Border Protection Legislation Amendment Act 1999 (160 of 1999)
Schedule 1 Migration Act 1958
Part 1 Chasing, boarding etc. ships and aircraft
2 After Division 12 of Part 2
Insert:
Division 12A - Chasing, boarding etc. ships and aircraft
245A Definitions
In this Division, unless the contrary intention appears:
aircraft includes aeroplanes, seaplanes, airships, balloons or any other means of aerial locomotion.
Australian aircraft means an aircraft that:
(a) is an Australian aircraft as defined in the Civil Aviation Act 1988; or
(b) is not registered under the law of a foreign country and is either wholly owned by, or solely operated by:
(i) one or more residents of Australia; or
(ii) one or more Australian nationals; or
(iii) one or more residents of Australia and one or more Australian nationals.
For the purposes of this definition, Australian national and resident of Australia have the same meanings as in the Shipping Registration Act 1981.
Australian ship means a ship that:
(a) is an Australian ship as defined in the Shipping Registration Act 1981; or
(b) is not registered under the law of a foreign country and is either wholly owned by, or solely operated by:
(i) one or more residents of Australia; or
(ii) one or more Australian nationals; or
(iii) one or more residents of Australia and one or more Australian nationals.
For the purposes of this definition, Australian national and resident of Australia have the same meanings as in the Shipping Registration Act 1981.
Commonwealth aircraft means an aircraft that is in the service of the Commonwealth and displaying the ensign or insignia prescribed for the purposes of the definition of Commonwealth aircraft in subsection 4(1) of the Customs Act 1901.
Commonwealth ship means a ship that is in the service of the Commonwealth and flying the ensign prescribed for the purposes of the definition of Commonwealth ship in subsection 4(1) of the Customs Act 1901.
contiguous zone , in relation to Australia, has the same meaning as in the Seas and Submerged Lands Act 1973.
foreign ship means a ship that is not an Australian ship.
goods includes a document.
ship means any vessel used in navigation, other than air navigation, and includes:
(a) an off-shore industry mobile unit; and
(b) a barge, lighter or any other floating vessel.
territorial sea , in relation to Australia, has the same meaning as in the Seas and Submerged Lands Act 1973.
this Act includes regulations made under this Act.
UNCLOS means the United Nations Convention on the Law of the Sea.
Note: The text of the Convention is set out in Australian Treaty Series 1994 No. 31.
245B Request to board a ship
General power to request to board
(1) In the circumstances described in subsection (2), (3), (4), (5), (6) or (7), the commander of a Commonwealth ship or Commonwealth aircraft may request the master of a ship to permit the commander, a member of the commander's crew or an officer to board the master's ship.
Note: Sections 245F and 245G give power to board the master's ship if a request is made under this section.
Foreign ships in Australian waters
(2) The commander may make the request if the master's ship is a foreign ship that is on the landward side of the outer edge of Australia's territorial sea. However, the request must be made for the purposes of this Act.
Australian ships outside territorial seas of other countries
(3) The commander may make the request if:
(a) the master's ship is an Australian ship; and
(b) the master's ship is outside the territorial sea of any foreign country.
The commander must not make the request under this subsection if it may be made under subsection (7).
Foreign ships in contiguous zone or near installations
(4) The commander may make the request if:
(a) the master's ship is a foreign ship; and
(b) the master's ship is either:
(i) in the contiguous zone of Australia; or
(ii) within 500 metres of an Australian resources installation or Australian sea installation; and
(c) the commander:
(i) wishes to establish the identity of the master's ship; or
(ii) reasonably suspects that the master's ship is, will be or has been involved in a contravention, or an attempted contravention, in Australia of this Act.
Mother ships on high seas supporting contraventions in Australia
(5) The commander may make the request if:
(a) the master's ship is a foreign ship; and
(b) the master's ship is:
(i) outside the outer edge of the contiguous zone of Australia; and
(ii) not within 500 metres of an Australian resources installation or Australian sea installation; and
(iii) outside the territorial sea of a foreign country; and
(c) the commander reasonably suspects that the master's ship is being or was used in direct support of, or in preparation for, a contravention in Australia of this Act, where the contravention involves another ship (whether a foreign ship or an Australian ship); and
(d) the request is made as soon as practicable after the contravention happens.
Foreign ships on high seas and covered by an agreement etc.
(6) The commander may make the request if:
(a) the master's ship is:
(i) outside the outer edge of the contiguous zone of Australia; and
(ii) outside the territorial sea of a foreign country; and
(b) the commander reasonably suspects that the master's ship is a foreign ship that is entitled to fly the flag of a country; and
(c) Australia has an agreement or arrangement with that country which enables the exercise of Australian jurisdiction over ships of that country.
