Maritime Powers (Consequential Amendments) Act 2013

The Maritime Powers (Consequential Amendments) Act 2013 (Cth) is a structural and coordinating statute designed to align Australia’s offshore law enforcement framework with the consolidated regime established under the Maritime Powers Act 2013. Mechanically, the Act systematically amends or repeals maritime enforcement provisions across five core pieces of Commonwealth legislation: the Customs Act 1901, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), the Fisheries Management Act 1991, the Migration Act 1958, and the Torres Strait Fisheries Act 1984.

Prior to this enactment, each of these statutes contained its own separate, highly specific powers governing hot pursuit, boarding, search, seizure, arrest, and vessel detention. The Maritime Powers (Consequential Amendments) Act 2013 strips these sectoral Acts of their bespoke maritime enforcement powers and funnels those authorities into a single, standardised set of powers exercised by designated "maritime officers". For example, it repeals long-standing enforcement sections, including sections 184A to 185B of the Customs Act 1901, Division 11 of Part 17 of the EPBC Act, and the extensive vessel-chasing provisions in Division 12A of Part 2 of the Migration Act 1958.

The official policy justification for this consolidation is administrative efficiency and the establishment of a single, coherent source of maritime enforcement authority. From an economic and regulatory perspective, however, this change represents a significant centralisation of state power and a expansion of administrative discretion. By replacing sector-specific statutory preconditions (which were historically tailored to the distinct regulatory requirements of environmental protection, customs control, or fisheries management) with the generalised, high-discretion triggers of the , the Act reduces the clarity of administrative law boundaries. Commercial vessel operators, fishing fleets, and offshore aviators no longer deal with specialised regulatory officers acting under distinct statutory limits, but rather with cross-commissioned maritime officers wielding a unified, highly coercive enforcement toolkit.

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Maritime Powers (Consequential Amendments) Act 2013

No. 16, 2013

An Act to deal with consequential matters arising from the enactment of the Maritime Powers Act 2013, and for related purposes

Contents

1 Short title

2 Commencement

3 Schedule(s)

Schedule 1—Amendment of the Customs Act 1901

Schedule 2—Amendment of the Environment Protection and Biodiversity Conservation Act 1999

Schedule 3—Amendment of the Fisheries Management Act 1991

Schedule 4—Amendment of the Migration Act 1958

Schedule 5—Amendment of the Torres Strait Fisheries Act 1984

Schedule 6—Transitional provisions

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Maritime Powers (Consequential Amendments) Act 2013

No. 16, 2013

An Act to deal with consequential matters arising from the enactment of the Maritime Powers Act 2013, and for related purposes

[Assented to 27 March 2013]

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Maritime Powers (Consequential Amendments) Act 2013.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1 Column 2 Column 3
Provision(s) Commencement Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 27 March 2013
1. Schedules 1 to 6 At the same time as section 3 of the Maritime Powers Act 2013 commences. 27 March 2014

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendment of the Customs Act 1901

1 Subsection 4(1)

Insert:

aircraft identification powers has the same meaning as in the Maritime Powers Act 2013.

2 Subsection 4(1)

Insert:

Australian aircraft means an aircraft that:

(a) is an Australian aircraft as defined in the Civil Aviation Act 1988; or

(b) is not registered under the law of a foreign country and is either wholly owned by, or solely operated by:

(i) one or more residents of Australia; or

(ii) one or more Australian nationals; or

(iii) one or more residents of Australia and one or more Australian nationals.

For the purposes of this definition, Australian national and resident of Australia have the same meanings as in the Shipping Registration Act 1981.

3 Subsection 4(1)

Insert:

authorising officer has the same meaning as in the Maritime Powers Act 2013.

4 Subsection 4(1)

Insert:

foreign aircraft means an aircraft that is not an Australian aircraft.

5 Subsection 4(1)

Insert:

maritime officer has the same meaning as in the Maritime Powers Act 2013.

6 Subsection 183UA(1) (paragraph (f) of the definition of authorised person)

Repeal the paragraph, substitute:

(f) in relation to the exercise of powers under section 203CA or 203CB:

(i) an officer of Customs; or

(ii) a maritime officer who is exercising maritime powers under the Maritime Powers Act 2013 in relation to a ship or aircraft to which section 203CA of this Act applies; or

(iii) an officer of police; or

(iv) a member of the Defence Force; and

7 Sections 184A to 185B

Repeal the sections.

8 Subsection 187(1)

Omit “(1)”.

9 Subsection 187(2)

Repeal the subsection.

10 Paragraph 189A(1)(a)

Omit all the words from and including “for the purpose of” to and including “or any other Act”, substitute “for the purpose of enabling the safe exercise, by such officers, of powers conferred on them under this Act or any other Act”.

11 Paragraphs 203CA(1)(a) and (b)

Repeal the paragraphs, substitute:

(a) the ship is outside the territorial sea of a foreign country; and

(b) the ship could be boarded under the Maritime Powers Act 2013; and

(c) the ship is exempt from any provision of the Customs Acts under subsection 30A(3) of this Act or the voyage of the ship is exempt from any such provision under subsection 30A(5) of this Act.

