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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000-2001
The
Parliament of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Border
Protection (Validation and Enforcement Powers) Bill
2001
No. ,
2001
(Immigration and Multicultural
Affairs)
A Bill for an Act to validate the
actions of the Commonwealth and others in relation to the MV Tampa and
other vessels, and to provide increased powers to protect Australia’s
borders, and for related purposes
Contents
A Bill for an Act to validate the actions of the
Commonwealth and others in relation to the MV Tampa and other vessels,
and to provide increased powers to protect Australia’s borders, and for
related purposes
The Parliament of Australia enacts:
This Act may be cited as the Border Protection (Validation and
Enforcement Powers) Act 2001.
This Act commences on the day on which it receives the Royal
Assent.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
In this Part:
Commonwealth officer includes a person who:
(a) is in the service or employment of the Commonwealth or an authority of
the Commonwealth; or
(b) holds or performs the duties of any office or position under a law of
the Commonwealth; or
(c) is a member of the Australian Defence Force.
validation period means the period starting on 27 August
2001 and ending at the beginning of the day on which this Act
commences.
vessel has the same meaning as in the Migration Act
1958.
This Part applies to any action taken during the validation period by the
Commonwealth, or by a Commonwealth officer, or any other person, acting on
behalf of the Commonwealth, in relation to:
(a) the MV Tampa; or
(b) the Aceng; or
(c) any other vessel carrying persons in respect of whom there were
reasonable grounds for believing that their intention was to enter Australia
unlawfully; or
(d) any person who was on board a vessel mentioned in paragraph (a),
(b) or (c) at any time during the validation period (whether or not the action
was taken while the person was on board the vessel).
All action to which this Part applies is taken for all purposes to have
been lawful when it occurred.
(1) Proceedings, whether civil or criminal, may not be instituted or
continued in any court, in respect of action to which this Part applies,
against:
(a) the Commonwealth; or
(b) a Commonwealth officer; or
(c) any other person who acted on behalf of the Commonwealth in relation
to the action.
(2) This section applies to:
(a) the institution of proceedings on or after the day on which this Act
receives the Royal Assent; and
(b) the continuation, on or after the day on which this Act receives the
Royal Assent, of proceedings that were instituted on or before that
day.
(1) If:
(a) this Part would result in an acquisition of property; and
(b) any provision of this Part would not be valid, apart from this
section, because a particular person has not been compensated;
the Commonwealth must pay that person:
(c) a reasonable amount of compensation agreed on between the person and
the Commonwealth; or
(d) failing agreement—a reasonable amount of compensation determined
by a court of competent jurisdiction.
(2) Any damages or compensation recovered, or other remedy given, in a
proceeding begun otherwise than under this section must be taken into account in
assessing compensation payable in a proceeding begun under this section and
arising out of the same event or transaction.
(3) In this section:
acquisition of property has the same meaning as in paragraph
51(xxxi) of the Constitution.
Nothing in this Part is intended to affect the jurisdiction of the High
Court under section 75 of the Constitution.
1 At the end of
section 184A
Add:
(13) In this section:
(a) a reference to the commander of a Commonwealth ship or
Commonwealth aircraft includes a reference to a commissioned officer of
the Australian Defence Force, and a reference to a member of the
commander’s crew includes, in relation to a commissioned officer
of the Australian Defence Force, a reference to a person acting under the
command of the commissioned officer; and
(b) commissioned officer of the Australian Defence Force
means an officer within the meaning of the Defence Act 1903.
2 Subsection 185(3)
Omit “to a port, airport or other place”, substitute “to
a port or airport, or to another place (including, in relation to a ship, a
place within the territorial sea or the contiguous zone in relation to
Australia),”.
3 Subsection 185(3A)
Repeal the subsection, substitute:
People on detained ships or aircraft
(3AAA) If an officer detains a ship or aircraft under this section, any
restraint on the liberty of any person found on the ship or aircraft that
results from the detention of the ship or aircraft is not unlawful, and
proceedings, whether civil or criminal, in respect of that restraint may not be
instituted or continued in any court against the Commonwealth, the officer or
any person assisting the officer in detaining the ship or aircraft.
Jurisdiction of High Court
(3AAB) Nothing in subsection (3AAA) is intended to affect the
jurisdiction of the High Court under section 75 of the
Constitution.
Powers of officers in respect of people found on detained ships or
aircraft
(3A) If an officer detains a ship or aircraft under this section, the
officer may:
(a) detain any person found on the ship or aircraft and bring the person,
or cause the person to be brought, to the migration zone (within the meaning of
the Migration Act 1958); or
(b) take the person, or cause the person to be taken, to a place outside
Australia.
The definition of place outside Australia in subsection 4(1)
does not apply for the purposes of paragraph (b).
