Recently there have been a number of reports surrounding the issue of small yacht owners being told by Customs staff that the owners were not permitted to video or audio tape the search or conversations or indeed any actions undertaken by the Customs staff.

Of course there is the ongoing chestnut of the 96 hour reporting period. Why does ACS require 96 hours notice of an possible arrival?

There are a number of very serious implications to this. Fundamentally - what is it that ACS is trying to hide? Why are they concerned about an action that occurs in other law enforcement regimes on a regular basis? What risk is managed by the order preventing the taping?

If members of the State or Federal police come to my house and execute a warrant to search - I am quite within my liberty to tape that search. We will leave aside the fact that when I am at home on land a warrant is usually necessary to search my house but that when I am at home on the water it isn't, that's a discussion that has been had before and will be had again.

We could note the Australian Customs Service's own self demonstrated view that taping things is a damn good idea, by this I refer to the television reality pulp known as Border Security and similar shows, where taping of Customs activities not only occurs - it is broadcast to hundreds of thousands of people.

So there are policy issues connected with the "ban" on taping searches but even prior to that there is the legal basis for the "ban" to be considered. The initial question therefore is "does an ACS staff member have the lawful power to tell you that you are not permitted to record the activities"

And the short answer is - maybe. Well at least that is my opinion. As usual I need to clearly state that you should satisfy yourself as to legal issues and your own rights and responsibilities. I am not a person admitted to practice law so what I am about to examine may assist you in arriving at your own decisions, including seeking any legal advice you believe you may require.

Contact with the ACS resulted in my being advised that sections 234 AA, 234AB of the Customs Act 1901 are the powers upon which they rely to make this order to not record the actions of ACS staff. The sections are reproduced below for your enjoyment. Also sections 234 A and 234 ABA are included which relate to, in part, the ability of ACS staff to direct you to leave the vessel, which may be the next step if you win the argument that their no-videoing direction is unlawful.

Section 234 AA (Places set aside for purposes of the Act) quite clearly, in my view, requires that a "sign" be erected at a "place" if any of the powers in regard to prohibition of entry is going to be enforced. Further, an additional sign may be erected to prohibit the use of cameras etc. So prior to any direction to a skipper to not record anything at least two signes need to be erected, though I suspect that a single sign with both areas of the section may suffice.

In other words, if a "place" (being an area or building or part of a building) has a sign lawfully posted, then a further sign may be erected prohibiting the use of video cameras etc in that "place". Then and only then can the ACS staff direct people that they not use cameras etc. It would appear that a part of a ship may be a place pursuant to Section 234AB. Though that is not entirely clear.

I note that subsection 3A of Section 234 AB also provides that no offence is committed by a person who fails to comply with the "no cameras" direction if a person has a reasonable excuse. I would think that an argument could be easily mounted that a person whose floating home is being searched has such an excuse. But in any event - no lawfully erected signs means no power to make the "no cameras" direction.

Sections 234A and 234 ABA then discuss the issue of who is an authorised person to be in or on "places". The key in each of these sections is still the existence of the sign and even then a member of a crew disembarking or embarking has the right to be in the area (see 234A 1A (c) and (d). So again - no sign, no power to issue the direction.

The effect of these sections (particularly 234 ABA) is to give the ACS staff member the ability to direct a person to leave the area, this would have the effect of preventing a recording of the search.

As a former law enforcement professional myself, the issue of removing people from a search is also curious to me, when I went to court I wanted to be able to say that I had asked the person if anything in this locker, for example, needed to be declared, if the person owned or had control of all the things in the locker etc. In short I would seek evidence to tie the illegal item to the person. That is just good investigatory practice.

Aside from the Commonwealth legislation there are general state laws regarding the taping of conversations that may or may not have application. In the broad sense however these usually have no impact provided that the taping is declared. In the case of Queensland even that may not be required.

One of the reasons provided by the ACS to me about the policy position on this was "officer safety", they suggested that they need to do this so that cantankerous people do not interfere with the actions of the ACS staff. On that point I can only reinforce the need to not hinder or obstruct the ACS officers, by all means courteously and respectfully put your view, but otherwise stand aside and let them go about their business. Merely taping a search would not in my amount to any threat to officer safety.

