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Border Protection (Validation and Enforcement Powers) Bill 2001

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1998 - 1999 - 2000 - 2001

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

BORDER PROTECTION (VALIDATION AND ENFORCEMENT POWERS) BILL 2001

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the

Minister for Immigration and Multicultural Affairs,

The Hon. Philip Ruddock MP)

 

 

 

 

 

BORDER PROTECTION (VALIDATION AND ENFORCEMENT POWERS) BILL 2001

 

 

OUTLINE

 

1.         The purpose of the Border Protection (Validation and Enforcement Powers) Bill 2001 (“the Bill”) is to validate any action of the Commonwealth and others taken in relation to vessels carrying persons who are reasonably believed to be intending to enter Australia unlawfully.

 

2.         Schedule 1 and Schedule 2 to the Bill make a number of amendments to the Customs Act 1901 (“the Customs Act”) and the Migration Act 1958 (“the Migration Act”) to clarify the operation of existing powers in those Acts and provide additional powers in relation to vessels carrying persons who are believed to be seeking to enter Australia unlawfully.

 

3.         Schedule 2 to the Bill also amends the Migration Act to provide for mandatory minimum penalties in relation to people smuggling offences.

 

4.         The Bill is part of a package of Bills that includes the Migration Amendment (Excision from Migration Zone) Bill 2001 and the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Bill 2001.

 

5.         The amendments in these Bills are being made in response to the increasing threats to Australia’s sovereign right to determine who will enter and remain in Australia.  These threats have resulted from the growth of organised criminal gangs of people smugglers who bypass normal entry procedures.

 

Validation of certain actions

 

6.         The provisions in the Bill relating to the validation of certain actions:

 

·          apply to any action taken by the Commonwealth or others in relation to particular vessels during the period between 27 August 2001 and ending on the day on which this Bill commences;

·          specify that any such action that was taken was lawful when it occurred; and

·          provide that no proceedings against the Commonwealth or others may be instituted or continued in any court in respect of the actions to which this Bill applies.

 

7.         These measures have been prompted by the events that have occurred recently in relation to the entry of the MV Tampa into Australian waters with persons seeking to enter Australia unlawfully and other vessels carrying unlawful arrivals.  The 27 August 2001 commencement date for the “validation period” coincides with the date on which Australia first took actions in relation to the MV Tampa .

 

 

 

Schedules 1 and 2 - Amendment of the Customs Act and Migration Act

 

8.         Schedules 1 and 2 of the Bill provide additional statutory authority to deal with vessels carrying unauthorised arrivals and the unauthorised arrivals themselves who may arrive in the future.

 

9.         The Schedules amend the Customs Act and Migration Act to introduce:

 

·          new provisions regarding the detention of a person found on a ship or aircraft detained under section 185 of the Customs Act or section 245F of the Migration Act and expressly clarify the nature of the powers an officer may exercise in relation to such persons; and

·          a new search power in relation to people on certain ships or aircraft and a power to return people to a ship detained under section 185 or section 245F.

 

10.       In addition, the amendments to the Migration Act clarify that a person is not in “immigration detention” if restrained or dealt with pursuant to the new provisions regarding the restraint of a person found on a ship or aircraft detained under section 245.

 

11.       The amendments to the Migration Act also introduce minimum mandatory penalties in relation to the people smuggling offences in sections 232A and 233A of the Act.  These provisions will not apply to persons under the age of 18 years.

 

 

FINANCIAL IMPACT STATEMENT

 

12.       These amendments, together with those in the other two Bills, introduce measures to discourage people smuggling to Australia.  While there is a range of costs associated with discouraging or preventing potential unauthorised arrivals, the successful reduction in the numbers of unlawful entrants into Australia would significantly reduce detention and processing costs.

 



 

BORDER PROTECTION (VALIDATION AND ENFORCEMENT POWERS) BILL 2001

 

 

NOTES ON INDIVIDUAL CLAUSES

 

Part 1 - Preliminary

 

Clause 1          Short title

 

1.       The short title by which this Act may be cited is the Border Protection (Validation and Enforcement Powers) Act 2001.

 

Clause 2          Commencement

 

2.       This clause provides that this Act commences on the day it receives the Royal Assent.

 

Clause 3                      Schedule(s)

 

3.       This clause provides that each Act specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned.  In addition, any other item in a Schedule to this Act has effect according to its terms.