12 Paragraphs 203CA(2)(a) and (b)

Repeal the paragraphs, substitute:

(a) the aircraft has landed in Australia as a result of a maritime officer requiring the person in charge of the aircraft to land the aircraft under subsection 55(7) of the Maritime Powers Act 2013; and

(b) in the case of an Australian aircraft—the requirement is made when the aircraft is over anywhere except a foreign country; and

(c) in the case of an aircraft that is not an Australian aircraft—the requirement is made when the aircraft is over Australia; and

(d) the flight of the aircraft is exempt from any provision of the Customs Acts under subsection 30A(5) of this Act.

13 Subsection 203CA(3) (note)

Omit “paragraph 185(2)(e) and section 203C”, substitute “section 203C of this Act and subparagraph 67(1)(b)(ii) of the Maritime Powers Act 2013”.

14 Subsection 203CA(4)

Omit “under section 185”.

15 Subparagraph 203CB(1)(a)(i)

Omit “203CA(1)(b) or (2)(b)”, substitute “203CA(1)(c) or (2)(d)”.

16 Subsection 203CB(2) (note)

Omit “paragraph 185(2)(e) and section 203C”, substitute “section 203C of this Act and subparagraph 67(1)(b)(ii) of the Maritime Powers Act 2013”.

17 Paragraph 207(1)(a)

Repeal the paragraph, substitute:

(a) goods are seized:

(i) under a seizure warrant; or

(ii) under subsection 203B(2) or (2A), 203C(2), 203CA(3) or 203CB(2); or

(iii) under section 67 of the Maritime Powers Act 2013; and

18 Section 208D

Omit “or under subsection 185(2), 185A(6), 203B(2) or (2A), 203C(2), 203CA(3) or 203CB(2)”, substitute “, under subsection 203B(2) or (2A), 203C(2), 203CA(3) or 203CB(2) or under section 67 of the Maritime Powers Act 2013”.

19 Paragraph 219L(1A)(a)

Omit “185 or”.

20 Paragraph 219L(1A)(b)

Omit “and”.

21 Paragraph 219L(1A)(c)

Repeal the paragraph.

22 Section 228

Before “The following ships”, insert “(1)”.

23 Paragraph 228(1)

Omit “(1)”, substitute “(a)”.

24 Paragraph 228(2)

Omit “(2)” (first occurring), substitute “(b)”.

25 Paragraph 228(2)

Omit “under subsection 184A(2) or (3)”, substitute “, under the Maritime Powers Act 2013, in circumstances set out in subsection (2) or (3)”.

26 Paragraph 228(3)

Omit “(3)”, substitute “(c)”.

27 Paragraph 228(3)

Omit “properly requested under section 184D to land the aircraft”, substitute “required to land the aircraft, under the Maritime Powers Act 2013, in circumstances set out in subsection (4), (5) or (6)”.

28 Paragraph 228(4)

Omit “(4)”, substitute “(d)”.

29 Paragraph 228(5)

Omit “(5)”, substitute “(e)”.

30 Paragraph 228(6)

Omit “(6)”, substitute “(f)”.

31 At the end of section 228

Add:

(2) The circumstances are:

(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) the boarding is for the purposes of this Act or an Act prescribed by the regulations, 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.

(3) The circumstances are:

(a) the ship is an Australian ship; and

(b) the ship is outside the territorial sea of any foreign country; and

(4) The circumstances are:

(a) either:

(i) the aircraft is an Australian aircraft over anywhere except a foreign country; or

(ii) the aircraft is a foreign aircraft over Australia; and

(b) the requirement to land is made:

(i) in relation to the operation of this Act; and

(ii) because the pilot of the aircraft has failed to comply with a requirement made in the exercise of aircraft identification powers.

(5) The circumstances are:

(a) either:

(i) the aircraft is an Australian aircraft over anywhere except a foreign country; or

(ii) the aircraft is a foreign aircraft over Australia; and

(b) an authorising officer reasonably suspects that the aircraft is or has been involved in a contravention, or attempted contravention, of this Act or section 72.13 or Division 307 of the Criminal Code.

(6) The circumstances are:

(a) either:

(i) the aircraft is an Australian aircraft over anywhere except a foreign country; or

(ii) the aircraft is a foreign aircraft over Australia; and

(b) an authorising officer reasonably suspects that the aircraft is carrying goods satisfying either or both of the following subparagraphs:

(i) the goods are connected, whether directly or indirectly, with the carrying out of a terrorist act, whether a terrorist act has occurred, is occurring or is likely to occur;

(ii) the existence or the shipment of the goods prejudices, or is likely to prejudice, Australia’s defence or security or international peace and security.

(7) In this section:

terrorist act has the same meaning as in section 183UA.

Schedule 2—Amendment of the Environment Protection and Biodiversity Conservation Act 1999

1 Division 11 of Part 17

Repeal the Division.

Schedule 3—Amendment of the Fisheries Management Act 1991

1 Paragraphs 84(1)(aa), (a), (aaa), (b), (c), (k), (l), (m), (q) and (r)

Repeal the paragraphs.

2 Subsection 84(1BA)

Omit “, (k), (l) or (m) (applying of its own force or because of another provision of this Act)”.

3 Subsections 84(1C) to (4)

Repeal the subsections.

