Federal Customs Act 1901 Vol 2

8/3/2019 Federal Customs Act 1901 Vol 2

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Customs Act 1901

Act No. 6 of 1901 as amended

This compilation was prepared on 28 November 2011

taking into account amendments up to Act No. 124 of 2011

Volume 2 includes: Table of ContentsSections 183UA269SL

The text of any of those amendments not in forceon that date is appended in the Notes section

The operation of amendments that have been incorporated may beaffected by application provisions that are set out in the Notes section


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Contents

Part XIIOfficers 1Division 1Powers of Officers 1

Subdivision APreliminary 1183UA Definitions ..................... ...................... ..................... ...................... ... 1183UB Law relating to legal professional privilege not affected ................... 7183UC CEO may give directions concerning the exercise of powers

under this Division ............................................................................ 7183UD Judges who may issue seizure warrants for goods in transit .............. 8

Subdivision BGeneral regulatory powers 8184A Power to board a ship ...................... ...................... ..................... ....... 8184B Power to chase foreign ships for boarding ..................... .................. 13184C Power to chase Australian ships for boarding ................... ............... 15

184D Identifying an aircraft and requesting it to land for boarding .......... 15185 Power to board and search etc. ships and aircraft ..................... ....... 17185A Boarding of certain ships on the high seas........................ ............... 26185AA Searches of people on certain ships or aircraft ................................ 29185AAARetention of relevant items taken possession of under

paragraph 185(2)(cb) or subsection 185AA(3C) ............................. 32185AB Returning persons to ships ................... ...................... ...................... 34185B Moving or destroying hazardous ships etc. .................... .................. 34186 General powers of examination of goods subject to Customs

control.............................................................................................. 36186A Power to make copies of, and take extracts from, documents

in certain circumstances................................................................... 37186B Compensation for damage caused by copying ...................... ........... 38187 Power to board and search ................... ...................... ...................... 38188 Boarding ..................... ..................... ...................... ...................... .... 39189 Searching .................... ..................... ...................... ...................... .... 39189A Officers may carry arms in certain circumstances .................... ....... 39190 Securing goods ...................... ..................... ..................... ................ 41191 Seals etc. not to be broken ................... ...................... ...................... 41192 Seals etc. on ship or aircraft in port bound to another port

within Commonwealth .................................................................... 42193 Officers may enter and remain upon coasts etc. ................... ........... 42194 Ships on service may be moored in any place ...................... ........... 43195 Power to question passengers etc........................ ..................... ........ 44195A Power to question persons found in restricted areas .................... .... 45196C Power to question persons claiming packages ...................... ........... 45197 Power to stop conveyances about to leave a Customs place ............ 46


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iv Customs Act 1901

Subdivision CSearch warrants in respect of things believed to

be evidential material 47198 When search warrants can be issued ...................... ..................... ..... 47199 The things that are authorised by a search warrant ...................... .... 49200 Use of equipment to examine or process things ................... ........... 50201 Use of electronic equipment on or in premises ..................... ........... 51201A Person with knowledge of a computer or a computer system

to assist access etc. .......................................................................... 53201B Accessing data held on other premisesnotification to

occupier of that premises ..................... ...................... ..................... . 54202 Compensation for damage to equipment or data....................... ....... 55202A Copies of seized things to be provided ...................... ..................... . 55

Subdivision DSeizure of goods believed to be forfeited goods 56203 When seizure warrants for forfeited goods can be issued ................ 56203A The things that are authorised by seizure warrants for

forfeited goods ................... ...................... ...................... .................. 58203B Seizure without warrant of special forfeited goods, or of

evidential material relating to special forfeited goods, at aCustoms place.................................................................................. 60

203C Seizure without warrant of narcotic goods or of evidentialmaterial relating to narcotic goods at other places .................... ....... 62

203CA Seizure without warrant of certain goods on ship or aircraftin the Protected Zone .................... ...................... ...................... ....... 63

203CB Seizure without warrant of certain other goods in theProtected Zone ................... ...................... ...................... .................. 64

203D How an authorised person is to exercise certain powers .................. 65Subdivision DASeizure of certain goods in transit 66

203DA When seizure warrants for goods in transit can be issued ................ 66

203DB The things that are authorised by seizure warrants for goodsin transit ........................................................................................... 67

Subdivision EProvisions applicable both to search and seizure

warrants 68203E Conduct of ordinary searches and frisk searches ...................... ....... 68203F Announcement before entry .................... ...................... .................. 68203G Details of warrant to be given to occupier ..................... .................. 69203H Occupier entitled to be present during search or seizure ................. 69203HA Requirement to provide name or address etc. ................... ............... 70203J Availability of assistance and use of force in executing a

warrant .................... ...................... ...................... ...................... ....... 71203K Specific powers available to executing officers .................... ........... 71203L Use of animals in executing a warrant ................... ..................... ..... 72203M Warrants by telephone or other electronic means ..................... ....... 72203N Receipts for things seized under warrant ................... ..................... . 74203P Offence for making false statements in warrants ...................... ....... 74


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Customs Act 1901 v

203Q Offences relating to telephone warrants .................... ..................... . 74Subdivision FDealing with things seized as evidential material 75

203R Retention of things seized as evidential material ...................... ....... 75203S Magistrate may permit a thing seized as evidential materialto be retained ................................................................................... 76

Subdivision GDealing with goods seized as forfeited goods 77203SA Subdivision does not apply to seized transit goods ...................... .... 77203T Seizure of protected objects ..................... ...................... .................. 77204 Seized goods to be secured ...................... ...................... .................. 78205 Requirement to serve seizure notices ..................... ..................... ..... 78205A Matters to be dealt with in seizure notices ..................... .................. 79205B Claim for return of goods seized .................... ..................... ............ 80205C Treatment of goods seized if no claim for return is made ................ 81205D Treatment of goods seized if a claim for return is made .................. 81205E Magistrate may permit goods seized to be retained ..................... .... 84205F Right of compensation in certain circumstances for goods

disposed of or destroyed .................................................................. 85205G Effect of forfeiture .................... ...................... ...................... ........... 85206 Immediate disposal of certain goods ..................... ..................... ..... 86207 Immediate disposal of narcotic goods ................... ..................... ..... 88208 Release of goods on security ...................... ...................... ............... 89208C Service by post ...................... ..................... ..................... ................ 90208D Disposal of forfeited goods ...................... ...................... .................. 90208DA Disposal of narcotic-related goods other than narcotic goods ......... 90208E Sales subject to conditions ................... ...................... ...................... 92209 Power to impound certain forfeited goods and release them

on payment of duty and penalty ...................... ..................... ............ 92209A Destruction or concealment of evidential material or

forfeited goods ................... ...................... ...................... .................. 94Subdivision GADealing with goods in transit seized under a

section 203DA warrant 95209B Subdivision applies to seized transit goods ...................... ............... 95209C Seized goods to be secured ...................... ...................... .................. 95209D Requirement to serve seizure notices ..................... ..................... ..... 95209E Matters to be dealt with in seizure notices ..................... .................. 96209F Application for return of seized goods ...................... ..................... . 96209G Status of goods seized if no application for return is made ............. 96209H Right of compensation for certain goods disposed of or

destroyed ......................................................................................... 97209I Effect of forfeiture .................... ...................... ...................... ........... 97209J Immediate disposal of unsafe goods ...................... ..................... ..... 98209K Disposal of forfeited goods ...................... ...................... .................. 99209L Service by post ...................... ..................... ..................... ................ 99


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Subdivision GBSurrender of prescribed prohibited imports 99209M Application of Subdivision ...................... ...................... .................. 99209N Surrender of goods ................... ...................... ...................... ......... 100

209P Effect of surrender .................... ...................... ...................... ......... 100209Q Right of compensation in certain circumstances for goods

disposed of or destroyed ................................................................ 100209R Disposal of surrendered goods .................... ...................... ............. 101

