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Border Protection Legislation Amendment Bill 1999

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1998-99

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

BORDER PROTECTION LEGISLATION AMENDMENT BILL 1999

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

(Amendments to be moved on behalf of the Government)

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the

Minister for Immigration and Multicultural Affairs

The Hon. Philip Ruddock MP)



BORDER PROTECTION LEGISLATION AMENDMENT BILL 1999

 

 

OUTLINE

 

The purpose of the amendments to Schedule 1 of the Border Protection Legislation Amendment Bill (“the Bill”) is to

 

·          exempt a vessel otherwise automatically forfeited, but which at the time the relevant  contravention occurred was being used in the course of a regular public transport operation, from forfeiture provided neither the master nor the owner of the vessel knew, or could reasonably be expected to have known, that it was used or involved in the contravention;            

 

·          restrict exercise of the power to seize forfeited things to “authorised officers” (rather than “officers”) and to officers on orders from authorised officers;  

 

·          extend the time within which a claim for a forfeited thing can be made by the owner of, or the person in possession of, the thing from 14 to 21 days; 

 

·          introduce a non-compellable, non-reviewable power for the Minister to order that a thing not be condemned as forfeited, combined with an obligation for the Minister to report to Parliament on any such orders made and the reasons for making any such orders;  and

 

·          put it beyond doubt that the evidentiary provisions contained in section 271 of the Migration Act 1958 apply in the context of criminal proceedings under that Act and under certain provisions of the Crimes Act 1914.

 

The purpose of the amendments to Schedule 2 of the Bill is to clarify the circumstances in which the Chief Executive Officer of Customs (CEO) can direct an officer of Customs to destroy, or move and destroy, a ship, or to cause such thing to be done.

 

 

FINANCIAL IMPACT STATEMENT

 

The amendments have no financial impact.

 



BORDER PROTECTION LEGISLATION AMENDMENT BILL 1999

 

NOTES ON AMENDMENTS TO SCHEDULE 1

 

Amendment (1)

1.                 This amendment adds new subsections (2) and (3) at the end of proposed section 261A. 

2.                 Proposed section 261A deals with the forfeiture of things used or involved in a contravention of the Act, being a contravention which involved either the bringing or coming to Australia of one or more persons who were, or upon entry into Australia became, unlawful non-citizens, or which involved the entry or proposed entry into Australia of one or more such persons

3.                 Proposed subsection 261A(2) excludes a vessel from being forfeited if the vessel, at the time of the relevant contravention, was being used in the course of a regular public transport operation and both the master and the owner of the vessel did not know and could not reasonably be expected to have known, that the vessel was used or involved in the contravention.

 

4.                 Proposed subsection 261A(3) defines the term “regular public transport operation” to effectively describe the class of vessels which are to be excluded from being forfeited in the circumstances referred to in proposed subsection 261A(2). 

 

5.                 The vessels are those involved in public transport operations which are available to the general public on a regular basis, which are provided for a fee payable by persons using the service, and which are conducted in accordance with fixed schedules to or from fixed terminals over specific routes.

 

6.                 The purpose of this amendment is to remove from the consequences of the automatic forfeiture scheme provided for in the Bill those vessels involved in public transport operations (such as airliners, cruise ships etc) which might be bringing to Australia persons who were or upon entry to Australia became unlawful non-citizens, in circumstances where the owner and the master of the vessel did not know and could not reasonably be expected to have known that the vessel was involved in such a contravention of the Act.

 

Amendment (2)

 

7.                 This amendment omits and replaces proposed section 261B to restrict the power to seize things which are forfeited, or which are reasonably suspected of being forfeited, under new section 261A, to authorised officers and to officers acting on the orders of an authorised officer, as opposed to simply “officers”.

 

8.                 The effect of this amendment will be to restrict the new seizure powers to only those officers who have been specifically authorised by the Minister for Immigration and Multicultural Affairs or by the Secretary of the Department for this purpose.  

 

 

 

Amendment (3)

 

9.                 This amendment omits and replaces proposed paragraph 261D(3)(d) to ensure that the notice of seizure takes account of:

 

·                        the change in timeframe effected by amendment (6); and

·                        the introduction of a power for the Minister to give an order that a forfeited thing is not condemned as forfeited. 

 

2.                 This amendment also has the effect of moving the requirements that a claim referred to in a notice of seizure must be in writing and in English from proposed paragraph 261D(3)(d) to new proposed subsection 261D(4) (amendment (5) refers).

 

Amendment (4)

 

3.                 This amendment omits and replaces the proposed note following proposed subsection 261D(3) to take account of the effect of amendment (3).

 

Amendment (5)

 

4.                 This amendment adds a new subsection (4) at the end of proposed section 261D to provide that a claim referred to in a notice of seizure must be in writing and in English (these requirements were previously contained in proposed paragraph 261D(3)(d) - amendment (3) refers), and state an address for service on the person making the claim.

 

Amendment (6)

 

5.                 This amendment extends the time within which a claim for a forfeited thing can be given to the Secretary so as to prevent the thing being condemned as forfeited to the Commonwealth from 14 to 21 days after the notice of the seizure of the thing has been given under proposed section 261D.

