Federal Register of Legislation - Australian Government

Primary content

Maritime Powers Regulation 2014

Authoritative Version
  • - F2014L00283
  • In force - Superseded Version
  • View Series
SLI 2014 No. 31 Regulations as made
This regulation prescribes Commonwealth laws in respect of which enforcement and monitoring powers could be exercised by maritime officers, a range of international agreements and decisions, which enable the exercise of maritime powers by a maritime officer if the authorising officer suspects, on reasonable grounds, that the agreement or decision applies to a particular vessel, installation or aircraft, Commonwealth laws that could be enforced by maritime officers in Australia’s contiguous zone to investigate or prevent a contravention of a customs or immigration law occurring in Australia, additional types of maritime officers in uniform who would be exempt from the usual requirement to produce identification, when requested by the person in charge of a vessel, installation or aircraft, after boarding the vessel, installation or aircraft; and, additional types of maritime officers in uniform who would be exempt from the usual requirement to produce identification, when requested by the person in charge of the land, after entering onto the land.
Administered by: Home Affairs
Registered 17 Mar 2014
Tabling HistoryDate
Tabled HR20-Mar-2014
Tabled Senate20-Mar-2014

EXPLANATORY STATEMENT

 

Select Legislative Instrument No. 31, 2014

 

Issued by the Authority of the Minister for Immigration and Border Protection

 

Maritime Powers Act 2013

 

Maritime Powers Regulation 2014

 

Section 122 of the Maritime Powers Act 2013 (the MPA) provides that the Governor‑General may make regulations prescribing matters which are required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

The MPA consolidates and harmonises the Commonwealth’s existing maritime enforcement regime.  It also provides a single framework for use by our on‑water enforcement agencies including the Department of Immigration and Border Protection, the Department of Defence, the Australian Federal Police and the Department of Agriculture.

 

The MPA establishes a system of authorisations under which a maritime officer (defined in section 104 of the MPA) may exercise enforcement and monitoring powers in the maritime domain.  The comprehensive powers under the MPA will be available to enforce and monitor a diverse range of Australia’s maritime laws, including those related to foreign fishing, customs, migration, quarantine and drug trafficking, as well as Australia’s obligations under international agreements and decisions 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 and our international obligations.  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 ever-changing circumstances and difficult and dangerous situations.  The powers contained in the MPA are primarily based on powers currently available to operational agencies.  The MPA does not alter operational roles, functions or responsibilities, nor reallocate existing resources, between agencies.

 

The MPA allows regulations to be made to prescribe certain matters including laws and protected land areas, international agreements and decisions, additional powers, officers, methods of disposal and sharing of information.  The Maritime Powers Regulation 2014 (the Regulation) prescribes:

 

·        Commonwealth laws in respect of which enforcement and monitoring powers could be exercised by maritime officers;

·        a range of international agreements and decisions, which enable the exercise of maritime powers by a maritime officer if the authorising officer suspects, on reasonable grounds, that the agreement or decision applies to a particular vessel, installation or aircraft;

 

·        Commonwealth laws that could be enforced by maritime officers in Australia’s contiguous zone to investigate or prevent a contravention of a customs or immigration law occurring in Australia;

 

·        additional types of maritime officers in uniform who would be exempt from the usual requirement to produce identification, when requested by the person in charge of a vessel, installation or aircraft, after boarding the vessel, installation or aircraft; and

 

·        additional types of maritime officers in uniform who would be exempt from the usual requirement to produce identification, when requested by the person in charge of the land, after entering onto the land.

Details of the Regulation are set out in the Attachment.

The Regulation commences on the commencement of sections 3 to 122 of the Act, being 27 March 2014.

The Regulation is minor or machinery in nature and does not substantially alter existing arrangements and therefore no formal consultation was undertaken in relation to the amendments.

 

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

             


 

ATTACHMENT

 

Details of the Maritime Powers Regulation 2014

Part 1 - Preliminary

Section 1 – Name of Regulation

This section provides that the title of the Regulation is the Maritime Powers Regulation 2014.

Section 2 – Commencement

This section provides that the Regulation commences on the commencement of section 3 to 122 of the Maritime Powers Act 2013. These sections commence 27 March 2014.

Section 3 – Authority

This section provides the Regulation is made under the Maritime Powers Act 2013.