Powers to move people
(3AA) For the purpose of moving a person under subsection (3A), an
officer may, within or outside Australia:
(a) place the person on a ship or aircraft; or
(b) restrain the person on a ship or aircraft; or
(c) remove the person from a ship or aircraft.
Protection if officers etc. act in good faith
(3AB) Proceedings, whether civil or criminal, may not be instituted or
continued, in respect of any action taken under subsection (3AA), against
the Commonwealth, an officer or any person assisting an officer if the officer
or person who took the action acted in good faith and used no more force than
was authorised by subsection (3B).
4 After section 185A
Insert:
(1) For the purposes set out in subsection (2), a person, and the
person’s clothing and any property under the immediate control of the
person, may, without warrant, be searched if the person:
(a) is on a ship or aircraft that has been detained under subsection
185(3); or
(b) has been placed on a ship or aircraft under subsection
185(3AA).
(2) The purpose for which a person, and the person’s clothing and
any property under the immediate control of the person, may be searched under
this section is to find out whether the person is carrying, or there is hidden
on the person, in the clothing or in the property, a weapon or other thing
capable of being used to inflict bodily injury or to help the person to
escape.
Note: Division 1B of Part XII provides search
powers in respect of certain persons suspected of unlawfully carrying prohibited
goods.
(3) If, in the course of a search under this section, a weapon or other
thing referred to in subsection (2) is found, an officer:
(a) may take possession of the weapon or other thing; and
(b) may retain the weapon or other thing for such time as he or she thinks
necessary for the purposes of this Act.
(4) This section does not authorise an officer, or another person
conducting a search pursuant to subsection (5), to remove any of the
person’s clothing, or to require a person to remove any of his or her
clothing, except the person’s outer garments (including but not limited to
the person’s overcoat, coat, jacket, gloves, shoes and head
covering).
(5) A search under this section of a person, and the person’s
clothing, must be conducted by:
(a) an officer of the same sex as the person; or
(b) in a case where an officer of the same sex as the person is not
available to conduct the search—any other person who is of the same sex
and:
(i) is requested by an officer; and
(ii) agrees;
to conduct the search.
(6) An action or proceeding, whether civil or criminal, does not lie
against a person who, at the request of an officer, conducts a search under this
section if the person acts in good faith and does not contravene
subsection (7).
(7) An officer or other person who conducts a search under this section
must not use more force, or subject a person to greater indignity, than is
reasonably necessary in order to conduct the search.
(8) In this section, officer has the same meaning as it has
in section 185.
(1) An officer, or a person assisting an officer, may return to a ship
that is detained under section 185 a person who:
(a) was on the ship when it was initially detained under section 185;
and
(b) later leaves the ship.
For this purpose, reasonable means, including reasonable force, may be used
by the officer or another person.
(2) A person may only be returned to a ship under subsection (1) if
the officer or person assisting is satisfied that it is safe to return the
person to the ship.
(3) In this section, officer has the same meaning as it has
in section 185.
5 At the end of
section 185B
Add:
(9) In this section, officer includes a member of the
Australian Defence Force.
1 Subsection 5(1) (subparagraph (b)(v) of
the definition of immigration detention)
Repeal the subparagraph, substitute:
(v) in another place approved by the Minister in writing;
but does not include being restrained as described in subsection 245F(8A),
or being dealt with under paragraph 245F(9)(b).
2 After section 7
Insert:
The existence of statutory powers under this Act does not prevent the
exercise of any executive power of the Commonwealth to protect Australia’s
borders, including, where necessary, by ejecting persons who have crossed those
borders.
3 At the end of
section 232A
Add:
Note: Sections 233B and 233C limit conviction and
sentencing options for offences under this section.
4 At the end of
section 233A
Add:
Note: Sections 233B and 233C limit conviction and
sentencing options for offences under this section.
5 After section 233A
Insert the following sections:
The court may not make an order under section 19B of the Crimes
Act 1914 in respect of a charge for an offence under section 232A or
233A, unless it is established on the balance of probabilities that the person
charged was aged under 18 years at the time when the offence was alleged to have
been committed.
(1) This section applies if a person is convicted of an offence under
section 232A or 233A, unless it is established on the balance of
probabilities that the person was aged under 18 years when the offence was
committed.
(2) The court must impose a sentence of imprisonment of at
least:
(a) 8 years, if the conviction is for a repeat offence; or
(b) 5 years, in any other case.
(3) The court must also set a non-parole period of at least:
(a) 5 years, if the conviction is for a repeat offence; or
(b) 3 years, in any other case.
(4) In this section:
(a) non-parole period has the same meaning as it has in
Part 1B of the Crimes Act 1914; and
(b) a person’s conviction for an offence is for a repeat
offence if, on a previous occasion after the commencement of this
section, a court:
(i) has convicted the person of another offence, being an offence against
section 232A or 233A; or
(ii) has found, without recording a conviction, that the person had
committed another such offence.
