BORDER PROTECTION LEGISLATION AMENDMENT (DETERRENCE OF ILLEGAL FOREIGN FISHING) BILL 2005

i Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005

Contents

Short title.......................................................................................1

Commencement .............................................................................1

Schedule(s)....................................................................................3

Schedule 1--Fisheries amendments

Part 1--Control of boats does not unlawfully restrain liberty of

persons on the boats

Fisheries Management Act 1991

Torres Strait Fisheries Act 1984

Part 2--Provisions relating to detention of suspected illegal

foreign fishers

Fisheries Management Act 1991

Torres Strait Fisheries Act 1984

Part 3--Searching persons on boats suspected of illegal fishing

Division 1--Main amendments

Fisheries Management Act 1991

Torres Strait Fisheries Act 1984

100

Division 2--Amendment contingent on detention power

102

Torres Strait Fisheries Act 1984

102

Part 4--Forfeiture etc. of things involved in illegal fishing

104

Division 1--Main amendments

104

Torres Strait Fisheries Act 1984

104

Division 2--Related amendments

111

Torres Strait Fisheries Act 1984

111

Part 5--Offences against persons with powers and functions

under fisheries law

113

Fisheries Management Act 1991

113

Torres Strait Fisheries Act 1984

113

Schedule 2--Enforcement visas etc.

114

Part 1--Visas etc. relating to exercise of powers under Torres

Strait Fisheries Act 1984

114

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 1

A Bill for an Act to amend the law relating to

fisheries and fishers, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Border Protection Legislation

Amendment (Deterrence of Illegal Foreign Fishing) Act 2005.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day on which this Act receives the

Royal Assent.

2. Schedule 1,

Part 1

The day after this Act receives the Royal

Assent.

3. Schedule 1,

Part 2

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not

commence within the period of 6 months

beginning on the day on which this Act

receives the Royal Assent, they commence

on the first day after the end of that period.

4. Schedule 1,

Part 3, Division 1

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not

commence within the period of 6 months

beginning on the day on which this Act

receives the Royal Assent, they commence

on the first day after the end of that period.

5. Schedule 1,

Part 3, Division 2

The later of:

(a) immediately after the commencement of

Part 2 of Schedule 1 to this Act; and

(b) immediately after the commencement of

Division 1 of Part 3 of Schedule 1 to this

Act.

6. Schedule 1,

Parts 4 and 5

The day after this Act receives the Royal

Assent.

7. Schedule 2,

Part 1

The day after this Act receives the Royal

Assent.

8. Schedule 2,

Part 2

At the same time as the provision(s) covered

by table item 3.

Note:

This table relates only to the provisions of this Act as originally

passed by the Parliament and assented to. It will not be expanded to

deal with provisions inserted in this Act after assent.

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 3

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

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.

Schedule 1 Fisheries amendments

Part 1 Control of boats does not unlawfully restrain liberty of persons on the boats

4 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

Schedule 1--Fisheries amendments

Part 1--Control of boats does not unlawfully restrain

liberty of persons on the boats

Fisheries Management Act 1991

1 After subsection 84(1B)

Insert:

(1BA) If there is a restraint on the liberty of a person on a boat resulting

from an officer's exercise of a power under paragraph (1)(g), (k),

(l) or (m) (applying of its own force or because of another

provision of this Act) in relation to a boat:

(a) the restraint is not unlawful; and

(b) civil or criminal proceedings in respect of the restraint may

not be instituted or continued in any court against:

(i) the officer; or

(ii) any person assisting the officer in the exercise of the

power; or

(iii) AFMA; or

(iv) the Commonwealth.

This subsection is not intended to affect the jurisdiction of the High

Court under section 75 of the Constitution.

Torres Strait Fisheries Act 1984

2 After subsection 42(2)

Insert:

(2AAA) If there is a restraint on the liberty of a person on a boat resulting

from an officer's exercise of a power under paragraph (1)(d), (e),

(g) or (h) in relation to a boat:

(a) the restraint is not unlawful; and

(b) civil or criminal proceedings in respect of the restraint may

not be instituted or continued in any court against:

(i) the officer; or

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

6 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

Part 2--Provisions relating to detention of suspected

illegal foreign fishers

Fisheries Management Act 1991

3 Paragraphs 84(1)(ia), (ib), (ic) and (id)

Repeal the paragraphs.

4 At the end of subsection 84(1)

Add:

Note:

Schedule 1A gives officers powers relating to detention of suspected

illegal foreign fishers.

5 Sections 84A and 84B

Repeal the sections.

6 Paragraph 87E(1)(aa)

Omit "paragraph 84(1)(ia)", substitute "Schedule 1A".

7 Paragraph 87E(1)(ab)

Omit "paragraph 84(1)(ib)", substitute "Schedule 1A".

8 Paragraph 87E(1)(ab)

Omit "paragraph 84(1)(ia)", substitute "that Schedule".

9 Subsection 87E(5)

Omit "paragraph 84(1)(ia) or (ib)", substitute "Schedule 1A".

10 Subsection 87E(5) (note)

Repeal the note.

11 Section 98A

Repeal the section.

12 After Division 5A of Part 6

Insert:

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 7

Division 5B--Provisions relating to detention of suspected

illegal foreign fishers

105Q Provisions relating to detention of suspected illegal foreign

fishers

Schedule 1A has effect.

13 Before Schedule 1

Insert:

Schedule 1A--Provisions relating to detention

of suspected illegal foreign fishers

Note:

See section 105Q.

Part 1--Preliminary

Division 1--Objects of this Schedule

1 Main objects of this Schedule

(1) This Schedule has 3 main objects.

(2) The first main object is to provide for the detention (fisheries

detention) in Australia or a Territory of persons who:

(a) are reasonably suspected by an officer of having committed

an offence involving the use of a foreign boat; and

(b) are not Australian citizens or Australian residents;

for a limited period for the purposes of determining whether to

charge them with the offence.

(3) The second main object is to provide for persons in fisheries

detention to be searched, screened, given access to facilities for

obtaining legal advice, and identified.

(4) The third main object is to facilitate the transition of persons from

fisheries detention to immigration detention under the Migration

Act 1958:

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

8 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

(a) by providing for the things mentioned in subclause (3) to be

done in a way corresponding to the way that Act provides for

those things to be done to persons in immigration detention;

and

(b) by authorising the disclosure of personal information about

individuals who are or have been in fisheries detention to

persons, agencies and organisations responsible for holding

the individuals in immigration detention, for the purpose of

the immigration detention and welfare of the individuals.

Note:

The enforcement visa of a person who is neither an Australian citizen

nor an Australian resident ceases to have effect under the Migration

Act 1958 when the person ceases to be in fisheries detention, so that

Act requires the person to be taken into immigration detention.

Division 2--Definitions

2 Definitions

In this Schedule, unless the contrary intention appears:

authorised officer means an officer, or detention officer, who is

authorised under Division 4 for the purposes of the provision in

which the expression occurs.

detainee means a person detained under Part 2.

detention means detention under Part 2.

detention officer means a person appointed under clause 3 to be a

detention officer.

Division 3--Appointment etc. of detention officers

3 Minister may appoint persons to be detention officers

(1) The Minister may, by instrument, appoint one or more persons

(except persons who are officers) to be detention officers.

Note:

Officers have the same powers as detention officers, as well as other

powers, so there is no reason for officers to be appointed as detention

officers.

(2) An instrument appointing persons to be detention officers:

(a) may identify the persons by reference to a class; and

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 9

(b) may provide for persons to be appointed when they become

members of the class at or after a time specified in the

instrument.

4 Detention officers subject to directions

A detention officer is, in the exercise of his or her powers, and the

performance of his or her duties, under this Schedule, subject to the

directions given by the Minister or AFMA.

5 Detention officer etc. not liable to certain actions

(1) A detention officer, or a person assisting a detention officer in the

exercise of powers under this Act or the regulations, is not liable to

an action, suit or proceeding for or in respect of anything done in

good faith or omitted to be done in good faith in the exercise or

purported exercise of any power conferred by this Act or the

regulations.

Note:

Section 90 makes similar provision for officers and their assistants.

(2) However, subsection (1) does not affect a contractual liability of a

detention officer or person assisting a detention officer.

Division 4--Authorisation of officers and detention officers

6 AFMA may authorise officers and detention officers

(1) AFMA may, by instrument, authorise one or more officers and/or

detention officers for the purposes of a specified provision of this

Schedule.

(2) An instrument authorising officers and/or detention officers:

(a) may identify them by reference to a class; and

(b) may provide for them to be authorised when they become

members of the class at or after a time specified in the

instrument.

7 Persons who are authorised officers for purposes of Migration Act

1958 are taken to be authorised for this Schedule

(1) A person who:

(a) is an officer or detention officer; and

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

10 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

(b) is an authorised officer (as defined in the Migration Act

1958) for a provision of that Act listed in column 2 of an

item of the table;

is, while he or she meets the conditions in paragraphs (a) and (b),

taken to be authorised under clause 6 for the purposes of the

provision of this Schedule listed in column 3 of the item.

Corresponding provisions of the Migration Act 1958 and this Schedule

Column 1

Item

Column 2

Provision of Migration Act 1958

Column 3

Provision of this Schedule

Subsection 252(4)

Subclause 15(3)

Paragraph 252(6)(a)

Paragraph 15(5)(a)

Subparagraph 252(6)(b)(i)

Subparagraph 15(5)(b)(i)

Subsection 252AA(1)

Subclause 16(1)

Subsection 252A(1)

Subclause 17(1)

Subsection 252C(1)

Subclause 19(1)

Subsection 252D(2)

Subclause 20(2)

Subsection 252G(3)

Subclause 23(3)

Section 261AA

Clause 28

Subsection 261AE(1)

Subclause 32(1)

Subsection 261AE(3)

Subclause 32(3)

Section 261AG

Clause 34

Section 261AJ

Clause 37

Subsection 261AK(1) (except

paragraph (a))

Subclause 38(1) (except

paragraph (a))

Subsection 261AK(3)

Subclause 38(3)

Limits on authorisation

(2) However, the person is not taken to be authorised to carry out an

identification test in relation to which section 5D of the Migration

Act 1958 provides that the person is not an authorised officer (for

the purposes of that Act).

Note:

This is relevant to items 9 to 15 of the table in subclause (1).

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 11

Persons specified by AFMA not authorised

(3) AFMA may, by instrument, specify that the person is not taken to

be authorised:

(a) for the purposes of the provision of this Schedule; or

(b) for the purposes of carrying out under this Schedule

identification tests of a type specified under section 5D of the

Migration Act 1958 in relation to the person.

The instrument has effect according to its terms, despite

subclause (1).

(4) An instrument under subclause (3) may specify one or more

persons by reference to their being members of a specified class at

or after a time specified in the instrument.

(5) An instrument made under subclause (3) is not a legislative

instrument.

Part 2--Detaining suspected illegal foreign fishers

Division 1--Initial detention by an officer

8 Power to detain

(1) An officer may detain a person in Australia or a Territory for the

purposes of determining during the period of detention whether or

not to charge the person with an offence against section 99, 100,

100A, 101, 101A, 101B, 105E or 105F or an offence against

section 6 of the Crimes Act 1914 relating to such an offence, if the

officer has reasonable grounds to believe that the person:

(a) is not an Australian citizen or an Australian resident; and

(b) was on a foreign boat when it was used in the commission of

such an offence.

(2) Subclause (1) does not authorise an officer to use more force in

detaining a person than is reasonably necessary.

(3) Subclause (1) has effect subject to section 87E.

Note:

Section 87E sets limits on the exercise of certain powers in relation to

FSA boats.

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

12 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

9 Relationship with Part IC of the Crimes Act 1914

(1) Part IC of the Crimes Act 1914 applies in relation to the detainee

while detained under this Part as if:

(a) he or she were a protected suspect for a Commonwealth

offence for the purposes of that Part; and

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

that Part.

(2) Subclause (1) does not affect the operation of Division 2 of Part IC

of the Crimes Act 1914 as it applies of its own force in relation to a

person who is lawfully arrested.

Division 2--Continued detention by a detention officer

10 Detention officer may detain person already detained by officer

(1) For the purposes of facilitating an officer determining whether or

not to charge a person with an offence against section 99, 100,

100A, 101, 101A, 101B, 105E or 105F or an offence against

section 6 of the Crimes Act 1914 relating to such an offence, a

detention officer may detain the person in Australia or a Territory

if the detention officer has reasonable grounds to believe that the

person:

(a) has been detained by an officer under Division 1; and

(b) has been presented, while detained by that officer, to a

detention officer for detention by a detention officer.

(2) However, the detention officer may not detain the person if the

detention officer has reasonable grounds to believe that the person

has ceased to be in detention since the last time the person was

detained by an officer under Division 1.

(3) Subclause (1) does not authorise a detention officer to use more

force in detaining a person than is reasonably necessary.

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 13

Division 3--Detention on behalf of an officer or detention

officer

11 Detention on behalf of an officer or detention officer

(1) A person is taken to be detained by an officer or detention officer

under this Part while the person is held, on behalf of the officer or

detention officer, in any of the following:

(a) a prison or remand centre of the Commonwealth, a State or a

Territory;

(b) a police station or watch house;

medical treatment;

(d) another place approved by the Minister in writing;

(e) a boat.

(2) This clause has effect even while the officer or detention officer is

not present where the person is held on behalf of the officer or

detention officer.

(3) An approval of a place by the Minister is not a legislative

instrument.

Division 4--Moving detainees

12 Power to move detainees

(1) An officer or a detention officer may:

(a) take a detainee in Australia to another place in Australia or to

a place in an external Territory; and

(b) take a detainee in an external Territory to another place in the

Territory or to a place in Australia or another Territory.

(2) Subclause (1) does not authorise an officer or detention officer to

use more force than is reasonably necessary to take the detainee to

the place.

(3) In exercising the power under subclause (1), the officer or

detention officer must have regard to all matters that he or she

considers relevant, including:

(a) the administration of justice; and

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

14 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

(b) the welfare of the detainee.

(4) So far as it relates to an officer, subclause (1) has effect subject to

section 87E.

Note:

Section 87E sets limits on the exercise of certain powers in relation to

FSA boats.

Division 5--End of detention

13 End of detention

A detainee must be released from detention:

(a) as soon as an officer or detention 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 subclause 8(1); or

an offence referred to in that subclause; or

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

whichever occurs first.

Division 6--Offence of escaping from detention

14 Escape from detention

(1) A person commits an offence if:

(a) the person is in detention; and

(b) the person escapes from that detention.

(2) The offence is punishable on conviction by imprisonment for up to

2 years.

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 15

Part 3--Searching and screening detainees and

screening their visitors

Division 1--Searches of detainees

15 Searches of detainees

(1) For the purposes set out in subclause (2), a detainee, and the

detainee's clothing and any property under the immediate control

of the detainee, may, without warrant, be searched.

(2) The purposes for which a detainee, and the detainee's clothing and

any property under the immediate control of the detainee, may be

searched under this clause are as follows:

(a) to find out whether there is hidden on the detainee's 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

detainee to escape from detention;

(b) to find out whether there is hidden on the detainee's person,

in the clothing or in the property, a document or other thing

that is, or may be, evidence of:

(i) an offence against section 99, 100, 100A, 101, 101A,

101B, 105E or 105F; or

(ii) an offence against section 6 of the Crimes Act 1914

relating to an offence described in subparagraph (i).

(3) If, in the course of a search under this clause, a weapon or other

thing referred to in paragraph (2)(a), or a document or other thing

referred to in paragraph (2)(b), is found, an authorised officer:

(a) may take possession of the weapon, document or other thing;

and

(b) may retain the weapon, document or other thing for such

time as he or she thinks necessary for the purposes of this Act

or the Migration Act 1958.

(4) This clause does not authorise an authorised officer, or another

person conducting a search pursuant to subclause (5), to remove

any of the detainee's clothing, or to require a detainee to remove

any of his or her clothing.

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

16 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

(5) A search under this clause of a detainee, and the detainee's

clothing, must be conducted by:

(a) an authorised officer of the same sex as the detainee; or

(b) in a case where an authorised officer of the same sex as the

detainee is not available to conduct the search--any other

person who is of the same sex and:

(i) is requested by an authorised 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 authorised officer,

conducts a search under this clause if the person acts in good faith

and does not contravene subclause (7).

(7) An authorised officer or other person who conducts a search under

this clause must not use more force, or subject a detainee to greater

indignity, than is reasonably necessary in order to conduct the

search.

(8) To avoid doubt, a search of a detainee may be conducted under this

clause irrespective of whether a screening procedure is conducted

in relation to the detainee under clause 16 or a strip search of the

detainee is conducted under clause 17.

Note:

This clause corresponds closely to section 252 of the Migration Act

1958.

Division 2--Screening of detainees

16 Power to conduct a screening procedure

(1) A screening procedure in relation to a detainee, other than a

detainee to whom clause 22 applies, may be conducted by an

authorised officer, without warrant, to find out whether there is

hidden on the detainee, in his or her clothing or in a thing in his or

her possession a weapon, or other thing, capable of being used:

(a) to inflict bodily injury; or

(b) to help the detainee, or any other detainee, to escape from

detention.

(2) An authorised officer who conducts a screening procedure under

this clause must not use greater force, or subject the detainee to

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 17

greater indignity, than is reasonably necessary in order to conduct

the screening procedure.

(3) This clause does not authorise an authorised officer to remove any

of the detainee's clothing, or to require a detainee to remove any of

his or her clothing.

(4) To avoid doubt, a screening procedure may be conducted in

relation to a detainee under this clause irrespective of whether a

search of the detainee is conducted under clause 15 or 17.

(5) In this clause:

conducting a screening procedure, in relation to a detainee,

means:

(a) causing the detainee to walk, or to be moved, through

screening equipment; or

(b) passing hand-held screening equipment over or around the

detainee or around things in the detainee's possession; or

equipment or examining such things by X-ray.

screening equipment means a metal detector or similar device for

detecting objects or particular substances.

