Section 184A Customs Act 1901 | Power to Board a Ship


Print
The Legislation

Section 184A of the Customs Act 1901 (Cth) deals with Power to Board a Ship and is extracted below.

Our exceptional criminal lawyers are vastly experienced and highly successful in defending Customs Act cases.

Call us today on (02) 9261 8881 for a free first appointment.

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 Australia’s territorial sea; and
(c) either:

(i) the boarding would be for the purposes of this Act or an Act prescribed by the regulations for the purposes of this Subdivision, or for the purposes of determining whether a contravention, or an attempted contravention, in Australia of section 72.13 or Division 307 of the Criminal Code is occurring; or
(ii) the commander of a Commonwealth ship or Commonwealth aircraft reasonably suspects that the ship is, will be or has been involved in a contravention, or an attempted contravention, in Australia of section 72.13 or Division 307 of the Criminal Code.

Australian ships outside territorial seas of other countries

(3) The officer may board a ship if:

(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 boarded under subsection (9).

Foreign ships in contiguous zone

(4) The officer may board a ship if:

(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 been involved in a contravention, or an attempted contravention, 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.

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 (the 500 metre zone); 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 been involved in a contravention, or an attempted contravention, 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 of this Subdivision.

Mother ships on high seas supporting contraventions in Australia

(5) The officer may board a ship if:

(a) the ship is a foreign ship; and
(b) the ship is:

(i) outside the outer edge of the contiguous zone of Australia; and
(iii) outside the territorial sea of a foreign country; and

(c) the commander of a Commonwealth ship or Commonwealth aircraft reasonably suspects that the ship is being or was used in direct support of, or in preparation for, a contravention 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, where the contravention involves another ship (whether a foreign ship or an Australian ship); and
(d) the boarding occurs as soon as practicable after the contravention happens.

Suspicious foreign ships in EEZ

(6) The officer may board a ship if:

(a) the ship is a foreign ship; and
(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 has been involved in a contravention, or an attempted contravention, in Australia’s exclusive economic zone of an Act prescribed by the regulations for the purposes of this Subdivision.

Mother ships on high seas supporting contraventions in EEZ

(7) The officer may board a ship if:

(a) the ship is a foreign ship; and
(b) the ship is:

(i) outside the outer edge of the exclusive economic zone of Australia; and
(iii) outside the territorial sea of a foreign country; and

(c) the commander of a Commonwealth ship or Commonwealth aircraft reasonably suspects that the ship is being or was used in direct support of, or in preparation for, a contravention in Australia’s exclusive economic zone of an Act prescribed by the regulations for the purposes of this Subdivision, where the contravention involves another ship (whether a foreign ship or an Australian ship); and
(d) the boarding occurs as soon as practicable after the contravention happens.

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

(8) The officer may board a ship if:

(a) the ship is:

(i) outside the outer edge of the contiguous zone of Australia; and
(ii) outside the territorial sea of a foreign country; and

(b) the commander of a Commonwealth ship or Commonwealth aircraft reasonably suspects that the ship is a foreign ship that is entitled to fly the flag of a country; and
(c) Australia has an agreement or arrangement with that country which enables the exercise of Australian jurisdiction over ships of that country.
However, this subsection does not apply if the ship may be boarded under subsection (4A), (5), (6) or (7).

Ships without nationality on high seas

(9) The officer may board a ship if:

(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 commander of a Commonwealth ship or Commonwealth aircraft reasonably suspects that the ship is not entitled to fly that flag;
(iii) the commander of a Commonwealth ship or Commonwealth aircraft reasonably suspects that the ship is not entitled to fly the flag of a country or has been flying the flag of more than one country; and

(c) the commander of a Commonwealth ship or Commonwealth aircraft wishes to establish the identity of the ship.
However, this subsection does not apply if the ship may be boarded under subsection (4A), (5), (6), (7) or (8).

Master must facilitate boarding

(12) The master of a ship must facilitate, by all reasonable means, the boarding of the master’s ship under this section (apart from subsection (9)).

Penalty: Imprisonment for 2 years.

Note: The powers related to boarding under section 185 or 185A may still be exercised even though the master has not facilitated the boarding of his 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 or Commonwealth 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 or aircraft;
(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 an officer within the meaning of the Defence 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.