6 At the end of
section 245B
Add:
(11) In this section:
(a) a reference to the commander of a Commonwealth ship or
Commonwealth aircraft includes a reference to a commissioned officer of
the Australian Defence Force, and a reference to a member of the
commander’s crew includes, in relation to a commissioned officer
of the Australian Defence Force, a reference to a person acting under the
command of the commissioned officer; and
(b) commissioned officer of the Australian Defence Force
means an officer within the meaning of the Defence Act 1903.
7 Subsection 245F(8)
Omit “to a port or other place”, substitute “to a port,
or to another place (including a place within the territorial sea or the
contiguous zone in relation to Australia),”.
8 Subsection 245F(9)
Repeal the subsection, substitute:
People on detained ships or aircraft
(8A) If an officer detains a ship or aircraft under this section, any
restraint on the liberty of any person found on the ship or aircraft that
results from the detention of the ship or aircraft is not unlawful, and
proceedings, whether civil or criminal, in respect of that restraint may not be
instituted or continued in any court against the Commonwealth, the officer or
any person assisting the officer in detaining the ship or aircraft.
Jurisdiction of High Court
(8B) Nothing in subsection (8A) is intended to affect the
jurisdiction of the High Court under section 75 of the
Constitution.
Powers of officers in respect of people found on detained ships or
aircraft
(9) If an officer detains a ship or aircraft under this section, the
officer may:
(a) detain any person found on the ship or aircraft and bring the person,
or cause the person to be brought, to the migration zone; or
(b) take the person, or cause the person to be taken, to a place outside
Australia.
Powers to move people
(9A) For the purpose of moving a person under subsection (9), an
officer may, within or outside Australia:
(a) place the person on a ship or aircraft; or
(b) restrain the person on a ship or aircraft; or
(c) remove the person from a ship or aircraft.
Protection if officers etc. act in good faith
(9B) Proceedings, whether civil or criminal, may not be instituted or
continued, in respect of any action taken under subsection (9A), against
the Commonwealth, an officer or any person assisting an officer if the officer
or person who took the action acted in good faith and used no more force than
was authorised by subsection (10).
9 After section 245F
Insert:
(1) For the purposes set out in subsection (2), a person, and the
person’s clothing and any property under the immediate control of the
person, may, without warrant, be searched if the person:
(a) is on a ship or aircraft that has been detained under subsection
245F(8); or
(b) has been placed on a ship or aircraft under subsection
245F(9A).
Note: Division 13 of Part 2 provides search powers
in respect of persons who are in immigration detention.
(2) The purpose for which a person, and the person’s clothing and
any property under the immediate control of the person, may be searched under
this section is to find out whether the person is carrying, or there is hidden
on the person, in the clothing or in the property, a weapon or other thing
capable of being used to inflict bodily injury or to help the person to
escape.
(3) If, in the course of a search under this section, a weapon or other
thing referred to in subsection (2) is found, an officer:
(a) may take possession of the weapon or other thing; and
(b) may retain the weapon or other thing for such time as he or she thinks
necessary for the purposes of this Act.
(4) This section does not authorise an officer, or another person
conducting a search pursuant to subsection (5), to remove any of the
person’s clothing, or to require a person to remove any of his or her
clothing, except the person’s outer garments (including but not limited to
the person’s overcoat, coat, jacket, gloves, shoes and head
covering).
(5) A search under this section of a person, and the person’s
clothing, must be conducted by:
(a) an officer of the same sex as the person; or
(b) in a case where an officer of the same sex as the person is not
available to conduct the search—any other person who is of the same sex
and:
(i) is requested by an officer; and
(ii) agrees;
to conduct the search.
(6) An action or proceeding, whether civil or criminal, does not lie
against a person who, at the request of an officer, conducts a search under this
section if the person acts in good faith and does not contravene
subsection (7).
(7) An officer or other person who conducts a search under this section
must not use more force, or subject a person to greater indignity, than is
reasonably necessary in order to conduct the search.
(8) In this section, officer has the same meaning as it has
in section 245F.
(1) An officer, or a person assisting an officer, may return to a ship
that is detained under section 245F a person who:
(a) was on the ship when it was initially detained under
section 245F; and
(b) later leaves the ship.
For this purpose, reasonable means, including reasonable force, may be used
by the officer or another person.
(2) A person may only be returned to a ship under subsection (1) if
the officer or person assisting is satisfied that it is safe to return the
person to the ship.
(3) In this section, officer has the same meaning as it has
in section 245F.
10 At the end of
section 245H
Add:
(8) In this section, officer means an officer within the
meaning of section 5, and includes:
(a) a member of the Australian Defence Force; and
(b) any other person who is an officer within the meaning of
section 245F in relation to the ship concerned.