Australian Customs - Deterrent to Visiting Oz ?

[savoir]

Originally Posted by Factor

I dont want to get into an argument with you - but you are wrong. And dangerously so. If you think you are correct provide a reference to which part of the Act that provides for this power. Or ring ACS and ask them.

Try reading section 184A - it provides the power to board a ship, there is no POWER INHERITED FROM THE POMS. Its a statutory power. And I never said probable cause - I said Reasonable belief.

And you know the warrants that they don't need, well the act makes provision for them at Sects 198 - 202A inclusive.

Now for this post. I'm afraid Factor that every single allegation that you make is just plain silly and of course I will give reasons.

Section 184A is quite clear " the officer may board a ship " it says without a single if, but or maybe. Local or foreign matters nothing - "the officer may board a ship ". There are no exemptions, no but fors, no otherwises, no other possibilities no nothing. The power of an Australian customs guy to board a ship in Australian waters is unlimited. No reason, no warrant, no nothing.

There is nothing in that section anywhere about your alleged phrase of " reasonable belief ". I only used " probable cause " because that is what they say on TV. You call me dangerous and tell everyone that the correct jargon is "reasonable belief ". That was not the phrase you used in the post of yours that I quoted, rather it was your phrase in a completely different post that I did not refer to at all.

Nonetheless lets go with your alleged phrase of " reasonable belief ". It's a nice phrase but the trouble with it is that it doesn't appear anywhere in Australia's Customs Act. Nowhere. Pretty silly really.

Every single aspect of your post was just plain wrong. I dealt with the bit about the poms in an earlier post.

Anyway I am extremely flattered that you might think me dangerous - in an Austin Powers kind of way - YEAH BABY !




Do I get to keep the chicks ?

[savoir]

Originally Posted by DeepFrz

savoir, if you read my post carefully you will see I did not mention laws. I said systems. And it is a well known fact that the US has put pressure on many countries around the world to tighten up their Immigration/Customs systems. Note the fact that some Australians here have referred to the Immigration Force, rather than Immigration Service.

Hate to be blunt but you leave me no choice.

9/11 had zippo effect on Australia's customs laws or systems or anything else insofar as they apply to boats. There was a little extra toughness with airport body searches but that's it. Same for the other ex British colonies like South Africa, NZ, Fiji etc.

If you think a boat related system changed post 9/11 then please say which one.

I can't help with " immigration force " I have never heard of such a thing. In any event so what ? The bad guys here are customs not immigration. Different outfit.

[pillum]

It's probably just that being a nation born of the thieves and vagabonds evicted from the UK, they are naturally suspicious of law abiding citizens visiting for pleasure rather than being sent there for punishment....

[savoir]

Good point. I always tell the Brits they should have left the thieves and vagabonds at home and brought everyone else downunder.

Doesn't go down too well.











They kow I'm right.

[cat man do]

Originally Posted by DeepFrz

And it is a well known fact that the US has put pressure on many countries around the world to tighten up their Immigration/Customs systems

While remaining incredibly lax themselves?

Looks to me I just casually sail into a US port, make a phone call say, "I'm here" and get directed somewhere for inspection

Pleasure Boat Reporting Requirements - CBP.gov

19 USC 1433 - Sec. 1433. Report of arrival of vessels, vehicles, and aircraft - U.S. Code - Title 19: Customs Duties - Part II - Report, Entry, and Unlading of Vessels and Vehicles - Id 19194197 - vLex

(a) Vessel arrival (1) Immediately upon the arrival at any port or place within the United States or the Virgin Islands of - (A) any vessel from a foreign port or place; (B) any foreign vessel from a domestic port; (C) any vessel of the United States carrying foreign merchandise for which entry has not been made; or (D) any vessel which has visited a hovering vessel or received merchandise while outside the territorial sea; the master of the vessel shall report the arrival at the nearest customs facility or such other place as the Secretary may prescribe by regulations. (2) The Secretary may by regulation - (A) prescribe the manner in which arrivals are to be reported under paragraph (1); and (B) extend the time in which eports of arrival must be made, but not later than 24 hours after arrival

[Factor]

Originally Posted by savoir

Now for this post. I'm afraid Factor that every single allegation that you make is just plain silly and of course I will give reasons.

Section 184A is quite clear " the officer may board a ship " it says without a single if, but or maybe. Local or foreign matters nothing - "the officer may board a ship ". There are no exemptions, no but fors, no otherwises, no other possibilities no nothing. The power of an Australian customs guy to board a ship in Australian waters is unlimited. No reason, no warrant, no nothing.

.....

Read sect 4AA of the Act, in conjunction with 51 of the constitution (Australia), see what you think. Coupled with the Constitution of - eg state of queensland, or pick another, Also you need to consider the impact of the common law legal presumption that criminal stautes must be construed to favour the accused, see for example R - v Mahendra where the court held, As was stated in Stevens v Kabushiki Kaisha Sony Computer Entertainment[2] “an appreciation of the heavy hand that might be brought down by the criminal law suggests the need for caution in accepting any loose, albeit “practical” construction…” Further, it is accepted a statute should not be extended to cover a particular situation where it is thought there is legislative omission. Ambiguities in such legislation ought to be resolved in favour of the liberty of the accused.

