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Border Protection Legislation Amendment Bill 1999

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M

1998-99

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

Border Protection Legislation Amendment Bill 1999

 

 

(Amendments to be moved on behalf of the Government)

 

(1)     Schedule 1, item 10, page 24 (after line 18), at the end of section 261A, add:

             (2)  Despite subsection (1), a vessel that:

                     (a)  was used or involved in a contravention of this Act of a kind referred to in that subsection; and

                     (b)  at the time of the contravention, was being used in the course of a regular public transport operation;

is not forfeited to the Commonwealth if both the master and the owner of the vessel:

                     (c)  did not know; and

                     (d)  could not reasonably be expected to have known;

that it was used or involved in the contravention.

             (3)  In this section:

regular public transport operation , in relation to a vessel, means an operation of the vessel for the purpose of a service that:

                     (a)  is provided for a fee payable by persons using the service; and

                     (b)  is conducted in accordance with fixed schedules to or from fixed terminals over specific routes; and

                     (c)  is available to the general public on a regular basis.

[section 261—forfeiture]

(2)     Schedule 1, item 10, page 24 (lines 20 to 24), omit section 261B, substitute:

261B  Seizure of things used in certain offences

             (1)  An authorised officer may seize a thing in Australia, or may order an officer to seize a thing in Australia, if:

                     (a)  the thing is forfeited under section 261A; or

                     (b)  the authorised officer reasonably suspects that the thing is forfeited under section 261A.

             (2)  If an officer is ordered by an authorised officer to seize a thing under subsection (1), the officer may seize the thing.

[section 261B—seizure]

(3)     Schedule 1, item 10, page 25 (lines 15 to 19), omit paragraph (d), substitute:

                     (d)  state that the thing will be condemned as forfeited unless:

                              (i)  the owner of the thing, or the person who had possession, custody or control of the thing immediately before it was seized, gives the Secretary, within 21 days, a claim for the thing; or

                             (ii)  within 21 days, the Minister gives a written order that the thing is not to be condemned as forfeited; and

[section 261D—notice]

(4)     Schedule 1, item 10, page 25 (lines 21 to 23), omit the note, substitute:

Note:          Section 261F condemns the thing if it is not claimed within 21 days, unless the Minister gives an order that the thing is not to be condemned as forfeited. Section 261H condemns the thing if a claim is made, but the claimant does not get a court order supporting the claim, unless the Minister gives an order that the thing is not to be condemned as forfeited.

[section 261D—notice]

(5)     Schedule 1, item 10, page 25 (after line 23), at the end of section 261D, add:

             (4)  A claim under subparagraph (3)(d)(i) must:

                     (a)  be in writing; and

                     (b)  be in English; and

                     (c)  state an address for service on the person making the claim.

[section 261D—notice]

(6)     Schedule 1, item 10, page 26 (line 3), omit “14”, substitute “21”.

[section 261F—time limits]

(7)     Schedule 1, item 10, page 26 (lines 5 to 11), omit paragraphs (a), (b) and (c), substitute:

                     (a)  the following conditions are satisfied:

                              (i)  within the 21 days, the owner of the thing or the person who had possession, custody or control of it immediately before it was seized gives the Secretary a written claim for the thing;

                             (ii)  the claim is in English;

                            (iii)  the claim sets out an address for service on the person making the claim; or

                     (b)  within the 21 days, the Minister gives a written order that the thing is not to be condemned as forfeited.

[section 261F—when thing condemned]

(8)     Schedule 1, item 10, page 26 (lines 21 to 26), omit paragraph (b), substitute:

                     (b)  the Minister may give a written order that the thing is not condemned as forfeited; and

                     (c)  unless an order has already been made under paragraph (b), the Secretary may give the claimant a written notice stating that the thing will be condemned as forfeited unless:

                              (i)  the claimant institutes proceedings against the Commonwealth within one month to recover the thing, or for a declaration that the thing is not forfeited; or

                             (ii)  within one month, the Minister gives a written order that the thing is not condemned as forfeited.

[section 261G—claim for thing]

(9)     Schedule 1, item 10, page 27 (lines 12 to 15), omit subsection (2), substitute:

             (2)  If, within the period of one month after the notice is given:

                     (a)  the claimant does not institute such proceedings; and

                     (b)  the Minister does not give a written order that the thing is not to be condemned as forfeited;

the thing is condemned as forfeited to the Commonwealth immediately after the end of that period.

[section 261H—what happens if thing is claimed]

(10)   Schedule 1, item 10, page 27 (lines 16 to 24), omit subsection (3), substitute:

             (3)  If the claimant institutes such proceedings within the period of one month after the notice is given, the thing is condemned as forfeited to the Commonwealth unless:

                     (a)  before the end of the proceedings, the Minister gives a written order that the thing is not to be condemned as forfeited; or

                     (b)  at the end of the proceedings, there is:

                              (i)  an order for the claimant to recover the thing; or

                             (ii)  if the thing has been sold or disposed of—an order for the Commonwealth to pay the claimant an amount in respect of the thing; or

                            (iii)  a declaration that the thing is not forfeited.

[section 261H—time limits]

(11)   Schedule 1, item 10, page 28 (after line 20), at the end of Division 13A, add:

Subdivision E—Minister’s order that a thing not be condemned as forfeited

261K  Minister’s order that a thing not be condemned

             (1)  A power of the Minister under this Division to give a written order that a thing is not to be condemned as forfeited must be exercised by the Minister personally.

             (2)  The Minister does not have a duty to consider whether to exercise such a power in respect of any thing, whether the Minister is requested to do so by any person, or in any other circumstances.

             (3)  If the Minister makes an order under this Division that a thing is not to be condemned as forfeited, he or she must cause to be laid before each House of the Parliament a statement that sets out:

                     (a)  the order; and

                     (b)  the Minister’s reasons for making the order.

             (4)  A statement under subsection (3) is to be laid before each House of the Parliament within 15 sitting days of that House after:

                     (a)  if the order is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

                     (b)  if the order is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

[section 261K—Minister’s orders]

(12)   Schedule 1, page 28 (before line 21), before item 11, insert:

10A  At the end of section 475

Add:

             (3)  A decision of the Minister under Division 13A of Part 2 to order that a thing is not to be condemned as forfeited is not a judicially-reviewable decision.

10B  Subsection 485(1)

Omit “475(2)”, substitute “475(2) or (3)”.

[sections 475 and 485—review of decisions]

(13)   Schedule 1, page 41 (after line 27), after item 56, insert:

56A  Subsection 271(4) (paragraph (a) of the definition of migration proceedings )

After “court”, insert “(including criminal proceedings)”.

56B  Subsection 271(4) (subparagraph (a)(i) of the definition of migration proceedings )

Repeal the subparagraph, substitute:

                              (i)  under this Act or in relation to an offence against this Act; or

56C  At the end of subsection 271(4)

Add:

Note:          For offence against this Act , see subsection 5(1).

[section 271—evidentiary matters]

(14)   Schedule 2, item 29, page 63 (lines 22 to 24), omit paragraph (d).

[section 185B—destruction of ships]

(15)   Schedule 2, item 29, page 63 (after line 24), insert:

          (3A)  The CEO may direct an officer to destroy, or move and destroy, the ship, or cause such thing to be done, if the CEO has reasonable grounds to believe that the ship is in such poor condition that its custody or maintenance by the Commonwealth would involve an expense that would be likely to be greater than its value.

[section 185B—destruction of ships]