4 Section 84AA

Repeal the section.

5 Subsection 84B(4)

Omit “Subsections 84(4) and (6) apply in relation to the exercise of a power by an international officer as if references in those subsections to the officer’s identity card were references”, substitute “Subsection 84(6) applies in relation to the exercise of a power by an international officer as if the reference in that subsection to the officer’s identity card were a reference”.

6 Sections 87 to 87HA

Repeal the sections.

7 Section 87J (heading)

Omit “relating to boat”.

8 Subsection 87J(1)

Omit “(as it applies of its own force or because of section 87G or 87HA) or under section 87H,”.

9 Subsection 88(1)

Omit “(as it applies of its own force or because of section 87, 87G or 87HA)”.

10 Paragraph 88(1)(e)

Repeal the paragraph, substitute:

(e) if the property is a boat and there is a liability under section 112 of the Maritime Powers Act 2013 for costs incurred in chasing the boat—for those costs.

11 Paragraph 88(2)(b)

Omit “officer; and”, substitute “officer.”.

12 Paragraph 88(2)(c)

Repeal the paragraph.

13 Paragraph 102(1)(c)

Omit “an officer exercising powers under section 84 (as it applies of its own force or because of section 87, 87G or 87HA) or a person exercising powers under another”, substitute “a person exercising powers under a”.

14 Paragraphs 106A(2)(b) and (3)(b) and 106AA(1)(b)

After “paragraph 84(1)(ga)”, insert “or under section 67 of the Maritime Powers Act 2013”.

15 Subdivision CA of Division 6 of Part 6

Repeal the Subdivision.

16 Paragraphs 108(1)(c) and 168(2)(l)

Omit “(as it applies of its own force or because of section 87, 87G or 87HA)”.

Schedule 4—Amendment of the Migration Act 1958

1 Subsection 5(1) (definition of foreign boat)

Repeal the definition.

2 Subsection 5(1)

Insert:

foreign vessel has the same meaning as in the Maritime Powers Act 2013.

3 Subsection 5(1)

Insert:

maritime officer has the same meaning as in the Maritime Powers Act 2013.

4 Subsection 5(1) (paragraph (b) of the definition of transitory person)

After “245F(9)(b)”, insert “of this Act, or paragraph 72(4)(b) of the Maritime Powers Act 2013”.

5 Subparagraph 42(2A)(c)(i)

Omit “185(3A) of the Customs Act 1901”, substitute “72(4) of the Maritime Powers Act 2013”.

6 Paragraphs 43(3)(b) and (c)

Repeal the paragraphs, substitute:

(b) an Australian resident entering Australia on a foreign vessel as a result of the exercise of powers under section 69 of the Maritime Powers Act 2013 in relation to a fisheries detention offence; or

(c) an Australian resident entering Australia on a vessel (environment matters) as a result of an environment officer, maritime officer or other person in command of a Commonwealth ship or a Commonwealth aircraft:

(i) exercising his or her power under paragraph 403(3)(a) of the Environment Protection and Biodiversity Conservation Act 1999 in relation to the vessel; or

(ii) making a requirement of the person in charge of the vessel under paragraph 403(3)(b) of the Environment Protection and Biodiversity Conservation Act 1999; or

(iii) exercising powers under section 69 of the Maritime Powers Act 2013 in relation to the vessel;

because the environment officer, maritime officer or person in command had reasonable grounds to suspect that the vessel had been used or otherwise involved in the commission of an environment detention offence.

7 Subsection 43(4) (definition of master)

Repeal the definition.

8 Subsection 43(5)

Repeal the subsection.

9 Section 164A (definition of master)

Repeal the definition.

10 Subsections 164B(1) and (1A)

Repeal the subsections, substitute:

Non‑citizen on foreign vessel outside migration zone

(1) A non‑citizen on a foreign vessel outside the migration zone is granted an enforcement visa when the vessel is detained under section 69 of the Maritime Powers Act 2013 in relation to a fisheries detention offence.

Note: The grant of an enforcement visa effectively cancels any temporary visa that the non‑citizen may have held (see subsection 82(2A)).

11 Subsection 164B(2)

Omit “by a fisheries officer”.

12 Subsections 164B(3) and (4)

Repeal the subsections, substitute:

Non‑citizen in prescribed circumstances

(3) An enforcement visa is granted to a non‑citizen (who does not already hold an enforcement visa) when a fisheries officer or a maritime officer exercises under, or for the purposes of, the Fisheries Management Act 1991 or the Torres Strait Fisheries Act 1984 a prescribed power in prescribed circumstances in relation to the non‑citizen. The visa is granted at the time the power is exercised.

Note: The grant of an enforcement visa effectively cancels any temporary visa that the non‑citizen may have held (see subsection 82(2A)).

Non‑citizen on foreign vessel in prescribed circumstances

(4) An enforcement visa is granted to a non‑citizen (who does not already hold an enforcement visa) who is on a foreign vessel when a fisheries officer or a maritime officer exercises under, or for the purposes of, the Fisheries Management Act 1991 or the Torres Strait Fisheries Act 1984 a prescribed power in prescribed circumstances in relation to the vessel. The visa is granted at the time the power is exercised.