Note:

This clause corresponds closely to section 252AA of the Migration

Act 1958.

Division 3--Strip searches of detainees

17 Power to conduct a strip search

(1) A strip search of a detainee, other than a detainee to whom

clause 22 applies, may be conducted by an authorised officer,

without warrant, to find out whether there is hidden on the

detainee, in his or her clothing or in a thing in his or her possession

a weapon, or other thing, capable of being used:

(a) to inflict bodily injury; or

(b) to help the detainee, or any other detainee, to escape from

detention.

Note:

Clause 18 sets out rules for conducting a strip search under this clause.

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

18 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

(2) A strip search of a detainee means a search of the detainee, of his

or her clothing or of a thing in his or her possession. It may

include:

(a) requiring the detainee to remove some or all of his or her

clothing; and

(b) an examination of that clothing and of the detainee's body

(but not of the detainee's body cavities).

(3) A strip search of a detainee may be conducted by an authorised

officer only if:

(a) an officer or detention officer suspects on reasonable grounds

that there is hidden on the detainee, in his or her clothing or

in a thing in his or her possession a weapon or other thing

described in subclause (1); and

(b) the officer, or detention officer, referred to in paragraph (a)

suspects on reasonable grounds that it is necessary to conduct

a strip search of the detainee to recover that weapon or other

thing; and

(i) if the detainee is at least 18--the Managing Director of

AFMA, the Secretary of the Department, or an SES

Band 3 employee in the Department (who is not the

officer referred to in paragraphs (a) and (b) nor the

authorised officer conducting the strip search),

authorises the strip search because he or she is satisfied

that there are reasonable grounds for those suspicions;

(ii) if the detainee is at least 10 but under 18--a magistrate

orders the strip search because he or she is satisfied that

there are reasonable grounds for those suspicions.

(4) An officer or detention officer may form a suspicion on reasonable

grounds for the purposes of paragraph (3)(a) on the basis of:

(a) a search conducted under clause 15 (whether by that officer

or detention officer or by another officer or detention

officer); or

(b) a screening procedure conducted under clause 16 (whether by

that officer or detention officer or by another officer or

detention officer); or

detention officer.

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 19

(5) An authorisation of a strip search given for the purposes of

paragraph (3)(c):

(a) may be given by telephone, fax or other electronic means;

and

(b) must be recorded in writing, and signed by the person giving

the authorisation, within one business day after it is given.

(6) A record made under paragraph (5)(b) is not a legislative

instrument.

(7) A failure to comply with paragraph (5)(b) does not affect the

validity of a strip search conducted on the basis of that

authorisation.

(8) The power to authorise a strip search under paragraph (3)(c) cannot

be delegated to any other person.

(9) A power conferred on a magistrate by this clause is conferred on

the magistrate in a personal capacity and not as a court or a

member of a court.

(10) The magistrate need not accept the power conferred.

(11) A magistrate exercising a power under this clause has the same

protection and immunity as if he or she were exercising that power

as, or as a member of, the court of which the magistrate is a

member.

(12) To avoid doubt, a strip search of a detainee may be conducted

under this clause irrespective of whether a search of the detainee is

conducted under clause 15 or a screening procedure is conducted in

relation to the detainee under clause 16.

(13) In this clause:

business day means a day that is not a Saturday, Sunday or public

holiday in the place where the authorisation is given.

SES Band 3 employee means an SES employee with a

classification of Senior Executive Band 3, and includes an SES

employee who has been temporarily assigned duties that have been

allocated a classification of Senior Executive Band 3.

Note:

This clause corresponds closely to section 252A of the Migration Act

1958.

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

20 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

18 Rules for conducting a strip search

(1) A strip search of a detainee under clause 17:

(a) must not subject the detainee to greater indignity than is

reasonably necessary to conduct the strip search; and

(b) must be conducted in a private area; and

as the detainee; and

(d) subject to subclauses (2), (3) and (5), must not be conducted

in the presence or view of a person who is of the opposite sex

to the detainee; and

(e) subject to subclauses (2), (3) and (5), must not be conducted

in the presence or view of a person whose presence is not

necessary for the purposes of the strip search; and

(f) must not be conducted on a detainee who is under 10; and

(g) if the detainee is at least 10 but under 18, or is incapable of

managing his or her affairs--must be conducted in the

presence of:

(i) the detainee's parent or guardian if that person is in

detention with the detainee and is readily available at

the same place; or

(ii) if that is not acceptable to the detainee or

subparagraph (i) does not apply--another person (other

than an authorised officer) who is capable of

representing the detainee's interests and who, as far as is

practicable in the circumstances, is acceptable to the

detainee; and

(h) subject to subclause (4), if the detainee is at least 18, and is

not incapable of managing his or her affairs--must be

conducted in the presence of another person (if any)

nominated by the detainee, if that other person is readily

available at the same place as the detainee, and willing to

attend the strip search within a reasonable time; and

(i) must not involve a search of the detainee's body cavities; and

(j) must not involve the removal of more items of clothing, or

more visual inspection, than the authorised officer

conducting the search believes on reasonable grounds to be

necessary to determine whether there is hidden on the

detainee, in his or her clothing or in a thing in his or her

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 21

possession a weapon or other thing described in subclause

17(1); and

(k) must not be conducted with greater force than is reasonably

necessary to conduct the strip search.

(2) Paragraphs (1)(d) and (e) do not apply to a parent or guardian, or

person present because of subparagraph (1)(g)(ii), if the detainee

has no objection to that person being present.

(3) Paragraphs (1)(d) and (e) do not apply to a person nominated by

the detainee under paragraph (1)(h) to attend the strip search.

(4) Neither:

(a) a detainee's refusal or failure to nominate a person under

paragraph (1)(h) within a reasonable time; nor

(b) a detainee's inability to nominate a person under that

paragraph who is readily available at the same place as the

detainee and willing to attend the strip search within a

reasonable time;

prevents a strip search being conducted.

(5) A strip search of a detainee may be conducted with the assistance

of another person if the authorised officer conducting the strip

search considers that to be necessary for the purposes of

conducting it. That person must not be of the opposite sex to the

detainee unless:

(a) the person is a medical practitioner; and

(b) a medical practitioner of the same sex as the detainee is not

available within a reasonable time.

(6) An action or proceeding, whether civil or criminal, does not lie

against a person who, at the request of an authorised officer, assists

in conducting a strip search if the person acts in good faith and

does not contravene this clause.

(7) A detainee must be provided with adequate clothing if during or as

a result of a strip search any of his or her clothing is:

(a) damaged or destroyed; or

(b) retained under clause 19.

Note:

This clause corresponds closely to section 252B of the Migration Act

1958.

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

22 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

Division 4--Keeping of things found by screening or strip

search of detainees

19 Possession and retention of certain things obtained during a

screening procedure or strip search

(1) An authorised officer may take possession of and retain a thing

found in the course of conducting a screening procedure under

clause 16 or conducting a strip search under clause 17 if the thing:

(a) might provide evidence of the commission of an offence

against this Act; or

(b) is forfeited or forfeitable to the Commonwealth.

(2) A weapon or other thing described in subclause 16(1) or 17(1) that

is found in the course of conducting a screening procedure under

clause 16 or a strip search under clause 17 is forfeited to the

Commonwealth.

(3) An authorised officer must not return a thing that is forfeited or

forfeitable to the Commonwealth. Instead, the authorised officer

must, as soon as practicable, give a thing that is forfeited under

subclause (2) to a constable (within the meaning of the Crimes Act

1914).

Note:

Subdivision C of Division 6 of Part 6 of this Act sets out the

procedure for dealing with things seized as being forfeited under

section 106A.

(4) An authorised officer must take reasonable steps to return anything

that is not forfeited or forfeitable but is retained under

subclause (1) to the person from whom it was taken, or to the

owner if that person is not entitled to possess it, if one of the

following happens:

(a) it is decided that the thing is not to be used in evidence;

(b) the period of 60 days after the authorised officer takes

possession of the thing ends.

(5) However, the authorised officer does not have to take those steps

if:

(a) in a paragraph (4)(b) case:

(i) proceedings in respect of which the thing might provide

evidence have been instituted before the end of the 60

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 23

day period and have not been completed (including an

appeal to a court in relation to those proceedings); or

(ii) the authorised officer may retain the thing because of an

order under clause 21; or

(b) in any case--the authorised officer is otherwise authorised

(by a law, or an order of a court or a tribunal, of the

Commonwealth or a State or Territory) to retain, destroy or

dispose of the thing.

Note:

This clause corresponds closely to section 252C of the Migration Act

1958.

20 Authorised officer may apply for a thing to be retained for a

further period

(1) This clause applies if an authorised officer has taken possession of

a thing referred to in subclause 19(4) and proceedings in respect of

which the thing might provide evidence have not commenced

before the end of:

(a) 60 days after the authorised officer takes possession of the

thing; or

(b) a period previously specified in an order of a magistrate

under clause 21.

(2) The authorised officer may apply to a magistrate for an order that

the officer may retain the thing for a further period.

(3) Before making the application, the authorised officer must:

(a) take reasonable steps to discover which persons' interests

would be affected by the retention of the thing; and

(b) if it is practicable to do so, notify each person who the

authorised officer believes to be such a person of the

proposed application.

Note:

This clause corresponds closely to section 252D of the Migration Act

1958.

(4) A notice under paragraph (3)(b) is not a legislative instrument.

21 Magistrate may order that thing be retained

(1) The magistrate may order that the authorised officer who made an

application under clause 20 may retain the thing if the magistrate is

satisfied that it is necessary for the authorised officer to do so:

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

24 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

(a) for the purposes of an investigation as to whether an offence

has been committed; or

(b) to enable evidence of an offence to be secured for the

purposes of a prosecution.

(2) The order must specify the period for which the authorised officer

may retain the thing.

(3) A power conferred on a magistrate by this clause is conferred on

the magistrate in a personal capacity and not as a court or a

member of a court.

(4) The magistrate need not accept the power conferred.

(5) A magistrate exercising a power under this clause has the same

protection and immunity as if he or she were exercising that power

as, or as a member of, the court of which the magistrate is a

member.

Note:

This clause corresponds closely to section 252E of the Migration Act

1958.

Division 5--Law applying to detainee in State or Territory

prison etc.

22 Detainees held in State or Territory prisons or remand centres

(1) This clause applies to a detainee if:

(a) he or she is held in detention in a prison or remand centre of

a State or Territory; and

(b) a law of that State or Territory confers a power to search

persons, or things in the possession of persons, serving

sentences or being held in the prison or remand centre.

(2) To the extent that the State or Territory law confers that power, or

affects the exercise of that power, it applies to the detainee as

though it were a law of the Commonwealth.

(3) Clauses 16 and 17 do not apply to a detainee to whom this clause

applies.

Note:

This clause corresponds closely to section 252F of the Migration Act

1958.

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 25

Division 6--Screening detainees' visitors

23 Powers concerning entry to premises where detainee is detained

(1) An officer or detention officer may request that a person about to

enter premises where a detainee is in detention do one or more of

the following:

(a) walk through screening equipment;

(b) allow an officer or detention officer to pass hand-held

screening equipment over or around the person or around

things in the person's possession;

screening equipment or to be examined by X-ray.

(2) Screening equipment means a metal detector or similar device for

detecting objects or particular substances.

(3) If an authorised officer suspects on reasonable grounds that a

person about to enter premises where a detainee is in detention has

in the person's possession a thing that might:

(a) endanger the safety of the detainees, staff or other persons on

the premises; or

(b) disrupt the order or security arrangements on the premises;

the authorised officer may request that the person do some or all of

the things in subclause (4) for the purpose of finding out whether

the person has such a thing. A request may be made whether or not

a request is also made to the person under subclause (1).

(4) An authorised officer may request that the person do one or more

of the following:

(a) allow the authorised officer to inspect the things in the

person's possession;

(b) remove some or all of the person's outer clothing such as a

coat, jacket or similar item;

(d) open a thing in the person's possession, or remove the thing's

contents, to allow the authorised officer to inspect the thing

or its contents;

(e) leave a thing in the person's possession, or some or all of its

contents, in a place specified by the authorised officer if he or

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

26 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

she suspects on reasonable grounds that the thing or its

contents are capable of concealing something that might:

(i) endanger the safety of the detainees, staff or other

persons on the premises; or

(ii) disrupt the order or security arrangements on the

premises.

(5) A person who leaves a thing (including any of its contents) in a

place specified by an authorised officer is entitled to its return

when the person leaves the premises.

(6) However, if possession of the thing, or any of those contents, by

the person is unlawful under a Commonwealth, State or Territory

law applying to the premises:

(a) the thing or the contents must not be returned to the person;

and

(b) an authorised officer must, as soon as practicable, give the

thing or the contents to a constable (within the meaning of

the Crimes Act 1914).

(7) A person who is about to enter premises where a detainee is

detained may be refused entry if the person does not comply with a

request under this clause.

Note:

This clause corresponds closely to section 252G of the Migration Act

1958.

Part 4--Detainees' rights to facilities for obtaining

legal advice etc.

24 Detainee may have access to certain advice, facilities etc.

The person responsible for detention of a detainee must, at the

detainee's request, afford to him or her all reasonable facilities for

obtaining legal advice or taking legal proceedings in relation to his

or her detention.

Note:

This clause corresponds to section 256 of the Migration Act 1958.

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 27

Part 5--Identifying detainees

Division 1--Preliminary

25 Definitions

In this Part, unless the contrary intention appears:

identification test means a test carried out in order to obtain a

personal identifier.

incapable person means a person who is incapable of

understanding the general nature and effect of, and purposes of, a

requirement to provide a personal identifier.

independent person means a person (other than an officer,

detention officer or authorised officer) who:

(a) is capable of representing the interests of a non-citizen who is

providing, or is to provide, a personal identifier; and

(b) as far as practicable, is acceptable to the non-citizen who is

providing, or is to provide, the personal identifier; and

minor's best interests.

minor means a person who is less than 18 years old.

non-citizen means a person who is not an Australian citizen.

personal identifier has the meaning given by clause 26.

Note:

The definitions of expressions in this clause correspond closely to

definitions of those expressions in section 5 of the Migration Act

1958.

26 Meaning of personal identifier

(1) In this Part:

personal identifier means any of the following (including any of

the following in digital form):

(a) fingerprints or handprints of a person (including those taken

using paper and ink or digital livescanning technologies);

(b) a measurement of a person's height and weight;

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

28 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

(d) an audio or a video recording of a person (other than a video

recording under clause 37);

(e) an iris scan;

(f) a person's signature;

(g) any other identifier prescribed by the regulations, other than

an identifier the obtaining of which would involve the

carrying out of an intimate forensic procedure within the

meaning of section 23WA of the Crimes Act 1914.

(2) Before the Governor-General makes regulations for the purposes of

paragraph (1)(g) prescribing an identifier, the Minister must be

satisfied that:

(a) obtaining the identifier would not involve the carrying out of

an intimate forensic procedure within the meaning of

section 23WA of the Crimes Act 1914; and

(b) the identifier is an image of, or a measurement or recording

of, an external part of the body; and

purposes referred to in subclause (3).

(3) The purposes are:

(a) to assist in the identification of, and to authenticate the

identity of, any non-citizen who can be required under this

Act to provide a personal identifier; and

(b) to assist in identifying, in the future, any such non-citizen;

and

a criminal history relating to fisheries; and

(d) to combat document and identity fraud in fisheries matters;

and

(e) to complement anti-people smuggling measures; and

(f) to inform the governments of foreign countries of the identity

of non-citizens who have been detained under, or charged

with offences against, this Act; and

(g) to facilitate international cooperation to combat fishing

activities that involve a breach of the laws of Australia or of a

foreign country.

Note:

This clause corresponds closely to section 5A of the Migration Act

1958.

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 29

27 Limiting the types of identification tests that authorised officers

may carry out

(1) AFMA may, in an instrument authorising an officer or detention

officer as an authorised officer for the purposes of carrying out

identification tests under this Part, specify the types of

identification tests that the authorised officer may carry out.

(2) Such an authorised officer is not an authorised officer in relation to

carrying out an identification test that is not of a type so specified.

Note:

This clause corresponds closely to section 5D of the Migration Act

1958.

Division 2--Identification of detainees

Subdivision A--Provision of personal identifiers

28 Detainees must provide personal identifiers

(1) A non-citizen in detention must (other than in the prescribed

circumstances) provide to an authorised officer one or more

personal identifiers.

Note:

A person who is an Australian citizen, or is a non-citizen but an

Australian resident, may be in detention but must be released as soon

as an officer or detention officer knows or reasonably believes the

person is an Australian citizen or resident.

(2) An authorised officer must not require, for the purposes of

subclause (1), a detainee to provide a personal identifier other than

any of the following (including any of the following in digital

form):

(a) fingerprints or handprints of the detainee (including those

taken using paper and ink or digital livescanning

technologies);

(b) a measurement of the detainee's height and weight;

shoulders;

(d) the detainee's signature;

(e) any other personal identifier of a type prescribed for the

purposes of this paragraph.

Note:

Division 3 sets out further restrictions on the personal identifiers that

minors and incapable persons can be required to provide.

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

30 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

(3) The one or more personal identifiers are to be provided by way of

one or more identification tests carried out by the authorised officer

in accordance with this Division.

Note 1:

Subject to certain restrictions, clause 32 allows reasonable force to be

used to carry out identification tests under this Division.

Note 2:

This clause corresponds closely to section 261AA of the Migration

Act 1958.

29 Authorised officers must require and carry out identification

tests

(1) The authorised officer must, other than in the circumstances

prescribed for the purposes of subclause 28(1):

(a) require the non-citizen to provide one or more personal

identifiers, of the type or types prescribed, by way of one or

more identification tests carried out by the authorised officer;

and

(b) carry out the one or more identification tests on the

non-citizen.