Quite frankly it amazes me that ACS would want to prevent any person taping their searches etc. If an ACS officer had stopped me recording the search and any subsequent prosecution by the ACS came to a matter of credibility between the officer and I then I suspect a court would wonder why the officer didn't want the search etc taped.

On the one hand we have places that quite clearly have signs erected, and ACS allows television stations to make films, on the other we have boats that may not be "places" where a "Sign" is erected and yet ACS seeks to prevent the taping.

It makes little sense to me. But then again - I am but a citizen of the Commonwealth of Australia.

I sought advice from the Australian Customs Service on this and related issues, this was an interesting process. I rang the telephone number on their website, the one I might use to advise of my pending arrival, after 20 minutes on hold and being shuffled around various people I felt I had experienced at least one part of frustration that incoming yachts have. The initial questions were posed in December last year.

 I wrote back to ACS and indicated I would like to submit my article soon but that I felt their answers did not do the ACS justice. For example I still don't understand the answer to questions 1 and 2 in that I can get on a plane with 300 people in South East Asia after buying a ticket an hour or two before take off and land in Australia 10 hours later and ACS are able to manage this.

The answer to question 3 is particularly curious; the question was why a prohibition of taping searches is necessary, the answer didn't address the issue other than tangentially. To be clear - if a person does behave in a threatening manner towards ACS officers then clearly they should seek to remove them from the area, however if the occupants of the vessel are quiet and compliant, why on earth would taping of the search constitute a threat to the officers.

The ACS answer to Question 4 is equally interesting. It would appear that there is some form of suggestion that all countries in the world are agreed that ACS timeframe of 96 hours is appropriate and indeed about to become the world standard. I could find no such reference on the World Customs Organisation website. What I did find on that website was reference to a range of Customs Agencies throughout the world and I have included below a sample of requirements:

It would appear that Australia is certainly out of step with at least the countries noted below, I didn't search every country - I just looked at similar countries to Australia. Even post the 11 September issues connected with the USA they still do not treat arriving pleasure yachts as criminals.

 United States - Pleasure Boat Reporting Requirements

(04/28/2007) Pursuant to 19 CFR 4.2, operators of small pleasure vessels, arriving in the United States from a foreign port or place to include any vessel which has visited a hovering vessel or received merchandise outside the territorial sea, are required to report their arrival to CBP immediately (see 19 U.S.C. 1433).

 After some prodding ACS responded with a more expanded view:

Why do crew and passengers have to report to Customs 96 hours in advance of porting? What is it that Customs does in that 96 hours that can't be done in 24, 48 or 72 hours?

 Australian Customs and Border Protection is responsible for clearing all goods, vessels, passengers and crew entering and departing Australia. A primary reason for Customs presence at the border is community protection - preventing prohibited, harmful or illegal goods or persons from coming into Australia.

The role has become more important in recent years. Post 9/11, Australia's border security and counter terrorism activities increased and following the Australian Government's review of national maritime security, the government deemed that advance notice of the arrival of vessels and people to Australia was critical and that the timeframe should be extended from the then 48 hours to 96 hours.

In the case of smallcraft, Customs staff are responsible for completing a range of border control functions in relation to the vessel and its crew for Customs, Immigration and other government agencies as required.

While the vast majority of smallcraft are generally involved in legitimate travel into and out of Australia, there is also a history of smallcraft being utilised by various criminal entities to breach Australia's border controls. Taking into account this and other evidence, Customs has taken the view that all vessels, regardless of their size or the purpose of their travel to Australia, must be fully risk assessed prior to their arrival into Australia, and therefore must provide the prerequisite information needed to make this assessment.

Customs risk assesses every smallcraft and commercial vessel in advance of its arrival in Australia. The assessment takes into account government held intelligence in relation to a range of border security issues, including: illicit drugs, terrorism and people smuggling.

 After 9/11, the Australian Government along with governments across the globe reviewed their security and border protection activities. The government deemed that advance notice of the arrival of vessels and people to Australia was imperative.

In the airport area, Customs obtains advance passenger information on all travellers prior to their arrival in Australia. This allows authorities to screen and risk assess all travellers prior to their arrival in order to ensure that they do not pose a threat to Australia's security. Similarly, the government recognised that passengers, crew and vessels of all sizes 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.