Subdivision GCPost-importation permission 101209S Definitions ..................... ...................... ..................... ..................... 101209T Application of Subdivision ...................... ...................... ................ 102209U Power to detain goods ..................... ...................... ..................... ... 102209V Detained goods to be secured ..................... ...................... ............. 103209W Requirement to serve detention notice ................... ..................... ... 103209X Matters to be dealt with in detention notices .................... ............. 103209Y Effect of detaining goods ..................... ...................... .................... 105

209Z Evidence not provided or permission not granted or given ........... 105209ZA Evidence provided and permission granted or given ..................... 106209ZB Service by post ...................... ..................... ..................... .............. 107209ZC Liability for detention of goods ...................... ..................... .......... 107

Subdivision HArrest and related matters 107210 Power of arrest without warrant ..................... ..................... .......... 107210A Use of force in making arrest.......................... ...................... ......... 109210B Person to be informed of grounds of arrest .................... ................ 109211 Power to conduct a frisk search of an arrested person ................... 110211A Power to conduct an ordinary search of an arrested person ........... 110212 How arrested person to be dealt with ..................... ..................... ... 110213 Requirement to provide name etc. ...................... ..................... ...... 110

Subdivision HAInformation about people working in restricted

areas or issued with security identification cards 111213A Providing Customs with information about people working

in restricted areas ...................... ...................... ..................... .......... 111213B Providing Customs with information about people issued

with security identification cards .................... ..................... .......... 113Subdivision JGeneral powers to monitor and audit 114

214AA Occupier of premises .................... ...................... ...................... ..... 114214AB What are monitoring powers? ..................... ...................... ............. 114214AC Monitoring officers ................... ...................... ...................... ......... 116214ACAMonitoring officer to notify occupier of premises of the

occupiers rights and obligations ................................................... 117214AD Notice of proposal to exercise monitoring powers ...................... .. 117214AE Exercise of monitoring powers with consent .................... ............. 118214AF Exercise of monitoring powers under a warrant ................... ......... 119


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214AG Warrants may be granted by telephone or other electronicmeans ...................... ...................... ...................... ...................... ..... 120

214AH Monitoring officer may ask questions ................... ..................... ... 121214AI Monitoring officer may ask for assistance ..................... ................ 121214AJ Compensation for damage to electronic equipment ..................... .. 122214B Powers of officers for purposes ofCustoms Tariff

(Anti-Dumping) Act 1975 .............................................................. 123Subdivision JAPowers to monitor and auditAustralia-United

States Free Trade Agreement 125214BAASimplified outline ...................... ...................... ..................... .......... 125214BAB Definitions ..................................................................................... 125214BAC AUSFTA verification powers ..................... ...................... ............. 126214BADAppointment of verification officers ...................... ..................... ... 127214BAE Verification officers may enter premises and exercise

AUSFTA verification powers with consent ...................... ............. 128214BAF US customs officials may accompany verification officers ........... 130214BAGAvailability of assistance in exercising AUSFTA verification

powers ........................................................................................... 130214BAHVerification officer may ask questions ................................. .......... 131214BAI Verification officer may ask for assistance .................... ................ 131214BAJ Verification officer may disclose information to US ..................... 131214BAK Operation of electronic equipment at premises ..................... ......... 131214BAL Compensation for damage to electronic equipment ..................... .. 131

Subdivision KMiscellaneous 132214BA Nature of functions of magistrate under sections 203S and

205E .............................................................................................. 132215 Collector may impound documents .................... ..................... ...... 133217 Translations of foreign invoices ..................... ..................... .......... 133218 Customs samples ...................... ...................... ..................... .......... 133218A Disposal of certain abandoned goods .................... ..................... ... 134219 General power of Collector ..................... ...................... ................ 134

Division 1BDetention and search of suspects 135Subdivision ADetention and frisk search of suspects 135

219L Detention for frisk search .................... ...................... .................... 135219M Frisk search ................... ...................... ...................... .................... 136219N Power to require the production of things ...................... ................ 137219P Persons to whom section 219R applies ...................... .................... 137

Subdivision BDetention and external search of suspects 137219Q Detention for external search ...................... ...................... ............. 137219R External search ...................... ..................... ..................... .............. 138219RAAVideotape record may be made of external search .................... ..... 141219RAB Use of prescribed equipment for external search ...................... ..... 141219RAC Prescribing equipment for use in external searches ..................... .. 142


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219RADAuthorising officers to use prescribed equipment for externalsearch ...................... ...................... ...................... ...................... ..... 143

219RAE Giving a record of invitation and consent or of order .................... 143219RAF Records of results of external search ................................... .......... 143

Subdivision CDetention and internal search of persons

suspected of internally concealing substances etc. 145219RA Certain Judges and Magistrates eligible to give orders under

this Subdivision ............................................................................. 145219S Initial detention ...................... ..................... ..................... .............. 145219T Initial order for detention ..................... ...................... .................... 146219U Renewal of order for detention ................... ...................... ............. 147219V Arrangement for internal search ..................... ..................... .......... 147219W Detention under this Subdivision .................... ..................... .......... 149219X Detainee becoming in need of protection ...................... ................ 151219Y Applications for orders under this Subdivision ..................... ......... 151219Z Internal search ................... ...................... ...................... ................ 152

Subdivision DDetention generally 153219ZA Detention officers ..................... ...................... ..................... .......... 153219ZB Detention places .................... ..................... ...................... ............. 153219ZC Detention under this Division ..................... ...................... ............. 154219ZD Detainees not fluent in English ................... ...................... ............. 155219ZE Release from, or cessation of, detention .................... .................... 155

Subdivision EMedical practitioners 156219ZF Conduct of internal search ................... ...................... .................... 156219ZG Medical practitioner may take action to preserve detainees

life ................................................................................................. 156219ZH Medical practitioner to answer questions and prepare report......... 157

219ZJ Proceedings against medical practitioners ..................... ................ 158

Division 1BADetention and search of persons for purposes of

law enforcement co-operation 159Subdivision APreliminary 159

219ZJA Definitions ..................... ...................... ..................... ..................... 159219ZJAAPrescribed State or Territory offences ................... ..................... ... 159

Subdivision BPowers to detain 160219ZJB Detention of person suspected of committing serious

Commonwealth offence or prescribed State or Territoryoffence ........................................................................................... 160

219ZJC Detention of person subject to warrant or bail condition ............... 161Subdivision CMatters affecting detention generally 162

219ZJD Search of person detained under this Division.......................... ..... 162219ZJE CEO must give directions about detaining persons under this

Division ......................................................................................... 163


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219ZJF Detainees to be given reasons for detention and shownidentification on request ................................................................ 163

219ZJG Use of force in relation to detention .................................... .......... 163219ZJH Moving detained persons ..................... ...................... .................... 164219ZJI Detainees not fluent in English ................... ...................... ............. 164219ZJJ Detention of minors ...................... ...................... ..................... ...... 164

Division 1CJudges and Magistrates 166219ZK Nature of functions of Judge or Magistrate ...................... ............. 166219ZL Protection of Judge or Magistrate ................... ..................... .......... 166

Division 2Protection to officers 167220 Reasonable cause for seizure a bar to action......................... ......... 167221 Notice of action to be given ..................... ...................... ................ 167222 Defect in notice not to invalidate .................... ..................... .......... 167223 No evidence to be produced but that contained in notice .............. 168224 Officer may tender amends ...................... ...................... ................ 168225 Commencement of proceedings against officers ...................... ..... 168226 Time for commencing action ...................... ...................... ............. 168227 Security may be required ..................... ...................... .................... 169

Division 3Evidence 170227AA Evidence may be used in prosecutions etc. .................... ................ 170