(2) However:

(a) if the types of identification tests that the authorised officer

may carry out is specified under clause 27--each

identification test must be of a type so specified; and

(b) each identification test must be carried out in accordance

with Subdivision B; and

believe that the non-citizen is not a minor or an incapable

person--each identification test must be carried out in

accordance with the additional requirements of Division 3.

Note:

Subclauses (1) and (2) correspond closely to section 261AB of the

Migration Act 1958.

(3) If:

(a) the authorised officer is authorised because of clause 7

(which effectively treats as authorised officers for the

purposes of certain provisions of this Schedule certain

persons who are authorised officers for the purposes of

certain provisions of the Migration Act 1958); and

(b) an instrument under section 5D of that Act specifies the types

of identification test the authorised officer may carry out;

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 31

paragraph (2)(a) of this clause has effect as if the specified types

(except any specified under subclause 7(3) in relation to the

authorised officer) had been specified under clause 27.

30 Information to be provided before carrying out identification

tests

(1) Before carrying out an identification test, the authorised officer

must:

(a) inform the non-citizen that the non-citizen may ask that an

independent person be present while the identification test is

carried out and that the test be carried out by a person of the

same sex as the non-citizen; and

(b) inform the non-citizen of such other matters as are specified

in the regulations.

(2) For the purposes of subclause (1), the authorised officer informs

the non-citizen of a matter if the authorised officer informs the

non-citizen of the matter, through an interpreter if necessary, in a

language (including sign language or braille) in which the

non-citizen is able to communicate with reasonable fluency.

(3) The authorised officer may comply with this clause by giving to

the non-citizen, in accordance with the regulations, a form setting

out the information specified in the regulations. However, the

information must be in a language (including braille) in which the

non-citizen is able to communicate with reasonable fluency.

Note:

This clause corresponds closely to section 261AC of the Migration

Act 1958.

(4) A form mentioned in subclause (3) is not a legislative instrument.

Subdivision B--How identification tests are carried out

31 General rules for carrying out identification tests

An identification test under this Division:

(a) must be carried out in circumstances affording reasonable

privacy to the non-citizen; and

(b) if the non-citizen so requests and it is practicable to comply

with the request--must not be carried out in the presence or

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

32 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

view of a person who is of the opposite sex to the

non-citizen; and

whose presence is not necessary for the purposes of the

identification test or is not required or permitted by another

provision of this Act; and

(d) must not involve the removal of more clothing than is

necessary for carrying out the test; and

(e) must not involve more visual inspection than is necessary for

carrying out the test; and

(f) if the test is one of 2 or more identification tests to be carried

out on the non-citizen--must be carried out at the same time

as the other identification tests, if it is practicable to do so.

Note:

This clause corresponds closely to section 261AD of the Migration

Act 1958.

32 Use of force in carrying out identification tests

When use of force is permitted

(1) Subject to subclause (2) and clause 33, an authorised officer, or a

person authorised under clause 34 to help the authorised officer,

may use reasonable force:

(a) to enable the identification test to be carried out; or

(b) to prevent the loss, destruction or contamination of any

personal identifier or any meaningful identifier derived from

the personal identifier.

However, this clause does not authorise the use of force against a

minor or an incapable person, or if the personal identifier in

question is a person's signature.

(2) The authorised officer or person must not use force unless:

(a) the non-citizen required to provide the personal identifier in

question has refused to allow the identification test to be

carried out; and

(b) all reasonable measures to carry out the identification test

without the use of force have been exhausted; and

authorised under subclause (4).

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 33

Applications for authorisation to use force

(3) An authorised officer may apply to a senior authorising officer

(who is not an authorised officer referred to in subclause (1)) for an

authorisation to use force in carrying out the identification test.

Authorisation to use force

(4) The senior authorising officer may authorise the use of force in

carrying out the identification test if he or she is reasonably

satisfied that:

(a) the non-citizen required to provide the personal identifier in

question has refused to allow the identification test to be

carried out; and

(b) all reasonable measures to carry out the identification test

without the use of force have been exhausted.

(5) An authorisation under subclause (4):

(a) may be given by telephone, fax or other electronic means;

and

(b) must be recorded in writing, and signed by the person giving

the authorisation, within one business day after it is given.

(6) A record made under paragraph (5)(b) is not a legislative

instrument.

(7) A failure to comply with paragraph (5)(b) does not affect the

validity of an identification test carried out on the basis of that

authorisation.

(8) The power to give an authorisation under subclause (4) cannot be

delegated to any other person.

Definition

(9) In this clause:

senior authorising officer means an officer, or detention officer,

whom AFMA has authorised, or who is included in a class of

officers or detention officers whom AFMA has authorised, to

perform the functions of a senior authorising officer under this

clause.

Note:

This clause corresponds closely to section 261AE of the Migration Act

1958.

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

34 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

33 Identification tests not to be carried out in cruel, inhuman or

degrading manner etc.

For the purposes of this Act, the carrying out of the identification

test is not of itself taken:

(a) to be cruel, inhuman or degrading; or

(b) to be a failure to treat a person with humanity and with

respect for human dignity.

However, nothing in this Act authorises the carrying out of the

identification test in a cruel, inhuman or degrading manner, or in a

manner that fails to treat a person with humanity and with respect

for human dignity.

Note:

This clause corresponds closely to section 261AF of the Migration Act

1958.

34 Authorised officer may get help to carry out identification tests

An authorised officer may ask another authorised officer or an

officer or detention officer to help him or her to carry out the

identification test, and the other person may give that help.

Note:

This clause corresponds closely to section 261AG of the Migration

Act 1958.

35 Identification tests to be carried out by authorised officer of same

sex as non-citizen

If the non-citizen requests that the identification test be carried out

by an authorised officer of the same sex as the non-citizen, the test

must only be carried out by an authorised officer of the same sex as

the non-citizen.

Note:

This clause corresponds closely to section 261AH of the Migration

Act 1958.

36 Independent person to be present

The identification test must be carried out in the presence of an

independent person if:

(a) force is used in carrying out the identification test; or

(b) both of the following apply:

(i) the non-citizen requests that an independent person be

present while the identification test is being carried out;

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 35

(ii) an independent person is readily available at the same

place as the non-citizen and is willing to attend the test

within a reasonable time.

Note:

This clause corresponds closely to section 261AI of the Migration Act

1958.

37 Recording of identification tests

(1) An authorised officer may video record the carrying out of the

identification test.

(2) If the carrying out of the identification test is not video recorded,

the authorised officer may decide that the identification test must

be carried out in the presence of an independent person.

Note:

This clause corresponds closely to section 261AJ of the Migration Act

1958.

38 Retesting

When retesting is permitted

(1) If:

(a) an authorised officer has carried out an identification test (the

earlier test) on a non-citizen in accordance with this Division

(including a test authorised under subclause (4)); and

(b) either:

(i) a personal identifier that is provided as a result of the

earlier test being carried out is unusable; or

(ii) an authorised officer, officer or detention officer is not

satisfied about the integrity of that personal identifier;

the authorised officer who carried out the earlier test or another

authorised officer may require the non-citizen to provide the

personal identifier again, and may carry out the test again in

accordance with this Division, if:

out or immediately after it was carried out; or

(d) carrying out the test again is authorised under subclause (4).

(2) If the non-citizen is required under subclause (1) to provide the

personal identifier again, the non-citizen is taken, for the purposes

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

36 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

of this Division, not to have provided the personal identifier as a

result of the earlier test being carried out.

Applications for authorisation to retest

(3) An authorised officer may apply for an authorisation to carry out

the test again. The application is to be made to:

(a) if the earlier test was not a test authorised under

subclause (4)--a senior authorising officer (who is not an

authorised officer, officer or detention officer referred to in

subclause (1)); or

(b) if the earlier test was a test authorised under subclause (4) by

a senior authorising officer--the Managing Director of

AFMA, the Secretary of the Department or an SES Band 3

employee in the Department (who is not an authorised

officer, officer or detention officer referred to in

subclause (1)).

Authorisation to retest

(4) The senior authorising officer, Managing Director, Secretary or

SES Band 3 employee (as the case requires) may authorise the test

to be carried out again if:

(a) he or she is reasonably satisfied that the personal identifier

that is provided as a result of the earlier test being carried out

is unusable; or

(b) he or she is not reasonably satisfied about the integrity of that

personal identifier.

(5) An authorisation under subclause (4):

(a) may be given by telephone, fax or other electronic means;

and

(b) must be recorded in writing, and signed by the person giving

the authorisation, within one business day after it is given.

(6) A record made under paragraph (5)(b) is not a legislative

instrument.

(7) A failure to comply with paragraph (5)(b) does not affect the

validity of an identification test carried out on the basis of that

authorisation.

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 37

(8) The power to give an authorisation under subclause (4) cannot be

delegated to any other person.

Use of force

(9) An authorisation under subclause (4) does not authorise the use of

force in carrying out an identification test.

Note:

See clause 32 on the use of force in carrying out identification tests.

Effect of refusing to authorise retesting

(10) If an application for an authorisation to carry out an identification

test again on a non-citizen is refused, the non-citizen is taken, for

the purposes of this Act, to have complied with any requirement

under this Act to provide the personal identifier in question.

Definitions

(11) In this clause:

senior authorising officer means an officer, or detention officer,

who:

(a) has been authorised, or is included in a class of officers or

detention officers who have been authorised, by AFMA to

perform the functions of a senior authorising officer under

this clause; and

(b) is not the Managing Director of AFMA, the Secretary of the

Department or an SES Band 3 employee in the Department.

SES Band 3 employee means an SES employee with a

classification of Senior Executive Band 3, and includes an SES

employee who has been temporarily assigned duties that have been

allocated a classification of Senior Executive Band 3.

Note:

This clause corresponds closely to section 261AK of the Migration

Act 1958.

Subdivision C--Obligations relating to video recordings of

identification tests

39 Definitions

In this Subdivision, unless the contrary intention appears:

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

38 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

permitted provision, of a video recording, has the meaning given

by subclause 42(2).

provide, in relation to a video recording, includes provide access to

the recording.

related document means a document that contains information,

derived from a video recording made under clause 37 or from a

copy of such a recording, from which the identity of the individual

on whom the identification test in question was carried out is

apparent or can reasonably be ascertained.

video recording means a video recording made under clause 37 or

a copy of such a recording, and includes a related document.

Note:

This clause corresponds closely to section 261AKA of the Migration

Act 1958.

40 Accessing video recordings

(1) A person commits an offence if:

(a) the person accesses a video recording; and

(b) the person is not authorised under clause 41 to access the

video recording for the purpose for which the person

accessed it.

Penalty: Imprisonment for 2 years.

(2) This clause does not apply if the access is through the provision of

a video recording that is a permitted provision.

Note 1:

A defendant bears an evidential burden in relation to the matter in

subclause (2) (see subsection 13.3(3) of the Criminal Code).

Note 2:

This clause corresponds closely to section 261AKB of the Migration

Act 1958.

41 Authorising access to video recordings

(1) AFMA may, in writing, authorise a specified person, or any person

included in a specified class of persons, to access:

(a) all video recordings; or

(b) a specified video recording, or video recordings of a

specified kind.

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 39

(2) AFMA must specify in an authorisation under this clause, as the

purpose or purposes for which access is authorised, one or more of

the following purposes:

(a) providing a video recording to another person in accordance

with this Subdivision;

(b) administering or managing the storage of video recordings;

relates;

(d) modifying related documents in order to correct errors or

ensure compliance with appropriate standards;

(e) any purpose connected with determining whether a civil or

criminal liability has arisen from a person carrying out or

helping to carry out an identification test under this Act;

(f) complying with laws of the Commonwealth or the States or

Territories;

(g) disclosing personal information under clause 59 (about

disclosure of information about a person who has been in

detention, for the purposes of the immigration detention or

removal of the person).

(3) However, AFMA must not specify as a purpose for which access is

authorised a purpose that will include or involve the purpose of:

(a) investigating an offence against a law of the Commonwealth

or a State or Territory (other than an offence involving

whether an identification test was carried out lawfully); or

(b) prosecuting a person for such an offence;

if the identifying information in question relates to a personal

identifier of a prescribed type.

Note:

This clause corresponds closely to section 261AKC of the Migration

Act 1958.

42 Providing video recordings

(1) A person commits an offence if:

(a) the person's conduct causes a video recording to be provided

to another person; and

(b) the provision of the recording is not a permitted provision of

the recording.

Penalty: Imprisonment for 2 years.

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

40 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

(2) A permitted provision of a video recording is a provision of the

recording that:

(a) is for the purpose of administering or managing the storage

of video recordings; or

(b) is for the purpose of making the video recording in question

available to the non-citizen to whom it relates; or

relating to the non-citizen to whom the video recording in

question relates; or

(d) is for any purpose connected with determining whether a

civil or criminal liability has arisen from a person carrying

out or helping to carry out an identification test under this

Act; or

(e) is for the purpose of an investigation by the Privacy

Commissioner or the Ombudsman relating to carrying out an

identification test; or

(f) is made to a prescribed body or agency for the purpose of the

body or agency inquiring into the operation of provisions of

this Act relating to carrying out an identification test; or

(g) takes place with the written consent of the non-citizen to

whom the video recording in question relates; or

(h) is a disclosure authorised by clause 59 (about disclosure of

information about a person who has been in detention, for the

purposes of the immigration detention or removal of the

person).

(3) However, a provision of a video recording is not a permitted

provision of the recording if:

(a) it constitutes a disclosure of identifying information relating

to a personal identifier of a prescribed type; and

(b) it is for the purpose of:

(i) investigating an offence against a law of the

Commonwealth or a State or Territory (other than an

offence involving whether an identification test was

carried out lawfully); or

(ii) prosecuting a person for such an offence.

Note:

This clause corresponds closely to section 261AKD of the Migration

Act 1958.

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 41

43 Unauthorised modification of video recordings

A person commits an offence if:

(a) the person causes any unauthorised modification of a video

recording; and

(b) the person intends to cause the modification; and

Penalty: Imprisonment for 2 years.

44 Unauthorised impairment of video recordings

A person commits an offence if:

(a) the person causes any unauthorised impairment of:

(i) the reliability of a video recording; or

(ii) the security of the storage of a video recording; or

(iii) the operation of a system by which a video recording is

stored; and

(b) the person intends to cause the impairment; and

Penalty: Imprisonment for 2 years.

45 Meanings of unauthorised modification and unauthorised

impairment etc.

(1) In this Subdivision:

(a) modification of a video recording; or

(b) impairment of the reliability of a video recording; or

recording; or

(d) impairment of the operation of a system by which a video

recording is stored;

by a person is unauthorised if the person is not entitled to cause

that modification or impairment.

(2) Any such modification or impairment caused by the person is not

unauthorised merely because he or she has an ulterior purpose for

causing it.

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

42 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

(3) For the purposes of an offence under this Subdivision, a person

causes any such unauthorised modification or impairment if the

person's conduct substantially contributes to it.

(4) For the purposes of subclause (1), if:

(a) a person causes any modification or impairment of a kind

mentioned in that subclause; and

(b) the person does so under a warrant issued under the law of

the Commonwealth, a State or a Territory;

the person is entitled to cause that modification or impairment.

Note:

This clause corresponds closely to section 261AKG of the Migration

Act 1958.

46 Destroying video recordings

A person commits an offence if:

(a) the person is the person who has day-to-day responsibility for

the system under which a video recording is stored; and

(b) the person fails physically to destroy the recording, and all

copies of the recording, within 10 years after it was made.

Penalty: Imprisonment for 2 years.

Division 3--Identification of minors and incapable persons

47 Minors

Minors less than 15 years old

(1) A non-citizen who is less than 15 years old must not be required

under this Act to provide a personal identifier other than a personal

identifier consisting of:

(a) a measurement of the non-citizen's height and weight; or

(b) the non-citizen's photograph or other image of the

non-citizen's face and shoulders.

Persons present while identification test is carried out

(2) If a non-citizen who is a minor provides a personal identifier, in

accordance with a requirement under this Act, by way of an

identification test carried out by an authorised officer, the test must

be carried out in the presence of:

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 43

(a) a parent or guardian of the minor; or

(b) an independent person.

(3) However, if the Minister administering the Immigration

(Guardianship of Children) Act 1946 is the guardian of the minor,

the test must be carried out in the presence of an independent

person other than that Minister.

Note:

This clause corresponds closely to subsections 261AL(1), (5) and (6)

of the Migration Act 1958.

48 Incapable persons

Incapable persons

(1) A non-citizen who is an incapable person must not be required

under this Act to provide a personal identifier other than a personal

identifier consisting of:

(a) a measurement of the non-citizen's height and weight; or

(b) the non-citizen's photograph or other image of the

non-citizen's face and shoulders.

Persons present while identification test is carried out

(2) If a non-citizen who is an incapable person provides a personal

identifier, in accordance with a requirement under this Act, by way

of an identification test carried out by an authorised officer, the test

must be carried out in the presence of:

(a) a parent or guardian of the incapable person; or

(b) an independent person.

Note:

This clause corresponds closely to subsections 261AM(1) and (4) of

the Migration Act 1958.

Division 4--Obligations relating to detainees' identifying

information

Subdivision A--Preliminary

49 Definitions

In this Division:

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

44 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

disclose, in relation to identifying information that is a personal

identifier, includes provide access to the personal identifier.

identifying information means the following:

(a) any personal identifier;

(b) any meaningful identifier derived from any personal

identifier;

any meaningful identifier derived from any personal

identifier;

(d) any other information, derived from any personal identifier,

from any meaningful identifier derived from any personal

identifier or from any record of a kind referred to in

paragraph (c), that could be used to discover a particular

person's identity or to get information about a particular

person.

permitted disclosure has the meaning given by subclauses 53(2)

and (3).

unauthorised impairment has the meaning given by clause 57.

unauthorised modification has the meaning given by clause 57.

Note:

This clause corresponds closely to section 336A of the Migration Act

1958.