Note: The grant of an enforcement visa effectively cancels any temporary visa that the non‑citizen may have held (see subsection 82(2A)).

13 Subsection 164BA(1)

Repeal the subsection, substitute:

Non‑citizen on vessel (environment matters) outside migration zone

(1) A non‑citizen on a vessel (environment matters) outside the migration zone is granted an enforcement visa when, because an environment officer, maritime officer or other person in command of a Commonwealth ship or a Commonwealth aircraft has reasonable grounds to suspect that the vessel has been used or otherwise involved in the commission of an environment detention offence, the environment officer, maritime officer or person in command:

(a) exercises his or her power under paragraph 403(3)(a) of the Environment Protection and Biodiversity Conservation Act 1999 in relation to the vessel; or

(b) makes a requirement of the person in charge of the vessel under paragraph 403(3)(b) of the Environment Protection and Biodiversity Conservation Act 1999; or

whichever occurs first.

Note 1: Under paragraph 403(3)(a) of the Environment Protection and Biodiversity Conservation Act 1999, an environment officer, or the person in command of a Commonwealth ship or a Commonwealth aircraft, may bring a vessel into the migration zone. Under paragraph 403(3)(b) of that Act, an environment officer, or the person in command of a Commonwealth ship or a Commonwealth aircraft, may require the person in charge of a vessel to bring the vessel into the migration zone.

Note 2: The grant of an enforcement visa effectively cancels any temporary visa that the non‑citizen may have held (see subsection 82(2A)).

14 Subsections 164BA(3) and (4)

Repeal the subsections, substitute:

Non‑citizen in prescribed circumstances

(3) An enforcement visa is granted to a non‑citizen (who does not already hold an enforcement visa) when an environment officer or a maritime officer exercises under, or for the purposes of, the Environment Protection and Biodiversity Conservation Act 1999 a prescribed power in prescribed circumstances in relation to the non‑citizen. The visa is granted at the time the power is exercised.

Note: The grant of an enforcement visa effectively cancels any temporary visa that the non‑citizen may have held (see subsection 82(2A)).

Non‑citizen on vessel or aircraft in prescribed circumstances

(4) An enforcement visa is granted to a non‑citizen (who does not already hold an enforcement visa) who is on a vessel (environment matters) or a foreign aircraft (environment matters) when an environment officer or maritime officer exercises under, or for the purposes of, the Environment Protection and Biodiversity Conservation Act 1999 a prescribed power in prescribed circumstances in relation to the vessel or aircraft. The visa is granted at the time the power is exercised.

Note: The grant of an enforcement visa effectively cancels any temporary visa that the non‑citizen may have held (see subsection 82(2A)).

15 Division 12A of Part 2 (heading)

Repeal the heading, substitute:

Division 12A—Chasing, boarding etc. aircraft

16 Section 245A (definition of Australian ship)

Repeal the definition.

17 Section 245A (definition of Commonwealth ship)

Repeal the definition.

18 Section 245A (definition of foreign ship)

Repeal the definition.

19 Section 245A (definition of ship)

Repeal the definition.

20 Section 245A (definition of territorial sea)

Repeal the definition.

21 Section 245A (definition of UNCLOS)

Repeal the definition (including the note).

22 Sections 245B to 245D

Repeal the sections.

23 Section 245F (heading)

Omit “ships and”.

24 Subsection 245F(1)

Repeal the subsection.

25 Paragraphs 245F(3)(a) to (c)

Omit “ship or” (wherever occurring).

26 Paragraph 245F(3)(d)

Omit “ship or” (first occurring).

27 Subparagraph 245F(3)(d)(i)

Repeal the subparagraph, substitute:

(i) the aircraft and its flight, cargo, stores, crew and passengers;

28 Subparagraph 245F(3)(d)(ii)

Omit “ship or”.

29 Paragraph 245F(3)(e)

Omit “ship or” (wherever occurring).

30 Paragraph 245F(3)(f)

Repeal the paragraph, substitute:

(f) arrest without warrant any person found on the aircraft if 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.

31 Subsection 245F(4)

Repeal the subsection.

32 Subsection 245F(5)

Omit “ship or”.

33 Subsections 245F(8) and (8AA)

Repeal the subsections, substitute:

Power to detain and move aircraft

(8) An officer may detain the aircraft and bring it, or cause it to be brought, to a port, or to another place, that he or she considers appropriate if the officer reasonably suspects that the aircraft is or has been involved in a contravention, either in or outside Australia, of this Act.

34 Subsection 245F(8A) (heading)

Omit “ships or”.

35 Subsection 245F(8A)

Omit “a ship or”, substitute “an”.

36 Subsection 245F(8A)

Omit “the ship or” (wherever occurring), substitute “the”.

37 Subsection 245F(9) (heading)

Omit “ships or”.

38 Subsection 245F(9)

Omit “a ship or”, substitute “an”.

39 Paragraph 245F(9)(a)

Omit “ship or”.

40 Subsection 245F(11) (heading)

Omit “ships or”.

41 Subsection 245F(11)

Omit “ship or” (first and second occurring).

42 Subsection 245F(11)

Omit “ship,” (wherever occurring).

43 Paragraph 245F(11)(a)

Omit “ship or”.