Part XIIASpecial provisions relating to prohibited items 171227A Overview of Part ...................... ...................... ..................... .......... 171227B Definitions ..................... ...................... ..................... ..................... 171227C Ships and aircraft to which this Part applies ..................... ............. 171227D Items to which this Part applies ...................... ..................... .......... 172227E Approved storage for prohibited items ...................... .................... 173227F Officer may take custody of items ...................... ..................... ...... 174227G Compensation for damage etc. to items ..................... .................... 175

Part XIIIPenal Provisions 176Division 1Forfeitures 176

228 Forfeited ships and aircraft ...................... ...................... ................ 176228A Forfeited resources installations ..................... ..................... .......... 176228B Forfeited sea installations .................... ...................... .................... 176229 Forfeited goods ...................... ..................... ..................... .............. 177229A Proceeds of drug trafficking liable to forfeiture .................... ......... 178230 Forfeited packages and goods ..................... ...................... ............. 181

Division 2Penalties 182231 Assembly for unlawful purposes .................... ..................... .......... 182232A Rescuing goods and assaulting officers ..................... .................... 182233 Smuggling and unlawful importation and exportation ................... 183


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233A Master not to use or allow use of ship for smuggling etc. ............. 184233AB Penalties for offences against sections 233 and 233A ................... 184233BAASpecial offence relating to tier 1 goods .......................... ................ 185233BAB Special offence relating to tier 2 goods........... ..................... .......... 187233BABAAUN-sanctioned goods................................................................ 190233BABABSpecial offences for importation of UN-sanctioned goods........ 191233BABACSpecial offences for exportation of UN-sanctioned goods ........ 193233BABAProtection from criminal responsibility ................................. ...... 195233BAC Evidence relating to approval for import or export ...................... .. 196233BA Evidence of Analyst ..................... ...................... ..................... ...... 196233C Offence for giving false or misleading information in

relation to UN-sanctioned goods ........................... ..................... ... 198234 Customs offences.............................. ..................... ..................... ... 199234AA Places set aside for purposes of Act .................... ..................... ...... 202234A Unauthorised entry to places and on ships, aircraft or

wharves.......................................................................................... 203234AB Unauthorised use of cameras and sound recorders ...................... .. 204234ABAOfficers may direct unauthorised persons to leave restricted

areas .................... ...................... ...................... ...................... ......... 205236 Aiders and abettors ................... ...................... ...................... ......... 206237 Attempts ..................... ..................... ...................... ...................... .. 206239 Penalties in addition to forfeitures ...................... ..................... ...... 206240 Commercial documents to be kept...................... ..................... ...... 206240AA Authorised officer may require person to produce

commercial documents ....................................... ...................... ..... 210240AB Verifying communications to Customs ..................... .................... 210240AC Authorised officer may require person to produce record ............. 212

Division 3Recovery of pecuniary penalties for dealings innarcotic goods 213

243A Interpretation ..................... ...................... ..................... ................. 213243AB Effective control of property ...................... ...................... ............. 216243B Pecuniary penalties ................... ...................... ...................... ......... 216243C Assessment of pecuniary penalty .................... ..................... .......... 218243CA Court may lift corporate veil etc. .................... ..................... .......... 220243D Presumption of illegality of importation .................... .................... 221243E Court may make restraining order against property ..................... .. 222243F Court may make further orders ................... ...................... ............. 225243G Official Trustee to discharge pecuniary penalty ................... ......... 228243H Revocation of order under section 243E .................... .................... 232243J Pecuniary penalty a charge on property ..................... .................... 233243K Contravention of restraining orders .................... ..................... ...... 234243L Sale of property before bankruptcy .................... ..................... ...... 235243M Duties of the Official Trustee after receiving notice of

presentation of creditors petition etc. ........................................... 235


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243N Protection of Official Trustee from personal liability incertain cases ................... ...................... ...................... .................... 236

243NA Indemnification of Official Trustee .................... ..................... ...... 237243NB Indemnification of Official Receivers etc. ..................... ................ 238243P Costs etc. payable to Official Trustee .................... ..................... ... 238243Q Notices .................... ...................... ...................... ...................... ..... 239243R Reduction of pecuniary penalty ...................... ..................... .......... 239243S Jurisdiction of the Court ...................... ...................... .................... 240

Division 4Provisions relating to certain strict liability offences 241243SA Failure to answer questions ..................... ...................... ................ 241243SB Failure to produce documents or records ................... .................... 241243SC Preservation of the privilege against self-incrimination ................ 242243T False or misleading statements resulting in loss of duty ................ 242243U False or misleading statements not resulting in loss of duty .......... 245243V False or misleading statements in cargo reports or outturnreports ............................................................................................ 247243W Electronic communications to Customs to be treated as

statements to CEO .................... ...................... ...................... ......... 248Division 5Penalties in lieu of prosecution for certain offences 249

Subdivision APenalties in lieu of prosecution for offences

relating to false statements, cargo reporting,

movement of goods etc. 249243X Application of Subdivision ...................... ...................... ................ 249243XA Guidelines for serving infringement notices ..................... ............. 249243Y When an infringement notice can be served ..................... ............. 250243Z Matters to be included in an infringement notice...................... ..... 250243ZA Withdrawal of infringement notice ..................... ..................... ...... 252243ZB What happens if unpaid duty or unrepaid refund or drawback

and penalty are paid ...................... ...................... ..................... ...... 253243ZC More than one infringement notice may not be served for the

same offence ...................... ...................... ..................... ................. 253243ZD Infringement notice not required to be served ...................... ......... 253243ZE CEO may extend period for payment of penalty ...................... ..... 254

Subdivision BPenalties in lieu of prosecution for offences

relating to prohibited imports, restricted areas etc. 254243ZF Application of Subdivision ...................... ...................... ................ 254243ZG Guidelines for serving infringement notices ..................... ............. 254243ZH When an infringement notice can be served ..................... ............. 254243ZI Matters to be included in an infringement notice......................... .. 255

243ZJ Withdrawal of infringement notice ..................... ..................... ...... 256243ZK What happens if the infringement notice penalty is paid ............... 257243ZL More than one infringement notice may not be served for the

same offence ...................... ...................... ..................... ................. 258


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243ZM Infringement notice not required to be served ...................... ......... 258243ZN Right of compensation in certain circumstances for goods

disposed of or destroyed ................................................................ 258243ZO Disposal of forfeited goods ...................... ...................... ................ 259

Part XIVCustoms prosecutions 260244 Meaning ofCustoms prosecution .................................................. 260245 Institution of prosecutions ................... ...................... .................... 260247 Prosecutions in accordance with practice rules ..................... ......... 260248 State Court practice ...................... ...................... ..................... ...... 261249 Commencement of prosecutions ..................... ..................... .......... 261250 Information to be valid if in words of Act ..................... ................ 261250A Property in goods subject to control of Customs ...................... ..... 261251 No objection for informality .................... ...................... ................ 262252 Conviction not to be quashed ..................... ...................... ............. 262253 Protection to witnesses .................... ...................... ...................... .. 262254 Defendant competent witness ..................... ...................... ............. 262255 Averment of prosecutor sufficient ...................... ..................... ...... 263256 Proof of proclamation etc. ................... ...................... .................... 263257 Conduct by directors, servants or agents ................... .................... 263259 Collector may levy on goods in his or her possession ................... 265261 Imprisonment not to release penalty ...................... ..................... ... 265263 Parties may recover costs .................... ...................... .................... 265264 Application of penalties ................... ...................... ...................... .. 265

Part XVTenders for rights to enter goods for home

consumption at concessional rates 266265 Interpretation ..................... ...................... ..................... ................. 266

266 Tender schemes ..................... ..................... ...................... ............. 266267 Undertakings relating to tenders ..................... ..................... .......... 267268 Transfers of rights to enter goods for home consumption at

concessional rates of duty .................... ...................... .................... 268269 Revocation or variation of undertaking ..................... .................... 270269A Recovery of penalties ...................... ...................... ..................... ... 270