 

Part 2 - Validation of certain actions

 

Clause 4          Definitions

 

4.       This clause defines certain terms that are used in Part 2 of this Act.

 

5.       “Commonwealth officer” is defined to mean a person who:

 

·          is in the service or employment of the Commonwealth or an authority of the Commonwealth; or

·          holds or performs the duties of any office or position under a law of the Commonwealth; or

·          is a member of the Australian Defence Force (“the ADF”).

 

1.       “Validation period” means the period starting on 27 August 2001 and ending at the beginning of the day on which this Act commences.

 

2.       “Vessel”has the same meaning as in the Migration Act.  Subsection 5(1) of the Migration Act provides that “vessel” includes an aircraft or an installation.

 

Clause 5          Action to which this Part applies

 

3.       Clause 5 sets out the actions to which Part 2 of this Act applies.

 

4.       It provides that Part 2 applies to any action taken by the Commonwealth, a Commonwealth officer, or any other person acting on behalf of the Commonwealth, in relation to:

 

·          the MV Tampa ; or

·          the Aceng ; or

·          any other vessel carrying persons in respect of whom there were reasonable grounds for believing that their intention was to enter Australia unlawfully; or

·          any person who was on board a vessel mentioned above at any time during the “validation period” whether or not the action was taken while the person was on board the vessel.

 

1.       However, Part 2 only applies to action taken during the period starting on 27 August 2001 and ending at the beginning of the day on which this Act commences (“the validation period”).

 

Clause 6          Action to which this Part applies taken to be lawful

 

2.       Clause 6 makes it clear that all action to which Part 2 of this Act applies is taken for all purposes to have been lawful when it occurred.

 

Clause 7          No proceedings in respect of action to which this Part applies

 

3.       Under subclause 7(1), legal proceedings (whether civil or criminal) cannot be instituted or continued in any court against specified parties in respect of action to which Part 2 of this Act applies.   The specified parties are:

 

·          the Commonwealth; or

·          a Commonwealth officer; or

·          any other person who acted on behalf of the Commonwealth in relation to the action.

 

1.       Subclause 7(2) provides that section 7 applies to:

 

·          the institution of proceedings on or after the day on which this Act receives the Royal Assent; and

·          the continuation, on or after the day on which this Act receives the Royal Assent, of proceedings that were instituted on or before that day.

 

Clause 8          Compensation for acquisition of property

 

1.       Clause 8 deals with situations where the provisions of Part 2 of this Act result in the “acquisition of property” from a person. 

 

2.       “Acquisition of property” is defined in subclause 8(2) as having the same meaning as in paragraph 51(xxxi) of the Constitution.

 

3.       Subclause 8(1) provides that where any provision of Part 2 would not be valid, apart from this section, because a person has not been compensated for an “acquisition of property”, the Commonwealth must pay the person:

 

·          a reasonable amount of compensation that has been agreed to by the person and the Commonwealth; or

·          a reasonable amount of compensation as determined by a court of competent jurisdiction where the Commonwealth and the person do not reach an agreement.

 

1.       Subclause 8(3) requires any damages or compensation recovered, or other remedy given, in a proceeding begun otherwise than under this section to be taken into account in assessing compensation payable in a proceeding begun under this section and arising out of the same event or transaction.

 

Clause 9          Jurisdiction of High Court

 

2.       Clause 9 makes it clear that nothing in Part 2 of this Act is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.

 



 

SCHEDULE 1 - Amendment of the Customs Act 1901

 

 

Item 1             At the end of section 184A

 

1.       This item adds new subsection 184A(13) into the Customs Act.

 

2.       New subsection 184A(13) clarifies the meaning of certain phrases used in existing section 184A which provides a general power to request to board a ship in certain circumstances.  It provides that:

 

·          a reference to the “commander of a Commonwealth ship or Commonwealth aircraft” includes a reference to a “commissioned officer of the ADF”; and

·          a reference to a “member of the commander’s crew” includes, in relation to a “commissioned officer of the ADF”, a reference to a person under the command of the commissioned officer.

 

1.       “Commissioned officer of the ADF” is also defined in new subsection 184A(13) and means an officer within the meaning of the Defence Act 1903 .

 

Item 2             Subsection 185(3)

 

2.       This item amends subsection 185(3) of the Customs Act.

 

3.       Existing subsection 185(3) allows an officer (as defined in subsection 185(5)) to detain, in certain circumstances, a ship or aircraft and bring it, or cause it to be brought, to a port or other place that he or she considers appropriate.