50 Application

Section 15.4 of the Criminal Code (extended geographical

jurisdiction--category D) applies to all offences against this

Division.

Note:

This clause corresponds closely to section 336B of the Migration Act

1958.

Subdivision B--Accessing identifying information

51 Accessing identifying information

(1) A person commits an offence if:

(a) the person accesses identifying information; and

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 45

(b) the person is not authorised under clause 52 to access the

identifying information for the purpose for which the person

accessed it.

Penalty: Imprisonment for 2 years.

(2) This clause does not apply if the access is through a disclosure that

is a permitted disclosure.

Note 1:

A defendant bears an evidential burden in relation to the matter in

subclause (2) (see subsection 13.3(3) of the Criminal Code).

Note 2:

This clause corresponds closely to section 336C of the Migration Act

1958.

52 Authorising access to identifying information

(1) AFMA may, in writing, authorise a specified person, or any person

included in a specified class of persons, to access identifying

information of the kind specified in the authorisation.

(2) AFMA must specify in an authorisation under this clause, as the

purpose or purposes for which access is authorised, one or more of

the following purposes:

(a) one or more of the purposes set out in subclause 26(3);

(b) disclosing identifying information in accordance with this

Division;

information;

(d) making identifying information available to the person to

whom it relates;

(e) modifying identifying information to enable it to be matched

with other identifying information;

(f) modifying identifying information in order to correct errors

or ensure compliance with appropriate standards;

(g) making decisions under this Act;

(h) complying with laws of the Commonwealth or the States or

Territories;

(i) disclosing personal information under clause 59 (about

disclosure of information about a person who has been in

detention, for the purposes of the immigration detention or

removal of the person).

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

46 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

(3) However, AFMA must not specify as a purpose for which access is

authorised a purpose that will include or involve the purpose of:

(a) investigating an offence against a law of the Commonwealth

or a State or Territory; or

(b) prosecuting a person for such an offence;

if the identifying information in question relates to a personal

identifier of a prescribed type.

Note:

This clause corresponds closely to section 336D of the Migration Act

1958.

Subdivision C--Disclosing identifying information

53 Disclosing identifying information

(1) A person commits an offence if:

(a) the person's conduct causes disclosure of identifying

information; and

(b) the disclosure is not a permitted disclosure.

Penalty: Imprisonment for 2 years.

(2) A permitted disclosure is a disclosure that:

(a) is for the purpose of data-matching in order to:

(i) identify, or authenticate the identity of, a non-citizen; or

(ii) facilitate the processing of non-citizens entering or

departing from Australia; or

(iii) identify non-citizens who have a criminal history, who

are of character concern (as defined in the Migration

Act 1958) or who are of national security concern; or

(iv) combat document and identity fraud in immigration

matters; or

(v) ascertain whether an applicant for a protection visa had

sufficient opportunity to avail himself or herself of

protection before arriving in Australia; or

(vi) inform the governments of foreign countries of the

identity of non-citizens who are, or are to be, removed

from Australia; or

(b) is for the purpose of administering or managing the storage

of identifying information; or

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 47

more of the purposes, for which the disclosure is authorised;

(d) is for the purpose of making the identifying information in

question available to the non-citizen to whom it relates; or

(e) takes place under an arrangement entered into with an agency

of the Commonwealth, or with a State or Territory or an

agency of a State or Territory, for the exchange of identifying

information; or

(f) is for the purpose of a proceeding, before a court or tribunal,

relating to the non-citizen to whom the identifying

information in question relates; or

(g) is for the purpose of an investigation by the Privacy

Commissioner or the Ombudsman relating to:

(i) carrying out an identification test; or

(ii) requiring the provision of a personal identifier; or

(h) is made to a prescribed body or agency for the purpose of the

body or agency inquiring into the operation of provisions of

this Act relating to:

(i) carrying out an identification test; or

(ii) requiring the provision of a personal identifier; or

(i) takes place with the written consent of the non-citizen to

whom the identifying information in question relates; or

(j) is a disclosure authorised by clause 59 (about disclosure of

information about a person who has been in detention, for the

purposes of the immigration detention or removal of the

person).

(3) However, a disclosure is not a permitted disclosure if:

(a) it is a disclosure of identifying information relating to a

personal identifier of a prescribed type; and

(b) it is for the purpose of:

(i) investigating an offence against a law of the

Commonwealth or a State or Territory; or

(ii) prosecuting a person for such an offence.

Note:

This clause corresponds closely to section 336E of the Migration Act

1958.

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

48 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

54 Authorising disclosure of identifying information to foreign

countries etc.

(1) AFMA may, in writing, authorise a specified officer or detention

officer, any officer or detention officer included in a specified class

of officers or detention officers, or an Agency (as defined in the

Public Service Act 1999) prescribed by the regulations, to disclose

identifying information of the kind specified in the authorisation to

one or more of the following:

(a) one or more specified foreign countries;

(b) one or more specified bodies each of which is:

(i) a police force or police service of a foreign country; or

(ii) a law enforcement body of a foreign country; or

(iii) a border control body of a foreign country;

specified organisations of foreign countries, that are

responsible for fisheries matters;

(d) one or more prescribed bodies of a foreign country, of the

Commonwealth or of a State or Territory;

(e) one or more prescribed international organisations.

(2) AFMA must specify in the authorisation, as the purpose or

purposes for which disclosure is authorised, one or more of the

purposes set out in subclause 26(3).

Note:

This clause corresponds closely to subsections 336F(1) and (2) of the

Migration Act 1958.

Subdivision D--Modifying and impairing identifying

information

55 Unauthorised modification of identifying information

A person commits an offence if:

(a) the person causes any unauthorised modification of

identifying information; and

(b) the person intends to cause the modification; and

Penalty: Imprisonment for 2 years.

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 49

56 Unauthorised impairment of identifying information

A person commits an offence if:

(a) the person causes any unauthorised impairment of:

(i) the reliability of identifying information; or

(ii) the security of the storage of identifying information; or

(iii) the operation of a system by which identifying

information is stored; and

(b) the person intends to cause the impairment; and

Penalty: Imprisonment for 2 years.

57 Meanings of unauthorised modification and unauthorised

impairment etc.

(1) In this Division:

(a) modification of identifying information; or

(b) impairment of the reliability of identifying information; or

information; or

(d) impairment of the operation of a system by which identifying

information is stored;

by a person is unauthorised if the person is not entitled to cause

that modification or impairment.

(2) Any such modification or impairment caused by the person is not

unauthorised merely because he or she has an ulterior purpose for

causing it.

(3) For the purposes of an offence under this Division, a person causes

any such unauthorised modification or impairment if the person's

conduct substantially contributes to it.

(4) For the purposes of subclause (1), if:

(a) a person causes any modification or impairment of a kind

mentioned in that subclause; and

(b) the person does so under a warrant issued under the law of

the Commonwealth, a State or a Territory;

the person is entitled to cause that modification or impairment.

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

50 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

Note:

This clause corresponds closely to section 336J of the Migration Act

1958.

Subdivision E--Retaining identifying information

58 Identifying information may be indefinitely retained

Identifying information may be indefinitely retained.

Note:

This clause corresponds closely to paragraph 336L(1)(a) of the

Migration Act 1958, because under this Schedule identifying

information will always be about someone who is or has been in

detention.

Part 6--Disclosure of detainees' personal

information

59 Disclosure of detainees' personal information

(1) For the purposes described in subclause (2), an agency or

organisation that is or has been responsible for the detention of an

individual may disclose personal information about the individual

to an agency, or organisation, that is or will be responsible for:

(a) taking the individual into immigration detention; or

(b) keeping the individual in immigration detention; or

(d) the removal of the individual.

(2) The purposes are:

(a) the immigration detention of the individual; and

(b) the removal of the individual; and

or being removed.

(3) In this clause:

agency has the same meaning as in the Privacy Act 1988.

immigration detention has the same meaning as in the Migration

Act 1958.

organisation has the same meaning as in the Privacy Act 1988.

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 51

personal information has the same meaning as in the Privacy Act

1988.

removal has the same meaning as in the Migration Act 1958.

14 Transitional--persons detained just before

commencement

Schedule 1A to the Fisheries Management Act 1991 applies in relation

to a person who, just before the commencement of that Schedule, was

being detained by an officer under paragraph 84(1)(ia) of that Act as if

the person had been detained by the officer under that Schedule.

Torres Strait Fisheries Act 1984

15 Subsection 3(1)

Insert:

Australian resident means:

(a) a person who holds a permanent visa (as defined in the

Migration Act 1958) that is in effect; or

(b) a New Zealand citizen who is usually resident in Australia or

a Territory and who holds a special category visa (as defined

in the Migration Act 1958) that is in effect; or

Territory and whose continued presence in Australia or a

Territory is not subject to a limitation as to time imposed by

law.

16 At the end of subsection 42(1)

Add:

Note:

Schedule 2 gives officers powers relating to detention of suspected

illegal foreign fishers.

17 After subsection 42(6)

Insert:

(6AA) An officer, or a person assisting an officer in the exercise of

powers under this Act or the regulations, is not liable to an action,

suit or proceeding for or in respect of anything done in good faith

or omitted to be done in good faith in the exercise or purported

exercise of any power conferred by this Act or the regulations.

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

52 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

18 At the end of Part VI

Add:

Division 7--Provisions relating to detention of suspected

illegal foreign fishers

54A Provisions relating to detention of suspected illegal foreign

fishers

Schedule 2 has effect.

19 Schedule (heading)

Repeal the heading, substitute:

Schedule 1--Torres Strait Treaty

20 At the end of the Act

Add:

Schedule 2--Provisions relating to detention

of suspected illegal foreign fishers

Note:

See section 54A.

Part 1--Preliminary

Division 1--Objects of this Schedule

1 Main objects of this Schedule

(1) This Schedule has 3 main objects.

(2) The first main object is to provide for the detention (fisheries

detention) in Australia or a Territory of persons who:

(a) are reasonably suspected by an officer of having committed

an offence involving the use of a foreign boat or a Papua

New Guinea boat; and

(b) are not Australian citizens or Australian residents;

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 53

for a limited period for the purposes of determining whether to

charge them with the offence.

(3) The second main object is to provide for persons in fisheries

detention to be searched, screened, given access to facilities for

obtaining legal advice, and identified.

(4) The third main object is to facilitate the transition of persons from

fisheries detention to immigration detention under the Migration

Act 1958:

(a) by providing for the things mentioned in subclause (3) to be

done in a way corresponding to the way that Act provides for

those things to be done to persons in immigration detention;

and

(b) by authorising the disclosure of personal information about

individuals who are or have been in fisheries detention to

persons, agencies and organisations responsible for holding

the individuals in immigration detention, for the purpose of

the immigration detention and welfare of the individuals.

Note:

The enforcement visa of a person who is neither an Australian citizen

nor an Australian resident ceases to have effect under the Migration

Act 1958 when the person ceases to be in fisheries detention, so that

Act requires the person to be taken into immigration detention.

Division 2--Definitions

2 Definitions

In this Schedule, unless the contrary intention appears:

authorised officer means an officer, or detention officer, who is

authorised under Division 4 for the purposes of the provision in

which the expression occurs.

detainee means a person detained under Part 2.

detention means detention under Part 2.

detention officer means a person appointed under clause 3 to be a

detention officer.

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

54 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

Division 3--Appointment etc. of detention officers

3 Minister may appoint persons to be detention officers

(1) The Minister may, by instrument, appoint one or more persons

(except persons who are officers) to be detention officers.

Note:

Officers have the same powers as detention officers, as well as other

powers, so there is no reason for officers to be appointed as detention

officers.

(2) An instrument appointing persons to be detention officers:

(a) may identify the persons by reference to a class; and

(b) may provide for persons to be appointed when they become

members of the class at or after a time specified in the

instrument.

4 Detention officers subject to directions

A detention officer is, in the exercise of his or her powers, and the

performance of his or her duties, under this Schedule, subject to the

directions given by the Minister or AFMA.

5 Detention officer etc. not liable to certain actions

(1) A detention officer, or a person assisting a detention officer in the

exercise of powers under this Act or the regulations, is not liable to

an action, suit or proceeding for or in respect of anything done in

good faith or omitted to be done in good faith in the exercise or

purported exercise of any power conferred by this Act or the

regulations.

Note:

Subsection 42(6AA) makes similar provision for officers and their

assistants.

(2) However, subsection (1) does not affect a contractual liability of a

detention officer or person assisting a detention officer.

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 55

Division 4--Authorisation of officers and detention officers

6 AFMA may authorise officers and detention officers

(1) AFMA may, by instrument, authorise one or more officers and/or

detention officers for the purposes of a specified provision of this

Schedule.

(2) An instrument authorising officers and/or detention officers:

(a) may identify them by reference to a class; and

(b) may provide for them to be authorised when they become

members of the class at or after a time specified in the

instrument.

7 Persons who are authorised officers for purposes of Migration Act

1958 are taken to be authorised for this Schedule

(1) A person who:

(a) is an officer or detention officer; and

(b) is an authorised officer (as defined in the Migration Act

1958) for a provision of that Act listed in column 2 of an

item of the table;

is, while he or she meets the conditions in paragraphs (a) and (b),

taken to be authorised under clause 6 for the purposes of the

provision of this Schedule listed in column 3 of the item.

Corresponding provisions of the Migration Act 1958 and this Schedule

Column 1

Item

Column 2

Provision of Migration Act 1958

Column 3

Provision of this Schedule

Subsection 252(4)

Subclause 15(3)

Paragraph 252(6)(a)

Paragraph 15(5)(a)

Subparagraph 252(6)(b)(i)

Subparagraph 15(5)(b)(i)

Subsection 252AA(1)

Subclause 16(1)

Subsection 252A(1)

Subclause 17(1)

Subsection 252C(1)

Subclause 19(1)

Subsection 252D(2)

Subclause 20(2)

Subsection 252G(3)

Subclause 23(3)

Section 261AA

Clause 28

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

56 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

Corresponding provisions of the Migration Act 1958 and this Schedule

Column 1

Item

Column 2

Provision of Migration Act 1958

Column 3

Provision of this Schedule

Subsection 261AE(1)

Subclause 32(1)

Subsection 261AE(3)

Subclause 32(3)

Section 261AG

Clause 34

Section 261AJ

Clause 37

Subsection 261AK(1) (except

paragraph (a))

Subclause 38(1) (except

paragraph (a))

Subsection 261AK(3)

Subclause 38(3)

Limits on authorisation

(2) However, the person is not taken to be authorised to carry out an

identification test in relation to which section 5D of the Migration

Act 1958 provides that the person is not an authorised officer (for

the purposes of that Act).

Note:

This is relevant to items 9 to 15 of the table in subclause (1).

Persons specified by AFMA not authorised

(3) AFMA may, by instrument, specify that the person is not taken to

be authorised:

(a) for the purposes of the provision of this Schedule; or

(b) for the purposes of carrying out under this Schedule

identification tests of a type specified under section 5D of the

Migration Act 1958 in relation to the person.

The instrument has effect according to its terms, despite

subclause (1).

(4) An instrument under subclause (3) may specify one or more

persons by reference to their being members of a specified class at

or after a time specified in the instrument.

(5) An instrument made under subclause (3) is not a legislative

instrument.

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 57

Part 2--Detaining suspected illegal foreign fishers

Division 1--Initial detention by an officer

8 Power to detain

(1) An officer may detain a person in Australia or a Territory for the

purposes of investigating and determining, during the period of

detention, whether or not the person committed an offence against

section 45, 48, 49 or 51 or an offence against section 6 of the

Crimes Act 1914 relating to such an offence, if the officer has

reasonable grounds to believe that the person:

(a) is not an Australian citizen or an Australian resident; and

(b) was on a foreign boat, or a Papua New Guinea boat, when it

was used in the commission of such an offence.

(2) Subclause (1) does not authorise an officer to use more force in

detaining a person than is reasonably necessary.

9 Relationship with Part IC of the Crimes Act 1914

(1) Part IC of the Crimes Act 1914 applies in relation to the detainee

while detained under this Part as if:

(a) he or she were a protected suspect for a Commonwealth

offence for the purposes of that Part; and

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

that Part.

(2) Subclause (1) does not affect the operation of Division 2 of Part IC

of the Crimes Act 1914 as it applies of its own force in relation to a

person who is lawfully arrested.

Division 2--Continued detention by a detention officer

10 Detention officer may detain person already detained by officer

(1) For the purposes of facilitating an officer investigating and

determining whether or not a person committed an offence against

section 45, 48, 49 or 51 or an offence against section 6 of the

Crimes Act 1914 relating to such an offence, a detention officer

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

58 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

may detain the person in Australia or a Territory if the detention

officer has reasonable grounds to believe that the person:

(a) has been detained by an officer under Division 1; and

(b) has been presented, while detained by that officer, to a

detention officer for detention by a detention officer.

(2) However, the detention officer may not detain the person if the

detention officer has reasonable grounds to believe that the person

has ceased to be in detention since the last time the person was

detained by an officer under Division 1.

Division 3--Detention on behalf of an officer or detention

officer

11 Detention on behalf of an officer or detention officer

(1) A person is taken to be detained by an officer or detention officer

under this Part while the person is held, on behalf of the officer or

detention officer, in any of the following:

(a) a prison or remand centre of the Commonwealth, a State or a

Territory;

(b) a police station or watch house;

medical treatment;

(d) another place approved by the Minister in writing;

(e) a boat.

(2) This clause has effect even while the officer or detention officer is

not present where the person is held on behalf of the officer or

detention officer.

(3) An approval of a place by the Minister is not a legislative

instrument.

Division 4--Moving detainees

12 Power to move detainees

(1) An officer or a detention officer may:

(a) take a detainee in Australia to another place in Australia or to

a place in an external Territory; and

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 59

(b) take a detainee in an external Territory to another place in the

Territory or to a place in Australia or another Territory.

(2) Subclause (1) does not authorise an officer or detention officer to

use more force than is reasonably necessary to take the detainee to

the place.