Part XVATariff concession orders 271Division 1Preliminary 271

269B Interpretation ..................... ...................... ..................... ................. 271269C Interpretationcore criteria .................... ...................... ................ 273269D Interpretationgoods produced in Australia .................... ............. 273269E Interpretationthe ordinary course of business ............................ 274

Division 2Making and processing TCO applications 276269F Making a TCO application ...................... ...................... ................ 276269FA The applicants obligation ............................................................. 277


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269G Withdrawing a TCO application ..................... ..................... .......... 277269H Screening the application ..................... ...................... .................... 278269HA CEO may reject a TCO application in relation to goods

referred to in section 269SJ ........................................................... 278269J Applications taken to be lodged in certain circumstances ............. 279269K Processing a valid application .................... ...................... ............. 279269L Amendment of TCO applications ................... ..................... .......... 280269M Customs may invite submissions or seek other information,

documents or material ................................................................... 282269N Reprocessing of TCO applications ..................... ..................... ...... 283

Division 3Making and operation of TCOs 285269P The making of a standard TCO ...................... ..................... .......... 285269Q The making of a TCO for goods requiring repair ..................... ..... 286269R Notification of TCO decisions .................... ...................... ............. 287269S Operation of TCOs ................... ...................... ...................... ......... 287269SA Consequence of commencement or cessation of production

before TCO decision ..................... ...................... ..................... ...... 287Division 4Revocation of TCOs 289

269SB Request for revocation of TCOs ..................... ..................... .......... 289269SC Processing requests for revocation of TCOs ..................... ............. 289269SD Revocation at the initiative of Customs ..................... .................... 291269SE Notification of revocation decisions ...................... ..................... ... 293269SF Customs may seek information, documents or material

relating to revocation .................... ...................... ...................... ..... 293269SG Effect of revocation on goods in transit and capital

equipment on order ................... ...................... ...................... ......... 294Division 5Miscellaneous 296

269SH Internal review ................... ...................... ...................... ................ 296269SHA Administrative Appeals Tribunal Review of reconsideration

decisions ........................................................................................ 298269SJ TCOs not to apply to goods described by reference to their

end use or certain goods ................................................................ 300269SK TCOs not to contravene international agreements .................... ..... 300269SL TCOs not to be statutory rules .................... ...................... ............. 301


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Officers Part XII

Powers of Officers Division 1

Section 183UA

Customs Act 1901 1

Part XIIOfficers

Division 1Powers of Officers

Subdivision APreliminary

183UA Definitions

(1) In this Division, unless the contrary intention appears:

authorised person means:

(a) in relation to an application for, or for the execution of, a

search warrantan officer of Customs; and(b) in relation to an application for, or for the execution of, aseizure warrant in respect of goods referred to inparagraph (a) of the definition offorfeited goods:

(i) an officer of Customs; or

(ii) an officer of police; or

(iii) a member of the Defence Force; and

(c) in relation to an application for, or for the execution of, aseizure warrant in respect of goods referred to inparagraph (c) of the definition offorfeited goodsan officerof Customs; and

(d) in relation to the exercise of powers under section 203B or203C:

(i) an officer of Customs; or

(ii) an officer of police; or

(iii) a member of the Defence Force; and

(f) in relation to the exercise of powers under section 203CA or203CBan officer as defined by subsection 185(5); and

(e) in relation to an application for, or the execution of, a seizurewarrant under section 203DAan officer of Customs.

baggage means goods:

(a) that are carried by or for a traveller, including the captain andcrew members, on board the same ship or aircraft as thetraveller; or

(b) that a traveller intended to be so carried.


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Part XII Officers

Division 1 Powers of Officers

Section 183UA

2 Customs Act 1901

container includes:

(a) a trailer or other like receptacle, whether with or without

wheels, that is used for the movement of goods from oneplace to another; and

(b) any baggage; and

(c) any other thing that is or could be used for the carriage ofgoods, whether or not designed for that purpose.

conveyance means an aircraft, railway rolling stock, vehicle orvessel of any kind.

Customs place means:

(aa) a place owned or occupied by Customs; or

(a) a port, airport or wharf that is appointed, and the limits of

which are fixed, under section 15; or(b) a place that is the subject of a permission under subsection

58(2); or

(c) a boarding station that is appointed under section 15; or

(d) a place described in a depot licence that is granted undersection 77G; or

(e) a place described in a licence for warehousing goods that isgranted under subsection 79(1); or

(f) a place that is approved, in writing, by the CEO as a place forthe examination of international mail; or

(g) a place from which a ship or aircraft that is the subject of apermission under section 175 is required to depart, betweenthe grant of that permission and the departure of the ship oraircraft; or

(h) a place to which a ship or aircraft that is the subject of apermission under section 175 is required to return, while thatship or aircraft remains at that place; or

(i) a section 234AA place that is not a place, or a part of a place,referred to in paragraph (aa), (a), (b), (c), (d), (g) or (h).

Note: Subsection (2) provides for parliamentary disallowance of aninstrument approving a place under paragraph (f) of the definition.

data held in a computer includes:(a) data held in any removable data storage device for the time

being held in a computer; or


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Officers Part XII


Section 183UA

Customs Act 1901 3

(b) data held in a data storage device on a computer network ofwhich the computer forms a part.

data storage device means a thing containing, or designed tocontain, data for use by a computer.

designated container means a container referred to inparagraph (c) of the definition ofcontainer.

evidential material, in relation to an offence, whether the offenceis indictable or summary, means a thing relevant to the offence,including such a thing in electronic form.

executing officer, in relation to a search warrant or to a seizurewarrant, means:

(a) an authorised person named in the warrant by the judicialofficer issuing it as being responsible for executing thewarrant; or

(b) if that authorised person does not intend to be present at theexecution of the warrantany authorised person whosename has been written in the warrant by the authorisedperson so named; or

(c) another authorised person whose name has been written inthe warrant by the authorised person last named in thewarrant.

forfeited goods means goods described as forfeited to the Crown

under:

(a) section 228, 228A, 228B, 229, 229A or 230 of this Act; or

(c) section 7, 10, 11 or 13 of the Commerce (Trade Descriptions)Act 1905.

judicial officer means:

(a) in relation to a search warrant, or to a seizure warrant undersection 203:

(i) a magistrate; or

(ii) a justice of the peace or other person employed in acourt of a State or Territory who is authorised to issue

search warrants; or(b) in relation to a seizure warrant under section 203DA:

(i) a Judge of the Federal Court of Australia or of theSupreme Court of the Australian Capital Territory in


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Section 183UA

4 Customs Act 1901

relation to whom a consent under subsection 183UD(1),and a nomination under subsection 183UD(2), are in

force; or(ii) a Judge of the Supreme Court of a State in respect of

whom an appropriate arrangement in force undersection 11 is applicable; or

(iii) a Judge of the Supreme Court of the Northern Territorywho is not a Judge referred to in subparagraph (i) and inrespect of whom an appropriate arrangement in forceunder section 11 is applicable.

magistrate means a magistrate who is remunerated by salary orotherwise.

occupier, in relation to premises that are a conveyance or acontainer, means the person having charge of the conveyance orcontainer.

offence means:

(a) an offence against this Act; or

(b) an offence against the Commerce (Trade Descriptions) Act1905; or

(c) an offence against section 72.13 or Division 307 of theCriminal Code.

ordinary search means a search of a person or of articles in the

possession of a person that may include:(a) requiring the person to remove his or her overcoat, coat or

jacket and any gloves, shoes or hat; and

(b) an examination of those items.

person assisting, in relation to a search warrant or to a seizurewarrant, means:

(a) a person who is an authorised person and who is assisting inthe execution of the warrant; or

(b) a person who is not an authorised person and who has beenauthorised by the CEO or by a Regional Director for a Stateor Territory to assist in executing the warrant.

premises includes a place, a conveyance or a container.

search warrant means a warrant issued under section 198.