 

4.       The amendment to subsection 185(3) makes it clear that “another place” includes, in relation to a ship, a place within the territorial sea or the contiguous zone in relation Australia.

 

Item 3             Subsection 185(3A)

 

5.       This item repeals existing subsection 185(3A) and substitutes new subsections 185(3AAA) to 185(3AB) into the Customs Act.

 

6.       These new provisions relate to the detention of a person found on a ship or aircraft detained under section 185 and expressly clarify the nature of the powers an officer may exercise in relation to such persons.

 

7.       New subsection 185(3AAA) provides that any restraint on the liberty of any person found on ship or aircraft detained by an officer under section 185 is not unlawful. 

 

8.       It also provides that civil or criminal proceedings in respect of such a restraint may not be instituted or continued in any court against the Commonwealth, the officer or any person assisting the officer in detaining the ship or aircraft.

 

9.       New subsection 185(3AAB) makes it clear that nothing in new subsection 185(3AAA) is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.

 

10.   If an officer detains a ship or aircraft under section 185, the officer may under new subsection 185(3A):

 

·          detain any person found on the ship or aircraft and bring the person, or cause the person to be brought, to the migration zone (within the meaning of the Migration Act); or

·          take the person, or cause the person to be taken, to a “place outside Australia”.

 

1.       The definition of “place outside Australia” in subsection 4(1) of the Customs Act does not apply for the purposes of new paragraph 185(3A)(b).

 

2.       For the purposes of moving a person under new subsection 185(3A), an officer may do any of the things set out in new subsection 185(3AA) within or outside Australia.  These things are:

           

·          place the person on a ship or aircraft; or

·          restrain the person on a ship or aircraft; or

·          remove the person from a ship or aircraft.

 

1.       New subsection 185(3AB) provides that civil or criminal proceedings may not be instituted or continued in respect of any action taken under new subsection 185(3AA) against the Commonwealth, an officer or any person assisting any officer.  This is the case as long as the officer, or any person assisting an officer, who took the action acted in good faith and used no more force than was authorised by subsection 185(3B).

 

Item 4             After section 185A

 

2.       This item inserts new sections 185AA and 185AB into the Customs Act.  These provisions introduce a search power in relation to people on certain ships or aircraft and a power to return people to a ship detained under section 185.

 

Section 185AA                       Searches of people on certain ships or aircraft

 

3.       New subsection 185AA(1) allows a person, his or her clothing and any property under the immediate control of the person to be searched, without a warrant.  This power to search a person only extends to a person who:

 

 

·          is on a ship or aircraft that has been detained under subsection 185(3); or

·          has been placed on a ship or aircraft under new subsection 185(3AA).

 

1.       The purpose for which the new search power may be exercised is set out in new subsection 185AA(2).   It provides that a search may be conducted under new section 185AA to find out whether a person is carrying, or there is hidden on a person, in his or her clothing or in his or her property, a weapon or other thing capable of being used to inflict bodily injury or to help the person to escape.

 

2.       The note highlights that Division 1B of Part X11 of the Customs Act provides search powers in respect of certain persons suspected of unlawfully carrying prohibited goods.

 

3.       If a weapon or other thing referred to in new subsection 185AA(2) is found in the course of a search, new subsection 185AA(3) allows an officer to:

 

·          take possession of the weapon or other thing; and

·          retain the weapon or other thing for such time as he or she thinks necessary for the purposes of this Act.

 

1.       New subsection 185AA(4) makes it clear that the new search power is only a pat-down search power.  In other words, new section 185AA does not authorise an officer, or another person conducting a search pursuant to new subsection 185AA(5), to remove a person’s clothing or to require a person to remove his or her clothing. 

 

2.       However, new subsection 185AA(4) does permit the removal of a person’s outer garments (including but not limited to the person’s overcoat, coat, jacket, gloves, shoes and head covering).

 

3.       New subsection 185AA(5) imposes a same-sex requirement in relation to the officer or person who conducts a search of a person under new section 185AA.  

 

4.       New paragraph 185AA(5)(a) provides that a search of a person must be conducted by an officer of the same sex as the person.

 

5.       New paragraph 185AA(5)(b) provides for a case where an officer of the same sex as the person to be searched is not available to conduct the search.  It allows any other person, who is of the same sex as the person to be searched, to conduct the search if requested by an officer and that person agrees.