The commander must not make the request under this subsection if it may be made under subsection (5).
Ships without nationality on high seas
(7) The commander may make the request if:
(a) the master's ship is:
(i) outside the outer edge of the contiguous zone of Australia; and
(ii) outside the territorial sea of a foreign country; and
(b) any of the following applies:
(i) the master's ship is not flying a flag of a country;
(ii) the master's ship is flying a flag of a country and the commander reasonably suspects that the master's ship is not entitled to fly that flag;
(iii) the commander reasonably suspects that the master's ship is not entitled to fly the flag of a country or has been flying the flag of more than one country; and
(c) the Commander wishes to establish the identity of the master's ship.
The commander must not make the request under this subsection if it may be made under subsection (5) or (6).
Means of making request
(8) The commander of a Commonwealth ship or Commonwealth aircraft may use any reasonable means to make a request under this section.
Request still made even if no master on the ship etc.
(9) To avoid doubt, a request is still made under this section even if:
(a) there was no master on board the ship to receive the request; or
(b) the master did not receive or understand the request.
Master must comply with request
(10) The master of a ship must comply with a request made under this section (other than subsection (7)) unless he or she has a reasonable excuse.
Penalty: Imprisonment for 2 years.
Note: The master's ship can still be boarded under section 245F or 245G even though the master has not complied with a request to board under this section.
245C Power to chase foreign ships for boarding
Generally, foreign ships may be chased if request to board is made
(1) To enable the boarding of a foreign ship whose master has not complied with a request to board under section 245B (other than subsection 245B(7)), the commander of a Commonwealth ship or Commonwealth aircraft may use it to chase, or continue the chase of, the foreign ship to any place outside the territorial sea of a foreign country.
Note: Subsection 245B(7) is about requests to board ships without nationality that are on the high seas. Section 245G allows those ships to be boarded, even though the master of the ship has not complied with the request to board.
Using different Commonwealth ships or aircraft to continue chase
(2) To avoid doubt, a Commonwealth ship or Commonwealth aircraft may be used in the chase even if its commander did not make the request under section 245B.
When foreign ships may be chased without a request being made
(3) The commander of a Commonwealth ship or Commonwealth aircraft may use it to chase, or continue the chase of, a foreign ship to a place outside the territorial sea of a foreign country to enable the boarding of the foreign ship if, immediately before the start of the chase, the commander could have made a request to board the foreign ship under subsection 245B(5).
Chase may continue even if the foreign ship is out of sight
(4) A chase under this section may continue even if the crew of all of the Commonwealth ships and Commonwealth aircraft involved in the chase lose sight of the chased ship or lose trace of it from radar or other sensing devices.
Chase may not continue after interruption
(5) The commander of a Commonwealth ship or Commonwealth aircraft must not use it to chase, or continue the chase of, a ship under this section if the chase is interrupted (within the meaning of Article 111 of UNCLOS) at a place outside the outer edge of the contiguous zone. This subsection has effect despite subsections (1), (3) and (4).
Means that may be used to enable boarding of the foreign ship
(6) Anywhere outside the territorial sea of a foreign country, the commander of a Commonwealth ship or Commonwealth aircraft chasing a ship under this section may use any reasonable means consistent with international law to enable boarding of the chased ship, including:
(a) using necessary and reasonable force; and
(b) where necessary and after firing a gun as a signal, firing at or into the chased ship to disable it or compel it to be brought to for boarding.
245D Power to chase Australian ships for boarding
Australian ships may be chased
(1) To enable the boarding of an Australian ship, the commander of a Commonwealth ship or Commonwealth aircraft may use it to chase, or continue the chase of, the Australian ship to any place outside the territorial sea of a foreign country.
Chase may continue even if the Australian ship is out of sight
(2) A chase under this section may continue even if the crew of all of the Commonwealth ships and Commonwealth aircraft involved in the chase lose sight of the chased ship or lose trace of it from radar or other sensing devices.
Means that may be used to enable boarding of the Australian ship
(3) Anywhere outside the territorial sea of a foreign country, the commander of a Commonwealth ship or Commonwealth aircraft chasing a ship under this section may use any reasonable means to enable boarding of the chased ship, including:
(a) using necessary and reasonable force; and
(b) where necessary and after firing a gun as a signal, firing at or into the chased ship to disable it or compel it to be brought to for boarding.