 

Amendment (7)

 

6.                 This amendment omits proposed paragraphs 261F(1)(a), (b) and (c) and replaces them with proposed new paragraphs 261F(a) and (b).  The effect of this amendment is to ensure that the provisions reflect the change in timeframe effected by amendment (6) and the introduction of a power for the Minister to give an order that a forfeited thing is not condemned as forfeited. 

 

Amendment (8)

 

7.                 This amendment omits proposed paragraph 261G(1)(b) and substitutes new paragraphs 261G(1)(b) and (c) to take account of the introduction of a power for the Minister to give an order that a forfeited thing is not condemned as forfeited.

 

 

 

Amendment (9)

 

8.                 This amendment omits and replaces proposed subsection 261H(2) to take account of the introduction of a power for the Minister to give an order that a forfeited thing is not condemned as forfeited.

 

Amendment (10)

 

9.                 This amendment omits and replaces proposed subsection 261H(3) to take account of the introduction of a power for the Minister to give an order that a forfeited thing is not condemned as forfeited.

 

Amendment (11)

 

10.             This amendment adds a new Subdivision E after proposed section 261J to deal with the Minister’s power to give an order that a thing not be condemned as forfeited.

 

11.             New subsection 261K(1) provides that a power by the Minister under proposed new Division 13A to give a written order that a thing is not to be condemned as forfeited must be exercised by the Minister personally.

 

12.             New subsection 261K(2) provides that the Minister does not have a duty to consider whether or not to exercise any such power, that is, this is a non-compellable power.

 

13.             New subsection 261K(3) requires the Minister to lay before each House of Parliament, within the timeframes provided for in new subsection 261K(4), a statement regarding any orders given by the Minister under new Division 13A and the reasons for making such orders.

 

Amendment (12)

 

14.             This amendment inserts new items 10A and 10B before item 11 of the Bill.

 

Item 10A             At the end of section 475

 

15.             This item adds proposed subsection (3) at the end of section 475 to provide that a decision of the Minister under proposed Division 13A of Part 2 of the Act to order that a thing is not to be condemned as forfeited is not a judicially-reviewable decision. 

 

16.             The effect of this amendment is that the provisions contained in Part 8 of the Act relating to applications for review by the Federal Court of judicially-reviewable decisions as defined in that Part are not relevant to decisions by the Minister to order that a thing is not to be condemned as forfeited.

 

Item 10B             Subsection 485(1)

 

17.             This item inserts a reference to proposed new subsection 475(3) (new Item 10A refers) into subsection 485(1).

 

18.             The effect of this amendment is to provide that, apart from the jurisdiction provided by section 44 of the Judiciary Act 1903 (on remittal from the High Court), the Federal Court has no jurisdiction in respect of a decision of the Minister under proposed Division 13A of Part 2 of the Act to order that a thing is not to be condemned as forfeited. 

 

Amendment (13)

 

19.             This amendment inserts new items 56A, 56B and 56C after item 56 of Schedule 1 to the Bill.

 

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

 

20.             This item amends the definition of “migration proceedings” in existing subsection 271(4) to put beyond doubt that the evidentiary provisions contained in section 271 apply in the context of criminal proceedings under the Migration Act 1958 and certain provisions of the Crimes Act 1914 (item 56B refers).

 

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

 

21.             This item amends the definition of “migration proceedings” in existing subsection 271(4) to extend the application of the evidentiary provisions contained in section 271 to proceedings “in relation to an offence against” the Migration Act. 

 

22.             The term “offence against this Act” is defined in subsection 5(1) of the Migration Act and includes references to sections 5 (Aidors and abettors), 6 (Accessory after the fact), 7 (Attempt), 7A (inciting to or urging the commission of offences) and 86 (Conspiracy) of the Crimes Act.  

 

23.             The effect of this amendment is to ensure that the evidentiary provisions in section 271 will be available in relation to proceedings under the Migration Act as well as in relation to the prosecution of certain offences contained in the Crimes Act 1914 which relate to Migration Act 1958 offences.

 

Item 56C   At the end of subsection 271(4)

 

24.             This item inserts a note referring to the definition of the term “offence against this Act” in subsection 5(1) of the Migration Act.

 



 

NOTES ON AMENDMENTS TO SCHEDULE 2

 

Amendment (14)

 

25.             This amendment omits proposed paragraph 185B(3)(d) from item 29 of Schedule 2 to the Bill.  It is proposed that this paragraph be replaced by new subsection 185(3A). 

 

26.             Proposed subsection 185(3) sets out the circumstances in which the CEO can direct an officer of Customs to move, destroy, or move and destroy a ship, or cause such thing to be done.  Proposed paragraph 185(3)(d) covers the situation where the expenses of custody or maintenance of the ship before its destruction are likely to be greater than its value.  In those circumstances the ship can only be destroyed or moved and destroyed.

 

Amendment (15)

 

27.             This amendment inserts a new proposed subsection 185B(3A) into item 29 of Schedule 2 to the Bill.  Proposed new subsection 185B(3A) is intended to cover the same circumstances as are covered by paragraph 185B(3)(d), but new proposed subsection 185(3A) clarifies the circumstances in which ships can be destroyed or moved and destroyed.

 

28.             New proposed subsection 185B(3A) provides that the CEO may direct an officer to destroy, or move and destroy, a 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.