 

6.       New subsection 185AA(6) provides that an action or proceeding (whether civil or criminal) does not lie against a person who, at the request of an officer, conducts a search under new section 185AA.  This is the case as long as the person acts in good faith and does not contravene new subsection 185AA(7).

 

7.       Under new subsection 185AA(7), an officer or other person who conducts a search under new section 185AA must not use more force, or subject a person to greater indignity, than is reasonably necessary in order to conduct the search.

 

8.       New subsection 185AA(8) provides a definition of “officer” for the purposes of new section 185AA.  In new section 185AA, “officer” means an officer within the meaning of section 185.

 

Section 185AB                       Returning persons to ships

 

9.       New section 185AB introduces a new power to return a person to a ship detained under section 185 of the Act. 

 

10.   Under new subsection 185AB(1), an officer, or a person assisting an officer, may return to a ship that is detained under section 185 a person who:

 

·          was on the ship when it was initially detained under section 185; and

·          later leaves the ship.

 

1.       Reasonable means, including reasonable force, may be used by the officer or another person for the purpose of returning a person to the ship.

 

2.       However, under new subsection 185AB(2), a person may only be returned to a ship under new subsection 185AB(1) if the officer or person assisting is satisfied that it is safe to return the person to the ship.

 

3.       New subsection 185AB(3) provides a definition of “officer” for the purposes of new section 185AB.  In new section 185AB, “officer” means an officer within the meaning of section 185.

 

Item 5             At the end of section 185B

 

4.       This item inserts new subsection 185B(9) into the Customs Act.

 

5.       In summary, section 185B provides a power to move or destroy a ship if it is unseaworthy, poses a serious risk to navigation, quarantine, safety or public health or poses an environmental risk.

 

6.       New subsection 185B(9) provides a definition of “officer” for the purposes of section 185B.  In new section 185B, “officer” means an officer within the meaning of section 4 of the Customs Act and includes a member of the ADF.

 

 



SCHEDULE 2 - Amendment of the Migration Act 1958

 

 

Item 1             Subsection 5(1) (subparagraph (b)(v) of the definition of immigration detention )

 

7.       This item amends the definition of “immigration detention” in subsection 5(1) of the Migration Act.

 

8.       The amendment makes it clear that “immigration detention” does not include being  restrained as described in new subsection 245F(8A) or being dealt with under new paragraph 245F(9)(b).

 

9.       New subsection 245F(8A) and new paragraph 245F(9)(b) are inserted into the Migration Act by item 8 of this Schedule. 

 

Item 2             After section 7

 

10.   This item inserts new section 7A into the Migration Act.

 

Section 7A                  Effect on executive power to protect Australia’s borders

 

11.   New section 7A makes it clear that the statutory powers in the Migration Act do not prevent the exercise of any executive power of the Commonwealth to protect Australia’s borders.  Protecting Australia’s border includes ejecting, where necessary, persons who have crossed those borders.

 

Item 3             At the end of section 232A

 

12.   This item inserts a note at the end of section 232A of the Migration Act.  In summary, section 232A makes it an offence to organise or facilitate the bringing or coming to Australia of a group of 5 or more non-citizens.

 

13.   The note highlights that new sections 233B and 233C limit conviction and sentencing options for offences under section 232A.  New sections 233B and 233C are inserted into the Migration Act by item 5 of this Schedule.

 

Item 4             At the end of section 233A

 

14.   This item inserts a note at the end of section 233A of the Migration Act.  In summary, section 233A makes it an offence to give an official forged or false documents or false or misleading information in connection with the entry, or proposed entry, of a group of 5 or more non-citizens.

 

15.   The note highlights that new sections 233B and 233C limit conviction and sentencing options for offences under section 233A.   New sections 233B and 233C are inserted into the Migration Act by item 5 of this Schedule.

 

Item 5             After section 233A

 

16.   This item inserts new sections 233B and 233C into the Migration Act.  The purpose of the new sections is to limit conviction and sentencing operation for the people smuggling offences in the Migration Act.

Section 233B              No discharge of offenders without proceeding to conviction for certain offences

 

17.   New section 233B provides that a court may not make an order under section 19B of the Crimes Act 1914 in respect of a charge for an offence under section 232A or 233A of the Migration Act.  In summary, section 19B allows a court to discharge offenders without proceeding to conviction.

 

18.   However, an order under section 19B may be made by the court if it is established, on the balance of probabilities, that the person was aged under 18 years at the time when the offence is alleged to have been committed.