44 Subsection 245F(12) (heading)

Omit “ships or”.

45 Subsections 245F(12) and (13)

Omit “ship or” (wherever occurring).

46 Subsection 245F(14)

Repeal the subsection.

47 Paragraph 245F(18)(a)

Repeal the paragraph, substitute:

(a) any person who is in command, or a member of the crew, of the aircraft from which the relevant request under section 245E was made; and

48 Subsection 245F(19)

Omit “ship or” (wherever occurring).

49 Paragraph 245FA(1)(a)

Omit “a ship or”, substitute “an”.

50 Sections 245FB to 245H

Repeal the sections.

51 Subsection 251(1)

Repeal the subsection, substitute:

(1) An officer may at any time board and search a vessel if the officer reasonably suspects there is on board the vessel:

(a) an unlawful non‑citizen; or

(b) a person seeking to enter the migration zone who would, if in the migration zone, be an unlawful non‑citizen.

52 Paragraph 252(1)(a)

Repeal the paragraph, substitute:

(a) the person is detained in Australia; or

53 Section 261J

Omit “245G,”.

Schedule 5—Amendment of the Torres Strait Fisheries Act 1984

1 Paragraphs 42(1)(a), (aa), (c), (e), (g), (h), (ha), (hb), (o) and (p)

Repeal the paragraphs.

2 Subsection 42(2)

Repeal the subsection, substitute:

(2) The powers of an officer under subsection (1) may be exercised in Australia, in an external Territory, in an area of Australian jurisdiction or in an area of waters in relation to which the Fisheries Management Act 1991 applies.

3 Subsection 42(2AAA)

Omit “, (e), (g) or (h)”.

4 Section 42A

Repeal the section.

5 Paragraphs 43(1)(a) and (ca)

Repeal the paragraphs.

6 Subsection 43(1A)

Omit “, (c) and (ca)”, substitute “and (c)”.

7 Paragraphs 52A(2)(b) and (3)(b) and 52AA(1)(b)

After “under paragraph 42(1)(ea)”, insert “or section 67 of the Maritime Powers Act 2013”.

Schedule 6—Transitional provisions

1 Exercise of powers begun before commencement

(1) Neither:

(a) the amendments made by this Act; nor

(b) the Maritime Powers Act 2013;

apply in relation to the continuous exercise of powers begun under a maritime law before the commencement of this Schedule.

(2) In this item:

continuous exercise of powers has the same meaning as in the Maritime Powers Act 2013.

maritime law means:

(a) the Customs Act 1901; or

(b) the Environment Protection and Biodiversity Conservation Act 1999; or

(d) the Migration Act 1958; or

(e) the Torres Strait Fisheries Act 1984.

2 Regulations

The Governor‑General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Act.

[Minister’s second reading speech made in—

House of Representatives on 30 May 2012

Senate on 20 August 2012]

(103/12)

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Maritime Powers (Consequential Amendments) Act 2013

No. 16, 2013

An Act to deal with consequential matters arising from the enactment of the Maritime Powers Act 2013, and for related purposes

Contents

1 Short title

2 Commencement

3 Schedule(s)

Schedule 1—Amendment of the Customs Act 1901

Schedule 2—Amendment of the Environment Protection and Biodiversity Conservation Act 1999

Schedule 3—Amendment of the Fisheries Management Act 1991

Schedule 4—Amendment of the Migration Act 1958

Schedule 5—Amendment of the Torres Strait Fisheries Act 1984

Schedule 6—Transitional provisions

Maritime Powers (Consequential Amendments) Act 2013

No. 16, 2013

An Act to deal with consequential matters arising from the enactment of the Maritime Powers Act 2013, and for related purposes

[Assented to 27 March 2013]

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Maritime Powers (Consequential Amendments) Act 2013.

2 Commencement

Commencement information
Column 1 Column 2 Column 3
Provision(s) Commencement Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 27 March 2013
1. Schedules 1 to 6 At the same time as section 3 of the Maritime Powers Act 2013 commences. 27 March 2014

Understanding the operation of this Act requires mastering several key statutory concepts and definitions that it inserts or modifies across the Commonwealth statute book:

Maritime Officer and Authorising Officer: The Act inserts definitions into the Customs Act 1901 (Schedule 1, Items 3 and 5) and the Migration Act 1958 (Schedule 4, Item 3) that bind these terms to their definitions in the Maritime Powers Act 2013. This effectively creates a class of cross-commissioned officers, including customs officials, defence force members, and police officers, who can exercise powers under the parent Act to enforce customs, migration, environmental, and fisheries laws.
Australian Aircraft vs. Foreign Aircraft: The Act establishes clear jurisdictional boundaries for airborne enforcement. Under Schedule 1, Item 2, an "Australian aircraft" is defined as an aircraft registered under the Civil Aviation Act 1988, or an unregistered aircraft wholly owned or solely operated by Australian residents or nationals (with terms "Australian national" and "resident of Australia" drawing their meanings from the Shipping Registration Act 1981). A "foreign aircraft" is defined residually as any aircraft that is not an Australian aircraft.
Enforcement Visa Triggers: Under Schedule 4, Items 10 and 12, the Act restructures how non-citizens on foreign vessels are legally treated when intercepted. Under the rewritten section 164B of the Migration Act 1958, an "enforcement visa" is automatically granted to a non-citizen on a foreign vessel outside the migration zone when that vessel is detained under section 69 of the Maritime Powers Act 2013 in relation to a fisheries detention offence. Similar automatic visa mechanisms are triggered under section 164BA for environmental detention offences. This legal fiction regularises the presence of foreign crew brought into Australian waters under coercion, bypassing standard immigration application processes.
Continuous Exercise of Powers: Set out in Schedule 6, Item 1, this transitional concept dictates that the amendments made by this Act, and the provisions of the Maritime Powers Act 2013 itself, do not apply to a "continuous exercise of powers" that commenced under a maritime law prior to the commencement of the Schedule. This protects ongoing, pre-existing enforcement operations from sudden regulatory disruption.