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Section 183UA

Customs Act 1901 5

seizable item means anything that would present a danger to aperson or that could be used to assist a person to escape from

lawful custody.

seizure notice means:

(a) in relation to Subdivision Ga notice of the kind mentionedin section 205A; and

(b) in relation to Subdivision GAa notice of the kindmentioned in section 209E.

seizure warrant means a warrant issued under section 203 or203DA.

special forfeited goods means forfeited goods that are referred to inparagraph 229(1)(b), (e) or (n)

terrorist act means an action or threat of action where:

(a) the action falls within subsection (4) and does not fall withinsubsection (4A); and

(b) the action is done or the threat is made with the intention ofadvancing a political, religious or ideological cause; and

(c) the action is done or the threat is made with the intention of:

(i) coercing, or influencing by intimidation, thegovernment of the Commonwealth or a State, Territoryor foreign country, or of part of a State, Territory orforeign country; or

(ii) intimidating the public or a section of the public.It is immaterial whether the action or threat, or any part of theaction or threat or anyone or anything affected by the action orthreat is within or outside Australia.

warrant premises means premises in relation to which a searchwarrant or a seizure warrant is in force.

(2) An instrument of approval of a place as a place for the examinationof international mail is a disallowable instrument for the purposesof section 46A of theActs Interpretation Act 1901.

(2AA) For the purposes of this Part, an offence against section 6 of theCrimes Act 1914 that relates to an offence against section 72.13 ofthe Criminal Code is taken to be an offence against section 72.13of the Criminal Code.


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Section 183UA

6 Customs Act 1901

(2A) For the purposes of this Part, an offence against section 6 of theCrimes Act 1914 that relates to an offence against Division 307 of

the Criminal Code is taken to be an offence against that Division.

(3) For the purposes of this Part:

(a) an offence against section 141.1, 142.1, 142.2 or 149.1 of theCriminal Code that relates to this Act is taken to be anoffence against this Act; and

(aa) an offence against section 141.1, 142.1, 142.2 or 149.1 of theCriminal Code that relates to section 72.13 of the CriminalCode is taken to be an offence against section 72.13 of theCriminal Code; and

(b) an offence against section 141.1, 142.1, 142.2 or 149.1 of theCriminal Code that relates to Division 307 of the Criminal

Code is taken to be an offence against that Division.

(4) For the purposes of the definition ofterrorist act in subsection (1),action falls within this subsection if it:

(a) causes serious harm that is physical harm to a person; or

(b) causes serious damage to property; or

(ba) causes a persons death; or

(c) endangers a persons life, other than the life of the persontaking the action; or

(d) creates a serious risk to the health or safety of the public or asection of the public; or

(e) seriously interferes with, seriously disrupts, or destroys, anelectronic system including, but not limited to:

(i) an information system; or

(ii) a telecommunications system; or

(iii) a financial system; or

(iv) a system used for the delivery of essential governmentservices; or

(v) a system used for, or by, an essential public utility; or

(vi) a system used for, or by, a transport system.

(4A) For the purposes of the definition ofterrorist act in subsection (1),

action falls within this subsection if it:(a) is advocacy, protest, dissent or industrial action; and


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Section 183UB

Customs Act 1901 7

(b) is not intended:

(i) to cause serious harm that is physical harm to a person;

or(ii) to cause a persons death; or

(iii) to endanger the life of a person, other than the persontaking the action; or

(iv) to create a serious risk to the health or safety of thepublic or a section of the public.

(5) In subsections (4) and (4A):

(a) a reference to any person or property is a reference to anyperson or property wherever situated, within or outsideAustralia; and

(b) a reference to the public includes a reference to the public ofa country other than Australia.

183UB Law relating to legal professional privilege not affected

This Division does not affect the law relating to legal professionalprivilege.

183UC CEO may give directions concerning the exercise of powers

under this Division

(1) Without limiting the generality of the power conferred on the CEO

under subsection 4(4) of the Customs Administration Act 1985, theCEO may give directions in writing under that subsectionconcerning:

(a) the circumstances in which the powers in this Division maybe exercised; and

(b) the officers of Customs who are entitled to exercise thosepowers; and

(c) the manner and frequency of reporting to the CEOconcerning the exercise of those powers.

(2) A direction given for the purposes of subsection (1) is adisallowable instrument for the purposes of section 46A of theActs

Interpretation Act 1901.


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Section 183UD

8 Customs Act 1901

183UD Judges who may issue seizure warrants for goods in transit

(1) A Judge of the Federal Court of Australia or of the Supreme Courtof the Australian Capital Territory may, by writing, consent to benominated by the Minister under subsection (2).

(2) The Minister may, by writing, nominate a Judge of a court referredto in subsection (1) in relation to whom a consent is in force underthat subsection to be a judicial officer for the purposes ofparagraph (b) of the definition ofjudicial officer in subsection183UA(1).

Subdivision BGeneral regulatory powers

184A Power to board a ship

General power to board a ship

(1) In the circumstances described in subsection (2), (3), (4), (4A), (5),(6), (7), (8) or (9), an officer (within the meaning of section 185)may board a ship.

Note: Sections 185 and 185A give further powers related to boarding a ship.

Foreign ships in Australian waters

(2) The officer may board a ship if:

(a) the ship is a foreign ship; and(b) the ship is on the landward side of the outer edge of

Australias territorial sea; and

(c) either:

(i) the boarding would be for the purposes of this Act or anAct prescribed by the regulations for the purposes ofthis Subdivision, or for the purposes of determiningwhether a contravention, or an attempted contravention,in Australia of section 72.13 or Division 307 of theCriminal Code is occurring; or

(ii) the commander of a Commonwealth ship or

Commonwealth aircraft reasonably suspects that theship is, will be or has been involved in a contravention,or an attempted contravention, in Australia ofsection 72.13 or Division 307 of the Criminal Code.


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Section 184A

Customs Act 1901 9

Australian ships outside territorial seas of other countries


(a) the ship is an Australian ship; and

(b) the ship is outside the territorial sea of any foreign country.

However, this subsection does not apply if the ship may be boardedunder subsection (9).

Foreign ships in contiguous zone


(a) the ship is a foreign ship; and

(b) the ship is in the contiguous zone of Australia; and

(c) the commander of a Commonwealth ship or Commonwealth

aircraft:

(i) wishes to establish the identity of the ship; or

(ii) reasonably suspects that the ship is, will be or has beeninvolved in a contravention, or an attemptedcontravention, in Australia of this Act, section 72.13 orDivision 307 of the Criminal Code or an Act prescribedby the regulations for the purposes of this Subdivision.

Foreign ships near installations

(4A) The officer may board a ship if:

(a) the ship is a foreign ship; and(b) the ship is within 500 metres of an Australian resources

installation or Australian sea installation (the500 metrezone); and

(c) the commander of a Commonwealth ship or Commonwealthaircraft:

(i) wishes to establish the identity of the ship; or

(ii) reasonably suspects that the ship is, will be or has beeninvolved in a contravention, or an attemptedcontravention, in the 500 metre zone of this Act,section 72.13 or Division 307 of the Criminal Code or

an Act prescribed by the regulations for the purposes ofthis Subdivision.


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Section 184A

10 Customs Act 1901

Mother ships on high seas supporting contraventions in Australia



(b) the ship is:

(i) outside the outer edge of the contiguous zone ofAustralia; and

(iii) outside the territorial sea of a foreign country; and

(c) the commander of a Commonwealth ship or Commonwealthaircraft reasonably suspects that the ship is being or was usedin direct support of, or in preparation for, a contravention inAustralia of this Act, section 72.13 or Division 307 of theCriminal Code or an Act prescribed by the regulations for thepurposes of this Subdivision, where the contraventioninvolves another ship (whether a foreign ship or anAustralian ship); and

(d) the boarding occurs as soon as practicable after thecontravention happens.