Section 4 – Definitions

Section 4 inserts the following definition for the purposes of the Regulation:

Act means the Maritime Powers Act 2013.

Section 5 – Laws that are not Australian laws

Section 8 of the Maritime Powers Act 2013 (the Act) defines Australian law to mean:

(a)    a law of the Commonwealth or a State or Territory, and includes the Act; but

(b)   does not include a law prescribed by the regulations.

In accordance with paragraph (b) of the definition, certain laws, or parts of laws, may be prescribed by the Regulation as not falling within the meaning of an Australian law.  When a law is prescribed, an authorisation for the exercise of maritime powers under section 17 of the Act cannot be made in respect of that law.  Laws may be prescribed, for example, if it is not appropriate for maritime powers under the Act to be exercised in relation to those laws.

Section 5 prescribes the following laws for the purposes of excluding them from the definition of Australian law in section 8 of the Act:

(a)    the Aviation Transport Security Act 2004;

(b)   the Aviation Transport Security Regulations 2005;

(c)    the Maritime Transport and Offshore Facilities Security Act 2003; and

(d)   the Maritime Transport and Offshore Facilities Security Regulations 2003.

Prescribing these laws minimises the possibility of unintended interaction between maritime enforcement legislation and preventive security legislation.

Section 6 – Laws that are monitoring laws

Section 8 of the Act defines a monitoring law to mean:

(a)    the Customs Act 1901; or

(b)   the Fisheries Management Act 1991; or

(c)    the Migration Act 1958; or

(d)   the Torres Strait Fisheries Act 1984; or

(e)    section 72.13 or Division 307 of the Criminal Code; or

(f)    clause 8 of Schedule 1 to the Environment Protection and Biodiversity Conservation Act 1999; or

(g)   a law prescribed by the regulations

For the purposes of the Act, a monitoring law is a specified law under which officers may exercise maritime powers related to the monitoring of people or things, provided the powers are exercised for the purposes of administering or ensuring compliance with that law.  Monitoring laws may include a range of maritime-related obligations and other regulatory matters. 

The definition lists some primary monitoring laws in relation to which maritime powers are expected to be exercised.  Paragraph (g) of the definition allows additional laws to be prescribed as monitoring laws, as appropriate.

Section 6 prescribes the following laws as monitoring laws for the purposes of paragraph (g) in the definition of monitoring law in section 8 of the Act:

(a)    the Customs (Prohibited Exports) Regulations 1958;

(b)   the Customs (Prohibited Imports) Regulations 1956;

(c)    the Customs Regulations 1926;

(d)   the Environment Protection (Sea Dumping) Act 1981;

(e)    the Fisheries Management (International Agreements) Regulations 2009;

(f)    the Fisheries Management Regulations 1992;

(g)   the Migration Regulations 1994;

(h)   the Migration (United Nations Security Council Resolutions) Regulation 2007; and

(i)     the Torres Strait Fisheries Regulations 1985.

Section 7 – International agreements and international decisions

Section 12 of the Act sets out when an ‘international agreement’ or ‘international decision’ (as defined in section 8 of the Act) will apply to a vessel, installation or aircraft for the purposes of the Act.  This will occur if there is an international agreement or international decision that provides for the exercise of enforcement powers by Australia in relation to the relevant vessel, installation or aircraft.  The agreement or decision must either be prescribed by the regulations or the Minister must have approved the exercise of powers under that agreement or decision and that approval must not have lapsed.

Once an international agreement or decision applies under section 12 of the Act, section 19 of the Act permits an authorising officer to authorise the exercise of maritime powers in relation to a vessel, installation or aircraft if the officer suspects on reasonable grounds that the international agreement or decision applies to that particular vessel, installation or aircraft.

For example, members of the Commission for the Conservation of Antarctic Marine Living Resources, including Australia, have adopted a System of Inspection (referred to in paragraph 7(2)(d)).  The System of Inspection has been prescribed in the Regulation because it contains powers for member countries to board and inspect fishing and fisheries research vessels flying the flag of another member, in the Area of the Convention on the Conservation of Antarctic Marine Living Resources, for the purpose of verifying compliance with conservation measures adopted under the Convention. 