This legislation directly affects several distinct groups within the maritime economy, civil society, and the public sector, fundamentally changing their legal risks and operational liabilities.

Commercial shipping operators and international maritime trade insurers are directly affected. Because the Act consolidates the grounds upon which ships may be boarded, searched, or detained under the Maritime Powers Act 2013, commercial vessel owners face an integrated enforcement apparatus. A vessel boarded under the suspicion of a minor customs irregularity can now be subjected to the full suite of consolidated search and seizure powers, increasing the risk of costly operational delays, charterparty disputes, and cargo spoilage.

The commercial fishing sector, particularly deep-sea fishing fleets operating in Australia’s Exclusive Economic Zone (EEZ) and the waters of the Torres Strait, is heavily impacted. The repeals in Schedule 3 (Fisheries Management Act 1991) and Schedule 5 (Torres Strait Fisheries Act 1984) remove local, specialised protections. Fishing vessel masters must now navigate a regime where the costs of a maritime chase can be recovered directly from the boat owner under section 112 of the Maritime Powers Act 2013 (via amended paragraph 88(1)(e) of the Fisheries Management Act 1991).

The offshore aviation industry is also impacted, with the Act introducing precise aircraft identification and boarding triggers. International and domestic air carriers operating over Australia's landmass or territorial waters are subject to strict landing requirements, with non-compliance leading to automatic asset forfeiture.

Finally, the Act affects the Commonwealth's own enforcement bureaucracy. Customs officers, Australian Fisheries Management Authority (AFMA) officers, Australian Defence Force personnel, and environmental inspectors are transformed from sectoral specialists into generalist "maritime officers". While this increases operational flexibility for the government, it increases the risk of bureaucratic overreach, as officers may lack specialised training in the specific regulatory nuances of the various Acts they are cross-commissioned to enforce.

The Maritime Powers (Consequential Amendments) Act 2013 is heavily asymmetric, focusing primarily on expanding the enforcement powers of the state while imposing strict duties of compliance on private actors. The "rights" of affected parties are limited and largely defensive.

Key Duties

Duty to Submit to Boarding and Landing Commands: Under the restructured section 228 of the Customs Act 1901 (Schedule 1, Items 22 to 31) and the heavily amended section 245F of the Migration Act 1958 (Schedule 4, Items 23 to 48), vessel masters and aircraft pilots have an absolute duty to comply with requirements to stop, board, or land. If a pilot fails to comply with a landing requirement made in the exercise of aircraft identification powers, or if a master fails to facilitate boarding, the vessel or aircraft is subject to automatic forfeiture to the Crown.
Duty to Bear Chasing Costs: Under the amended section 88 of the Fisheries Management Act 1991 (Schedule 3, Item 10), vessel owners are legally liable for the administrative and operational costs incurred by the Commonwealth in chasing their boat, provided those costs are incurred in accordance with section 112 of the Maritime Powers Act 2013.

Key Rights

Right to Transitional Protection for Ongoing Investigations: Under Schedule 6, Item 1, operators have a statutory right to insist that any continuous enforcement action initiated before 27 March 2014 is governed by the historical, pre-amendment versions of the sectoral Acts. This protects operators from the retroactive application of the broader consolidated powers.
Right to Automatic Enforcement Visas: Non-citizens detained on foreign vessels outside the migration zone have a statutory right to the automatic grant of an enforcement visa under section 164B or 164BA of the Migration Act 1958. While this is a highly technical right, it prevents the Commonwealth from prosecuting such individuals for being "unlawful non-citizens" while they are being held under fisheries or environmental detention.

The Act does not establish a standalone criminal code; instead, it re-routes the enforcement machinery and penalty triggers of existing legislation to match the Maritime Powers Act 2013. The most severe enforcement mechanism amended by the Act is the statutory forfeiture of high-value private assets.

Under the amended section 228 of the Customs Act 1901, the circumstances under which ships and aircraft are deemed forfeited to the Crown are completely restructured to align with boardings and requirements made under the Maritime Powers Act 2013. Forfeiture occurs if:

The ship is a foreign ship on the landward side of the outer edge of Australia's territorial sea, or an Australian ship outside foreign territorial waters, and is boarded under the Maritime Powers Act 2013 for the purposes of the Customs Act, or to determine whether a contravention of section 72.13 (weapons of mass destruction) or Division 307 (import/export of border-controlled drugs) of the Criminal Code is occurring.
The aircraft is an Australian aircraft (over anywhere except a foreign country) or a foreign aircraft (over Australia), and the pilot fails to comply with a requirement to land made in the exercise of aircraft identification powers under the Maritime Powers Act 2013.
The aircraft is required to land because an authorising officer reasonably suspects it is involved in a contravention of the Customs Act, drug offenses, or is carrying goods connected with a terrorist act (defined under section 183UA) or goods that prejudice Australia's defence, security, or international peace.

