The
Maritime Powers Act 2013 (Cth), which gained assent last week,
- establishes a system of authorisations under which a maritime officer may exercise enforcement powers in relation to vessels, installations, aircraft, protected land areas and isolated persons on certain grounds;
- provides for the enforcement powers available to maritime officers including boarding, obtaining information, searching, detaining, seizing and retaining things, and moving and detaining persons;
- provides for processes for dealing with things seized, retained or detained and persons held; and
- creates offences for failure to comply.
The Ex Memo for the Bill last year indicated that the it
establishes a system of authorisations under which a maritime officer may exercise enforcement powers in the maritime domain. The comprehensive powers under the Bill will be available to enforce a diverse range of Australia's maritime laws, including in relation to illegal foreign fishing, customs, migration, quarantine and drug trafficking, as well as international agreements and arrangements at sea. The enforcement powers are framed in a manner specific to the maritime domain, an area which poses particular challenges to the effective enforcement of Australian laws. Enforcement operations in maritime areas frequently occur in remote locations, isolated from the support normally available to land-based operations and constrained by the practicalities involved in sea-based work. The unique aspects of the maritime environment merit a tailored approach to maritime powers, helping to ensure flexibility in their exercise and to assist maritime officers to deal with quickly changing circumstances and difficult and dangerous situations. The powers contained in the Bill are primarily based on powers currently available to operational agencies. The Bill does not alter operational roles, functions or responsibilities, nor reallocate existing resources, between agencies.
Part 1 of the Bill deals with preliminary matters, including commencement and definitions. It also provides a guide to the remainder of the Bill.
Part 2 of the Bill establishes a framework for the exercise of maritime powers. In particular, it provides for the `authorisation' of maritime powers. In most cases, an authorising officer is the most senior `maritime officer' available in a particular operational situation. A maritime officer is defined as a member of the Australian Defence Force, an officer of the Australian Customs and Border Protection Service, a member or special member of the Australian Federal Police, or other person appointed by the Minister for the purposes of enforcing particular domestic laws or international agreements.
This system of authorisations builds on existing operational practices, while providing a clear legislative framework for the authorisation of specific actions by maritime officers. An authorising officer can give an authorisation to a maritime officer to exercise enforcement powers in relation to vessels, installations, aircraft, protected land areas and isolated persons on a number of grounds. These include: where the authorising officer reasonably suspects that an Australian law has been contravened; to administer or ensure compliance with a monitoring law; or where the authorising officer reasonably suspects that an international agreement or decision applies.
An authorisation must be in force for the exercise of powers by a maritime officer to begin. The only exceptions are aircraft identification powers and the exercise of powers for the purposes of ensuring the safety of persons. Once an authorisation is in force, a maritime officer generally has access to the full range of powers set out in the Bill (described in Part 3). The maritime officer may exercise these powers as necessary for the purposes of the authorisation and for other purposes set out in the Bill. The exercise of maritime powers under an authorisation is subject to certain geographical limits. For example, maritime powers cannot be exercised in another country except in limited circumstances, such as with the agreement of that country. These provisions are consistent with limits under international and Australian law in relation to the exercise of maritime enforcement powers.
Part 3 of the Bill outlines the comprehensive set of maritime enforcement powers available to maritime officers. Enforcement powers are available with respect to: boarding vessels, installations and aircraft; interdiction; entering on land; obtaining information; searching things and people; examining and copying things; securing things, including weapons; seizing and taking possession of things; moving and detaining persons; detaining vessels, aircraft and other conveyances; arresting persons, and requiring persons to cease conduct that contravenes Australian law.
Part 4 establishes processes for dealing with things seized and retained, and detained vessels and aircraft, as a result of the exercise of maritime powers. The Bill imposes notification requirements and regulates the use and return of things.
Part 5 establishes processes for dealing with persons held in the exercise of maritime powers.
Part 6 of the Bill creates offences for failing to comply with particular requirements under the legislation.
