Section 185A Customs Act 1901 | Failing to Allow Boarding and Searching on High Seas


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The Legislation

Section 185A of the Customs Act 1901 (Cth) deals with Failing to Allow Boarding and Searching on High Seas and is extracted below.

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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) (boarding a ship of a country with which Australia has an agreement), and the ship is:

(i) outside the outer edge of the contiguous zone of Australia; and
(ii) outside the territorial sea of any country (including Australia); or

(b) the ship may be boarded under subsection 184A(9) (boarding a ship without nationality), and the ship is outside the territorial sea of a foreign country.

Powers to establish the identity of the ship
(2) An officer may:

(a) board the ship; and
(b) ask all persons found on the ship questions about:

(i) the identity of the ship; and
(ii) the voyage of the ship; and

(c) require all persons found on the ship to produce documents relevant to:

(i) finding out the identity of the ship; or
(ii) the voyage of the ship; and

(d) require the master or a member of the master’s crew to show the commander or a member of the commander’s crew readings of the ship’s navigation instruments relating to the voyage of the ship.

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

(2A) If one or more officers (other than officers who are members of the Australian 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 fact that the officer is an officer within the meaning of this section.

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

Officer discovers that the ship is an Australian ship
(3) If, after exercising the powers in subsection (2), the officer is satisfied that the ship is an Australian ship, then section 185 applies to the ship.

Note: If section 185 applies to a ship, then the officer will be able to exercise all of the powers under that section in relation to the ship.

Officer confirms that the ship is covered by an agreement etc.
(4) If:

(a) after exercising the powers in subsection (2), the officer is satisfied that the ship is a foreign ship that is entitled to fly the flag of a country; and
(b) Australia has an agreement or arrangement with that country which enables the exercise of Australian jurisdiction over ships of that country;
then the officer may exercise the powers prescribed by the regulations consistently with that agreement or arrangement.

Officer discovers that the ship is not covered by an agreement etc.
(5) If:

(a) after exercising the powers in subsection (2), the officer is satisfied that the ship is a foreign ship that is entitled to fly the flag of a country; and
(b) Australia does not have an agreement or arrangement with that country which enables the exercise of Australian jurisdiction over ships of that country;
then the officer must leave the ship as soon as is practicable.

Officer confirms that the ship is without nationality
(6) If, after exercising the powers in subsection (2), the officer is satisfied that the ship is a foreign ship that:

(a) is not entitled to fly the flag of a country; or
(b) has been flying the flag of a country that it is not entitled to fly; or
(c) has been flying the flag of more than one country;
then the officer may search the ship and seize without warrant any narcotic goods found on the ship.

(7) In this section:
officer has the meaning given by subsection 4(1), and includes:

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

(i) a Commonwealth ship or Commonwealth aircraft referred to in section 184A in relation to the boarding under that section of a ship; or
(ii) a ship that was used under section 184B to chase the ship in relation to which this section applies; and

(b) a police officer; and
(c) a member of the Australian Defence Force.