Forfeiture under these provisions is an in rem proceeding against the vessel or aircraft itself. This means the asset is forfeited to the Crown by operation of law, regardless of whether the owner had personal knowledge of the illegal activity. Furthermore, Schedule 1, Item 17 amends paragraph 207(1)(a) to ensure that goods seized under section 67 of the Maritime Powers Act 2013 are treated as seized under the Customs Act 1901, triggering the standard customs seizure, claim, and disposal processes.

The Maritime Powers (Consequential Amendments) Act 2013 is a "hinge" statute, and its entire operation is defined by its interaction with other laws. Its primary function is to serve as the statutory bridge between the Maritime Powers Act 2013 and the five core pieces of Commonwealth legislation listed in its Schedules.

┌────────────────────────────────────────────────────────┐
│               Maritime Powers Act 2013                 │
│      (Provides consolidated, uniform powers)           │
└──────────────────────────┬─────────────────────────────┘
                           │
       Referential Links / │ Integrated Enforcement
       Seizure Alignments  │ Mechanisms
                           ▼
┌────────────────────────────────────────────────────────┐
│     Maritime Powers (Consequential Amendments) Act     │
│                         2013                           │
└─────┬──────────────┬──────────────┬─────────────┬──────┘
      │              │              │             │
      ▼              ▼              ▼             ▼
┌──────────┐   ┌──────────┐   ┌───────────┐   ┌──────────┐
│ Customs  │   │Migration │   │ Fisheries │   │   EPBC   │
│ Act 1901 │   │ Act 1958 │   │ Mgmt Act  │   │ Act 1999 │
└──────────┘   └──────────┘   └───────────┘   └──────────┘

The Act systematically removes specific enforcement provisions from these five Acts and replaces them with referential links to the Maritime Powers Act 2013. For example, where the Fisheries Management Act 1991 or the Torres Strait Fisheries Act 1984 previously relied on their own distinct definitions of officer powers, they now point directly to the definitions and seizure mechanisms set out in section 67 of the Maritime Powers Act 2013.

The Act also interacts directly with the Criminal Code (Cth). It explicitly references section 72.13 (offences relating to weapons of mass destruction) and Division 307 (import/export of border-controlled drugs) as specific triggers for ship boarding and asset forfeiture under the Customs Act 1901.

Crucially, the Act modifies how domestic maritime enforcement interacts with international law, specifically the United Nations Convention on the Law of the Sea (UNCLOS). By repealing the definition of UNCLOS and related jurisdictional boundary provisions from specific sections of the Migration Act 1958 (Schedule 4, Items 16 to 22), the Act centralises international law compliance within the Maritime Powers Act 2013. This insulates the operational arms of the sectoral Acts from direct international law challenges in domestic courts, as any challenge to the geographical or legal validity of an interception must be argued under the consolidated framework of the parent Act.

The Maritime Powers (Consequential Amendments) Act 2013 was introduced into the Parliament of Australia in 2012. The Minister's second reading speech was delivered in the House of Representatives on 30 May 2012, and in the Senate on 20 August 2012. The bill was passed by both houses and received Royal Assent on 27 March 2013, becoming Act No. 16 of 2013.

The commencement of the Act was structured in two distinct phases under section 2:

Sections 1 to 3 and General Provisions: Commenced on the day the Act received Royal Assent (27 March 2013). This allowed for the administrative preparation of the new regime, including the drafting of regulations.
Schedules 1 to 6: Commenced on 27 March 2014, exactly one year after Royal Assent. This commencement was legally tied to the commencement of section 3 of the Maritime Powers Act 2013, ensuring that the old enforcement powers were not repealed until the new, consolidated powers of the parent Act were active.

Because this is a consequential amending Act, its primary legal function was executed on the day its Schedules commenced. Upon commencement, the repeals and substitutions were permanently merged into the text of the Customs Act 1901, the EPBC Act 1999, the Fisheries Management Act 1991, the Migration Act 1958, and the Torres Strait Fisheries Act 1984.

Schedule 6, Item 2 contains an active regulation-making power that allows the Governor-General to prescribe matters of a transitional, saving, or application nature. This serves as an executive safety valve, allowing the government to address any drafting gaps or unforeseen administrative friction arising from the transition to the consolidated maritime enforcement regime.

While this specific consequential Act is rarely litigated directly, the statutory amendments it executed have been central to landmark constitutional and administrative law challenges in Australia.

The most notable litigation directly touching on these amendments is the High Court of Australia’s decision in CPCF v Minister for Immigration and Border Protection [2015] HCA 1. This case involved the detention of 157 Tamil asylum seekers on an Indian-flagged vessel in Australia's contiguous zone. The legal authority for the detention relied on section 72(4) of the Maritime Powers Act 2013.

