Calls for New Prosecutory Powers for Maritime Border Command

Monday 20 July 2015 @ 9.03 a.m. | Legal Research | Trade & Commerce

The head of Australia's Border Protection Command, a subset of the Australian Border Force, has called for new laws enabling criminal prosecutions to be added to their responsibilities for crimes committed at sea outside Australian waters.

The Australian Border Force

On 1 July 2015, the functions of the Department of Immigration and Border Protection and the Australian Customs and Border Protection Service were integrated into a new Department. The Australian Border Force (ABF) was established as the new front-line operational agency within the Department reflecting a greater focus on the border as a strategic national asset. The integrated arrangements build on recent border protection reforms and the long history of the two organisations working closely together.

The ABF brought together all existing operational border, investigations, compliance, detention (facilities and centres) and enforcement functions. Policy, regulatory and corporate support for the Australian Border Force are delivered by the Department.

Maritime Border Command

Maritime Border Command (MBC) is Australia’s lead civil maritime security authority. It is a multi-agency taskforce which utilises assets and personnel from both the ABF and the Australian Defence Force to safeguard Australia’s maritime jurisdiction. The Command is led by a Rear Admiral from the Australian Defence Force.

It works co-operatively with the Strategic Border Command, a command centre with oversight of regional commands, ensuring the effective coordination of border enforcement and operational activity. It maintains visibility of what is happening at the border and is able to quickly and effectively redirect effort to better manage the border.

Enforcement Capabilities of the MBC

Assets are assigned to MBC to conduct law enforcement activities on behalf of other Australian Government agencies exercising powers under the Customs Act 1901 (Cth), Migration Act 1958 (Cth), Fisheries Management Act 1991 (Cth) and the Torres Strait Fisheries Act 1984 (Cth). MBC is the primary government law enforcement organisation in Australia’s maritime jurisdiction with responsibility for coordinating and controlling operations to protect Australia's national interests against the following maritime security threats:

Illegal exploitation of natural resources;
Illegal activity in protected areas;
Unauthorised maritime arrivals;
Prohibited imports/exports;
Maritime Terrorism;
Piracy;
Threats to Bio-security; and
Marine pollution.

Calls for Prosecutory Powers for MBC Outside Australian Waters

Currently, under the Maritime Powers Act 2013 (Cth), the MBC must bring any persons arrested as soon as possible to the Australian Federal Police; or the police force of a State or Territory; or if the arrest relates to an offence against another law—a person with the power to arrest, or the power to deal with a person who has been arrested, under that law.

Rear Admiral Michael Noonan (current Commander of the MBC) says authorities worldwide suspect transnational crime groups are involved in the illegal fishing trade, potentially to fund “other nefarious activities”. However, Admiral Noonan said he had “zero” ability to prosecute those involved.

Admiral Noonan said the US had introduced legislation to extend the reach of its criminal laws, by enabling US authorities to prosecute alleged criminals involved in illegal maritime activity, even if it had not occurred in US waters. He said he believed it was “absolutely” worth considering similar laws in Australia, and a legislative working group had been set up to look at this:

“Ultimately I want to see prosecutions...I don’t want to be out there boarding and surveilling vessels with an expectation that we’re not going to achieve a positive and demonstrable outcome.”

Admiral Noonan said he was also concerned about vessels that used so-called “flags of convenience” or were registered in countries known to have lax controls. He said vessels that flew flags of convenience flouted safety and employment standards and posed risks to revenue, trade and environmental hazards:

“Ultimately, while this regime is able to flourish and continues to support another way of conducting trade at sea outside of the recognised international framework, I think the international community should be asking some questions about that."

A Senate inquiry was recently announced into flag-of-convenience shipping after concerns about the suspicious deaths of three seafarers on a Japanese-owned ship flying a Panama flag.

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