CHAPTER 3


CHAPTER 3

Key issues

3.1        While the bills received broad support from most submitters to the inquiry, some suggestions were made regarding possible changes, clarifications and improvements to the bills.

Support for the Bills

3.2        The majority of submitters to the inquiry expressed strong support for the bills. Rear Admiral T.N. Jones AM, CSC, RAN, Acting Chief of Navy, submitting on behalf of the Department of Defence, noted that the bills:

...will simplify on water maritime enforcement operations and streamline training and doctrine development within Defence...[T]here will also be less likelihood of a misapplication of power with more coherent and comprehensive legislation. In addition, any future amendments will be far less complex as there will be only one Department responsible for the legislation.[1]

3.3        Several government agencies that will be affected by the changes proposed in the bills commented that they had been involved in detailed consultations and drafting processes for this legislation, and that they were satisfied that the changes were not going to disrupt their operations or limit their abilities to perform their functions.[2]

3.4        The Australian Crime Commission (ACC) noted its strong support for the information-sharing provisions in clause 116 of the Maritime Powers Bill, which provide for the sharing of security-related information between maritime officers and cooperating agencies. The ACC expressed that, subject to strong safeguards:

...continued and enhanced information sharing in this regard would lead to a better understanding of the exploitation of the Australian maritime environment by serious and organised crime. This, in turn, will assist in interdicting and preventing organised crime's impact on the Australian community.[3]

Key issues

3.5        The following issues are discussed below:

  • the scope of the definition of 'maritime officer';
  • the breadth of the Minister's power to delegate his or her functions;
  • the identification of maritime officers during boarding operations;
  • recourse for unwarranted actions taken by maritime officers;
  • the scope of the detention provisions in the Maritime Powers Bill; and
  • the coverage of the amendments in the Consequential Amendments Bill.

Definition of 'maritime officer'

3.6        Under clause 104 of the Maritime Powers Bill, a maritime officer is defined as a member of the ADF, a Customs officer, a member or special member of the AFP, or another person appointed by the Minister. The Explanatory Memorandum (EM) explains that the types of officers that may be appointed by the Minister as maritime officers would be similar to existing classes of officers under current maritime enforcement legislation, for example fisheries officers.[4]

3.7        In response to a question on notice relating to the possible appointment of private contractors as maritime officers under the bill, the Attorney-General's Department (Department) confirmed that individuals who are not Commonwealth officers, including private contractors, would be appointed as maritime officers in certain circumstances:

This could include appointing State or Territory officers as maritime officers, where there is an agreement between the Commonwealth and the relevant State or Territory for cooperation in maritime enforcement. This may also include officers of other countries in relation to international agreements and decisions, where appropriate. A very limited number of private contractors are currently authorised to exercise maritime powers. This comprises commanders of contracted aircraft, who are currently authorised to exercise powers under the Customs Act 1901. It is understood that this practice will continue while the Government contracts private aviation services for maritime enforcement.[5]

3.8        The Department also highlighted that, under subclauses 104(2)-(3), ministerial appointments under the bill must be made in relation to a specified law or international agreement, and that additional conditions may be placed on any appointments, including limiting the specific powers an appointee is authorised to exercise.[6]

Delegation of ministerial authority

3.9        Under clause 121 of the Maritime Powers Bill, the Minister has power to delegate all of his or her functions under the bill to certain officials of classification SES Band 1 or higher. These powers are extensive, and include the power to appoint maritime officers, to approve the use of powers relating to aircraft under clause 10, and to approve the exercise of powers in relation to vessels, installations and aircraft under an international agreement, arrangement or decision under clause 12. When questioned about whether such delegation powers are appropriate, the Department responded:

Provisions enabling delegation of a Minister's powers to Commonwealth officers are extremely common under Australian laws, including to SES officers. Delegations in an operational context such as this are necessary, to cater, for example, for situations where the Minister is not available, given authorisations can be required at short notice. The Australian Defence Force officers to whom delegation is available under paragraph 121 are also comparable to SES officers. Moreover, the Minister can limit any delegation, and would remain responsible, including to the Parliament, for delegations under this paragraph.[7]

Identifying maritime officers

3.10      Under the Maritime Powers Bill, maritime officers must produce identity cards when requested during the exercise of boarding powers under clause 52, and powers to enter on land under clause 56. Shipping Australia noted that it may be difficult for a person in charge of a vessel to ascertain the true identity of a Commonwealth officer arriving in another vessel, from a distance.[8]

3.11      Under subclauses 52(4) and 56(4), the requirement to produce identification cards does not apply if the officer is a uniformed ADF officer, Customs officer, or a member or special member of the AFP. The committee notes that these exceptions are a departure from the approach taken in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, are inconsistent with obligations on officers under Part 1AA of the Crimes Act 1914, and are broader than similar exceptions found in section 185A of the Customs Act 1901, which apply only to members of the ADF.[9] The EM to the Bill does not explain why this approach has been taken.

