MIGRATION ACT 1958 - SECT 223 Secretary or Australian Border Force Commissioner may give direction about valuables of detained non - citizens

MIGRATION ACT 1958 - SECT 223

  (1)   This section applies in relation to a person who has been detained.

  (2)   Where the Secretary or Australian Border Force Commissioner is satisfied that:

  (a)   the detainee is an unlawful non - citizen or a deportee;

  (b)   the detainee is liable, or may, on deportation or removal, become liable, to pay the Commonwealth an amount under section   210 or 212; and

  (c)   if the Secretary or Australian Border Force Commissioner does not give a notice under this section there is a risk that the Commonwealth will not be able to recover the whole or a part of any amount that the detainee is, or becomes, liable to pay to the Commonwealth under section   210 or 212;

the Secretary or Australian Border Force Commissioner may, in writing, notify the detainee that his or her valuables are liable to be taken under this section.

  (3)   Where the Secretary or Australian Border Force Commissioner gives a notice under subsection   (2), subsections   (4) to (13) apply.

  (4)   The Secretary or Australian Border Force Commissioner shall cause a copy of the notice to be served on the detainee as prescribed.

  (5)   At any time after a copy of the notice has been served on the detainee and while the notice remains in force, the Secretary or Australian Border Force Commissioner may take possession of any valuables that the Secretary or Australian Border Force Commissioner believes, on reasonable grounds, to belong to the detainee.

  (6)   A copy of the notice may be served on:

  (a)   any bank;

  (b)   any other financial institution; or

  (c)   any other person.

  (7)   A bank or other financial institution served with a copy of the notice shall not, while the notice remains in force, without the written consent of the Secretary or Australian Border Force Commissioner, process any transaction attempted in relation to any account held by the detainee, whether alone or jointly with another person or other persons, and whether for his or her own benefit or as a trustee.

Penalty:   300 penalty units.

  (7A)   An offence against subsection   (7) is an offence of strict liability.

Note:   For strict liability , see section   6.1 of the Criminal Code .

  (8)   Where a copy of the notice is served on a person, not being a bank or other financial institution, who owes a debt to the detainee, that first - mentioned person shall not, while the notice remains in force, without the written consent of the Secretary or Australian Border Force Commissioner, make any payment to the detainee in respect of that debt.

Penalty:   Imprisonment for 2 years.

  (9)   The notice stops being in force at the end of the third working day after it is given unless, before the end of that day, the Secretary or Australian Border Force Commissioner has applied to a court for an order confirming the notice.

  (10)   A court shall, on application by the Secretary or Australian Border Force Commissioner, confirm the notice if and only if it is satisfied:

  (a)   that the detainee is an unlawful non - citizen or a deportee;

  (b)   that the detainee is liable, or may, on deportation or removal, become liable, to pay the Commonwealth an amount under section   210 or 212; and

  (c)   that, if the court does not confirm the notice, there is a risk that the Commonwealth will not be able to recover the whole or a part of any amount that the detainee is, or becomes, liable to pay to the Commonwealth under section   210 or 212.

  (11)   If the court confirms the notice, the court may make an order directing the Secretary or Australian Border Force Commissioner to make provision, whether by returning valuables to which the notice relates or otherwise, for the meeting of either or both of the following:

  (a)   the detainee's reasonable living expenses (including the reasonable living expenses of the detainee's dependants (if any));

  (b)   reasonable legal expenses incurred by the detainee in relation to a matter arising under this Act.

  (12)   If the notice is confirmed by the court, it remains in force for such period, not exceeding 12 months, as is specified by the court.

  (13)   If the court refuses to confirm the notice, it thereupon stops being in force.

  (14)   The Secretary or Australian Border Force Commissioner may issue to an officer a search warrant in accordance with the prescribed form.

  (15)   A search warrant shall be expressed to remain in force for a specified period not exceeding 3 months and stops being in force at the end of that period.

  (16)   An officer having with him or her a search warrant that was issued to him or her under subsection   (14) and that is in force may, at any time in the day or night, and with such assistance, and using such reasonable force, as the officer thinks necessary:

  (a)   enter and search any building, premises, vehicle, vessel or place in which the officer has reasonable cause to believe there may be found any valuables to which a notice in force under this section relates; and

  (b)   may seize any such valuables found in the course of such a search.

  (17)   An officer who has seized valuables under subsection   (16) shall deal with those valuables in accordance with the directions of the Secretary or Australian Border Force Commissioner.

  (18)   For the purposes of the exercise of his or her powers under subsection   (16) an officer may stop any vehicle or vessel.

  (19)   An officer who, in good faith, on behalf of the Secretary or Australian Border Force Commissioner or as a delegate of the Secretary or Australian Border Force Commissioner, does any act or thing for the purpose of the exercise of the power under subsection   (5) to take possession of valuables is not liable to any civil or criminal action in respect of the doing of that act or thing.

  (20)   In this section:

"court" means a court of competent jurisdiction.

"valuables" includes:

  (a)   gold, jewellery, negotiable instruments, travellers cheques and cash; and

  (b)   bank books and other documentary evidence of debts owed to the detainee.