Section 185 Customs Act 1901 | Failing to Allow Boarding and Searching


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The Legislation

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

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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 a foreign country if:

(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 be boarded under subsection 184A(8) or (9) (certain ships on the high seas), unless an officer is satisfied under subsection 185A(3) that the ship is an Australian ship.

Note: Section 185A gives further powers relating to ships that may be boarded 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.

Officer’s 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 answer questions, 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 or aircraft;
(iii) a contravention, an attempted contravention or an involvement in a contravention or attempted contravention, either in or outside Australia, of this Act or 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

(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 goods or documents may afford evidence of the commission of a relevant offence; and
(d) arrest without warrant any person found on the ship or aircraft if:

(i) in the case of a person found on a ship that is in Australia—the officer reasonably suspects that the person has committed, is committing or attempting to commit, 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 of this Subdivision; or
(ii) in the case of a person found on a ship that is outside Australia—the officer reasonably suspects that the person has committed, is committing or attempting to commit, or is involved in the commission of:

(A) an offence in Australia against this Act, section 72.13 or Division 307 of the Criminal Code or an Act prescribed by the regulations for the purposes of this Subdivision; or
(B) an offence in Australia’s exclusive economic zone against an Act prescribed by the regulations for the purposes of this Subdivision; or

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

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

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

(2AA) 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.

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

(2A) Any exercise of the power of arrest referred to in subsection (2) in the contiguous zone in relation to Australia is subject to the obligations of Australia under international law, including obligations under any treaty, convention or other agreement or arrangement between Australia and another country or other countries.

Help to search
(2B) Without limiting the generality of paragraph (2)(a), an officer may use 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 examine goods, the officer may do, or arrange for another officer or other person having the necessary experience to do, whatever is reasonably necessary to permit the examination of the goods.

Examples of examining goods
(2D) Without limiting the generality of subsection (2C), examples of what may be done in the examination of goods include the following:

(a) opening any package in which goods are or may be contained;
(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;
(e) if the goods are a document—reading the document either directly 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 to be brought, to a port or airport, or to another place (including, in relation to a ship, a place within the territorial sea or the contiguous zone in relation to Australia), that he or she considers appropriate if:

(a) in the case of a ship that is in Australia—the officer reasonably suspects that the ship is or has been involved in a contravention, either in or outside Australia, of this Act, section 72.13 or Division 307 of the Criminal Code or an Act prescribed by the regulations for the purposes of this Subdivision; and
(b) in the case of an Australian ship that is outside Australia—the officer reasonably suspects that the ship is, will be or has been involved in a contravention, either in or outside Australia, of this Act or any other Act; and
(c) in the case of a foreign ship that is outside Australia—the officer reasonably suspects that the ship is, will be or has been 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 the regulations for the purposes of this Subdivision; or
(ii) in Australia’s exclusive economic zone of an Act prescribed by the regulations for the purposes of this Subdivision; and

(d) in the case of an aircraft that is in Australia—the officer reasonably suspects that the aircraft is or has been involved in a contravention, either in or outside Australia, of this Act or section 72.13 or Division 307 of the Criminal Code.
However, a ship need not be brought to a port or other place if the CEO makes a direction in relation to the ship under section 185B.

Moving ship on the high seas
(3AAAA) To avoid doubt, subsection (3) allows an officer to bring a ship, or cause it to be brought, to a place even if it is necessary for the ship to 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, any restraint on the liberty of any person found on the ship or aircraft that results from the detention of the ship or aircraft is not unlawful, and proceedings, whether civil or criminal, in respect of that restraint may not be instituted or continued in any court against the Commonwealth, the officer or any person assisting the officer in detaining the ship or aircraft.

Jurisdiction of High Court
(3AAB) Nothing in subsection (3AAA) is intended to affect the jurisdiction of 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 officer may:

(a) detain any person found on the ship or aircraft and bring the person, or cause the person to be brought, to the migration zone (within the meaning of the Migration Act 1958); or
(b) take the person, or cause the person to be taken, to a place outside Australia.
The definition of place outside Australia in subsection 4(1) does not apply for the purposes of paragraph (b).

Powers to move people
(3AA) For the purpose of moving a person under subsection (3A), an officer 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 or aircraft under subsection 185(3AA).

Protection if officers etc. act in good faith
(3AB) Proceedings, whether civil or criminal, may not be instituted or continued, in respect of any action taken under subsection (3AA), against the Commonwealth, an officer or any person assisting an officer if the officer or person who took the action acted in good faith and used no more force than was authorised by subsection (3B).

Use of necessary and reasonable force
(3B) An officer may use such force as is necessary and reasonable in the exercise 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 or examining goods found on the ship or aircraft, an officer must not damage the ship, aircraft or goods by forcing open a part of the ship, aircraft or goods unless:

(a) the person (if any) apparently in charge of the ship or aircraft has been given a reasonable opportunity to open that part or the goods; or
(b) it is not reasonably practicable to give that person such an opportunity.
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, an officer:

(a) must not use more force, or subject the person to greater indignity, than is necessary and reasonable to make the arrest or detention or to prevent the person escaping after the arrest or detention; and
(b) must not do anything likely to cause the person grievous bodily harm unless the officer believes on reasonable grounds that doing the thing is necessary to protect life or prevent serious injury of another person (including the officer).
This subsection has effect despite paragraph (2)(d) and subsection (3B).

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

(a) the person has, if practicable, been called on to surrender and the officer believes on reasonable grounds that the person cannot be apprehended in any other way; or
(b) the officer believes on reasonable grounds that doing the thing is necessary to protect life or prevent serious injury of another person (including the officer).
This subsection applies in addition to subsection (3D) and has effect 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 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 any powers prescribed by the regulations consistently with the agreement or arrangement in relation 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 requirement made 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 reasonable excuse.

Evidence may be used in prosecutions etc.
(4A) To avoid doubt, if, when exercising powers under this section, an officer obtains evidence of the commission of an offence against a law of the Commonwealth, a State or a Territory, then that evidence 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 operation of a law of a State about the evidence that may be used in proceedings for the prosecution for an offence against a law of that State.

Definition of officer
(5) In this section, officer means an officer within the meaning of 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 the ship to which this section applies; or
(ia) the aircraft from which the relevant request under section 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 section applies; 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 includes a reference to a person suspected on reasonable grounds by an 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 an officer of having been removed from the ship or aircraft.

(7) For the purposes of paragraph (2)(cb), goods found on a ship or aircraft, or documents produced by a person found on a ship or aircraft, may afford evidence of the commission of a relevant offence only if:

(a) in a case where the ship is in Australia—the goods or documents may afford evidence of 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; or
(b) in a case where the ship is outside Australia—the goods or documents may afford evidence of the commission of an offence:

(i) in Australia against this Act, section 72.13 or Division 307 of the Criminal Code or an Act prescribed by the regulations; or
(ii) in Australia’s exclusive economic zone against an Act prescribed by the regulations; or

(c) in a case where the aircraft is in Australia—the goods or documents may afford evidence of the commission of an offence, either in or outside Australia, against this Act or section 72.13 or Division 307 of the Criminal Code.