245E Identifying an aircraft and requesting it to land for boarding
Application of section
(1) This section allows the commander of a Commonwealth aircraft to make requests of the pilot of another aircraft that:
(a) if the other aircraft is an Australian aircraft - is over anywhere except a foreign country; and
(b) if the other aircraft is not an Australian aircraft - is over Australia.
Requesting information to identify an aircraft
(2) If the commander cannot identify the other aircraft, the commander may:
(a) use his or her aircraft to intercept the other aircraft in accordance with the practices recommended in Annex 2 (headed "Rules of the Air") to the Convention on International Civil Aviation done at Chicago on 7 December 1944 (that was adopted in accordance with that Convention); and
(b) request the pilot of the other aircraft to disclose to the commander:
(i) the identity of the other aircraft; and
(ii) the identity of all persons on the other aircraft; and
(iii) the flight path of the other aircraft; and
(iv) the flight plan of the other aircraft.
Requesting aircraft to land for boarding
(3) The commander may request the pilot of the other aircraft to land it at the nearest proclaimed airport, or at the nearest suitable landing field, in Australia for boarding for the purposes of this Act if:
(a) the pilot does not comply with a request under subsection (2); or
(b) the commander reasonably suspects that the other aircraft is or has been involved in a contravention, or attempted contravention, of this Act.
Note: Section 245F gives power to board the aircraft and search it once it has landed.
Means of making request
(4) Any reasonable means may be used to make a request under this section.
Request still made even if pilot did not receive etc. request
(5) To avoid doubt, a request is still made under this section even if the pilot did not receive or understand the request.
Pilot must comply with request
(6) The pilot of the other aircraft must comply with a request made under this section unless he or she has a reasonable excuse.
Penalty: Imprisonment for 2 years.
245F Power to board and search etc. ships and aircraft
Application of section to ships
(1) This section applies to a ship that is outside the territorial sea of a foreign country if:
(a) a request to board the ship has been made under section 245B; or
(b) the ship is a foreign ship described in subsection 245C(3) (which allows foreign ships on the high seas to be chased); or
(c) the ship is an Australian ship.
However, this section does not apply to a ship if a request to board the ship has been made under subsection 245B(6) or (7) (certain ships on the high seas), unless an officer is satisfied under subsection 245G(3) that the ship is an Australian ship.
Note: Section 245G deals with the boarding of ships where a request has been made under subsection 245B(6) or (7).
Application of section to aircraft
(2) This section applies to an aircraft that has landed in Australia for boarding as a result of a request made under section 245E.
Officer's powers
(3) An officer may:
(a) board and search the ship or aircraft; and
(b) search and examine any goods found on the ship or aircraft; and
(c) secure any goods found on the ship or aircraft; and
(d) require all persons found on the ship or aircraft to answer questions, and produce any documents in their possession, in relation to the following:
(i) the ship or aircraft, its voyage or flight and its cargo, stores, crew and passengers;
(ii) the identity and presence of those persons on the ship or aircraft;
(iii) a contravention, an attempted contravention or an involvement in a contravention or attempted contravention, either in or outside Australia, of this Act; and
(e) copy, or take extracts from, any document:
(i) found on the ship or aircraft; or
(ii) produced by a person found on the ship or aircraft as required under paragraph (d); and
(f) arrest without warrant any person found on the ship or aircraft if:
(i) in the case of a person found on a ship or aircraft that is in Australia - the officer reasonably suspects that the person has committed, is committing or attempting to commit, or is involved in the commission of, an offence, either in or outside Australia, against this Act; and
(ii) in the case of a person found on a ship that is outside Australia - the officer reasonably suspects that the person has committed, is committing or attempting to commit, or is involved in the commission of, an offence in Australia against this Act.
(4) Any exercise of the power of arrest referred to in subsection (3) in the contiguous zone in relation to Australia is subject to the obligations of Australia under international law, including obligations under any treaty, convention or other agreement or arrangement between Australia and another country or other countries.
Help to search
(5) Without limiting the generality of paragraph (3)(a), an officer may use a dog to assist in searching the ship or aircraft.
Help to examine goods
(6) In the exercise of the power under paragraph (3)(b) to examine goods, the officer may do, or arrange for another officer or other person having the necessary experience to do, whatever is reasonably necessary to permit the examination of the goods.
Examples of examining goods
(7) Without limiting the generality of subsection (6), examples of what may be done in the examination of goods include the following:
(a) opening any package in which goods are or may be contained;
(b) using a device, such as an X-ray machine or ion scanning equipment, on the goods;
(c) if the goods are a document - reading the document either directly or with the use of an electronic device;
(d) using a dog to assist in examining the goods.
