Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (135 of 2014)

Schedule 1   Amendments relating to maritime powers

Part 1   Main amendments

Maritime Powers Act 2013

19   After Division 8 of Part 3

Insert:

Division 8A - General provisions relating to powers under Divisions 7 and 8

75A Failure to consider international obligations etc. does not invalidate exercise of powers

(1) The exercise of a power under section 69, 69A, 71, 72, 72A, 74, 75D, 75F, 75G or 75H is not invalid:

(a) because of a failure to consider Australia's international obligations, or the international obligations or domestic law of any other country; or

(b) because of a defective consideration of Australia's international obligations, or the international obligations or domestic law of any other country; or

(c) because the exercise of the power is inconsistent with Australia's international obligations.

(2) Subsection (1) is not to be taken to imply that the exercise of a power under any other provision of this Act is invalid for a reason of a kind specified in paragraph (1)(a), (b) or (c).

75B Rules of natural justice do not apply to exercise of powers

(1) The rules of natural justice do not apply to the exercise of powers under section 69, 69A, 71, 72, 72A, 74, 75D, 75F, 75G or 75H.

(2) Subsection (1) is not to be taken to imply that the rules of natural justice do apply in relation to the exercise of powers under any other provision of this Act.

75C Additional provisions about destination to which a vessel, aircraft or person may be taken

(1) To avoid doubt:

(a) the destination to which a vessel, aircraft or person is taken (or caused to be taken) under section 69 or 72:

(i) does not have to be in a country; and

(ii) without limiting subparagraph (i) - may be just outside a country; and

(iii) may be a vessel; and

(b) a vessel, aircraft or person may be taken (or caused to be taken) to a destination under section 69 or 72:

(i) whether or not Australia has an agreement or arrangement with any other country relating to the vessel or aircraft (or the persons on it), or the person; and

(ii) irrespective of the international obligations or domestic law of any other country.

Note: The definition of country in section 8 includes the territorial sea and archipelagic waters of the country, as well as various other areas.

(2) However, if the destination is in another country, section 40 (exercising powers in other countries) must be complied with.

75D Exercising powers between countries

(1) Section 41 (foreign vessels between countries) does not apply to an exercise of power under section 69, 69A, 71, 72, 72A or 74 if:

(a) the exercise of power is:

(i) covered by a determination in force under subsection (2); or

(ii) required by a direction in force under paragraph 75F(2)(a); and

(b) the exercise of power is part of a continuous exercise of powers that commenced in accordance with any applicable requirements of Division 5 of Part 2.

(2) For the purpose of subparagraph (1)(a)(i), the Minister may make a written determination that is expressed to cover the exercise, in a specified circumstance, of powers under one or more of the sections referred to in subsection (1).

(3) The Minister may, in writing, vary or revoke a determination made under subsection (2).

(4) The only condition for the exercise of the power to make a determination under subsection (2), or to vary a determination, is that the Minister thinks that it is in the national interest to make or vary the determination.

Note: There are no conditions for the exercise of the power to revoke a determination.

(5) A determination under subsection (2), or an instrument varying or revoking a determination, comes into force:

(a) unless paragraph (b) applies - when it is made; or

(b) if the determination or instrument specifies a later time as the time when it is to come into force - at that later time.

(6) A determination under subsection (2) remains in force until whichever of the following occurs first:

(a) an instrument revoking the determination comes into force;

(b) if the determination is expressed to cease to be in force at a specified time - the time so specified.

(7) A determination under subsection (2), or a variation or revocation of a determination, is not a legislative instrument.

75E Powers are not limited by the Migration Act 1958

(1) Powers under sections 69, 69A, 71, 72, 72A, 74, 75D, 75F, 75G or 75H are not in any respect subject to, or limited by, the Migration Act 1958 (including regulations and other instruments made under that Act).

(2) Subsection (1) of this section is not to be taken to imply that other powers under this Act are subject to, or limited by, the Migration Act 1958 (including regulations and other instruments made under that Act).

75F Minister may give directions about exercise of powers

(1) This section applies in relation to the powers in sections 69, 69A, 71, 72 and 72A.

(2) The Minister may, in writing, give directions:

(a) requiring the exercise of a power or powers in a specified circumstance, or in circumstances in a specified class, in a specified manner; or

(b) relating to the exercise of a power or powers in a specified circumstance, in a specified class of circumstances or more generally.

(3) Without limiting subsection (2), the Minister may give a direction under that subsection:

(a) specifying a place that is to be, or is not to be, the destination to which a vessel, aircraft or person is taken under paragraph 69(2)(a) or subsection 72(4); or

(b) specifying matters to be taken into account in deciding the destination to which a vessel, aircraft or person is to be so taken.