 Customs uses this time to manage a number of risks including preventing the following imports: drug, tobacco, and some medicinal products, flora or fauna and protected wildlife, firearms, weapons or ammunition, and potential attempts at evading tariffs.

Customs works in conjunction with a number of different agencies to secure Australia against border threats, therefore sufficient time is needed for the Australian Government to develop an appropriate response, involve all agencies and delegate roles and responsibilities in the likelihood of a threat impacting our borders.

 Australian Customs and Border Protection (Customs) manages the security and integrity of Australia's borders. It works closely with other government and international agencies, in particular the Australian Federal Police, the Australian Quarantine and Inspection Service, the Department of Immigration and Citizenship and the Department of Defence, to detect and deter unlawful movement of goods and people across the border.

Customs works in a whole-of-government approach to protect Australia's borders and ensure Australian's enjoy a safe and secure lifestyle. Put simply, there is no universal way of protecting a country's border - each country manages their border security in the best way possible to minimise risk and thwart threats to society.

Customs cannot comment on another country's border security regulations.

 Under the Customs Act 1901, Customs officers can ask passengers to refrain from using recording devices such as cameras, sound recorders, mobiles, or other electronic form of communication where Customs officers will be using a 'place' for questioning, searching or examining or holding a passenger.

Please refer to section 234AA of the Customs Act 1901 for further information and note that Customs powers are standard across all points of entry, including arrival by air.

 After lengthy examination of the Act and discussion with ACS I still do not have an answer to the why ACS would want to prohibit the taping of a search by a compliant person who presented no threat. I still don't understand why Australia needs 96 hours to do what it needs to do for boats with 3 people on board and yet can do a plane full of passengers in 24 hours. I still don't understand why Australia needs 96 hours to do what it needs to do, when other similar countries can do it in much less time.

I have spent the majority of my working life in law enforcement, particularly in Intelligence and Investigations. I applaud and support the work done by ACS - my concern is not with that, it is with the manner of that work.

I doubt that we will see much change to the policy or legislation, what we may see is an economic impact as less and less yachts choose to come to Australia to and spend their money.

Fundamentally though I would hope one day to understand the simple question: Why, provided I am compliant, would it concern ACS to have me tape a search of my own boat.

 CUSTOMS ACT 1901 - SECT 234AA Places set aside for purposes of Act
(1) Where a place:
(a) is to be used by officers:
(i) for questioning, for the purposes of this Act or of any other law of the Commonwealth, passengers disembarking from or embarking on a ship or aircraft; or
(ii) for examining, for such purposes, the personal baggage of such passengers; or
(iii) as a holding place for such passengers; or
(b) is covered by a notice under subsection (3);
a Collector, or a person authorized by a Collector to do so, may cause signs to be displayed at or near the place that identify the place and state that entry into it by unauthorized persons is prohibited by this Act.

(2) Where a sign is displayed in relation to a place under subsection (1), a Collector, or a person authorized by a Collector to do so, may cause signs to be displayed at or near the place that identify the place and indicate (whether in words or images) that the use of:
(a) cameras or sound recorders; or
(b) mobile phones or other electronic forms of communication;
at the place by unauthorized persons is prohibited by this Act.

(3) The CEO may publish a notice in the Gazette specifying, as an area to which this section applies, an area of an airport appointed under section 15.

(4) An area specified in such a notice must comprise one or more of the following areas:
(a) areas that are used by, or frequented by, passengers who have arrived in Australia until they have passed through the last point at which they or their baggage are normally subject to processing by officers;
(b) areas that are used by, or frequented by, passengers who are about to depart Australia after they have passed through the first point at which they are normally subject to processing by officers;
(c) areas that are in the vicinity of areas referred to in paragraph (a) or (b).

CUSTOMS ACT 1901 - SECT 234AB - Unauthorised use of cameras and sound recorders
(1) An officer may direct a person, including a passenger disembarking from, or embarking on, a ship or aircraft:
(a) not to use:
(i) a camera or sound recorder; or
(ii) a mobile phone or other electronic form of communication;
at a place in relation to which a sign is displayed under subsection 234AA(2); or
(b) not to operate a camera, or use an appliance to record or transmit sound, at a place (being a place that is part of a ship, of an aircraft or of a wharf) at a time when the personal baggage of passengers disembarking from, or embarking on, a ship or aircraft, is being examined, for the purposes of this Act, at or in the vicinity of that place.