Suspicious foreign ships in EEZ



(b) the ship is in the exclusive economic zone of Australia; and

(c) the commander of a Commonwealth ship or Commonwealth

aircraft reasonably suspects that the ship is, will be or hasbeen involved in a contravention, or an attemptedcontravention, in Australias exclusive economic zone of anAct prescribed by the regulations for the purposes of thisSubdivision.

Mother ships on high seas supporting contraventions in EEZ



(b) the ship is:

(i) outside the outer edge of the exclusive economic zoneof Australia; and

(iii) outside the territorial sea of a foreign country; and

(c) the commander of a Commonwealth ship or Commonwealthaircraft reasonably suspects that the ship is being or was used


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Section 184A

Customs Act 1901 11

in direct support of, or in preparation for, a contravention inAustralias exclusive economic zone ofan Act prescribed by

the regulations for the purposes of this Subdivision, wherethe contravention involves another ship (whether a foreignship or an Australian ship); and

(d) the boarding occurs as soon as practicable after thecontravention happens.

Foreign ships on high seas and covered by an agreement etc.


(a) the ship is:


(ii) outside the territorial sea of a foreign country; and

(b) the commander of a Commonwealth ship or Commonwealthaircraft reasonably suspects that the ship is a foreign ship thatis entitled to fly the flag of a country; and

(c) Australia has an agreement or arrangement with that countrywhich enables the exercise of Australian jurisdiction overships of that country.

However, this subsection does not apply if the ship may be boardedunder subsection (4A), (5), (6) or (7).

Ships without nationality on high seas


(a) the ship is outside the territorial sea of a foreign country; and

(b) any of the following applies:

(i) the ship is not flying a flag of a country;

(ii) the ship is flying a flag of a country and the commanderof a Commonwealth ship or Commonwealth aircraftreasonably suspects that the ship is not entitled to flythat flag;

(iii) the commander of a Commonwealth ship orCommonwealth aircraft reasonably suspects that the

ship is not entitled to fly the flag of a country or hasbeen flying the flag of more than one country; and

(c) the commander of a Commonwealth ship or Commonwealthaircraft wishes to establish the identity of the ship.


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Section 184A

12 Customs Act 1901

However, this subsection does not apply if the ship may be boardedunder subsection (4A), (5), (6), (7) or (8).

Master must facilitate boarding

(12) The master of a ship must facilitate, by all reasonable means, theboarding of the masters ship under this section (apart fromsubsection (9)).

Penalty: Imprisonment for 2 years.

Note: The powers related to boarding under section 185 or 185A may still beexercised even though the master has not facilitated the boarding ofhis or her ship under this section.

(13) Subsection (12) does not apply if the master has a reasonable

excuse.Note: A defendant bears an evidential burden in relation to the matter in

subsection (13) (see subsection 13.3(3) of the Criminal Code).

(14) In this section:

commander, in relation to a Commonwealth ship orCommonwealth aircraft, includes a reference to the following:

(a) a commissioned officer of the Australian Defence Force;

(b) the most senior officer of Customs on board the ship oraircraft;

(c) a warrant officer of the Australian Defence Force;

(d) a non-commissioned officer of the Australia Defence Force.

commissioned officer of the Australian Defence Force means anofficer within the meaning of theDefence Act 1903.

non-commissioned officer of the Australian Defence Force means a non-commissioned officer within the meaning of the

Defence Force Discipline Act 1982.

warrant officer of the Australian Defence Force means a sailor,soldier or airman who holds the rank of warrant officer.


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Section 184B

Customs Act 1901 13

184B Power to chase foreign ships for boarding

Generally, a foreign ship may be chased if it may be boarded andan order to stop is given

(1) To enable the boarding of a foreign ship under section 184A (apartfrom subsection 184A(9)), the commander of a Commonwealthship or Commonwealth aircraft may use it to chase, or continue thechase of, the foreign ship to any place outside the territorial sea ofa foreign country if:

(a) a visual or auditory signal:

(i) to bring the foreign ship to a position to enableboarding; or

(ii) to stop the foreign ship;

has been given (whether by the commander of theCommonwealth ship or Commonwealth aircraft orotherwise); and

(b) the signal was given in such a way that it could be seen orheard (as the case may be) by the foreign ship; and

(c) at the time the signal was given, the foreign ship was in amaritime zone in which it could be boarded undersection 184A (regardless of the location of theCommonwealth ship or Commonwealth aircraft).

Note: Subsection 184A(9) is about boarding ships without nationality thatare on the high seas. Section 185A allows those ships to be boarded,

even though the master of the ship has not facilitated the boarding ofhis or her ship.

Signal made even if not seen or heard by foreign ship

(1A) To avoid doubt, a visual or auditory signal mentioned insubsection (1) is still made even if no person on board the foreignship saw, heard or understood the signal.

Using different Commonwealth ships or aircraft

(2) To avoid doubt, a Commonwealth ship or Commonwealth aircraftmay be used in the chase:

(a) whether or not it was a Commonwealth ship orCommonwealth aircraft referred to in section 184A inrelation to the boarding of the foreign ship under that section;and


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Section 184B

14 Customs Act 1901

(b) whether or not the visual or auditory signal referred to insubsection (1) was given from the ship or aircraft.

When foreign ships may be chased without a request being made

(3) The commander of a Commonwealth ship or Commonwealthaircraft may use it to chase, or continue the chase of, a foreign shipto a place outside the territorial sea of a foreign country to enablethe boarding of the foreign ship if, immediately before the start ofthe chase, the foreign ship could have been boarded undersubsection 184A(5) or (7).

Chase may continue even if the foreign ship is out of sight

(4) A chase under this section may continue even if the crew of all of

the Commonwealth ships and Commonwealth aircraft involved inthe chase lose sight of the chased ship or lose trace of it from radaror other sensing devices.

Chase may not continue after interruption

(5) The commander of a Commonwealth ship or Commonwealthaircraft must not use it to chase, or continue the chase of, a foreignship under this section if the chase is interrupted (within themeaning of Article 111 of UNCLOS) at a place outside the outeredge of the contiguous zone. This subsection has effect despitesubsections (1), (3) and (4).

Means that may be used to enable boarding of the foreign ship

(6) Anywhere outside the territorial sea of a foreign country, thecommander of a Commonwealth ship or Commonwealth aircraftchasing a ship under this section may use any reasonable meansconsistent with international law to enable boarding of the chasedship, including:

(a) using necessary and reasonable force; and

(b) where necessary and after firing a gun as a signal, firing at orinto the chased ship to disable it or compel it to be brought tofor boarding; and

(c) where necessary, using a device designed to stop or impede aship.


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Section 184C

Customs Act 1901 15

184C Power to chase Australian ships for boarding

Australian ships may be chased

(1) To enable the boarding of an Australian ship, the commander of aCommonwealth ship or Commonwealth aircraft may use it tochase, or continue the chase of, the Australian ship to any placeoutside the territorial sea of a foreign country.

Chase may continue even if the Australian ship is out of sight

(2) A chase under this section may continue even if the crew of all ofthe Commonwealth ships and Commonwealth aircraft involved inthe chase lose sight of the chased ship or lose trace of it from radaror other sensing devices.

Means that may be used to enable boarding of the Australian ship

(3) Anywhere outside the territorial sea of a foreign country, thecommander of a Commonwealth ship or Commonwealth aircraftchasing a ship under this section may use any reasonable means toenable boarding of the chased ship, including:

(a) using necessary and reasonable force; and

(b) where necessary and after firing a gun as a signal, firing at orinto the chased ship to disable it or compel it to be brought tofor boarding; and

(c) where necessary, using a device designed to stop or impede aship.

184D Identifying an aircraft and requesting it to land for boarding

Application of section

(1) This section allows the commander of a Commonwealth aircraft tomake requests of the pilot of another aircraft that:

(a) if the other aircraft is an Australian aircraftis overanywhere except a foreign country; and

(b) if the other aircraft is not an Australian aircraftis over

Australia.


