Border Protection Legislation Amendment Act 1999 (160 of 1999)

Schedule 3   Fisheries Management Act 1991

Part 2   Suspected illegal foreign fishers

Division 1   Basic provisions

7   After section 84

Insert:

84A Detention under paragraph 84(1)(ia)

(1) A person (the detainee ) detained under paragraph 84(1)(ia) must be released from detention:

(a) as soon as an officer knows or reasonably believes that the detainee is an Australian citizen or an Australian resident; or

(b) at the time the detainee is brought before a magistrate following a decision to charge the detainee with an offence referred to in paragraph 84(1)(ia); or

(c) at the time a decision is made not to charge the detainee with an offence referred to in that paragraph; or

(d) at the end of 168 hours after the detention began;

whichever occurs first.

(2) Part IC of the Crimes Act 1914 applies in relation to the detainee while detained under paragraph 84(1)(ia) of this Act as if:

(a) he or she were under arrest because of paragraph 23B(2)(b) for a Commonwealth offence for the purposes of that Part; and

(b) an officer were an investigating official for the purposes of that Part.

(3) Subsection (2) does not affect the operation of sections 23C, 23D and 23E of the Crimes Act 1914 as they apply of their own force in relation to a person who is lawfully arrested.

(4) Paragraph 84(1)(ia) and this section do not authorise an officer to use more force in detaining a person than is reasonably necessary.

84B Searches under paragraph 84(1)(ic)

(1) A search under paragraph 84(1)(ic) of a person (the detainee ) may only be conducted by an officer of the same sex as the detainee.

(2) However, if an officer of the same sex as the detainee is not available to conduct the search, it may be conducted by another person who:

(a) is of the same sex as the detainee; and

(b) agrees, at the request of an officer, to conduct the search.

(3) Paragraph 84(1)(ic) and this section do not authorise the officer or other person:

(a) to remove any of the detainee's clothing; or

(b) to require the detainee to remove any of his or her clothing; or

(c) to use more force, or subject a detainee to greater indignity, than is reasonably necessary to conduct the search.

(4) If, in conducting a search, an officer finds a weapon or other thing mentioned in paragraph 84(1)(ic), an officer may:

(a) take possession of the weapon or other thing; and

(b) keep the weapon or other thing for such time as he or she thinks necessary for the purposes of this Act.

(5) If, in conducting a search, the other person finds a weapon or other thing mentioned in subsection (4):

(a) he or she must take possession of it and give it to an officer; and

(b) an officer may keep it for such time as he or she thinks necessary for the purposes of this Act.