(2) Where an officer gives to a person a direction under subsection (1), the officer shall inform that person that failure to comply with that direction is an offence under this Act.

(3) A person shall not fail to comply with a direction given to that person by an officer in accordance with subsection (1).

Penalty: 10 penalty units.
(3A) Subsection (3) does not apply if the person has a reasonable excuse.
(3B) Subsection (3) is an offence of strict liability.
Note: For strict liability , see section 6.1 of the Criminal Code .

(4) In any proceedings for the prosecution of a person for an offence against subsection (3), evidence that a sign indicating that the use of:
(a) cameras or sound recorders; or
(b) mobile phones or other electronic forms of communication;
at a place is prohibited by this Act was displayed at or near that place is prima facie evidence that the sign was so displayed in accordance with subsection 234AA(2).

(5) In this section, camera includes any device for making or transmitting, or designed for use in the making or transmission of, images of objects.

(6) For the purposes of this section, a person shall be taken to use an appliance to transmit sound at a place if, and only if, the person uses the appliance to transmit sound, other than sound coming from the appliance, from the place to another place.

CUSTOMS ACT 1901 - SECT 234A -Unauthorised entry to places and on ships, aircraft or wharves
(1) A person shall not:
(a) enter into, or be in, a place in relation to which a sign is displayed under subsection 234AA(1); or
(b) enter on or be in or on:
(i) a ship;
(ii) an aircraft;
(iii) the wharf at which, or the part of a wharf adjacent to which, a ship is berthed;
at a time when goods being the personal baggage of passengers disembarking from, or embarking on that ship or aircraft are being examined, for the purposes of this Act, at or in the vicinity of the ship, aircraft, wharf or part of a wharf.

Penalty: 50 penalty units.

(1AA) Subsection (1) is an offence of strict liability.
Note:For strict liability , see section 6.1 of the Criminal Code .

(1A) Subsection (1) does not apply if the person:
(a) enters into or is in the place, by the authority of a Collector; or
(ab) is the holder of a security identification card (within the meaning of section 213A) who:
(i) enters into, or is in, the place for the purposes of his or her employment; and
(ii) is not subject to a direction under subsection (1B); or
(b) enters on or is in or on, the ship, aircraft, wharf or the part of a wharf, by the authority of a Collector; or
(c) is a member of a crew disembarking from, or embarking on, a ship or aircraft; or
(d) is a passenger disembarking from, or embarking on, a ship or aircraft; or
(e) is included in a class of persons whom the CEO determines, in writing, to be exempt from this section.

(1B) A Collector may, at any time, by written notice given to a person who is the holder of a security identification card (within the meaning of section 213A), direct the person not to enter into, or be in or on:
(a) a place in relation to which a sign is displayed under subsection 234AA(1); or
(b) any of the following:
(i) a ship;
(ii) an aircraft;
(iii) the wharf at which, or the part of a wharf adjacent to which, a ship is berthed; at a time when goods being the personal baggage of passengers disembarking from, or embarking on that ship or aircraft are being examined, for the purposes of this Act, at or in the vicinity of the ship, aircraft, wharf or part of a wharf.

(2) Subsection (1) does not prohibit a person who has, or is a member of an authority which has, the management or control of a wharf or wharves or an airport or airports from entering on, or being in or on, a place, ship, aircraft, wharf or part of a wharf for the purposes of that management or control.

(3) In any proceedings for the prosecution of a person for an offence against subsection (1), evidence that a sign stating that entry into a place is prohibited by this Act was displayed at or near that place is prima facie evidence that the sign was so displayed in accordance with subsection 234AA(1).

CUSTOMS ACT 1901 - SECT 234ABA - Officers may direct unauthorised persons to leave restricted areas

(1) An officer may direct a person to leave a place in relation to which a sign is displayed under subsection 234AA(1) if the officer reasonably believes that the person is in that place in contravention of section 234A.

(2) The officer may, either acting alone or with the assistance of one or more other officers or protective service officers, use reasonable force to remove the person from the area if the person refuses to leave when so directed.

(3) However, in removing the person, the officer (and the persons assisting) must not use more force, or subject him or her to greater indignity, than is necessary or reasonable.

(4) In this section:
"protective service officer" means a protective service officer within the meaning of the Australian Federal Police Act 1979 .