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2002
THE PARLIAMENT OF THE COMMONWEALTH
OF AUSTRALIA
SENATE
CORRECTION TO THE
EXPLANATORY
MEMORANDUM
(Circulated by
authority of the Minister for Justice and Customs,
Senator the Honourable
Christopher Martin Ellison)
SCHEDULE 11 – POWERS OF ARREST
Customs Act
1901
Item 1 – Subsection 210(1A)
Omit the
explanation of this Item and substitute with:
This item amends subsection
210(1A) of the Customs Act by omitting the words “the offence of
assaulting an officer in the execution of his duties” and substituting
“an offence against section 147.1, 147.2 or 149.1 of the Criminal
Code in relation to a Customs officer”.
Subsection 210(1A) of
the Customs Act authorises a Customs officer or police officer to arrest a
person where the officer has reasonable grounds for believing that a person has
committed the offence of assaulting an officer in the course of the execution of
his duties. The reference to the offence of assaulting a Customs officer was a
reference to former paragraph 232A(b) of the Customs Act, which made it an
offence to assault a Customs officer (as well as to resist, molest, obstruct or
intimidate a Customs officer).
Amendments to the Customs Act made by
the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act
2000 mean that paragraph 232A(b) will no longer prohibit the conduct of
assaulting a Customs officer. This conduct will instead be prohibited by
sections 147.1, 147.2 and 149.1 of the Criminal Code 1995. These
sections relate to offences of doing harm to a public official, threatening to
do harm to a public official and obstructing, hindering, intimidating or
resisting a public official respectively.
The amendment to paragraph
232A(b) has had the unintended effect that Customs officers and police officers
no longer have the power under subsection 210(1A) to arrest a person who is
assaulting a Customs officer.
At common law, an assault does not require
actual physical contact. A threatening gesture or threatening words may
constitute an assault (provided that it gives rise to an apprehension of
immediate violence in the mind of the person threatened).
In order to
restore Customs officers' and police officers’ power of arrest in these
circumstances, it is proposed to amend subsection 210(1A) of the Customs Act to
permit the power of arrest to be exercised when a person commits an offence
against section 147.1 or 147.2 or 149.1 of the Criminal Code in relation
to a Customs officer.
The amendment will mean that Customs officers will
have the power to arrest a person who is obstructing, hindering, intimidating or
resisting an officer (where no assault, actual or threatened is made). This is
because conduct that constitutes assault at common law is dealt with in three
separate provisions of the Criminal Code but these provisions also prohibit
conduct which would not amount to an assault.