By way of further example, the Agreement referred to in paragraph 7(1)(a), known as the ‘United Nations Fish Stocks Agreement’ has been prescribed in the Regulation because it contains powers for States that are parties to the Agreement, to board and inspect fishing vessels flying the flag of another State Party to the Agreement in the circumstances specified in Article 21. These include the power to board and inspect vessels for the purpose of ensuring compliance with conservation and management measures for straddling fish stocks and highly migratory fish stocks (such as tuna stocks) established by a regional or subregional fisheries management organisation or arrangement. 

Subsection 7(1) prescribes the following international agreements for the purposes of subparagraph 12(b)(i) of the Act:

(a)    the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, done at New York on 4 December 1995;

 

(b)   the Agreement on Cooperative Enforcement of Fisheries Laws between the Government of Australia and the Government of the French Republic in the Maritime Areas Adjacent to the French Southern and Antarctic Territories, Heard Island and the McDonald Islands, done at Paris on 8 January 2007;

 

(c)    the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, done at Rome on 22 November 2009;

 

(d)   the Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters, done at Sydney on 18 December 1978;   

 

(e)    the Treaty between the Government of Australia and the Government of the French Republic on cooperation in the maritime areas adjacent to the French Southern and Antarctic Territories (TAAF), Heard Island and the McDonald Islands, done at Canberra on 24 November 2003; and

 

(f)    the United Nations Convention on the Law of the Sea, done at Montego Bay on 10 December 1982.

Subsection 7(2) prescribes the following international decisions for the purposes of subparagraph 12(b)(i) of the Act:

(a)    Conservation and Management Measure 2006‑08, Western Central Pacific Fisheries Commission Boarding and Inspection Procedures, made under Article 26 of the Convention on the Conservation of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean;

 

(b)   Resolution 10/11, On Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, adopted by the Indian Ocean Tuna Commission established under the Agreement for the Establishment of the Indian Ocean Tuna Commission;

 

(c)    Conservation Measure 10‑03 (2012), Port Inspections of fishing vessels carrying Antarctic marine living resources, adopted by the Commission for the Conservation of Antarctic Marine Living Resources under the Convention on the Conservation of Antarctic Marine Living Resources; and

 

(d)   the System of Inspection implemented by the Commission for the Conservation of Antarctic Marine Living Resources under Article XXIV of the Convention on the Conservation of Antarctic Marine Living Resources.

Subsection 7(3) prescribes the following decisions of the Security Council of the United Nations for the purposes of subparagraph 12(b)(i) of the Act:

(a)    United Nations Security Council Resolution 2083 (2012);

 

(b)   United Nations Security Council Resolution 2111 (2013);

 

(c)    United Nations Security Council Resolution 2095 (2013);

 

(d)   United Nations Security Council Resolution 2101 (2013); and

 

(e)    United Nations Security Council Resolution 2125 (2013).

Part 2 – Exercising Powers

Section 8 – Customs, fiscal, immigration and sanitary laws

Section 41 of the Act does not authorise the exercise of powers in relation to a ‘foreign vessel’ (as defined in section 8 of the Act) at a place between ‘Australia’ (as defined in section 8 of the Act) and another ‘country’ (as defined in section 8 of the Act) unless the exercise of the powers occurs under certain circumstances. 

In accordance with paragraph 41(1)(c) of the Act, one of the circumstances in which powers may be exercised against a foreign vessel is in the contiguous zone of Australia to:

(i)         investigate a contravention of a customs, fiscal, immigration or sanitary law prescribed by the regulations that occurred in Australia (as permitted by Article 33 of the United Nations Convention on the Law of the Sea, done at Montego Bay on 10 December 1982); or

(ii)          prevent a contravention of such a law occurring in Australia.

Section 8 prescribes the following laws for the purposes of subparagraph 41(1)(c)(i) of the Act:

(a)    the Customs Act 1901;

(b)   the Customs Regulations 1926;

(c)    the Customs (Prohibited Exports) Regulations 1958;

(d)   the Customs (Prohibited Imports) Regulations 1956;

(e)    the Migration Act 1958;

(f)    the Migration Regulations 1994; and

(g)   the Migration (United Nations Security Council Resolutions) Regulation 2007.

Section 9 ­– Prescribed maritime officers

Section 52 of the Act allows a maritime officer to board a vessel, installation or aircraft.  For example, it may be necessary to board a vessel where it is suspected of fishing illegally to determine whether there is evidence of such activity.  When a vessel, installation or aircraft is boarded, the person in charge of such places may require the maritime officer to produce identification or other evidence of their identity.  If the officer fails to produce this evidence, they must leave the vessel, installation or aircraft.

