officers:

...is appropriate in the maritime operational environment in certain situations. For example, if a vessel is drifting towards a reef, a person who knows how to operate the vessel may need to be compelled to manoeuvre the vessel out of harm's way.[19]

2.29      Refusal to comply with a direction under clause 39 is an offence, with the penalty being two years imprisonment or 120 penalty units, or both.

Geographical limits on the exercise of maritime powers

2.30      Division 5 of Part 2 of the Maritime Powers Bill sets out limits on where maritime powers can be exercised. In general, maritime powers cannot be exercised in another country (including the territorial sea of another country), or in relation to a foreign vessel, installation or aircraft in a place between Australia and another country (clauses 40-44). The bill also sets out exceptional circumstances in which powers can be used in the situations listed above.[20]

2.31      Powers may also not generally be exercised in relation to vessels, installations isolated persons, or aircraft located in an Australian state or territory, unless: the exercise of powers began before the state or territory was entered; the powers are used in relation to a Commonwealth law relating to internal Australian waters; or the use of powers is necessary to ensure the safety of a person (clauses 46-47).

Other provisions

2.32      Part 7 of the Bill deals with miscellaneous matters. Clause 107 provides that persons exercising powers under the bill are protected from any suit, action or proceeding in relation to actions taken in good faith during the exercise of those powers.

2.33      Clauses 112-114 provide that the Commonwealth may recover the reasonable costs incurred by the Commonwealth as a result of chasing vessels or seizing things. Costs may only be recovered in relation to seized things in circumstances where the previous owner has unsuccessfully made an application to a magistrate for the return of the thing.

2.34      Clauses 117-120 provide that, if property is acquired from a person under the bill other than on just terms, the Commonwealth is liable to pay compensation to that person. The Commonwealth is also liable to pay compensation if documents are lost or destroyed, or equipment is damaged or destroyed, due to insufficient care being taken in the exercise of maritime powers in relation to the documents or equipment.

2.35      Clauses 115-116 deal with information-sharing arrangements, and provide that maritime officers may give information or documents obtained in the exercise of powers to a cooperating agency for use in relation to maritime security or safety, or other relevant functions of that agency. The list of cooperating agencies includes the ADF, AFP, and the police force of any state or territory, as well as:

  • any other Commonwealth, or state or territory agency responsible for security, defence or law enforcement;
  • an international body responsible for investigating contraventions of international agreements, or administering and ensuring compliance with such agreements; and
  • any other body or agency prescribed in regulations.

2.36      Clause 121 provides that the Minister may delegate any of his or her functions and powers under the bill to a specified list of individuals, including senior AFP and ADF officers and public service Senior Executive Service (SES) employees with a classification not below Senior Executive Band 1 or equivalent.

Maritime Powers (Consequential Amendments) Bill 2012

2.37      The Maritime Powers (Consequential Amendments) Bill 2012 (Consequential Amendments Bill) contains six schedules, which make amendments to five Commonwealth Acts as a result of the introduction of the Maritime Powers Bill.

2.38      Schedule 1 contains amendments to the Customs Act 1901 (Customs Act). The main amendment is the removal of sections 184A-185B of the Customs Act, which deal with maritime enforcement powers relating to: boarding, chasing, moving, searching and destroying ships; identifying and boarding aircraft; searching aircraft and people, and retaining things. These powers are replaced by the powers conferred upon Customs officers operating as maritime officers under the Maritime Powers Bill.

2.39      Schedule 2 contains a single amendment to the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), which is the removal of Division 11 of Part 17 of Chapter 6 of the EPBC Act. This division of the EPBC Act deals with the ability of authorised officers to exercise powers of boarding and arrest in relation to foreign vessels and nationals which have been pursued from Australia to a place outside Australia's jurisdiction. This Division will be replaced by clauses 41-42 of the Maritime Powers Bill, which will enable maritime officers to exercise maritime powers in relation to foreign vessels chased to a place outside of Australia.  

2.40       Schedule 3 of the Consequential Amendments Bill contains amendments to the Fisheries Management Act 1991 (Fisheries Management Act). The primary amendment is the removal of several subsections and paragraphs from section 84 of the Fisheries Management Act, as well as sections 87-87HA which deal with a range of maritime enforcement powers to be replaced by equivalent powers under the Maritime Powers Bill.

2.41      Schedule 4 of the Consequential Amendments Bill contains amendments to the Migration Act 1958 (Migration Act). These amendments include amending Division 12A of Part 2 of the Migration Act, which deals with powers to chase and board ships and aircraft, to repeal references to ships, as the relevant powers relating to ships are replaced with relevant provisions of the Maritime Powers Bill. Powers relating to aircraft in Division 12A are retained. The EM to the Consequential Amendments Bill explains that this is because aircraft powers are required on land in some circumstances, and the Maritime Powers Bill generally does not provide for the use of powers in these situations.[21]

2.42      Schedule 5 of the Consequential Amendments Bill contains amendments to the Torres Strait Fisheries Act 1984. These amendments repeal certain paragraphs and sections of that Act authorising the use of powers, which have been replaced by the powers in the Maritime Powers Bill.

2.43      Schedule 6 of the Consequential Amendments Bill outlines transitional provisions detailing that an exercise of powers begun under existing legislation amended by the Consequential Amendments Bill may be continued, to ensure that ongoing maritime operations at the time of the bill's commencement are not compromised.

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