(a) a non-citizen:
(i) enters Australia on a vessel; and
(ii) because he or she is not the holder of a visa that is in effect, or because of section 173, becomes upon entry an unlawful non-citizen; and
(iii) is a person to whom subsection 42(1) applies; or
(b) a removee or deportee who has been placed on board a vessel for removal or deportation leaves the vessel in Australia otherwise than in immigration detention under this Act;
the master, owner, agent and charterer of the vessel are each taken to commit an offence against this Act punishable by a fine not exceeding 100 penalty units.
(1A) An offence against subsection (1) is an offence of absolute liability.
Note: For absolute liability , see section 6.2 of the Criminal Code .
(1B) For the purposes of paragraph (1)(a), the defendant bears an evidential burden in relation to establishing that subsection 42(1) does not apply to a person because of subsection 42(2) or (2A) or regulations made under subsection 42(3).
Note: For evidential burden , see section 13.3 of the Criminal Code .
(2) It is a defence to a prosecution for an offence against subsection (1) in relation to the entry of a non-citizen to Australia on a vessel if it is established:
(a) that the non-citizen was, when he or she boarded or last boarded the vessel for travel to Australia, in possession of evidence of a visa that was in effect and that permitted him or her to travel to and enter Australia, being a visa that:
(i) did not appear to have been cancelled; and
(ii) was expressed to continue in effect until, or at least until, the date of the non-citizen's expected entry into Australia; or
(b) that the master of the vessel had reasonable grounds for believing that, when the non-citizen boarded or last boarded the vessel for travelling to and entering Australia, the non-citizen:
(i) was eligible for a special category visa; or
(ii) was the holder of a special purpose visa; or
(iii) would, when entering Australia, be the holder of a special purpose visa; or
(iv) was the holder of an enforcement visa; or
(v) would, when entering Australia, be the holder of an enforcement visa; or
(c) that the vessel entered Australia from overseas only because of:
(i) the illness of a person on board the vessel; or
(ii) stress of weather; or
(iii) other circumstances beyond the control of the master.
(3) A defendant bears a legal burden in relation to the matters in subsection (2).