(4) The Minister may, in writing, vary or revoke a direction given under subsection (2).

(5) The only condition for the exercise of the power to give a direction under subsection (2), or to vary a direction, is that the Minister thinks that it is in the national interest to give or vary the direction.

Note: There are no conditions for the exercise of the power to revoke a direction.

(6) A direction under subsection (2) may specify circumstances in which the direction need not be complied with.

(7) A direction under subsection (2), or an instrument varying or revoking a direction, comes into force:

(a) unless paragraph (b) applies - when it is made; or

(b) if the direction or instrument specifies a later time as the time when it is to come into force - at that later time.

(8) A direction under subsection (2) remains in force until whichever of the following occurs first:

(a) an instrument revoking the direction comes into force;

(b) if the direction is expressed to cease to be in force at a specified time - the time so specified.

(9) If the Minister gives a direction as mentioned in paragraph (2)(a):

(a) the direction is taken to constitute an authorisation of the exercise of the power or powers in accordance with the direction; and

(b) that authorisation is taken (despite section 23) to remain in force while the direction is in force.

(10) A direction under subsection (2), or an instrument varying or revoking a direction, is not a legislative instrument.

75G Compliance with directions

(1) Subject to subsections (2) and (3) of this section, and subsection 75F(6), a maritime officer must comply with any applicable directions in force under section 75F. However, a failure to comply does not invalidate any exercise of power by a maritime officer.

(2) A maritime officer who is a member of the Australian Defence Force is not required to comply with a direction under section 75F to the extent that the direction is inconsistent with an order or other exercise of command under sections 8 and 9 of the Defence Act 1903.

(3) A maritime officer is not required to comply with a direction under section 75F to the extent that he or she reasonably believes that it would be unsafe to do so.

75H Certain maritime laws do not apply to certain vessels detained or used in exercise of powers

Vessels detained under section 69

(1) The laws specified in subsection (3) (including regulations and other instruments made under those laws) do not apply in relation to a vessel at any time when the vessel is detained in exercise (or purported exercise) of powers under section 69.

Vessels used in exercise of powers under subsections 72(4) or (5)

(2) The laws specified in subsection (3) (including regulations and other instruments made under those laws) do not apply in relation to a vessel at any time when the following paragraphs are satisfied:

(a) the vessel is being used in the exercise (or purported exercise) of powers under subsection 72(4) or (5), or the Commonwealth intends that the vessel is for use in the exercise of such powers;

(b) the vessel is specified in, or is included in a class of vessels specified in, a determination under subsection (4) that is in force;

(c) if the determination states that it has effect, in relation to the vessel or class of vessels, only in specified circumstances - those circumstances exist;

(d) if the determination states that it has effect, in relation to the vessel or the class of vessels, only in one or more specified periods - the time is in that period, or one of those periods.

Note: Paragraph (c) and (d) do not have to be satisfied unless the determination states as mentioned in those paragraphs.

The laws that are disapplied

(3) The laws that, because of subsection (1) or (2), do not apply in relation to a vessel are:

(a) the Navigation Act 2012; and

(b) the Shipping Registration Act 1981; and

(c) the Marine Safety (Domestic Commercial Vessel) National Law.

Determinations of vessels and classes of vessels

(4) For the purpose of paragraph (2)(b), the Minister may make a written determination specifying a vessel, or a class of vessels. The determination may also state either or both of the following:

(a) that it has effect, in relation to the vessel or class of vessels, only in specified circumstances;

(b) that it has effect, in relation to the vessel or the class of vessels, only in one or more specified periods.

(5) The Minister may, in writing, vary or revoke a determination made under subsection (4).

(6) The only condition for the exercise of the power to make a determination under subsection (4), or to vary a determination, is that the Minister thinks that it is in the national interest to make or vary the determination.

Note: There are no conditions for the exercise of the power to revoke a determination.

(7) A determination under subsection (4), or an instrument varying or revoking a determination, comes into force:

(a) unless paragraph (b) applies - when it is made; or

(b) if the determination or instrument specifies a later time as the time when it is to come into force - at that later time.

(8) A determination under subsection (4) remains in force until whichever of the following occurs first:

(a) an instrument revoking the determination comes into force;

(b) if the determination is expressed to cease to be in force at a specified time - the time so specified.

(9) A determination under subsection (4), or a variation or revocation of a determination, is not a legislative instrument.

20 Section 79

Omit:

Written notice must be given to the owner or person who was in possession or control of a seized, retained or detained thing.

substitute:

Written notice must be given to the owner of a seized, retained or detained thing, or to a person who had possession or control of the thing.