3.12      The Department highlighted that when boarding vessels using the powers in clause 52, uniformed officers would typically board from a marked government vessel, making the official capacity of the officer clear. More broadly, the Department commented:

This provision has been tailored to the unique aspects of the maritime environment. Boarding of vessels on the high seas often requires officers to operate in a difficult, dangerous and quickly changing maritime environment. Boarding a vessel also regularly presents risks­—often unknown—to the maritime officer. In these circumstances, it is impractical to require clearly identifiable enforcement officers to produce identification in the manner that usually occurs in relation to law enforcement officers on land.[10]

Recourse for unwarranted actions taken by officers

3.13      Clause 107 of the Maritime Powers Bill provides that maritime officers and other associated persons are not liable to any action, suit or proceedings in relation to their actions performed in good faith under the bill. Shipping Australia argued that there should be avenue for recourse if actions taken by maritime officers during the exercise of powers are found to be unwarranted. It stated that, while it understands the reasoning for the inclusion of clause 107 protecting maritime officers from liability, 'there must be an avenue of recourse if it can be proved that such officers were corrupt or acted maliciously'.[11]

3.14      The Department pointed out that provisions limiting or immunising the liability of Commonwealth officers are common, including in the current maritime powers regime. The Department also highlighted that clause 107 would not prevent an individual from pursuing recourse against the Commonwealth in relation to a maritime officer's conduct, and would not limit an individual's ability to take legal action against an officer where the officer's actions were not taken in good faith or were not taken in the performance of their duties under the Bill.[12]

Compensation for injury and delays at sea

3.15      Under clauses 118-120 of the Maritime Powers Bill, compensation claims can be made in cases where property or documents have been damaged due to officers taking insufficient care in the exercise of powers. Shipping Australia argued, however, that some other situations may also require compensation:

Boarding a vessel at sea is a considerably risky task for any person, and as such it should be executed by those who are experienced and capable of performing such an assignment. The Commonwealth must have in place adequate provision to provide for compensation to any person involved in an accident whilst boarding a vessel as it would be unreasonable to expect the ship's insurance to provide cover in such circumstances.[13]

3.16      The Department noted that, if such an accident occurred, there is nothing to prevent an insurance provider from seeking recourse against the Commonwealth, and that any Commonwealth officers involved in an accident while boarding a vessel still have a right to pursue workplace injury compensation.[14]

3.17      Shipping Australia also argued that, in addition to access to compensation for damages to property or documents, 'there must be an avenue to claim for other damages such as delays to vessel and other expenses resulting from unlawful or wrongful actions taken by Maritime Officers'.[15] The Department responded that the bill would not exclude Commonwealth liability for conduct attracting civil liability, and that recourse could still be pursued in this way by aggrieved parties.[16]

Detention of persons under other detention provisions

3.18      Clause 73 of the Maritime Powers Bill allows maritime officers to detain persons under detention provisions in other specified Commonwealth legislation, as if they were officers authorised under those provisions. However, clause 98 of the bill specifies that any detention period served before the maritime officer transfers the individual into custody will not count towards the maximum detention times which apply under those other provisions (under the detention provisions of the Acts listed in the Bill, a maximum detention period of one week applies).

3.19      In response to a question on notice as to whether it is appropriate that persons detained under the other provisions listed in clause 73 could now be held for a longer period than originally provided for under the other Acts, the Department responded:

These provisions have been drafted to deal with the situation where a person is detained at sea, and where continued detention on land is reasonably to be expected. In this situation, the person could be detained under paragraph 73, in order to transfer the person into the custody of a relevant officer when on land, where the relevant detention period would commence. It is important to note that it is difficult to prescribe a defined period of detention. This is because the time taken to return to port varies significantly, depending on where the relevant operation occurred. However, the transfer must occur as soon as practicable. Paragraphs 73 and 98 thereby enable an individual to be detained on the high seas, to be transferred to custody on land under a relevant detention provision, such as in relation to illegal fishing offences, in the manner envisaged under the relevant detention regime.[17]

Coverage of the Consequential Amendments Bill

3.20      In her Second Reading Speech to the Maritime Powers Bill, the Attorney‑General stated that, under the current legislative structure, operational agencies use powers contained in at least 35 separate Commonwealth Acts, and that the Maritime Powers Bill and Consequential Amendments Bill together consolidate and harmonise the Commonwealth's existing maritime enforcement regime.[18] Despite this reference to 35 separate pieces of legislation, the Consequential Amendments Bill contains amendments to only five additional Commonwealth acts. When questioned why the remaining 30 Commonwealth Acts which also deal with maritime enforcement powers have not been amended, the Department advised:

The current consolidation initiative has been designed to identify and consolidate the main maritime powers; predominantly those in the migration, fisheries and customs regimes. Powers that were not readily transferable into the current regime have not been included at this time. However, it is envisaged that the proposed regime would provide a framework for consolidating maritime powers, so that over time, further maritime powers could be incorporated, as appropriate.[19]

Committee view

3.21      The committee commends the intent behind the bills of consolidating and harmonising Australia's maritime law enforcement regime. Given that the bills codify extensive and coercive enforcement powers, it is important that appropriate safeguards are in place to limit the use of these powers. The committee notes that under the provisions of the Maritime Powers Bill:

  • the threshold for authorising the exercise of powers, 'suspicion on reasonable grounds', is similar to the prerequisite thresholds for enforcement of offences in existing legislation;[20]
  • authorisations for the exercise of powers may only be made for the specific purposes outlined in the bill;
  • clause 37 provides that an officer must not subject a person to greater indignity than is necessary and reasonable to exercise the powers; and
  • clause 95 provides that a person arrested, detained or otherwise held under the bill must be treated with humanity and respect for human dignity, and must not be subject to cruel, inhuman or degrading treatment.

3.22      The committee also notes that individuals have the right to seek recourse against the Commonwealth for any actions taken by maritime officers, and have the right to seek recourse against officers where the officer has not acted in good faith or has taken actions outside their duties. Accordingly, the committee considers that these provisions should ensure the appropriate operation of the enforcement powers contained in the Maritime Powers Bill.

3.23      The committee notes the support for the bills expressed by most submitters to the inquiry. In the committee's view, the bills represent a sensible consolidation of law enforcement powers for Commonwealth agencies operating in the maritime domain.

Recommendation 1

3.24      The committee recommends that the Senate pass the Maritime Powers Bill 2012 and the Maritime Powers (Consequential Amendments) Bill 2012.

Senator Trish Crossin

Chair

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