(3) In exercising the power under subclause (1), the officer or

detention officer must have regard to all matters that he or she

considers relevant, including:

(a) the administration of justice; and

(b) the welfare of the detainee.

Division 5--End of detention

13 End of detention

Detainee who was on a foreign boat

(1) A detainee who was detained under subclause 8(1) because the

officer mentioned in that subclause had reasonable grounds to

believe that the detainee was on a foreign boat must be released

from detention:

(a) as soon as an officer or detention 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 subclause 8(1); or

an offence referred to in that subclause; or

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

whichever occurs first.

Detainee who was on a Papua New Guinea boat

(2) A detainee who was detained under subclause 8(1) because the

officer mentioned in that subclause had reasonable grounds to

believe that the detainee was on a Papua New Guinea boat must be

released from detention:

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

60 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

(a) as soon as an officer or detention officer knows or reasonably

believes that the detainee is an Australian citizen or an

Australian resident; or

(b) as soon as an officer believes that the detainee did not

commit an offence described in that subclause; or

detainee committed an offence described in that subclause; or

(d) at the end of 72 hours after the detention began;

whichever occurs first.

Papua New Guineans on foreign boats

(3) Subclause (1) ceases to apply to a detainee, and subclause (2)

applies instead to the detainee (as if the officer mentioned in

subclause 8(1) had reasonable grounds to believe that the detainee

had been on a Papua New Guinea boat), if an officer or detention

officer knows or reasonably believes that the detainee is:

(a) a citizen of Papua New Guinea; or

(b) a person who is usually resident in Papua New Guinea and

whose continued presence there is not subject to a limitation

as to time imposed by law.

Note:

The fact that subclause (2) applies as if the officer mentioned in

subclause 8(1) had reasonable grounds to believe that the detainee had

been on a Papua New Guinea boat does not affect whether the

detainee was using a foreign boat in an offence against section 45 or

48.

(4) To avoid doubt, subclause (3) does not affect the validity of the

detention of a detainee before the first time (the recognition time)

an officer or detention officer knew or reasonably believed that the

detainee was:

(a) a citizen of Papua New Guinea; or

(b) a person who is usually resident in Papua New Guinea and

whose continued presence there is not subject to a limitation

as to time imposed by law.

This has effect even if the recognition time is more than 72 hours

after the detention began.

Note:

If the recognition time was more than 72 hours after the detention

began, the effect of subclause (3) applying subclause (2) is to require

the release of the detainee at the recognition time. However,

subclause (3) does not affect the validity of detention in the period

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 61

starting 72 hours after the detention began and ending at the

recognition time.

Division 6--Offence of escaping from detention

14 Escape from detention

(1) A person commits an offence if:

(a) the person is in detention; and

(b) the person escapes from that detention.

(2) The offence is punishable on conviction by imprisonment for up to

2 years.

Part 3--Searching and screening detainees and

screening their visitors

Division 1--Searches of detainees

15 Searches of detainees

(1) For the purposes set out in subclause (2), a detainee, and the

detainee's clothing and any property under the immediate control

of the detainee, may, without warrant, be searched.

(2) The purposes for which a detainee, and the detainee's clothing and

any property under the immediate control of the detainee, may be

searched under this clause are as follows:

(a) to find out whether there is hidden on the detainee's 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

detainee to escape from detention;

(b) to find out whether there is hidden on the detainee's person,

in the clothing or in the property, a document or other thing

that is, or may be, evidence of:

(i) an offence against section 45, 48, 49 or 51; or

(ii) an offence against section 6 of the Crimes Act 1914

relating to an offence described in subparagraph (i).

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

62 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

(3) If, in the course of a search under this clause, a weapon or other

thing referred to in paragraph (2)(a), or a document or other thing

referred to in paragraph (2)(b), is found, an authorised officer:

(a) may take possession of the weapon, document or other thing;

and

(b) may retain the weapon, document or other thing for such

time as he or she thinks necessary for the purposes of this Act

or the Migration Act 1958.

(4) This clause does not authorise an authorised officer, or another

person conducting a search under subclause (5), to remove any of

the detainee's clothing, or to require a detainee to remove any of

his or her clothing.

(5) A search under this clause of a detainee, and the detainee's

clothing, must be conducted by:

(a) an authorised officer of the same sex as the detainee; or

(b) in a case where an authorised officer of the same sex as the

detainee is not available to conduct the search--any other

person who is of the same sex and:

(i) is requested by an authorised 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 authorised officer,

conducts a search under this clause if the person acts in good faith

and does not contravene subclause (7).

(7) An authorised officer or other person who conducts a search under

this clause must not use more force, or subject a detainee to greater

indignity, than is reasonably necessary in order to conduct the

search.

(8) To avoid doubt, a search of a detainee may be conducted under this

clause irrespective of whether a screening procedure is conducted

in relation to the detainee under clause 16 or a strip search of the

detainee is conducted under clause 17.

Note:

This clause corresponds closely to section 252 of the Migration Act

1958.

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 63

Division 2--Screening of detainees

16 Power to conduct a screening procedure

(1) A screening procedure in relation to a detainee, other than a

detainee to whom clause 22 applies, may be conducted by an

authorised officer, without warrant, to find out whether there is

hidden on the detainee, in his or her clothing or in a thing in his or

her possession, a weapon, or other thing, capable of being used:

(a) to inflict bodily injury; or

(b) to help the detainee, or any other detainee, to escape from

detention.

(2) An authorised officer who conducts a screening procedure under

this clause must not use greater force, or subject the detainee to

greater indignity, than is reasonably necessary in order to conduct

the screening procedure.

(3) This clause does not authorise an authorised officer to remove any

of the detainee's clothing, or to require a detainee to remove any of

his or her clothing.

(4) To avoid doubt, a screening procedure may be conducted in

relation to a detainee under this clause irrespective of whether a

search of the detainee is conducted under clause 15 or 17.

(5) In this clause:

conducting a screening procedure, in relation to a detainee,

means:

(a) causing the detainee to walk, or to be moved, through

screening equipment; or

(b) passing hand-held screening equipment over or around the

detainee or around things in the detainee's possession; or

equipment or examining such things by X-ray.

screening equipment means a metal detector or similar device for

detecting objects or particular substances.

Note:

This clause corresponds closely to section 252AA of the Migration

Act 1958.

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

64 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

Division 3--Strip searches of detainees

17 Power to conduct a strip search

(1) A strip search of a detainee, other than a detainee to whom

clause 22 applies, may be conducted by an authorised officer,

without warrant, to find out whether there is hidden on the

detainee, in his or her clothing or in a thing in his or her possession

a weapon, or other thing, capable of being used:

(a) to inflict bodily injury; or

(b) to help the detainee, or any other detainee, to escape from

detention.

Note:

Clause 18 sets out rules for conducting a strip search under this clause.

(2) A strip search of a detainee means a search of the detainee, of his

or her clothing or of a thing in his or her possession. It may

include:

(a) requiring the detainee to remove some or all of his or her

clothing; and

(b) an examination of that clothing and of the detainee's body

(but not of the detainee's body cavities).

(3) A strip search of a detainee may be conducted by an authorised

officer only if:

(a) an officer or detention officer suspects on reasonable grounds

that there is hidden on the detainee, in his or her clothing or

in a thing in his or her possession a weapon or other thing

described in subclause (1); and

(b) the officer, or detention officer, referred to in paragraph (a)

suspects on reasonable grounds that it is necessary to conduct

a strip search of the detainee to recover that weapon or other

thing; and

(i) if the detainee is at least 18--the Managing Director of

AFMA, the Secretary of the Department, or an SES

Band 3 employee in the Department (who is not the

officer referred to in paragraphs (a) and (b) nor the

authorised officer conducting the strip search),

authorises the strip search because he or she is satisfied

that there are reasonable grounds for those suspicions;

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 65

(ii) if the detainee is at least 10 but under 18--a magistrate

orders the strip search because he or she is satisfied that

there are reasonable grounds for those suspicions.

(4) An officer or detention officer may form a suspicion on reasonable

grounds for the purposes of paragraph (3)(a) on the basis of:

(a) a search conducted under clause 15 (whether by that officer

or detention officer or by another officer or detention

officer); or

(b) a screening procedure conducted under clause 16 (whether by

that officer or detention officer or by another officer or

detention officer); or

detention officer.

(5) An authorisation of a strip search given for the purposes of

paragraph (3)(c):

(a) may be given by telephone, fax or other electronic means;

and

(b) must be recorded in writing, and signed by the person giving

the authorisation, within one business day after it is given.

(6) A record made under paragraph (5)(b) is not a legislative

instrument.

(7) A failure to comply with paragraph (5)(b) does not affect the

validity of a strip search conducted on the basis of that

authorisation.

(8) The power to authorise a strip search under paragraph (3)(c) cannot

be delegated to any other person.

(9) A power conferred on a magistrate by this clause is conferred on

the magistrate in a personal capacity and not as a court or a

member of a court.

(10) The magistrate need not accept the power conferred.

(11) A magistrate exercising a power under this clause has the same

protection and immunity as if he or she were exercising that power

as, or as a member of, the court of which the magistrate is a

member.

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

66 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

(12) To avoid doubt, a strip search of a detainee may be conducted

under this clause irrespective of whether a search of the detainee is

conducted under clause 15 or a screening procedure is conducted in

relation to the detainee under clause 16.

(13) In this clause:

business day means a day that is not a Saturday, Sunday or public

holiday in the place where the authorisation is given.

SES Band 3 employee means an SES employee with a

classification of Senior Executive Band 3, and includes an SES

employee who has been temporarily assigned duties that have been

allocated a classification of Senior Executive Band 3.

Note:

This clause corresponds closely to section 252A of the Migration Act

1958.

18 Rules for conducting a strip search

(1) A strip search of a detainee under clause 17:

(a) must not subject the detainee to greater indignity than is

reasonably necessary to conduct the strip search; and

(b) must be conducted in a private area; and

as the detainee; and

(d) subject to subclauses (2), (3) and (5), must not be conducted

in the presence or view of a person who is of the opposite sex

to the detainee; and

(e) subject to subclauses (2), (3) and (5), must not be conducted

in the presence or view of a person whose presence is not

necessary for the purposes of the strip search; and

(f) must not be conducted on a detainee who is under 10; and

(g) if the detainee is at least 10 but under 18, or is incapable of

managing his or her affairs--must be conducted in the

presence of:

(i) the detainee's parent or guardian if that person is in

detention with the detainee and is readily available at

the same place; or

(ii) if that is not acceptable to the detainee or

subparagraph (i) does not apply--another person (other

than an authorised officer) who is capable of

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 67

representing the detainee's interests and who, as far as is

practicable in the circumstances, is acceptable to the

detainee; and

(h) subject to subclause (4), if the detainee is at least 18, and is

not incapable of managing his or her affairs--must be

conducted in the presence of another person (if any)

nominated by the detainee, if that other person is readily

available at the same place as the detainee, and willing to

attend the strip search within a reasonable time; and

(i) must not involve a search of the detainee's body cavities; and

(j) must not involve the removal of more items of clothing, or

more visual inspection, than the authorised officer

conducting the search believes on reasonable grounds to be

necessary to determine whether there is hidden on the

detainee, in his or her clothing or in a thing in his or her

possession a weapon or other thing described in subclause

17(1); and

(k) must not be conducted with greater force than is reasonably

necessary to conduct the strip search.

(2) Paragraphs (1)(d) and (e) do not apply to a parent or guardian, or a

person present because of subparagraph (1)(g)(ii), if the detainee

has no objection to that person being present.

(3) Paragraphs (1)(d) and (e) do not apply to a person nominated by

the detainee under paragraph (1)(h) to attend the strip search.

(4) Neither:

(a) a detainee's refusal or failure to nominate a person under

paragraph (1)(h) within a reasonable time; nor

(b) a detainee's inability to nominate a person under that

paragraph who is readily available at the same place as the

detainee and willing to attend the strip search within a

reasonable time;

prevents a strip search being conducted.

(5) A strip search of a detainee may be conducted with the assistance

of another person if the authorised officer conducting the strip

search considers that to be necessary for the purposes of

conducting it. That person must not be of the opposite sex to the

detainee unless:

(a) the person is a medical practitioner; and

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

68 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

(b) a medical practitioner of the same sex as the detainee is not

available within a reasonable time.

(6) An action or proceeding, whether civil or criminal, does not lie

against a person who, at the request of an authorised officer, assists

in conducting a strip search if the person acts in good faith and

does not contravene this clause.

(7) A detainee must be provided with adequate clothing if during or as

a result of a strip search any of his or her clothing is:

(a) damaged or destroyed; or

(b) retained under clause 19.

Note:

This clause corresponds closely to section 252B of the Migration Act

1958.

Division 4--Keeping of things found by screening or strip

search of detainees

19 Possession and retention of certain things obtained during a

screening procedure or strip search

(1) An authorised officer may take possession of and retain a thing

found in the course of conducting a screening procedure under

clause 16 or conducting a strip search under clause 17 if the thing:

(a) might provide evidence of the commission of an offence

against this Act; or

(b) is forfeited or forfeitable to the Commonwealth.

(2) A weapon or other thing described in subclause 16(1) or 17(1) that

is found in the course of conducting a screening procedure under

clause 16 or a strip search under clause 17 is forfeited to the

Commonwealth.

(3) An authorised officer must not return a thing that is forfeited or

forfeitable to the Commonwealth. Instead, the authorised officer

must, as soon as practicable, give a thing that is forfeited under

subclause (2) to a constable (within the meaning of the Crimes Act

1914).

Note:

Subdivision C of Division 6 of Part 6 of this Act sets out the

procedure for dealing with things seized as being forfeited under

section 106A.

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 69

(4) An authorised officer must take reasonable steps to return anything

that is not forfeited or forfeitable but is retained under

subclause (1) to the person from whom it was taken, or to the

owner if that person is not entitled to possess it, if one of the

following happens:

(a) it is decided that the thing is not to be used in evidence;

(b) the period of 60 days after the authorised officer takes

possession of the thing ends.

(5) However, the authorised officer does not have to take those steps

if:

(a) in a paragraph (4)(b) case:

(i) proceedings in respect of which the thing might provide

evidence have been instituted before the end of the 60

day period and have not been completed (including an

appeal to a court in relation to those proceedings); or

(ii) the authorised officer may retain the thing because of an

order under clause 21; or

(b) in any case--the authorised officer is otherwise authorised

(by a law, or an order of a court or a tribunal, of the

Commonwealth or a State or Territory) to retain, destroy or

dispose of the thing.

Note:

This clause corresponds closely to section 252C of the Migration Act

1958.

20 Authorised officer may apply for a thing to be retained for a

further period

(1) This clause applies if an authorised officer has taken possession of

a thing referred to in subclause 19(4) and proceedings in respect of

which the thing might provide evidence have not commenced

before the end of:

(a) 60 days after the authorised officer takes possession of the

thing; or

(b) a period previously specified in an order of a magistrate

under clause 21.

(2) The authorised officer may apply to a magistrate for an order that

the officer may retain the thing for a further period.

(3) Before making the application, the authorised officer must:

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

70 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

(a) take reasonable steps to discover which persons' interests

would be affected by the retention of the thing; and

(b) if it is practicable to do so, notify each person who the

authorised officer believes to be such a person of the

proposed application.

Note:

This clause corresponds closely to section 252D of the Migration Act

1958.

(4) A notice under paragraph (3)(b) is not a legislative instrument.

21 Magistrate may order that thing be retained

(1) The magistrate may order that the authorised officer who made an

application under clause 20 may retain the thing if the magistrate is

satisfied that it is necessary for the authorised officer to do so:

(a) for the purposes of an investigation as to whether an offence

has been committed; or

(b) to enable evidence of an offence to be secured for the

purposes of a prosecution.

(2) The order must specify the period for which the authorised officer

may retain the thing.

(3) A power conferred on a magistrate by this clause is conferred on

the magistrate in a personal capacity and not as a court or a

member of a court.

(4) The magistrate need not accept the power conferred.

(5) A magistrate exercising a power under this clause has the same

protection and immunity as if he or she were exercising that power

as, or as a member of, the court of which the magistrate is a

member.

Note:

This clause corresponds closely to section 252E of the Migration Act

1958.

Division 5--Law applying to detainee in State or Territory

prison etc.

22 Detainees held in State or Territory prisons or remand centres

(1) This clause applies to a detainee if:

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 71

(a) he or she is held in detention in a prison or remand centre of

a State or Territory; and

(b) a law of that State or Territory confers a power to search

persons, or things in the possession of persons, serving

sentences or being held in the prison or remand centre.

(2) To the extent that the State or Territory law confers that power, or

affects the exercise of that power, it applies to the detainee as

though it were a law of the Commonwealth.

(3) Clauses 16 and 17 do not apply to a detainee to whom this clause

applies.

Note:

This clause corresponds closely to section 252F of the Migration Act

1958.

Division 6--Screening detainees' visitors

23 Powers concerning entry to premises where detainee is detained

(1) An officer or detention officer may request that a person about to

enter premises where a detainee is in detention do one or more of

the following:

(a) walk through screening equipment;

(b) allow an officer or detention officer to pass hand-held

screening equipment over or around the person or around

things in the person's possession;

screening equipment or to be examined by X-ray.

(2) Screening equipment means a metal detector or similar device for

detecting objects or particular substances.

(3) If an authorised officer suspects on reasonable grounds that a

person about to enter premises where a detainee is in detention has

in the person's possession a thing that might:

(a) endanger the safety of the detainees, staff or other persons on

the premises; or

(b) disrupt the order or security arrangements on the premises;

the authorised officer may request that the person do some or all of

the things in subclause (4) for the purpose of finding out whether

the person has such a thing. A request may be made whether or not

a request is also made to the person under subclause (1).

