Explanatory Memorandum(Circulated by authority of the Minister for Immigration and Multicultural Affairs, the Hon. Philip Ruddock MP)
Outline and financial impact statement
The Border Protection Legislation Amendment Bill 1999 ("the Bill") implements the recommendations of the report of the Prime Minister's Coastal Surveillance Task Force to strengthen legislative provisions relating to people smuggling in order to maintain the integrity of Australia's borders.
The Bill also implements recommendations made by the Commonwealth Ombudsman in relation to administrative arrangements for the detention of non-citizens fishing illegally in Australian waters.
The Bill makes a number of amendments to the
- Migration Act 1958 ("the Migration Act");
- Customs Act 1901 ("the Customs Act"); and
- Fisheries Management Act 1991 ("the Fisheries Act").
The amendments to the Migration Act and to the Customs Act revise, and enhance where appropriate, existing powers of investigation and enforcement at sea to take account of Australia's rights and obligations under the United Nations Convention on the Law of the Sea (UNCLOS) (Australian Treaty Series 1994 No.31) and customary international law.
The amendments will provide for, amongst other things:
- the boarding and searching of ships and aircraft, in certain circumstances, in Australia's territorial sea, Australia's contiguous zone, the High Seas, and (in the case of the Customs Act) Australia's exclusive economic zone;
- hot pursuit of ships whose master has not complied with a request to board;
- hot pursuit of motherships (that is, ships reasonably suspected of being used in direct support of, or in preparation for, a contravention of specified legislation involving another ship) in certain circumstances;
- the moving and/or destroying of ships which are unseaworthy, which pose a serious risk to navigation, quarantine, safety or public health, or which pose a serious risk of damage to property or the environment.
The amendments to the Customs Act also provide for
- Customs officers to carry and use approved firearms and other approved items of personal defence equipment in certain circumstances.
The amendments to the Fisheries Act provide for
- Customs officers to be officers for the purposes of the Fisheries Act;
- Customs officers exercising powers as fisheries officers to carry and use approved firearms and other approved items of personal defence equipment in certain circumstances.
The amendments to the Migration Act also provide for automatic forfeiture, followed by seizure and (if necessary) disposal, of ships and aircraft which have been used in a contravention of the Act involving the bringing or coming to Australia of persons who have no authority to come to Australia, or the entry or proposed entry into Australia of such persons.
The Bill also makes a number of amendments to the Fisheries Act and consequential amendments to the Migration Act to provide for the detention of foreign fishermen who are brought into the migration zone.
The amendments to the Fisheries Act
- enable an officer to detain and search a person who is in Australia or a Territory but who is not an Australian citizen or Australian resident, to determine whether or not to charge the person with an offence against certain sections of the Act dealing with illegal fishing.
Consequential amendments to the Migration Act
- provide a scheme by which fishermen can be taken to have held a visa (called an enforcement visa) immediately upon enforcement action by fisheries officers.
The Bill also makes a number of miscellaneous amendments to the Migration Act to
- revise existing offence provisions relating to bringing unauthorised arrivals into Australia;
- ensure that, where the Commonwealth arranges for or requires a person without a visa to be brought into Australia, those involved in doing so are not exposed to offences under the Migration Act;
- ensure that refugee claimants who arrive unlawfully in an Australian territory beyond the scope of the Migration Act are able to be brought to the mainland promptly to have those claims considered and be detained as unlawful non-citizens.
The amendments to the Migration Act and the Customs Act will have a low financial impact.
The amendments to the Fisheries Act will have little direct financial impact. However, in taking on legislative responsibility for the detention of illegal foreign fishers, the Australian Fisheries Management Authority (AFMA) has noted the concerns of the Commonwealth Ombudsman over unsatisfactory features of holding illegal fishers on-board their boats in Darwin Harbour rather than on a shore based facility near Darwin. Accordingly, the construction of a land-based caretaker facility in Darwin to house suspected illegal foreign fishers pending investigation and laying of charges or repatriation, is currently being pursued by AFMA. Consideration of the financing of such a facility would be pursued through established budgetary processes.