 

Section 233C              Mandatory penalties for certain offences

 

19.   New subsection 233B(1) applies if a person is convicted of an offence under section 232A or 233A of the Migration Act.  However, it does not apply if it is established, on the balance of probabilities, that the person was aged under 18 years at the time when the offence is alleged to have been committed. 

 

20.   In summary, section 232A makes it is an offence to organise or facilitate the bringing or coming to Australia of a group of 5 or more non-citizens. 

 

21.   In summary, section 233A makes it is an offence to give an official forged or false documents or false or misleading information in connection with the entry or proposed entry of a group of 5 or more non-citizens.

 

22.   New subsection 233C(2) sets out the sentence of imprisonment that must be imposed by a court where a person is convicted of an offence under section 232A or 233A.  The sentence of imprisonment is:

 

·          8 years if the conviction is for a “repeat offence”; or

·          5 years in any other case.

 

1.       New subsection 233C(3) sets out the “non-parole period” that a court must set where a person is convicted of an offence under section 232A or 233A.  The “non-parole period” is:

 

·          5 years if the conviction is for a “repeat offence”; or

·          3 years in any other case.

 

1.       Under new subsection 233C(4), “non-parole period” has the same meaning as it has in Part 1B of the Crimes Act 1914 .

 

2.       “Repeat offence” is also defined in new subsection 233C(4).  A person’s conviction for an offence is for a “repeat offence” if, on a previous occasion (whether before or after the commencement of this section), a court:

 

·          has convicted the person of another offence against section 232A or 233A; or

·          has found, without recording a conviction, that the person had committed another such offence.

 

Item 6             At the end of section 245B

 

1.       This item adds new subsection 245B(11) into the Migration Act.

 

2.       New subsection 245B(11) clarifies the meaning of certain phrases used in existing section 245B which provides a general power to request to  board a ship in certain circumstances.  It provides that:

 

·          a reference to the “commander of a Commonwealth ship or Commonwealth aircraft” includes a reference to a “commissioned officer of the ADF”; and

·          a reference to a “member of the commander’s crew” includes, in relation to a “commissioned officer of the ADF”, a reference to a person under the command of the commissioned officer.

 

1.       “Commissioned officer of the ADF” is also defined in new subsection 245B(11) and means an officer within the meaning of the Defence Act 1903 .

 

Item 7             Subsection 245F(8)

 

2.       This item amends subsection 245F(8) of the Migration Act.

 

3.       Existing subsection 245F(8) allows an officer (as defined in subsection 245F(18)) to detain, in certain circumstances, a ship or aircraft and bring it, or cause it to be brought, to a port or other place that he or she considers appropriate.

 

4.       The amendment to subsection 245F(8) makes it clear that “another place” includes a place within the territorial sea (as defined in subsection 245A) or the contiguous zone (as defined in subsection 245A) in relation to Australia.

 

 

 

 

Item 8             Subsection 245F(9)

 

5.       This item repeals existing subsection 245F(9) and substitutes new subsections 245F(8A) to 245F(9B) into the Migration Act.

 

6.       These new provisions relate to the detention of a person found on a ship or aircraft detained under section 245F and expressly clarify the nature of the powers an officer may exercise in relation to such persons.

 

7.       New subsection 245F(8A) provides that any restraint on the liberty of any person found on ship or aircraft detained by an officer under section 245F is not unlawful. 

 

8.       It also provides that civil or criminal proceedings in respect of such a restraint may not be instituted, or continued, in any court against the Commonwealth, the officer or any person assisting the officer in detaining the ship or aircraft.

 

9.       New subsection 245F(8B) makes it clear that nothing in new subsection 245F(8A) is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.

 

10.   If an officer detains a ship or aircraft under section 245F, the officer may under new subsections 245F(9):

 

·          detain any person found on the ship or aircraft and bring the person, or cause the person to be brought, to the migration zone; or

·          take the person, or cause the person to be taken, to a place outside Australia.

 

1.       For the purposes of moving a person to a place outside Australia under new subsection 245F(9), an officer may do any of the things set out in new subsection 245F(9A).  These things are:

           

·          place the person on a ship or aircraft; or

·          restrain the person on a ship or aircraft; or

·          remove the person from a ship or aircraft.

 

1.       New subsection 245F(9B) provides that civil or criminal proceedings may not be instituted or continued in respect of any action taken under new subsection 245F(9A) against the Commonwealth, an officer or any person assisting an officer.  This is the case as long as the officer, or any person assisting an officer, who took the action acted in good faith and used no more force than was authorised by subsection 245F(10).