Power to detain and move ship or aircraft
(8) An officer may detain the ship or aircraft and bring it, or cause it to be brought, to a port or other place that he or she considers appropriate if:
(a) in the case of a ship or aircraft that is in Australia - the officer reasonably suspects that the ship or aircraft is or has been involved in a contravention, either in or outside Australia, of this Act; and
(b) in the case of an Australian ship that is outside Australia - the officer reasonably suspects that the ship is, will be or has been involved in a contravention, either in or outside Australia, of this Act; and
(c) in the case of a foreign ship that is outside Australia - the officer reasonably suspects that the ship is, will be or has been involved in a contravention in Australia of this Act.
However, a ship need not be brought to a port or other place if the Secretary makes a direction in relation to the ship under section 245H.
Power to detain people on detained ships or aircraft
(9) If an officer detains a ship or aircraft under this section, the officer may also detain any person who is found on the ship or aircraft and bring the person, or cause the person to be brought, to the migration zone.
Use of necessary and reasonable force
(10) An officer may use such force as is necessary and reasonable in the exercise of a power under this section.
Limit on use of force to board and search ships or aircraft
(11) In boarding and searching the ship or aircraft and searching or examining goods found on the ship or aircraft, an officer must not damage the ship, aircraft or goods by forcing open a part of the ship, aircraft or goods unless:
(a) the person (if any) apparently in charge of the ship or aircraft has been given a reasonable opportunity to open that part or the goods; or
(b) it is not reasonably practicable to give that person such an opportunity.
This subsection has effect despite paragraphs (3)(a) and (b) and subsection (10).
Limit on use of force to arrest or detain person on ships or aircraft
(12) In arresting or detaining a person found on the ship or aircraft, an officer:
(a) must not use more force, or subject the person to greater indignity, than is necessary and reasonable to make the arrest or detention, or to prevent the person escaping after the arrest or detention; and
(b) must not do anything likely to cause the person grievous bodily harm unless the officer believes on reasonable grounds that doing the thing is necessary to protect life or prevent serious injury of another person (including the officer).
This subsection has effect despite paragraph (3)(f) and subsection (10).
Limit on use of force to arrest fleeing person
(13) In arresting a person found on the ship or aircraft who is fleeing to escape arrest, an officer must not do anything likely to cause the person grievous bodily harm unless:
(a) the person has, if practicable, been called on to surrender and the officer believes on reasonable grounds that the person cannot be apprehended in any other way; or
(b) the officer believes on reasonable grounds that doing the thing is necessary to protect life or prevent serious injury of another person (including the officer).
This subsection applies in addition to subsection (12) and has effect despite paragraph (3)(f) and subsection (10).
If ship covered by agreement, officer may exercise other powers
(14) If:
(a) an officer is satisfied that the ship is a foreign ship that is entitled to fly the flag of a country; and
(b) Australia has an agreement or arrangement with that country which enables the exercise of Australian jurisdiction over ships of that country;
then the officer may exercise any powers prescribed by the regulations consistently with the agreement or arrangement in relation to the ship or persons found on the ship.
Complying with requirement by officer
(15) A person must not, without reasonable excuse, refuse or fail to comply with a requirement made by an officer under this section.
Penalty: 100 penalty units.
Evidence may be used in prosecutions etc.
(16) To avoid doubt, if, when exercising powers under this section, an officer obtains evidence of the commission of an offence against a law of the Commonwealth, a State or a Territory, then that evidence may be used, or given to another body for use, in:
(a) investigating the offence; or
(b) proceedings for the prosecution for the offence.
However, this subsection does not override or limit the operation of a law of a State about the evidence that may be used in proceedings for the prosecution for an offence against a law of that State.
Section not to limit officer's other powers
(17) This section does not limit the use by an officer of any other powers under this Act.
Definition of officer
(18) In this section, officer means an officer within the meaning of section 5, and includes:
(a) any person who is in command, or a member of the crew, of:
(i) the ship or aircraft from which the relevant request under section 245B or 245E was made; or
(ii) a ship or aircraft that was used under section 245C or 245D to chase the ship in relation to which this section applies; and
(b) a member of the Australian Defence Force.
Interpretation
(19) In this section:
(a) a reference to a person found on the ship or aircraft includes a reference to a person suspected on reasonable grounds by an officer of having landed from or left the ship or aircraft; and
(b) a reference to goods found on the ship or aircraft includes a reference to goods suspected on reasonable grounds by an officer of having been removed from the ship or aircraft.