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

72 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

(4) An authorised officer may request that the person do one or more

of the following:

(a) allow the authorised officer to inspect the things in the

person's possession;

(b) remove some or all of the person's outer clothing such as a

coat, jacket or similar item;

(d) open a thing in the person's possession, or remove the thing's

contents, to allow the authorised officer to inspect the thing

or its contents;

(e) leave a thing in the person's possession, or some or all of its

contents, in a place specified by the authorised officer if he or

she suspects on reasonable grounds that the thing or its

contents are capable of concealing something that might:

(i) endanger the safety of the detainees, staff or other

persons on the premises; or

(ii) disrupt the order or security arrangements on the

premises.

(5) A person who leaves a thing (including any of its contents) in a

place specified by an authorised officer is entitled to its return

when the person leaves the premises.

(6) However, if possession of the thing, or any of those contents, by

the person is unlawful under a Commonwealth, State or Territory

law applying to the premises:

(a) the thing or the contents must not be returned to the person;

and

(b) an authorised officer must, as soon as practicable, give the

thing or the contents to a constable (within the meaning of

the Crimes Act 1914).

(7) A person who is about to enter premises where a detainee is

detained may be refused entry if the person does not comply with a

request under this clause.

Note:

This clause corresponds closely to section 252G of the Migration Act

1958.

(8) In this clause:

premises includes a place, a vessel, a vehicle and an aircraft.

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 73

Part 4--Detainees' rights to facilities for obtaining

legal advice etc.

24 Detainee may have access to certain advice, facilities etc.

The person responsible for detention of a detainee must, at the

detainee's request, afford to him or her all reasonable facilities for

obtaining legal advice or taking legal proceedings in relation to his

or her detention.

Note:

This clause corresponds to section 256 of the Migration Act 1958.

Part 5--Identifying detainees

Division 1--Preliminary

25 Definitions

In this Part, unless the contrary intention appears:

identification test means a test carried out in order to obtain a

personal identifier.

incapable person means a person who is incapable of

understanding the general nature and effect of, and purposes of, a

requirement to provide a personal identifier.

independent person means a person (other than an officer,

detention officer or authorised officer) who:

(a) is capable of representing the interests of a non-citizen who is

providing, or is to provide, a personal identifier; and

(b) as far as practicable, is acceptable to the non-citizen who is

providing, or is to provide, the personal identifier; and

minor's best interests.

minor means a person who is less than 18 years old.

non-citizen means a person who is not an Australian citizen.

personal identifier has the meaning given by clause 26.

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

74 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

Note:

The definitions of expressions in this clause correspond closely to

definitions of those expressions in section 5 of the Migration Act

1958.

26 Meaning of personal identifier

(1) In this Part:

personal identifier means any of the following (including any of

the following in digital form):

(a) fingerprints or handprints of a person (including those taken

using paper and ink or digital livescanning technologies);

(b) a measurement of a person's height and weight;

(d) an audio or a video recording of a person (other than a video

recording under clause 37);

(e) an iris scan;

(f) a person's signature;

(g) any other identifier prescribed by the regulations, other than

an identifier the obtaining of which would involve the

carrying out of an intimate forensic procedure within the

meaning of section 23WA of the Crimes Act 1914.

(2) Before the Governor-General makes regulations for the purposes of

paragraph (1)(g) prescribing an identifier, the Minister must be

satisfied that:

(a) obtaining the identifier would not involve the carrying out of

an intimate forensic procedure within the meaning of

section 23WA of the Crimes Act 1914; and

(b) the identifier is an image of, or a measurement or recording

of, an external part of the body; and

purposes referred to in subclause (3).

(3) The purposes are:

(a) to assist in the identification of, and to authenticate the

identity of, any non-citizen who can be required under this

Act to provide a personal identifier; and

(b) to assist in identifying, in the future, any such non-citizen;

and

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 75

a criminal history relating to fisheries; and

(d) to combat document and identity fraud in fisheries matters;

and

(e) to complement anti-people smuggling measures; and

(f) to inform the governments of foreign countries of the identity

of non-citizens who have been detained under, or charged

with offences against, this Act; and

(g) to facilitate international cooperation to combat fishing

activities that involve a breach of the laws of Australia or of a

foreign country.

Note:

This clause corresponds closely to section 5A of the Migration Act

1958.

27 Limiting the types of identification tests that authorised officers

may carry out

(1) AFMA may, in an instrument authorising an officer or detention

officer as an authorised officer for the purposes of carrying out

identification tests under this Part, specify the types of

identification tests that the authorised officer may carry out.

(2) Such an authorised officer is not an authorised officer in relation to

carrying out an identification test that is not of a type so specified.

Note:

This clause corresponds closely to section 5D of the Migration Act

1958.

Division 2--Identification of detainees

Subdivision A--Provision of personal identifiers

28 Detainees must provide personal identifiers

(1) A non-citizen in detention must (other than in the prescribed

circumstances) provide to an authorised officer one or more

personal identifiers.

Note:

A person who is an Australian citizen, or is a non-citizen but an

Australian resident, may be in detention but must be released as soon

as an officer or detention officer knows or reasonably believes the

person is an Australian citizen or resident.

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

76 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

(2) An authorised officer must not require, for the purposes of

subclause (1), a detainee to provide a personal identifier other than

any of the following (including any of the following in digital

form):

(a) fingerprints or handprints of the detainee (including those

taken using paper and ink or digital livescanning

technologies);

(b) a measurement of the detainee's height and weight;

shoulders;

(d) the detainee's signature;

(e) any other personal identifier of a type prescribed for the

purposes of this paragraph.

Note:

Division 3 sets out further restrictions on the personal identifiers that

minors and incapable persons can be required to provide.

(3) The one or more personal identifiers are to be provided by way of

one or more identification tests carried out by the authorised officer

in accordance with this Division.

Note 1:

Subject to certain restrictions, clause 32 allows reasonable force to be

used to carry out identification tests under this Division.

Note 2:

This clause corresponds closely to section 261AA of the Migration

Act 1958.

29 Authorised officers must require and carry out identification

tests

(1) The authorised officer must, other than in the circumstances

prescribed for the purposes of subclause 28(1):

(a) require the non-citizen to provide one or more personal

identifiers, of the type or types prescribed, by way of one or

more identification tests carried out by the authorised officer;

and

(b) carry out the one or more identification tests on the

non-citizen.

(2) However:

(a) if the types of identification tests that the authorised officer

may carry out is specified under clause 27--each

identification test must be of a type so specified; and

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 77

(b) each identification test must be carried out in accordance

with Subdivision B; and

believe that the non-citizen is not a minor or an incapable

person--each identification test must be carried out in

accordance with the additional requirements of Division 3.

Note:

Subclauses (1) and (2) correspond closely to section 261AB of the

Migration Act 1958.

(3) If:

(a) the authorised officer is authorised because of clause 7

(which effectively treats as authorised officers for the

purposes of certain provisions of this Schedule certain

persons who are authorised officers for the purposes of

certain provisions of the Migration Act 1958); and

(b) an instrument under section 5D of that Act specifies the types

of identification test the authorised officer may carry out;

paragraph (2)(a) of this clause has effect as if the specified types

(except any specified under subclause 7(3) in relation to the

authorised officer) had been specified under clause 27.

30 Information to be provided before carrying out identification

tests

(1) Before carrying out an identification test, the authorised officer

must:

(a) inform the non-citizen that the non-citizen may ask that an

independent person be present while the identification test is

carried out and that the test be carried out by a person of the

same sex as the non-citizen; and

(b) inform the non-citizen of such other matters as are specified

in the regulations.

(2) For the purposes of subclause (1), the authorised officer informs

the non-citizen of a matter if the authorised officer informs the

non-citizen of the matter, through an interpreter if necessary, in a

language (including sign language or braille) in which the

non-citizen is able to communicate with reasonable fluency.

(3) The authorised officer may comply with this clause by giving to

the non-citizen, in accordance with the regulations, a form setting

out the information specified in the regulations. However, the

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

78 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

information must be in a language (including braille) in which the

non-citizen is able to communicate with reasonable fluency.

Note:

This clause corresponds closely to section 261AC of the Migration

Act 1958.

(4) A form mentioned in subclause (3) is not a legislative instrument.

Subdivision B--How identification tests are carried out

31 General rules for carrying out identification tests

An identification test under this Division:

(a) must be carried out in circumstances affording reasonable

privacy to the non-citizen; and

(b) if the non-citizen so requests and it is practicable to comply

with the request--must not be carried out in the presence or

view of a person who is of the opposite sex to the

non-citizen; and

whose presence is not necessary for the purposes of the

identification test or is not required or permitted by another

provision of this Act; and

(d) must not involve the removal of more clothing than is

necessary for carrying out the test; and

(e) must not involve more visual inspection than is necessary for

carrying out the test; and

(f) if the test is one of 2 or more identification tests to be carried

out on the non-citizen--must be carried out at the same time

as the other identification tests, if it is practicable to do so.

Note:

This clause corresponds closely to section 261AD of the Migration

Act 1958.

32 Use of force in carrying out identification tests

When use of force is permitted

(1) Subject to subclause (2) and clause 33, an authorised officer, or a

person authorised under clause 34 to help the authorised officer,

may use reasonable force:

(a) to enable the identification test to be carried out; or

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 79

(b) to prevent the loss, destruction or contamination of any

personal identifier or any meaningful identifier derived from

the personal identifier.

However, this clause does not authorise the use of force against a

minor or an incapable person, or if the personal identifier in

question is a person's signature.

(2) The authorised officer or person must not use force unless:

(a) the non-citizen required to provide the personal identifier in

question has refused to allow the identification test to be

carried out; and

(b) all reasonable measures to carry out the identification test

without the use of force have been exhausted; and

authorised under subclause (4).

Applications for authorisation to use force

(3) An authorised officer may apply to a senior authorising officer

(who is not an authorised officer referred to in subclause (1)) for an

authorisation to use force in carrying out the identification test.

Authorisation to use force

(4) The senior authorising officer may authorise the use of force in

carrying out the identification test if he or she is reasonably

satisfied that:

(a) the non-citizen required to provide the personal identifier in

question has refused to allow the identification test to be

carried out; and

(b) all reasonable measures to carry out the identification test

without the use of force have been exhausted.

(5) An authorisation under subclause (4):

(a) may be given by telephone, fax or other electronic means;

and

(b) must be recorded in writing, and signed by the person giving

the authorisation, within one business day after it is given.

(6) A record made under paragraph (5)(b) is not a legislative

instrument.

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

80 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

(7) A failure to comply with paragraph (5)(b) does not affect the

validity of an identification test carried out on the basis of that

authorisation.

(8) The power to give an authorisation under subclause (4) cannot be

delegated to any other person.

Definition

(9) In this clause:

senior authorising officer means an officer, or detention officer,

whom AFMA has authorised, or who is included in a class of

officers or detention officers whom AFMA has authorised, to

perform the functions of a senior authorising officer under this

clause.

Note:

This clause corresponds closely to section 261AE of the Migration Act

1958.

33 Identification tests not to be carried out in cruel, inhuman or

degrading manner etc.

For the purposes of this Act, the carrying out of the identification

test is not of itself taken:

(a) to be cruel, inhuman or degrading; or

(b) to be a failure to treat a person with humanity and with

respect for human dignity.

However, nothing in this Act authorises the carrying out of the

identification test in a cruel, inhuman or degrading manner, or in a

manner that fails to treat a person with humanity and with respect

for human dignity.

Note:

This clause corresponds closely to section 261AF of the Migration Act

1958.

34 Authorised officer may get help to carry out identification tests

An authorised officer may ask another authorised officer or an

officer or detention officer to help him or her to carry out the

identification test, and the other person may give that help.

Note:

This clause corresponds closely to section 261AG of the Migration

Act 1958.

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 81

35 Identification tests to be carried out by authorised officer of same

sex as non-citizen

If the non-citizen requests that the identification test be carried out

by an authorised officer of the same sex as the non-citizen, the test

must only be carried out by an authorised officer of the same sex as

the non-citizen.

Note:

This clause corresponds closely to section 261AH of the Migration

Act 1958.

36 Independent person to be present

The identification test must be carried out in the presence of an

independent person if:

(a) force is used in carrying out the identification test; or

(b) both of the following apply:

(i) the non-citizen requests that an independent person be

present while the identification test is being carried out;

(ii) an independent person is readily available at the same

place as the non-citizen and is willing to attend the test

within a reasonable time.

Note:

This clause corresponds closely to section 261AI of the Migration Act

1958.

37 Recording of identification tests

(1) An authorised officer may video record the carrying out of the

identification test.

(2) If the carrying out of the identification test is not video recorded,

the authorised officer may decide that the identification test must

be carried out in the presence of an independent person.

Note:

This clause corresponds closely to section 261AJ of the Migration Act

1958.

38 Retesting

When retesting is permitted

(1) If:

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

82 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

(a) an authorised officer has carried out an identification test (the

earlier test) on a non-citizen in accordance with this Division

(including a test authorised under subclause (4)); and

(b) either:

(i) a personal identifier that is provided as a result of the

earlier test being carried out is unusable; or

(ii) an authorised officer, officer or detention officer is not

satisfied about the integrity of that personal identifier;

the authorised officer who carried out the earlier test or another

authorised officer may require the non-citizen to provide the

personal identifier again, and may carry out the test again in

accordance with this Division, if:

out or immediately after it was carried out; or

(d) carrying out the test again is authorised under subclause (4).

(2) If the non-citizen is required under subclause (1) to provide the

personal identifier again, the non-citizen is taken, for the purposes

of this Division, not to have provided the personal identifier as a

result of the earlier test being carried out.

Applications for authorisation to retest

(3) An authorised officer may apply for an authorisation to carry out

the test again. The application is to be made to:

(a) if the earlier test was not a test authorised under

subclause (4)--a senior authorising officer (who is not an

authorised officer, officer or detention officer referred to in

subclause (1)); or

(b) if the earlier test was a test authorised under subclause (4) by

a senior authorising officer--the Managing Director of

AFMA, the Secretary of the Department or an SES Band 3

employee in the Department (who is not an authorised

officer, officer or detention officer referred to in

subclause (1)).

Authorisation to retest

(4) The senior authorising officer, Managing Director, Secretary or

SES Band 3 employee (as the case requires) may authorise the test

to be carried out again if:

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 83

(a) he or she is reasonably satisfied that the personal identifier

that is provided as a result of the earlier test being carried out

is unusable; or

(b) he or she is not reasonably satisfied about the integrity of that

personal identifier.

(5) An authorisation under subclause (4):

(a) may be given by telephone, fax or other electronic means;

and

(b) must be recorded in writing, and signed by the person giving

the authorisation, within one business day after it is given.

(6) A record made under paragraph (5)(b) is not a legislative

instrument.

(7) A failure to comply with paragraph (5)(b) does not affect the

validity of an identification test carried out on the basis of that

authorisation.

(8) The power to give an authorisation under subclause (4) cannot be

delegated to any other person.

Use of force

(9) An authorisation under subclause (4) does not authorise the use of

force in carrying out an identification test.

Note:

See clause 32 on the use of force in carrying out identification tests.

Effect of refusing to authorise retesting

(10) If an application for an authorisation to carry out an identification

test again on a non-citizen is refused, the non-citizen is taken, for

the purposes of this Act, to have complied with any requirement

under this Act to provide the personal identifier in question.

Definitions

(11) In this clause:

senior authorising officer means an officer, or detention officer,

who:

(a) has been authorised, or is included in a class of officers or

detention officers who have been authorised, by AFMA to

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

84 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

perform the functions of a senior authorising officer under

this clause; and

(b) is not the Managing Director of AFMA, the Secretary of the

Department or an SES Band 3 employee in the Department.

SES Band 3 employee means an SES employee with a

classification of Senior Executive Band 3, and includes an SES

employee who has been temporarily assigned duties that have been

allocated a classification of Senior Executive Band 3.

Note:

This clause corresponds closely to section 261AK of the Migration

Act 1958.

Subdivision C--Obligations relating to video recordings of

identification tests

39 Definitions

In this Subdivision, unless the contrary intention appears:

permitted provision, of a video recording, has the meaning given

by subclause 42(2).

provide, in relation to a video recording, includes provide access to

the recording.

related document means a document that contains information,

derived from a video recording made under clause 37 or from a

copy of such a recording, from which the identity of the individual

on whom the identification test in question was carried out is

apparent or can reasonably be ascertained.

video recording means a video recording made under clause 37 or

a copy of such a recording, and includes a related document.

Note:

This clause corresponds closely to section 261AKA of the Migration

Act 1958.

40 Accessing video recordings

(1) A person commits an offence if:

(a) the person accesses a video recording; and

(b) the person is not authorised under clause 41 to access the

video recording for the purpose for which the person

accessed it.

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 85

Penalty: Imprisonment for 2 years.

(2) This clause does not apply if the access is through the provision of

a video recording that is a permitted provision.

Note 1:

A defendant bears an evidential burden in relation to the matter in

subclause (2) (see subsection 13.3(3) of the Criminal Code).

Note 2:

This clause corresponds closely to section 261AKB of the Migration

Act 1958.

41 Authorising access to video recordings

(1) AFMA may, in writing, authorise a specified person, or any person

included in a specified class of persons, to access:

(a) all video recordings; or

(b) a specified video recording, or video recordings of a

specified kind.

(2) AFMA must specify in an authorisation under this clause, as the

purpose or purposes for which access is authorised, one or more of

the following purposes:

(a) providing a video recording to another person in accordance

with this Subdivision;

(b) administering or managing the storage of video recordings;

relates;

(d) modifying related documents in order to correct errors or

ensure compliance with appropriate standards;

(e) any purpose connected with determining whether a civil or

criminal liability has arisen from a person carrying out or

helping to carry out an identification test under this Act;

(f) complying with laws of the Commonwealth or the States or

Territories;

(g) disclosing personal information under clause 59 (about

disclosure of information about a person who has been in

detention, for the purposes of the immigration detention or

removal of the person).