 

Item 9             After section 245F

 

2.       This item inserts new sections 245FA and 245FB into the Migration Act.  These provisions introduce a search power in relation to people on certain ships or aircraft and a power to return people to a ship detained under section 245F.

 

Section 245FA                       Searches of people on certain ships or aircraft

 

3.       New section 245FA is modelled on existing section 252 of the Migration Act, which broadly allows for the search of certain persons. 

 

4.       New subsection 245FA(1) allows a person, his or her clothing and any property under the immediate control of the person to be searched, without a warrant.  This power to search a person only extends to a person who:

 

·          is on a ship or aircraft that has been detained under new subsection 245F(8); or

·          has been placed on a ship or aircraft under new subsection 245F(9A).

 

1.       This new search power does not apply in relation to a person who is in immigration detention.  Division 13 of Part 2 of the Migration Act provides search powers in relation to immigration detainees.

 

2.       The purpose for which the new search power may be exercised is set out in new subsection 245FA(2).   It provides that a search may be conducted under new section 245FA to find out whether a person is carrying, or there is hidden on a person, in his or her clothing or in his or her property, a weapon or other thing capable of being used to inflict bodily injury or to help the person to escape.

 

3.       If a weapon or other thing referred to in new subsection 245FA(2) is found in the course of a search, new subsection 245FA(3) allows an officer to:

 

·          take possession of the weapon or other thing; and

·          retain the weapon or other thing for such time as he or she thinks necessary for the purposes of this Act.

 

1.       New subsection 245FA(4) makes it clear that the new search power is only a frisk or pat-down search power.  In other words, new section 245FA does not authorise an officer, or another person conducting a search pursuant to new subsection 245FA(5), to remove a person’s clothing or to require a person to remove his or her clothing. 

 

2.       However, new subsection 245FA(4) does permit the removal of a person’s outer garments (including but not limited to the person’s overcoat, coat, jacket, gloves, shoes and head covering).

 

3.       New subsection 245FA(5) imposes a same-sex requirement in relation to the officer or person who conducts a search of a person under new section 245FA.  

 

4.       New paragraph 245FA(5)(a) provides that a search of a person must be conduct by an officer of the same sex as the person.

 

5.       New paragraph 245FA(5)(b) provides for a case where an officer of the same sex as the person to be searched is not available to conduct the search.  It allows any other person, who is of the same sex as the person to be searched, to conduct the search if requested by an officer.

 

6.       New subsection 245FA(6) provides that an action or proceeding (whether civil or criminal) does not lie against a person who, at the request of an officer, conducts a search under new section 245FA.  This is the case as long as the person acts in good faith and does not contravene new subsection 245FA(7).

 

7.       Under new subsection 245FA(7), an officer or other person who conducts a search under new section 245FA must not use more force, or subject a person to greater indignity, than is reasonably necessary in order to conduct the search.

 

8.       New subsection 245FA(8) provides a definition of “officer” for the purposes of new section 245FA.  In new section 245FA, “officer” means an officer within the meaning of section 5 and includes a member of the ADF.

 

Section 245FB                        Returning persons to ships

 

9.       New section 245FB introduces a new power to return a person to a ship detained under section 245F of the Migration Act. 

 

10.   Under new subsection 245FB(1), an officer, or a person assisting an officer, may return to a ship that is detained under section 245F a person who:

 

·          was on the ship when it was initially detained under section 245F; and

·          later leaves the ship.

 

1.       Reasonable means, including reasonable force, may be used by the officer or another person for the purpose of returning a person to the ship.

 

2.       However, under new subsection 245FB(2), a person may only be returned to a ship under new subsection 245FB(1) if the officer or person assisting is satisfied that it is safe to return the person to the ship.

 

Item 10           At the end of section 245H

 

3.       This item inserts new subsection 245H(8) into the Migration Act.

 

4.       In summary, section 245H provides a power to move or destroy a ship if it is unseaworthy, poses a serious risk to navigation, quarantine, safety or public health or poses an environmental risk.

 

5.       New subsection 245H(8) provides a definition of “officer” for the purposes of section 245H.  In new section 245H, “officer” means an officer within the meaning of section 5 and includes:

·          a member of the ADF; and

·          any other person who is an officer within the meaning of section 245F in relation to the ship concerned.