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Section 184D

16 Customs Act 1901

Requesting information to identify an aircraft

(2) If the commander cannot identify the other aircraft, the commandermay:

(a) use his or her aircraft to intercept the other aircraft inaccordance with the practices recommended in Annex 2(headed Rules of the Air) to the Convention onInternational Civil Aviation done at Chicago on 7 December1944 (that was adopted in accordance with that Convention);and

(b) request the pilot of the other aircraft to disclose to thecommander:

(i) the identity of the other aircraft; and

(ii) the identity of all persons on the other aircraft; and

(iii) the flight path of the other aircraft; and

(iv) the flight plan of the other aircraft.

Requesting aircraft to land for boarding

(3) The commander may request the pilot of the other aircraft to land itat the nearest airport, or at the nearest suitable landing field, inAustralia for boarding for the purposes of this Act if:

(a) the pilot does not comply with a request under subsection (2);or

(b) the commander reasonably suspects that the other aircraft is

or has been involved in a contravention, or attemptedcontravention, of this Act or section 72.13 or Division 307 ofthe Criminal Code; or

(c) the commander reasonably suspects that the other aircraft iscarrying goods satisfying either or both of the followingsubparagraphs:

(i) the goods are connected, whether directly or indirectly,with the carrying out of a terrorist act, whether aterrorist act has occurred, is occurring or is likely tooccur;

(ii) the existence or the shipment of the goods prejudices, or

is likely to prejudice, Australias defence or security orinternational peace and security.

Note: Section 185 gives power to board the aircraft and search it once it haslanded.


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Section 185

Customs Act 1901 17

Means of making request

(4) Any reasonable means may be used to make a request under thissection.

Request still made even if pilot did not receive etc. request

(5) To avoid doubt, a request is still made under this section even if thepilot did not receive or understand the request.

Pilot must comply with request

(6) The pilot of the other aircraft must comply with a request madeunder this section.

Penalty: Imprisonment for 2 years.

(6A) Subsection (6) does not apply if the pilot of the other aircraft has areasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter insubsection (6A) (see subsection 13.3(3) of the Criminal Code).

Definition

(7) In this section,Australian aircraft means an aircraft that:

(a) is an Australian aircraft as defined in the Civil Aviation Act1988; or

(b) is not registered under the law of a foreign country and iseither wholly owned by, or solely operated by:

(i) one or more residents of Australia; or

(ii) one or more Australian nationals; or

(iii) one or more residents of Australia and one or moreAustralian nationals.

For the purposes of this definition,Australian nationalandresident of Australia have the same meanings as in the ShippingRegistration Act 1981.

185 Power to board and search etc. ships and aircraft

Application of section to ships

(1) This section applies to a ship that is outside the territorial sea of aforeign country if:


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Section 185

18 Customs Act 1901

(a) the ship may be boarded under section 184A; or

(b) the ship is a foreign ship described in subsection 184B(3)

(which allows foreign ships on the high seas to be chased); or(c) the ship is an Australian ship.

However, this section does not apply to a ship if the ship may beboarded under subsection 184A(8) or (9) (certain ships on the highseas), unless an officer is satisfied under subsection 185A(3) thatthe ship is an Australian ship.

Note: Section 185A gives further powers relating to ships that may beboarded under subsection 184A(8) or (9).

Application to aircraft

(1A) This section applies to an aircraft that has landed in Australia for

boarding as a result of a request made under section 184D.

Officers powers

(2) An officer may:

(a) board and search the ship or aircraft; and

(b) search and examine any goods found on the ship or aircraft;and

(ba) secure any goods found on the ship or aircraft; and

(c) require all persons found on the ship or aircraft to answerquestions, and produce any documents in their possession, in

relation to the following:(i) the ship or aircraft, its voyage or flight and its cargo,

stores, crew and passengers;

(ii) the identity and presence of those persons on the ship oraircraft;

(iii) a contravention, an attempted contravention or aninvolvement in a contravention or attemptedcontravention, either in or outside Australia, of this Actor section 72.13 or Division 307 of the Criminal Code;and

(ca) copy, or take extracts from, any document:

(i) found on the ship or aircraft; or(ii) produced by a person found on the ship or aircraft as

required under paragraph (c); and


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Section 185

Customs Act 1901 19

(cb) take possession of any goods (other than narcotic goods)found on the ship or aircraft, and any documents produced

under paragraph (c) by a person found on the ship or aircraft,if the officer has reasonable grounds to believe that the goodsor documents may afford evidence of the commission of arelevant offence; and

(d) arrest without warrant any person found on the ship oraircraft if:

(i) in the case of a person found on a ship that is inAustraliathe officer reasonably suspects that theperson has committed, is committing or attempting tocommit, or is involved in the commission of, an offence,either in or outside Australia, against this Act,section 72.13 or Division 307 of the Criminal Code or

an Act prescribed by the regulations for the purposes ofthis Subdivision; or

(ii) in the case of a person found on a ship that is outsideAustraliathe officer reasonably suspects that theperson has committed, is committing or attempting tocommit, or is involved in the commission of:

(A) an offence in Australia against this Act,section 72.13 or Division 307 of the CriminalCode or an Act prescribed by the regulationsfor the purposes of this Subdivision; or

(B) an offence in Australias exclusive economic

zone against an Act prescribed by theregulations for the purposes of this Subdivision;or

(iii) in the case of a person found on an aircraft that is inAustraliathe officer reasonably suspects that theperson has committed, is committing or attempting tocommit, or is involved in the commission of, an offence,either in or outside Australia, against this Act orsection 72.13 or Division 307 of the Criminal Code; and

(e) seize without warrant any narcotic goods found on the ship oraircraft.

Note: Section 185AA gives power to search a person found on a ship oraircraft that has been boarded under paragraph 185(2)(a).


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Section 185

20 Customs Act 1901

(2AA) If one or more officers (other than officers who are members of theAustralian Defence Force) board a ship under this section, the most

senior of those officers who is an officer of Customs must:(a) if requested to do so by the master of the ship; and

(b) as soon as reasonably practicable after boarding;

produce, for inspection by the master, written evidence of the factthat the officer is an officer within the meaning of this section.

(2AB) If the officer fails to produce the evidence mentioned insubsection (2AA), no officer may remain on board the ship.

(2A) Any exercise of the power of arrest referred to in subsection (2) inthe contiguous zone in relation to Australia is subject to theobligations of Australia under international law, including

obligations under any treaty, convention or other agreement orarrangement between Australia and another country or othercountries.

Help to search

(2B) Without limiting the generality of paragraph (2)(a), an officer mayuse a dog to assist in searching the ship or aircraft.

Help to examine goods

(2C) In the exercise of the power under paragraph (2)(b) to examinegoods, the officer may do, or arrange for another officer or otherperson having the necessary experience to do, whatever isreasonably necessary to permit the examination of the goods.

Examples of examining goods

(2D) Without limiting the generality of subsection (2C), examples ofwhat may be done in the examination of goods include thefollowing:

(a) opening any package in which goods are or may becontained;

(b) using a device, such as an X-ray machine or ion scanning

equipment, on the goods;(c) testing or analysing the goods;

(d) measuring or counting the goods;


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Section 185

Customs Act 1901 21

(e) if the goods are a documentreading the document eitherdirectly or with the use of an electronic device;

(f) using a dog to assist in examining the goods.