Tangentially the High Court held today on an unrelated matter a very tight construction of the meaning of "omission", see Commonwealth Director of Public Prosecutions v Malgorzata Barbara Poniatowska

You know that if your reading of the Customs Act is correct, then ACS has the power to board some blokes tinnie in the creek near my house. Indeed arguably the Brisbane Boys College rowing scull is liable for boarding in the Toowong reach of the Brisbane River.

One of the many protagonists in this debate said that s/he had a mate who was a copper - I suppose for the record I should note, 30 years law enforcement here, state and federal. So why am I agitated by this, because I have a life long abhorrence of government agencies abusing their powers, from criminal conduct to incipient corruption to righteous bending of the rules, to simple old fashioned abuse of power, none of it is acceptable.

There is also the more pragmatic issue about the principles of risk management and the allocation of resources.

[Blue Stocking]

Well!!--one thing I will say, as a Northern hemisphere resident reading this thread,is, that you "down under" folk will stand your ground when you believe in a legal position.
I meen that as a compliment.

[hoppy]

Originally Posted by savoir

Hate to be blunt but you leave me no choice.

9/11 had zippo effect on Australia's customs laws or systems or anything else insofar as they apply to boats. There was a little extra toughness with airport body searches but that's it. Same for the other ex British colonies like South Africa, NZ, Fiji etc.

If you think a boat related system changed post 9/11 then please say which one.

I can't help with " immigration force " I have never heard of such a thing. In any event so what ? The bad guys here are customs not immigration. Different outfit.

Yep..

Customs and immigration have always (or at least from well before 9/11) been tough and from an arrival to Australia point of view probably changed SFA as a result of US "pressure".

The rushing in of biometric passports, additional preflight screening and sending of passenger lists to Homeland Security for US flights were a result of US pressure.

Nothing that impacts yachties checking in or out.

[Factor]

Hoppy - Small matter but ACS said on the 96 hour rule - and I quote ...

These timeframes came into effect in October 2005 when, in a climate of heightened border security, the Government determined that advance notice of the arrival of vessels and people to Australia was an imperative. In the air environment, Customs obtains advance passenger information on all travellers prior to their arrival in Australia, enabling us to pre-screen and risk assess all travellers in order to ensure that they do not pose a threat to Australia's security. In the same way, the Government recognised that passengers, crew and vessels of all sizes (whether it be a yacht, commercial vessel or even an offshore drilling rig) should be assessed prior to their arrival in Australia. After careful consultation with border agencies, the Government determined that passengers and crew should report to Customs no later than 96 hours in advance of a vessel's arrival at the first Australian port. This rule applies to vessels of all sizes ranging from large cruise ships to small pleasure craft. The timeframe of 96 hours was considered appropriate in order to provide sufficient time for Australia's various law enforcement agencies to conduct a thorough risk assessment and to organise an appropriate response. Prior to October 2005 all vessels, including smallcraft and commercial vessels were subject to the following reporting timeframes:
If the voyage exceeded 48 hours - not later than 48 hours, or ..............

[cat man do]

Originally Posted by savoir

The power of an Australian customs guy to board a ship in Australian waters is unlimited. No reason, no warrant, no nothing.

Customs and police can not enter a persons residence without a warrant

You will find there are several bits of Australian legislation (ATO and Centerlink for starters) where a vessel can be classed as a principal place of residence.

From Centerlink.

4.10 The asset test
Your principal place of residence is not included in the assets test. This includes fixtures and adjoiningprivate land (up to 2 hectares) that is used for domestic purposes and is not occupied by persons otherthan close relatives. If there is another dwelling on your land and it is occupied by a person other than aclose relative or carer, then that dwelling may be separately valued and included as an asset. If a personlives in a caravan or a boat, that can also be counted as that person’s principal place of residence

From the ATO

What is a dwelling?

A dwelling is anything that is used wholly or mainly for residential accommodation. Examples of a dwelling are:
a home or cottage
an apartment or flat
a strata title unit
a unit in a retirement village
a caravan, houseboat or other mobile home.

[savoir]

The Customs Act does not allow that exception. The use of the ship is irrelevant. If you were right it would say something like " excepting ships that are used for residential purposes " or whatever.

[cat man do]

Originally Posted by savoir

The Customs Act does not allow that exception. The use of the ship is irrelevant. If you were right it would say something like " excepting ships that are used for residential purposes " or whatever.

Didnt you say yourself earlier that customs can not search a home without a warrant?
The boat is my home, it is my residence.

[savoir]

Oh well, I can only wish you the best of luck in telling that to the boys and girls as they board.

[sailorboy1]

What the heck, is there an Aussie agruement amongst each other here about the laws that others need to be aware of to enter the country?

If it's this hard for you people to enter your own country maybe there really is a problem.

[savoir]

Problem ? Nah !

The thing is that football season is over so there isn't much to argue about. Next week might be a bit quiet around here as we all turn into horse racing experts.