(3) However, AFMA must not specify as a purpose for which access is

authorised a purpose that will include or involve the purpose of:

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

86 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

(a) investigating an offence against a law of the Commonwealth

or a State or Territory (other than an offence involving

whether an identification test was carried out lawfully); or

(b) prosecuting a person for such an offence;

if the identifying information in question relates to a personal

identifier of a prescribed type.

Note:

This clause corresponds closely to section 261AKC of the Migration

Act 1958.

42 Providing video recordings

(1) A person commits an offence if:

(a) the person's conduct causes a video recording to be provided

to another person; and

(b) the provision of the recording is not a permitted provision of

the recording.

Penalty: Imprisonment for 2 years.

(2) A permitted provision of a video recording is a provision of the

recording that:

(a) is for the purpose of administering or managing the storage

of video recordings; or

(b) is for the purpose of making the video recording in question

available to the non-citizen to whom it relates; or

relating to the non-citizen to whom the video recording in

question relates; or

(d) is for any purpose connected with determining whether a

civil or criminal liability has arisen from a person carrying

out or helping to carry out an identification test under this

Act; or

(e) is for the purpose of an investigation by the Privacy

Commissioner or the Ombudsman relating to carrying out an

identification test; or

(f) is made to a prescribed body or agency for the purpose of the

body or agency inquiring into the operation of provisions of

this Act relating to carrying out an identification test; or

(g) takes place with the written consent of the non-citizen to

whom the video recording in question relates; or

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 87

(h) is a disclosure authorised by clause 59 (about disclosure of

information about a person who has been in detention, for the

purposes of the immigration detention or removal of the

person).

(3) However, a provision of a video recording is not a permitted

provision of the recording if:

(a) it constitutes a disclosure of identifying information relating

to a personal identifier of a prescribed type; and

(b) it is for the purpose of:

(i) investigating an offence against a law of the

Commonwealth or a State or Territory (other than an

offence involving whether an identification test was

carried out lawfully); or

(ii) prosecuting a person for such an offence.

Note:

This clause corresponds closely to section 261AKD of the Migration

Act 1958.

43 Unauthorised modification of video recordings

A person commits an offence if:

(a) the person causes any unauthorised modification of a video

recording; and

(b) the person intends to cause the modification; and

Penalty: Imprisonment for 2 years.

44 Unauthorised impairment of video recordings

A person commits an offence if:

(a) the person causes any unauthorised impairment of:

(i) the reliability of a video recording; or

(ii) the security of the storage of a video recording; or

(iii) the operation of a system by which a video recording is

stored; and

(b) the person intends to cause the impairment; and

Penalty: Imprisonment for 2 years.

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

88 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

45 Meanings of unauthorised modification and unauthorised

impairment etc.

(1) In this Subdivision:

(a) modification of a video recording; or

(b) impairment of the reliability of a video recording; or

recording; or

(d) impairment of the operation of a system by which a video

recording is stored;

by a person is unauthorised if the person is not entitled to cause

that modification or impairment.

(2) Any such modification or impairment caused by the person is not

unauthorised merely because he or she has an ulterior purpose for

causing it.

(3) For the purposes of an offence under this Subdivision, a person

causes any such unauthorised modification or impairment if the

person's conduct substantially contributes to it.

(4) For the purposes of subclause (1), if:

(a) a person causes any modification or impairment of a kind

mentioned in that subclause; and

(b) the person does so under a warrant issued under the law of

the Commonwealth, a State or a Territory;

the person is entitled to cause that modification or impairment.

Note:

This clause corresponds closely to section 261AKG of the Migration

Act 1958.

46 Destroying video recordings

A person commits an offence if:

(a) the person is the person who has day-to-day responsibility for

the system under which a video recording is stored; and

(b) the person fails physically to destroy the recording, and all

copies of the recording, within 10 years after it was made.

Penalty: Imprisonment for 2 years.

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 89

Division 3--Identification of minors and incapable persons

47 Minors

Minors less than 15 years old

(1) A non-citizen who is less than 15 years old must not be required

under this Act to provide a personal identifier other than a personal

identifier consisting of:

(a) a measurement of the non-citizen's height and weight; or

(b) the non-citizen's photograph or other image of the

non-citizen's face and shoulders.

Persons present while identification test is carried out

(2) If a non-citizen who is a minor provides a personal identifier, in

accordance with a requirement under this Act, by way of an

identification test carried out by an authorised officer, the test must

be carried out in the presence of:

(a) a parent or guardian of the minor; or

(b) an independent person.

(3) However, if the Minister administering the Immigration

(Guardianship of Children) Act 1946 is the guardian of the minor,

the test must be carried out in the presence of an independent

person other than that Minister.

Note:

This clause corresponds closely to subsections 261AL(1), (5) and (6)

of the Migration Act 1958.

48 Incapable persons

Incapable persons

(1) A non-citizen who is an incapable person must not be required

under this Act to provide a personal identifier other than a personal

identifier consisting of:

(a) a measurement of the non-citizen's height and weight; or

(b) the non-citizen's photograph or other image of the

non-citizen's face and shoulders.

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

90 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

Persons present while identification test is carried out

(2) If a non-citizen who is an incapable person provides a personal

identifier, in accordance with a requirement under this Act, by way

of an identification test carried out by an authorised officer, the test

must be carried out in the presence of:

(a) a parent or guardian of the incapable person; or

(b) an independent person.

Note:

This clause corresponds closely to subsections 261AM(1) and (4) of

the Migration Act 1958.

Division 4--Obligations relating to detainees' identifying

information

Subdivision A--Preliminary

49 Definitions

In this Division:

disclose, in relation to identifying information that is a personal

identifier, includes provide access to the personal identifier.

identifying information means the following:

(a) any personal identifier;

(b) any meaningful identifier derived from any personal

identifier;

any meaningful identifier derived from any personal

identifier;

(d) any other information, derived from any personal identifier,

from any meaningful identifier derived from any personal

identifier or from any record of a kind referred to in

paragraph (c), that could be used to discover a particular

person's identity or to get information about a particular

person.

permitted disclosure has the meaning given by subclauses 53(2)

and (3).

unauthorised impairment has the meaning given by clause 57.

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 91

unauthorised modification has the meaning given by clause 57.

Note:

This clause corresponds closely to section 336A of the Migration Act

1958.

50 Application

Section 15.4 of the Criminal Code (extended geographical

jurisdiction--category D) applies to all offences against this

Division.

Note:

This clause corresponds closely to section 336B of the Migration Act

1958.

Subdivision B--Accessing identifying information

51 Accessing identifying information

(1) A person commits an offence if:

(a) the person accesses identifying information; and

(b) the person is not authorised under clause 52 to access the

identifying information for the purpose for which the person

accessed it.

Penalty: Imprisonment for 2 years.

(2) This clause does not apply if the access is through a disclosure that

is a permitted disclosure.

Note 1:

A defendant bears an evidential burden in relation to the matter in

subclause (2) (see subsection 13.3(3) of the Criminal Code).

Note 2:

This clause corresponds closely to section 336C of the Migration Act

1958.

52 Authorising access to identifying information

(1) AFMA may, in writing, authorise a specified person, or any person

included in a specified class of persons, to access identifying

information of the kind specified in the authorisation.

(2) AFMA must specify in an authorisation under this clause, as the

purpose or purposes for which access is authorised, one or more of

the following purposes:

(a) one or more of the purposes set out in subclause 26(3);

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

92 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

(b) disclosing identifying information in accordance with this

Division;

information;

(d) making identifying information available to the person to

whom it relates;

(e) modifying identifying information to enable it to be matched

with other identifying information;

(f) modifying identifying information in order to correct errors

or ensure compliance with appropriate standards;

(g) making decisions under this Act;

(h) complying with laws of the Commonwealth or the States or

Territories;

(i) disclosing personal information under clause 59 (about

disclosure of information about a person who has been in

detention, for the purposes of the immigration detention or

removal of the person).

(3) However, AFMA must not specify as a purpose for which access is

authorised a purpose that will include or involve the purpose of:

(a) investigating an offence against a law of the Commonwealth

or a State or Territory; or

(b) prosecuting a person for such an offence;

if the identifying information in question relates to a personal

identifier of a prescribed type.

Note:

This clause corresponds closely to section 336D of the Migration Act

1958.

Subdivision C--Disclosing identifying information

53 Disclosing identifying information

(1) A person commits an offence if:

(a) the person's conduct causes disclosure of identifying

information; and

(b) the disclosure is not a permitted disclosure.

Penalty: Imprisonment for 2 years.

(2) A permitted disclosure is a disclosure that:

(a) is for the purpose of data-matching in order to:

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 93

(i) identify, or authenticate the identity of, a non-citizen; or

(ii) facilitate the processing of non-citizens entering or

departing from Australia; or

(iii) identify non-citizens who have a criminal history, who

are of character concern (as defined in the Migration

Act 1958) or who are of national security concern; or

(iv) combat document and identity fraud in immigration

matters; or

(v) ascertain whether an applicant for a protection visa had

sufficient opportunity to avail himself or herself of

protection before arriving in Australia; or

(vi) inform the governments of foreign countries of the

identity of non-citizens who are, or are to be, removed

from Australia; or

(b) is for the purpose of administering or managing the storage

of identifying information; or

more of the purposes, for which the disclosure is authorised;

(d) is for the purpose of making the identifying information in

question available to the non-citizen to whom it relates; or

(e) takes place under an arrangement entered into with an agency

of the Commonwealth, or with a State or Territory or an

agency of a State or Territory, for the exchange of identifying

information; or

(f) is for the purpose of a proceeding, before a court or tribunal,

relating to the non-citizen to whom the identifying

information in question relates; or

(g) is for the purpose of an investigation by the Privacy

Commissioner or the Ombudsman relating to:

(i) carrying out an identification test; or

(ii) requiring the provision of a personal identifier; or

(h) is made to a prescribed body or agency for the purpose of the

body or agency inquiring into the operation of provisions of

this Act relating to:

(i) carrying out an identification test; or

(ii) requiring the provision of a personal identifier; or

(i) takes place with the written consent of the non-citizen to

whom the identifying information in question relates; or

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

94 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

(j) is a disclosure authorised by clause 59 (about disclosure of

information about a person who has been in detention, for the

purposes of the immigration detention or removal of the

person).

(3) However, a disclosure is not a permitted disclosure if:

(a) it is a disclosure of identifying information relating to a

personal identifier of a prescribed type; and

(b) it is for the purpose of:

(i) investigating an offence against a law of the

Commonwealth or a State or Territory; or

(ii) prosecuting a person for such an offence.

Note:

This clause corresponds closely to section 336E of the Migration Act

1958.

54 Authorising disclosure of identifying information to foreign

countries etc.

(1) AFMA may, in writing, authorise a specified officer or detention

officer, any officer or detention officer included in a specified class

of officers or detention officers, or an Agency (as defined in the

Public Service Act 1999) prescribed by the regulations, to disclose

identifying information of the kind specified in the authorisation to

one or more of the following:

(a) one or more specified foreign countries;

(b) one or more specified bodies each of which is:

(i) a police force or police service of a foreign country; or

(ii) a law enforcement body of a foreign country; or

(iii) a border control body of a foreign country;

specified organisations of foreign countries, that are

responsible for fisheries matters;

(d) one or more prescribed bodies of a foreign country, of the

Commonwealth or of a State or Territory;

(e) one or more prescribed international organisations.

(2) AFMA must specify in the authorisation, as the purpose or

purposes for which disclosure is authorised, one or more of the

purposes set out in subclause 26(3).

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 95

Note:

This clause corresponds closely to subsections 336F(1) and (2) of the

Migration Act 1958.

Subdivision D--Modifying and impairing identifying

information

55 Unauthorised modification of identifying information

A person commits an offence if:

(a) the person causes any unauthorised modification of

identifying information; and

(b) the person intends to cause the modification; and

Penalty: Imprisonment for 2 years.

56 Unauthorised impairment of identifying information

A person commits an offence if:

(a) the person causes any unauthorised impairment of:

(i) the reliability of identifying information; or

(ii) the security of the storage of identifying information; or

(iii) the operation of a system by which identifying

information is stored; and

(b) the person intends to cause the impairment; and

Penalty: Imprisonment for 2 years.

57 Meanings of unauthorised modification and unauthorised

impairment etc.

(1) In this Division:

(a) modification of identifying information; or

(b) impairment of the reliability of identifying information; or

information; or

(d) impairment of the operation of a system by which identifying

information is stored;

by a person is unauthorised if the person is not entitled to cause

that modification or impairment.

Schedule 1 Fisheries amendments

Part 2 Provisions relating to detention of suspected illegal foreign fishers

96 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

(2) Any such modification or impairment caused by the person is not

unauthorised merely because he or she has an ulterior purpose for

causing it.

(3) For the purposes of an offence under this Division, a person causes

any such unauthorised modification or impairment if the person's

conduct substantially contributes to it.

(4) For the purposes of subclause (1), if:

(a) a person causes any modification or impairment of a kind

mentioned in that subclause; and

(b) the person does so under a warrant issued under the law of

the Commonwealth, a State or a Territory;

the person is entitled to cause that modification or impairment.

Note:

This clause corresponds closely to section 336J of the Migration Act

1958.

Subdivision E--Retaining identifying information

58 Identifying information may be indefinitely retained

Identifying information may be indefinitely retained.

Note:

This clause corresponds closely to paragraph 336L(1)(a) of the

Migration Act 1958, because under this Schedule identifying

information will always be about someone who is or has been in

detention.

Part 6--Disclosure of detainees' personal

information

59 Disclosure of detainees' personal information

(1) For the purposes described in subclause (2), an agency or

organisation that is or has been responsible for the detention of an

individual may disclose personal information about the individual

to an agency, or organisation, that is or will be responsible for:

(a) taking the individual into immigration detention; or

(b) keeping the individual in immigration detention; or

(d) the removal of the individual.

Fisheries amendments Schedule 1

Provisions relating to detention of suspected illegal foreign fishers Part 2

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 97

(2) The purposes are:

(a) the immigration detention of the individual; and

(b) the removal of the individual; and

or while being removed.

(3) In this clause:

agency has the same meaning as in the Privacy Act 1988.

immigration detention has the same meaning as in the Migration

Act 1958.

organisation has the same meaning as in the Privacy Act 1988.

personal information has the same meaning as in the Privacy Act

1988.

removal has the same meaning as in the Migration Act 1958.

Schedule 1 Fisheries amendments

Part 3 Searching persons on boats suspected of illegal fishing

98 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

Part 3--Searching persons on boats suspected of

illegal fishing

Division 1--Main amendments

Fisheries Management Act 1991

21 After paragraph 84(1)(a)

Insert:

(aaa) subject to section 84AA, search without warrant:

(i) a person on a boat that the officer reasonably suspects is

a foreign boat used in an offence against subsection

95(2) or section 99, 100, 100A, 101 or 101A or a

foreign boat used as the support boat in an offence

against section 101B; and

(ii) the person's clothing;

to find out whether there is hidden on the person or in the

clothing:

(iii) a weapon; or

(iv) a thing capable of being used to inflict bodily injury on

another person; or

(v) a thing that may afford evidence as to the commission

of an offence against subsection 95(2) or section 99,

100, 100A, 101, 101A or 101B; and

22 Paragraph 84(1)(c)

After "(a)", insert ", (aaa)".

23 After section 84

Insert:

84AA Searches under paragraph 84(1)(aaa)

(1) A search under paragraph 84(1)(aaa) of a person (the subject) may

only be conducted by an officer of the same sex as the subject.

Fisheries amendments Schedule 1

Searching persons on boats suspected of illegal fishing Part 3

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 99

(2) However, if an officer of the same sex as the subject is not

available to conduct the search, it may be conducted by another

person who:

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

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

(3) Paragraph 84(1)(aaa) and this section do not authorise the officer

or other person:

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

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

than is reasonably necessary to conduct the search.

(4) If, in conducting a search, an officer finds a weapon, or a thing

mentioned in subparagraph 84(1)(aaa)(iv) or (v), an officer may:

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

(b) keep the weapon or 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 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.

(6) If:

(a) under subsection (4) or (5) an officer is keeping a weapon, or

a thing mentioned in subparagraph 84(1)(aaa)(iv), found in a

search of the subject; and

(b) the subject is detained under this Act;

the officer may continue to keep the weapon or thing for such time

as he or she thinks necessary for the purposes of this Act or the

Migration Act 1958.

Note:

Once the subject ceases to be detained under this Act, the subject will

generally need to be detained under the Migration Act 1958 while he

or she is in the migration zone (because his or her enforcement visa

under that Act will cease to have effect). Subsection (6) ensures the

officer can keep the weapon or thing while the subject is detained

under this Act or that Act.

24 Subsection 87A(1)

Schedule 1 Fisheries amendments

Part 3 Searching persons on boats suspected of illegal fishing

100 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

After "(a),", insert "(aaa) (except subparagraph (aaa)(v)),".

25 Subsection 87B(1) (after table item 2)

Insert:

Paragraph

84(1)(aaa)

Applies as if:

(a) a reference to an offence against subsection 95(2)

or section 99, 100, 100A, 101 or 101A were a

reference to an offence against section 105E or

105F; and

(b) the reference to a foreign boat used as the support

boat in an offence against section 101B were

omitted; and

26 After subsection 87H(2)

Insert:

Searching persons for weapons

(2A) An officer who has boarded the boat may search without warrant a

person on the boat and the person's clothing to find out whether

there is hidden on the person or in the clothing a weapon or a thing

capable of being used to inflict bodily injury on another person.

(2B) Section 84AA:

(a) applies in relation to the search, and weapons and other

things found in the search, in the same way as that section

applies in relation to a search under paragraph 84(1)(aaa) and

weapons and things found in a search under that paragraph;

and

(b) applies in relation to subsection (2A) of this section in the

same way as it applies in relation to paragraph 84(1)(aaa).

Torres Strait Fisheries Act 1984

27 At the end of paragraph 42(1)(a)

Add "and".