Power to detain and move ship or aircraft

(3) An officer may detain the ship or aircraft and bring it, or cause it tobe brought, to a port or airport, or to another place (including, inrelation to a ship, a place within the territorial sea or the contiguouszone in relation to Australia), that he or she considers appropriateif:

(a) in the case of a ship that is in Australiathe officerreasonably suspects that the ship is or has been involved in acontravention, either in or outside Australia, of this Act,

section 72.13 or Division 307 of the Criminal Code or an Actprescribed by the regulations for the purposes of thisSubdivision; and

(b) in the case of an Australian ship that is outside Australiathe officer reasonably suspects that the ship is, will be or hasbeen involved in a contravention, either in or outsideAustralia, of this Act or any other Act; and

(c) in the case of a foreign ship that is outside Australiatheofficer reasonably suspects that the ship is, will be or hasbeen involved in a contravention:

(i) in Australia of this Act, section 72.13 or Division 307 of

the Criminal Code or an Act prescribed by theregulations for the purposes of this Subdivision; or

(ii) in Australias exclusive economic zone of an Actprescribed by the regulations for the purposes of thisSubdivision; and

(d) in the case of an aircraft that is in Australiathe officerreasonably suspects that the aircraft is or has been involvedin a contravention, either in or outside Australia, of this Actor section 72.13 or Division 307 of the Criminal Code.

However, a ship need not be brought to a port or other place if theCEO makes a direction in relation to the ship under section 185B.


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Section 185

22 Customs Act 1901

Moving ship on the high seas

(3AAAA) To avoid doubt, subsection (3) allows an officer to bring a ship, orcause it to be brought, to a place even if it is necessary for the shipto travel on the high seas to reach the place.

People on detained ships or aircraft

(3AAA) If an officer detains a ship or aircraft under this section, anyrestraint on the liberty of any person found on the ship or aircraftthat results from the detention of the ship or aircraft is notunlawful, and proceedings, whether civil or criminal, in respect ofthat restraint may not be instituted or continued in any courtagainst the Commonwealth, the officer or any person assisting theofficer in detaining the ship or aircraft.

Jurisdiction of High Court

(3AAB) Nothing in subsection (3AAA) is intended to affect the jurisdictionof the High Court under section 75 of the Constitution.

Powers of officers in respect of people found on detained ships or

aircraft

(3A) If an officer detains a ship or aircraft under this section, the officermay:

(a) detain any person found on the ship or aircraft and bring the

person, or cause the person to be brought, to the migrationzone (within the meaning of theMigration Act 1958); or

(b) take the person, or cause the person to be taken, to a placeoutside Australia.

The definition ofplace outside Australia in subsection 4(1) doesnot apply for the purposes of paragraph (b).

Powers to move people

(3AA) For the purpose of moving a person under subsection (3A), anofficer may, within or outside Australia:

(a) place the person on a ship or aircraft; or

(b) restrain the person on a ship or aircraft; or

(c) remove the person from a ship or aircraft.

Note: Section 185AA gives power to search a person placed on a ship oraircraft under subsection 185(3AA).


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Protection if officers etc. act in good faith

(3AB) Proceedings, whether civil or criminal, may not be instituted orcontinued, in respect of any action taken under subsection (3AA),against the Commonwealth, an officer or any person assisting anofficer if the officer or person who took the action acted in goodfaith and used no more force than was authorised bysubsection (3B).

Use of necessary and reasonable force

(3B) An officer may use such force as is necessary and reasonable in theexercise of a power under this section.

Limit on use of force to board and search ships or aircraft

(3C) In boarding and searching the ship or aircraft and searching orexamining goods found on the ship or aircraft, an officer must notdamage the ship, aircraft or goods by forcing open a part of theship, aircraft or goods unless:

(a) the person (if any) apparently in charge of the ship or aircrafthas been given a reasonable opportunity to open that part orthe goods; or

(b) it is not reasonably practicable to give that person such anopportunity.

This subsection has effect despite paragraphs (2)(a) and (b) and

subsection (3B).

Limit on use of force to arrest or detain person on ships or aircraft

(3D) In arresting or detaining a person found on the ship or aircraft, anofficer:

(a) must not use more force, or subject the person to greaterindignity, than is necessary and reasonable to make the arrestor detention or to prevent the person escaping after the arrestor detention; and

(b) must not do anything likely to cause the person grievousbodily harm unless the officer believes on reasonable

grounds that doing the thing is necessary to protect life orprevent serious injury of another person (including theofficer).


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This subsection has effect despite paragraph (2)(d) andsubsection (3B).

Limit on use of force to arrest fleeing person

(3E) In arresting a person found on the ship or aircraft who is fleeing toescape arrest, an officer must not do anything likely to cause theperson grievous bodily harm unless:

(a) the person has, if practicable, been called on to surrender andthe officer believes on reasonable grounds that the personcannot be apprehended in any other way; or

(b) the officer believes on reasonable grounds that doing thething is necessary to protect life or prevent serious injury ofanother person (including the officer).

This subsection applies in addition to subsection (3D) and haseffect despite paragraph (2)(d) and subsection (3B).

If ship covered by agreement, officer may exercise other powers

(3F) If:

(a) an officer is satisfied that the ship is a foreign ship that isentitled to fly the flag of a country; and

(b) Australia has an agreement or arrangement with that countrywhich enables the exercise of Australian jurisdiction overships of that country;

then the officer may exercise any powers prescribed by theregulations consistently with the agreement or arrangement inrelation to the ship or persons found on the ship.

Complying with requirement by officer

(4) A person shall not refuse or fail to comply with a requirementmade by an officer under this section.

Penalty: 100 penalty units.

Reasonable excuse for non-compliance

(4AA) Subsection (4) does not apply if the person has a reasonableexcuse.


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Evidence may be used in prosecutions etc.

(4A) To avoid doubt, if, when exercising powers under this section, anofficer obtains evidence of the commission of an offence against alaw of the Commonwealth, a State or a Territory, then thatevidence may be used, or given to another body for use, in:

(a) investigating the offence; or

(b) proceedings for the prosecution for the offence.

However, this subsection does not override or limit the operationof a law of a State about the evidence that may be used inproceedings for the prosecution for an offence against a law of thatState.

Definition ofofficer

(5) In this section,officer means an officer within the meaning ofsubsection 4(1), and includes:

(a) any person who is in command, or a member of the crew, of:

(i) a Commonwealth ship or Commonwealth aircraftreferred to in section 184A in relation to the boardingunder that section of the ship to which this sectionapplies; or

(ia) the aircraft from which the relevant request undersection 184D was made; or

(ii) a ship or aircraft that was used under section 184B or

184C to chase the ship in relation to which this sectionapplies; and

(b) a police officer or a member of the Australian Defence Force.

Interpretation

(6) In this section:

(a) a reference to a person found on the ship or aircraft includesa reference to a person suspected on reasonable grounds byan officer of having landed from or left the ship or aircraft;and

(b) a reference to goods found on the ship or aircraft includes a

reference to goods suspected on reasonable grounds by anofficer of having been removed from the ship or aircraft.


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(7) For the purposes of paragraph (2)(cb), goods found on a ship oraircraft, or documents produced by a person found on a ship or

aircraft, may afford evidence of the commission of a relevantoffence only if:

(a) in a case where the ship is in Australiathe goods ordocuments may afford evidence of the commission of anoffence, either in or outside Australia, against this Act,section 72.13 or Division 307 of the Criminal Code or an Actprescribed by the regulations; or

(b) in a case where the ship is outside Australiathe goods ordocuments may afford evidence of the commission of anoffence:

(i) in Australia against this Act, section 72.13 orDivision 307 of the Criminal Code or an Act prescribedby the regulations; or

(ii) in Australias exclusive economic zone against an Actprescribed by the regulations; or

(c) in a case where the aircraft is in Australiathe goods ordocuments may afford evidence of the commission of anoffence, either in or outside Australia, against this Act orsection 72.13 or Division 307 of the Criminal Code.

185A Boarding of certain ships on the high seas

(1) This section applies to a ship if:

(a) the ship may be boarded under subsection 184A(8) (boardinga ship of a country with which Australia has an agreement),and the ship is:


(ii) outside the territorial sea of any country (includingAustralia);

Documents

Federal Customs Act 1901 Vol 2