However, pursuant to subsection 52(4) of the Act, if the officer is one of the following in uniform:

(a)    a member of the Australian Defence Force;

(b)   an officer of Customs (within the meaning of the Customs Act 1901);

(c)    a member or special member of the Australian Federal Police;

(d)   an officer prescribed by the regulations,

then the officer will not be subject to these requirements.

Section 56 of the Act allows a maritime officer to enter onto land.  This power is necessary as sections 46 and 47 of the Act provide some circumstances in which maritime officers are permitted to exercise powers on land.  For example if a vessel is chased, it lands on a beach and the crew run onto nearby land, then this provision would allow maritime officers to continue to pursue those persons onto the land.

Similar to section 52, when land is entered on, the person in charge of the land may require the maritime officer to produce identification or other evidence of their identity.  If the officer fails to produce this evidence, they must leave the land.

Pursuant to subsection 56(4) of the Act, if a maritime officer is one of the following in uniform:

(a)    a member of the Australian Defence Force;

(b)   an officer of Customs (within the meaning of the Customs Act 1901);

(c)    a member or special member of the Australian Federal Police;

(d)   an officer prescribed by the regulations,

then the officer will not be subject to these requirements.

Section 9 prescribes the following maritime officers for the purposes of paragraphs 52(4)(d) and 56(4)(d) of the Act:

(a)    a maritime officer who performs duties in the Department administered by the Minister administering the Migration Act 1958;

(b)   a maritime officer who is appointed under paragraph 83(1)(a) or (b) of the Fisheries Management Act 1991 to be an officer for the purposes of that Act;

(c)    a maritime officer who is authorised under paragraph 3(4)(a) or (b) of the Torres Strait Fisheries Act 1984 to perform duties under that Act;

(d)   a maritime officer who is member of a police force or police service of a State or Territory.


Statement of Compatibility with Human Rights

 

(Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011)

 

Maritime Powers Regulation 2014

 

 

This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Regulation

 

The Maritime Powers Act 2013 (the MPA) consolidates and harmonises the Commonwealth’s existing maritime enforcement regime and provides a single framework for use by our on-water enforcement agencies. 

 

The MPA establishes a system of authorisations under which a maritime officer may exercise enforcement and monitoring powers in the maritime domain.  The comprehensive powers under the MPA will be available to enforce and monitor a diverse range of Australia’s maritime laws including foreign fishing, customs, migration and drug trafficking, as well as Australia’s obligations under international agreements and international decisions. 

 

The MPA commences on 27 March 2014.

 

The Maritime Powers Regulation 2014 (the Regulation) prescribes various matters including Commonwealth laws, international agreements, international decisions and maritime officers for the purposes of the MPA.  For example, the Regulation prescribes additional Commonwealth laws in respect of which enforcement and monitoring powers can be exercised as well as those Commonwealth laws that can be enforced in Australia’s contiguous zone.  The Regulation would also prescribe a range of international agreements and decisions which provide for the exercise of maritime powers by Australia. 

 

Human Rights implications

 

Several aspects of the MPA were assessed to engage human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights at section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. For example, sections 59 and 61 (which enable maritime officers to conduct searches of places and persons) and section 116 (which allows the sharing of information between agencies for maritime purposes) were identified as engaging the prohibition of interference with privacy and attacks on reputation set out in Article 17 of the International Covenant on Civil and Political Rights.  However, the instances in which human rights and freedoms were engaged were assessed as either being compatible with these rights and freedoms because they either protected human rights or, to the extent that they limited human rights, the limitations were reasonable and proportionate.

 

The full analysis of those provisions of the MPA that engage human rights and freedoms are set out in the Explanatory Memorandum to the Bill for the MPA.

 

However, the matters that are prescribed for the purposes of the MPA by the Regulation are not being prescribed for the purposes of any sections of the MPA that engage human rights and freedoms.  These matters are being prescribed for the purposes of sections 8, 12, 41, 52 and 56 of the MPA and none of these sections deal with matters that were assessed as engaging human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights at section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Conclusion

 

This legislative instrument does not engage, impact on or limit in any way, the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights at section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

 

Minister for Immigration and Border Protection