28 After paragraph 42(1)(a)

Fisheries amendments Schedule 1

Searching persons on boats suspected of illegal fishing Part 3

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 101

Insert:

(aa) subject to section 42A, search without warrant:

(i) a person on a boat that the officer reasonably suspects is

a foreign boat, or Papua New Guinea boat, used in a

contravention of paragraph 45(1)(a) or in an offence

against section 48, 49 or 51; and

(ii) the person's clothing;

to find out whether there is hidden on the person or in the

clothing:

(iii) a weapon; or

(iv) a thing capable of being used to inflict bodily injury on

another person; or

(v) a thing that may afford evidence as to the commission

of an offence against subsection 45(2) or section 48, 49

or 51; and

29 At the end of paragraphs 42(1)(b) and (ba)

Add "and".

30 Paragraph 42(1)(c)

Repeal the paragraph, substitute:

or (aa); and

31 At the end of paragraphs 42(1)(d) and (e)

Add "and".

32 At the end of paragraphs 42(1)(f) to (oa)

Add "and".

33 After section 42

Insert:

42A Searches under paragraph 42(1)(aa)

(1) A search under paragraph 42(1)(aa) of a person (the subject) may

only be conducted by an officer of the same sex as the subject.

Schedule 1 Fisheries amendments

Part 3 Searching persons on boats suspected of illegal fishing

102 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

(2) However, if an officer of the same sex as the subject is not

available to conduct the search, it may be conducted by another

person who:

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

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

(3) Paragraph 42(1)(aa) and this section do not authorise the officer or

other person:

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

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

than is reasonably necessary to conduct the search.

(4) If, in conducting a search, an officer finds a weapon, or a thing

mentioned in subparagraph 42(1)(aa)(iv) or (v), an officer may:

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

(b) keep the weapon or 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 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.

Division 2--Amendment contingent on detention power

Torres Strait Fisheries Act 1984

34 At the end of section 42A

Add:

(6) If:

(a) under subsection (4) or (5) an officer is keeping a weapon, or

a thing mentioned in subparagraph 42(1)(aa)(iv), found in a

search of the subject; and

(b) the subject is detained under Schedule 2;

Fisheries amendments Schedule 1

Searching persons on boats suspected of illegal fishing Part 3

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 103

the officer may continue to keep the weapon or thing for such time

as he or she thinks necessary for the purposes of this Act or the

Migration Act 1958.

Note:

Once the subject ceases to be detained under this Act, the subject will

generally need to be detained under the Migration Act 1958 while he

or she is in the migration zone (because his or her enforcement visa

under that Act will cease to have effect). Subsection (6) ensures the

officer can keep the weapon or thing while the subject is detained

under this Act or that Act.

Schedule 1 Fisheries amendments

Part 4 Forfeiture etc. of things involved in illegal fishing

104 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

Part 4--Forfeiture etc. of things involved in illegal

fishing

Division 1--Main amendments

Torres Strait Fisheries Act 1984

35 After paragraph 42(1)(e)

Insert:

(ea) seize all or any of the following that are forfeited to the

Commonwealth under section 52A or that the officer has

reasonable grounds to believe are forfeited under that section:

(i) a boat;

(ii) a net, trap or other equipment;

(iii) fish; and

36 After section 52

Insert:

Subdivision B--Automatic forfeiture of things used in offences

52A Forfeiture of things used in certain offences

The following things are forfeited to the Commonwealth:

(a) a foreign boat used in an offence against:

(i) subsection 45(2); or

(ii) section 48; or

(iii) section 49; or

(iv) section 51;

(b) a net or trap, or equipment, that:

(i) was on a boat described in paragraph (a) at the time of

the offence mentioned in that paragraph; or

(ii) was used in the commission of an offence against

subsection 45(2) or section 48, 49 or 51;

(i) on a boat described in paragraph (a) at the time of the

offence mentioned in that paragraph; or

Fisheries amendments Schedule 1

Forfeiture etc. of things involved in illegal fishing Part 4

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 105

(ii) involved in the commission of an offence against

subsection 45(2) or section 48, 49 or 51.

Note:

Paragraph 42(1)(ea) allows an officer to seize a thing that is forfeited

under this section or that the officer has reasonable grounds to believe

is forfeited.

Subdivision C--Dealing with things seized as automatically

forfeited

52B Application of this Subdivision

This Subdivision sets out rules about a thing that an officer seizes

under paragraph 42(1)(ea) because:

(a) the thing is forfeited under section 52A because:

(i) it was, or was on, a boat described in that section at the

time of an offence described in that section; or

(ii) it was used or involved in the commission of an offence

described in that section and involving a boat; or

(b) the officer has reasonable grounds to believe the thing is

forfeited under section 52A because the officer has

reasonable grounds to believe the thing:

(i) was, or was on, a boat described in that section at the

time of an offence described in that section; or

(ii) was used or involved in the commission of an offence

described in that section and involving a boat.

52C Notice of seizure

Giving notice

(1) The officer must give written notice of the seizure of the thing to

the person:

(a) who was the master of the boat immediately before the

seizure; or

(b) whom the officer has reasonable grounds to believe was the

master of the boat immediately before the seizure.

However, if the officer cannot conveniently give the notice to the

person in person, the officer may give written notice of the seizure

of the thing by fixing the notice to a prominent part of the thing,

unless the thing is a fish.

Schedule 1 Fisheries amendments

Part 4 Forfeiture etc. of things involved in illegal fishing

106 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

Content of notice

(2) The notice must:

(a) identify the thing; and

(b) state that the thing has been seized; and

owner of the thing or the person who had possession, custody

or control of the thing immediately before it was seized gives

the Managing Director of AFMA within 30 days a written

claim in English for the thing; and

(d) specify the address of the Managing Director of AFMA.

Note:

Section 52E condemns the thing if it is not claimed within 30 days.

Section 52G condemns the thing if it is claimed but the claimant does

not get a court order supporting the claim.

Status of notice

(3) A notice under subsection (1) is not a legislative instrument.

52D Dealing with thing before it is condemned

(1) On behalf of the Commonwealth, AFMA may cause the thing to be

disposed of or destroyed if it is a boat and AFMA is satisfied that:

(a) the boat is unseaworthy; or

(b) the boat poses a serious risk to safety, public health or

quarantine; or

the environment; or

(d) the expenses of custody and maintenance of the boat between

its seizure and condemnation are likely to be greater than its

value.

(2) If AFMA causes the boat to be disposed of, it may cause the

disposal to be made subject to specified conditions.

(3) The table lists some other provisions relevant to dealing with

things before they are condemned as forfeited to the

Commonwealth:

Provisions about dealing with things before they are condemned

Item

Provision

Subject of provision

Fisheries amendments Schedule 1

Forfeiture etc. of things involved in illegal fishing Part 4

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 107

Provisions about dealing with things before they are condemned

Item

Provision

Subject of provision

Paragraph 42(1)(q)

Officer's power to dispose of seized fish

Section 52I

Release of seized property

52E Thing condemned if not claimed in time

(1) By force of this subsection, the thing is condemned as forfeited to

the Commonwealth 30 days after notice of seizure of the thing has

been given under section 52C, unless:

(a) within the 30 days the owner of the thing or the person who

had possession, custody or control of it immediately before it

was seized gives the Managing Director of AFMA a written

claim for the thing; and

(b) the claim is in English; and

making the claim.

Note:

Section 52H requires things condemned as forfeited to be dealt with in

accordance with the Minister's directions.

(2) A person may claim the thing even if it is disposed of or destroyed

before or after the claim.

52F Dealing with claim for thing

(1) If the thing is claimed as described in section 52E:

(a) an officer may retain possession of the thing without starting

any proceedings for the condemnation of the goods; and

(b) the Managing Director of AFMA may give the claimant a

written notice stating that the thing will be condemned if the

claimant does not institute proceedings against the

Commonwealth within 2 months:

(i) to recover the thing; or

(ii) for a declaration that the thing is not forfeited.

Note 1:

An officer may retain possession even if the Managing Director of

AFMA does not give notice. If so, the claimant will be able to recover

the thing only if it is released under section 52I or a court orders its

release to the claimant.

Note 2:

If the Managing Director does give the notice and the claimant

institutes proceedings, whether the claimant recovers the thing will

depend on the outcome of the proceedings.

Schedule 1 Fisheries amendments

Part 4 Forfeiture etc. of things involved in illegal fishing

108 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

(2) The Managing Director of AFMA may give the notice to the

claimant by posting it prepaid as a letter to the last address of the

claimant that is known to the Managing Director. If the Managing

Director does so, the letter is taken to be properly addressed for the

purposes of section 29 of the Acts Interpretation Act 1901.

(3) Subsection (2) does not limit the ways in which the notice may be

given.

Note:

Sections 28A and 29 of the Acts Interpretation Act 1901 explain how

a notice can be given, and when it is taken to be given.

(4) To avoid doubt, the Managing Director of AFMA may give the

notice even if the thing has been released under section 52I.

(5) A notice under paragraph (1)(b) is not a legislative instrument.

52G Condemnation of thing if it is claimed

Application

(1) This section applies if the Managing Director of AFMA gives the

claimant a notice under section 52F about instituting proceedings:

(a) to recover the thing; or

(b) for a declaration that the thing is not forfeited.

Condemnation if proceedings not started within 2 months

(2) By force of this subsection, the thing is condemned as forfeited to

the Commonwealth 2 months after the notice is given if the

claimant does not institute the proceedings within that period.

Condemnation at end of proceedings started within 2 months

(3) By force of this subsection, the thing is condemned as forfeited to

the Commonwealth at the end of the proceedings that are instituted

by the claimant against the Commonwealth within 2 months of the

claimant being given the notice if, at the end of the proceedings,

there is not:

(a) an order for the claimant to recover the thing; or

(b) an order for the Commonwealth to pay the claimant the

proceeds of the sale of the thing if it has been sold before the

end of the proceedings; or

Fisheries amendments Schedule 1

Forfeiture etc. of things involved in illegal fishing Part 4

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 109

market value of the thing at the time it was disposed of

(except by sale) or destroyed, if it has been disposed of

(except by sale) or destroyed before the end of the

proceedings; or

(d) a declaration that the thing is not forfeited.

End of proceedings that go to judgment

(4) For the purposes of subsection (3), if the proceedings go to

judgment, they end:

(a) at the end of the period for lodging an appeal against the

judgment, if no appeal is lodged within that period; or

(b) when the appeal lapses or is finally determined, if an appeal

is lodged against the judgment within that period.

Proceedings relating to thing that has been disposed of

(5) Proceedings relating to the thing may be instituted or continued

even if it is disposed of or destroyed.

Order for payment if thing has been disposed of or destroyed

(6) If the court hearing the proceedings decides that it would have

ordered that the thing be delivered to a person apart from the fact

that the thing had been disposed of or destroyed, the court must

order the Commonwealth to pay the person an amount equal to:

(a) the proceeds of the sale of the thing, if it has been sold before

the end of the proceedings; or

(b) the market value of the thing at the time it was disposed of

(except by sale) or destroyed, if it has been disposed of

(except by sale) or destroyed before the end of the

proceedings.

52H Dealing with thing after it is condemned

If the thing is condemned as forfeited to the Commonwealth, the

thing must be dealt with or disposed of in accordance with the

directions of the Minister.

Schedule 1 Fisheries amendments

Part 4 Forfeiture etc. of things involved in illegal fishing

110 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

Division 4--Dealing with property that has been seized etc.

52I Release of property that has been seized etc.

(1) If any property is under the control of an officer because of the

exercise by an officer of powers under section 42, AFMA may

direct that the property be released:

(a) in the case of a boat--to the owner or the master of the boat;

and

(b) in any other case--to the owner of the property or to the

person from whose possession the property was seized, or

from whose control the property was removed;

on such conditions (if any) as AFMA thinks fit, including

conditions as to the giving of security:

(d) for the payment of any fines that may be imposed under this

Act in respect of offences that AFMA has reason to believe

have been committed with the use of, or in relation to, that

property.

(2) If:

(a) any property referred to in subsection (1):

(i) is also property referred to in section 52; and

(ii) was under the control of an officer because an offence

referred to in that section is alleged to have been

committed in respect of the property; and

(b) were the person to be convicted of the offence an order could

be made by the court directing the person to pay the costs of

the prosecution;

the conditions on which the property may be released under

subsection (1) include a condition as to the giving of security for

payment of those costs if the person is convicted of the offence.

(3) For the purposes of this section:

(a) a reference to property includes a reference to fish; and

(b) property is taken to be under the control of an officer if any

person is, in relation to that property, subject to the directions

of the officer.

Fisheries amendments Schedule 1

Forfeiture etc. of things involved in illegal fishing Part 4

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 111

52J Seizure or forfeiture has effect despite admiralty proceedings

(1) The seizure, detention or forfeiture of a boat under this Act has

effect despite any or all of the following events:

(a) the arrest of the boat under the Admiralty Act 1988;

(b) the making of an order for the sale of the boat by a court in

proceedings brought under the Admiralty Act 1988;

proceedings brought under the Admiralty Act 1988.

(2) Subsection (1) has effect regardless of whether the seizure,

detention or forfeiture, or the event that was the basis for the

seizure, detention or forfeiture, occurred before or after the arrest,

making of the order or sale (as appropriate).

Division 2--Related amendments

Torres Strait Fisheries Act 1984

37 Before section 42

Insert:

Division 1--Officers' powers

38 Before section 44

Insert:

Division 2--Offences

39 Before section 52

Insert:

Division 3--Forfeiture for offences

Subdivision A--Forfeiture by court order

40 Before section 53

Insert:

Fisheries amendments Schedule 1

Offences against persons with powers and functions under fisheries law Part 5

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 113

Part 5--Offences against persons with powers and

functions under fisheries law

Fisheries Management Act 1991

42 Paragraph 108(1)(e)

After "officer", insert "or other person exercising a power or

performing a function under this Act".

43 Paragraph 108(1)(f)

Omit "an officer in the exercise of the officer's powers under this Act",

substitute "an officer or other person exercising a power or performing

a function under this Act in the exercise of the power or performance of

the function".

Torres Strait Fisheries Act 1984

44 At the end of paragraph 43(1)(e)

Add "or other person exercising a power or performing a function under

this Act".

45 After paragraph 43(1)(e)

Insert:

; and (f) must not assault, resist or obstruct an officer or other person

exercising a power or performing a function under this Act in

the exercise of the power or performance of the function.

Schedule 2 Enforcement visas etc.

Part 1 Visas etc. relating to exercise of powers under Torres Strait Fisheries Act 1984

114 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

Schedule 2--Enforcement visas etc.

Part 1--Visas etc. relating to exercise of powers

under Torres Strait Fisheries Act 1984

Migration Act 1958

1 Subsection 5(1) (definition of fisheries detention offence)

Repeal the definition, substitute:

fisheries detention offence means:

(a) an offence against section 99, 100, 100A, 101, 101A, 101B,

105E or 105F of the Fisheries Management Act 1991; or

(b) an offence against section 45, 48, 49 or 51 of the Torres

Strait Fisheries Act 1984; or

to an offence described in paragraph (a) or (b).

2 Subsection 5(1) (definition of fisheries officer)

Repeal the definition, substitute:

fisheries officer means an officer as defined in the Fisheries

Management Act 1991 or the Torres Strait Fisheries Act 1984.

3 Subparagraph 43(3)(b)(i)

After "1991", insert "or paragraph 42(1)(g) of the Torres Strait

Fisheries Act 1984".

4 Subparagraph 43(3)(b)(ii)

Omit "that Act", substitute "the Fisheries Management Act 1991 or

paragraph 42(1)(h) of the Torres Strait Fisheries Act 1984".

5 Paragraph 164B(1)(a)

After "1991", insert "or paragraph 42(1)(g) of the Torres Strait

Fisheries Act 1984".

6 Paragraph 164B(1)(b)

Enforcement visas etc. Schedule 2

Visas etc. relating to exercise of powers under Torres Strait Fisheries Act 1984 Part 1

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005

No. , 2005 115

Omit "that Act", substitute "the Fisheries Management Act 1991 or

paragraph 42(1)(h) of the Torres Strait Fisheries Act 1984".

7 Subsection 164B(1) (note 2)

Repeal the note, substitute:

Note 2:

Under paragraph 42(1)(g) of the Torres Strait Fisheries Act 1984, a

fisheries officer may require the master of a boat to bring or take the

boat into the migration zone. Under paragraph 42(1)(h) of that Act, a

fisheries officer may bring a boat into the migration zone.

Note 3:

The grant of an enforcement visa effectively cancels any temporary

visa that the non-citizen may have held (see subsection 82(2A)).

8 Subsections 164B(3) and (4)

After "1991", insert "or the Torres Strait Fisheries Act 1984".

9 Saving of enforcement visas

The amendments made by this Part do not affect the validity of an

enforcement visa granted before the commencement of the

amendments.

Schedule 2 Enforcement visas etc.

Part 2 Amendments relating to new fisheries detention provisions

116 Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill

2005 No. , 2005

Part 2--Amendments relating to new fisheries

detention provisions

Migration Act 1958

10 Section 164A (definition of fisheries detention)

Repeal the definition, substitute:

fisheries detention means detention under:

(a) Schedule 1A to the Fisheries Management Act 1991; or

(b) Schedule 2 to the Torres Strait Fisheries Act 1984.

11 Subsection 164B(2)

Omit "paragraph 84(1)(ia) of the Fisheries Management Act 1991",

substitute "Schedule 1A to the Fisheries Management Act 1991 or

Schedule 2 to the Torres Strait Fisheries Act 1984".

12 Saving of enforcement visas

The amendments made by this Part do not affect the validity of an

enforcement visa granted before the commencement of the

amendments.

Commonwealth of Australia Bills

BORDER PROTECTION LEGISLATION AMENDMENT (DETERRENCE OF ILLEGAL FOREIGN FISHING) BILL 2005