245G Boarding of certain ships on the high seas
Application of section
(1) This section applies to a ship if:
(a) a request has been made under:
(i) subsection 245B(6) (request to board a ship of a country with which Australia has an agreement); or
(ii) subsection 245B(7) (request to board a ship without nationality); and
(b) the ship is:
(i) outside the outer edge of the contiguous zone of Australia; and
(ii) outside the territorial sea of any country (including Australia).
Powers to establish the identity of the ship
(2) An officer may:
(a) board the ship; and
(b) ask all persons found on the ship questions about:
(i) the identity of the ship; and
(ii) the voyage of the ship; and
(c) require all persons found on the ship to produce documents relevant to:
(i) finding out the identity of the ship; or
(ii) the voyage of the ship; and
(d) require the master or a member of the master's crew to show the commander or a member of the commander's crew readings of the ship's navigation instruments relating to the voyage of the ship.
Officer discovers that the ship is an Australian ship
(3) If, after exercising the powers in subsection (2), the officer is satisfied that the ship is an Australian ship, then section 245F applies to the ship.
Note: If section 245F applies to a ship, then the officer will be able to exercise all of the powers under that section in relation to the ship.
Officer confirms that the ship is covered by an agreement etc.
(4) If:
(a) after exercising the powers in subsection (2), the officer is satisfied that the ship is a foreign ship that is entitled to fly the flag of a country; and
(b) Australia has an agreement or arrangement with that country which enables the exercise of Australian jurisdiction over ships of that country;
then the officer may exercise the powers prescribed by the regulations consistently with that agreement or arrangement.
Officer discovers that the ship is not covered by an agreement etc.
(5) If:
(a) after exercising the powers in subsection (2), the officer is satisfied that the ship is a foreign ship that is entitled to fly the flag of a country; and
(b) Australia does not have an agreement or arrangement with that country which enables the exercise of Australian jurisdiction over ships of that country;
then the officer must leave the ship as soon as is practicable.
Officer confirms that the ship is without nationality
(6) If, after exercising the powers in subsection (2), the officer is satisfied that the ship is a foreign ship that:
(a) is not entitled to fly the flag of a country; or
(b) has been flying the flag of a country that it is not entitled to fly; or
(c) has been flying the flag of more than one country;
then the officer may search the ship.
Definition of officer
(7) In this section, officer means an officer within the meaning of section 5, and includes any person who is in command, or a member of the crew, of:
(a) the ship or aircraft from which the relevant request under section 245B or 245E was made; or
(b) a ship or aircraft that was used under section 245C to chase the ship in relation to which this section applies.
245H Moving or destroying hazardous ships etc.
Application of section to ships in Australia
(1) This section applies to a ship that is in Australia and that an officer reasonably suspects is or has been involved in a contravention or an attempted contravention, either in or outside Australia, of this Act.
Application of section to ships outside Australia
(2) This section also applies to a ship that is outside Australia if:
(a) an officer has detained it under subsection 245F(8); and
(b) in the case of an Australian ship - the officer reasonably suspects it is or has been involved in a contravention or an attempted contravention, either in or outside Australia, of this Act; and
(c) in the case of a foreign ship - the officer reasonably suspects it is or has been involved in a contravention in Australia of this Act.
When the ship may be destroyed or moved
(3) The Secretary may direct an officer to move, destroy, or move and destroy the ship, or cause such thing to be done, if the Secretary has reasonable grounds to believe any of the following:
(a) that the ship is unseaworthy;
(b) that the ship poses a serious risk to navigation, quarantine, safety or public health;
(c) that the ship poses a serious risk of damage to property or the environment.
Giving of notice after the ship has been destroyed
(4) As soon as practicable, but not later than 7 days after the ship has been destroyed, the Secretary must give a written notice to:
(a) the owner of the ship; or
(b) if the owner cannot be identified after reasonable inquiry - the person in whose possession or under whose control the ship was when it was detained or located.
(5) The notice must state:
(a) that the ship has been destroyed under subsection (3); and
(b) the reason for the destruction; and
(c) that compensation may be payable under section 3B.
Note: A person may be paid compensation under section 3B if the destruction of the ship results in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution).
Failure to give notice not to affect validity
(6) A failure to give a notice under this section does not affect the validity of the ship's destruction.
Section to override certain other provisions
(7) This section applies despite sections 260 and 261 and Subdivisions B and C of Division 13A.