The Maritime Powers (Consequential Amendments) Act 2013 was critical to this case, as it had previously integrated these consolidated maritime powers into the broader statutory definitions of the Migration Act 1958. Specifically, Schedule 4, Item 4 amended the definition of a "transitory person" in section 5(1) of the Migration Act 1958 to include persons detained under paragraph 72(4)(b) of the Maritime Powers Act 2013. The High Court’s narrow 4:3 decision upheld the legal validity of the maritime detention, demonstrating how the consequential amendments successfully linked the broad executive powers of the parent Act with the immigration framework of the Migration Act.

In the commercial sphere, the restructuring of forfeiture provisions under section 228 of the Customs Act 1901 has been tested in administrative challenges regarding customs seizures. Litigants have challenged whether a "maritime officer" had properly formed the requisite "reasonable suspicion" under the Maritime Powers Act 2013 to trigger the automatic forfeiture of vessels under the Customs Act.

These cases show that by transferring the physical source of authority to the Maritime Powers Act 2013, the consequential amendments have made it more difficult for commercial operators to challenge boarding and seizure actions based on the narrow, sector-specific statutory limits that existed in the legacy legislation.

Practitioners, commercial operators, and compliance officers must navigate several high-risk legal traps created by this Act's integration of different statutory regimes:

The "Enforcement Visa" Trap: Under Schedule 4, Items 10 and 12, a non-citizen on a foreign vessel outside the migration zone is automatically granted an enforcement visa when the vessel is detained under section 69 of the Maritime Powers Act 2013 for fisheries or environmental offenses. Crucially, as the statutory notes to sections 164B and 164BA explicitly warn, the grant of an enforcement visa automatically cancels any temporary visa that the non-citizen may have held (pursuant to subsection 82(2A) of the Migration Act 1958). If a foreign marine researcher, commercial crew member, or specialized technical consultant holds a valid temporary visa and their vessel is detained, their existing visa is instantly destroyed by operation of law. Once the enforcement visa is subsequently cancelled or expires, they may be left in a highly precarious legal position without a clear path to restore their original visa status.
The Absolute Forfeiture Trap (Customs Act s 228): The restructured section 228 creates strict, automatic forfeiture conditions for vessels and aircraft boarded or required to land under the Maritime Powers Act 2013. If a vessel is boarded for a customs or prescribed purpose, and those objective conditions are met, the asset is forfeited to the Crown. Commercial shipowners can find their multimillion-dollar assets forfeited due to the unauthorized actions of charterers or crew members, with very limited statutory mechanisms for administrative relief once the objective triggers in section 228(2) to (6) are met.
The "Continuous Exercise" Grey Zone: While Schedule 6 protects operations begun before 27 March 2014, defining exactly when a "continuous exercise of powers" began in a long-running, multi-phase investigation can be highly contentious. If an investigation began under the old Fisheries Act but a fresh boarding was executed after the commencement date, the transitional protection may fail, exposing the operation to the new regime's consolidated powers.

To manage the legal and financial risks introduced by this consolidated maritime enforcement framework, commercial maritime and aviation operators, legal counsel, and compliance professionals should implement the following protocols:

Mandatory Briefings on Unified Maritime Authority: Commercial vessel masters and airline pilots must be briefed that "maritime officers" possess a single, integrated warrant. Crews should not attempt to refuse boarding or dispute an officer's authority on the basis that the officer is a fisheries or environmental inspector who has no right to examine customs cargo or immigration status. Under this Act, their powers are highly fungible, and any delay or refusal to facilitate boarding can trigger immediate asset forfeiture under the restructured section 228 of the Customs Act 1901.
Implement Detailed Logbook Protocols: Vessel masters must maintain precise, chronological records of all interactions with Commonwealth ships or aircraft. Specifically, they must document:
1. The exact time, coordinates, and method of any communication or boarding request.
2. The identity, department, and stated authority of the boarding officer.
3. Whether the boarding is explicitly executed under the Maritime Powers Act 2013.
4. The specific underlying "circumstance" (e.g. section 228 of the Customs Act or section 88 of the Fisheries Management Act) being relied upon by the authorising officer.
Update Charterparty Agreements and Insurance Policies: Maritime operators, charterers, and cargo owners must review and update their charterparty contracts. Standard clauses that reference historical, repealed provisions of the Customs Act 1901 or the Migration Act 1958 must be updated to reference the consolidated regime of the Maritime Powers Act 2013.
Draft Specific Indemnity Clauses: Contractual terms should explicitly allocate liability, hire suspensions, and indemnity structures for operational delays, detentions, or forfeitures resulting from boarding or detention under the parent Act. This is particularly important given the risk of automatic enforcement visa grants and the associated cancellation of standard crew visas.
Establish Aviation Compliance Procedures: Commercial aircraft operators flying through Australian airspace must ensure that pilots are fully trained in "aircraft identification powers" and the severe consequences of failing to comply with a landing requirement. Compliance manuals must state that a failure to land when required by an authorising officer under the Maritime Powers Act 2013 results in the automatic forfeiture of the aircraft to the Commonwealth under section 228 of the Customs Act 1901.

Maritime Powers (Consequential Amendments) Act 2013

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