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MIGRATION ACT 1958 - SECT 245AM

Geographical scope of offence and civil penalty provisions

Offences

             (1)  Section 15.2 of the Criminal Code (extended geographical jurisdiction--category B) applies to an offence against this Subdivision.

Contraventions of civil penalty provisions

             (2)  An order must not be made against a person in civil proceedings relating to a contravention by the person of a civil penalty provision in this Subdivision unless:

                     (a)  the person's conduct that allegedly contravenes the provision occurs:

                              (i)  wholly or partly in Australia; or

                             (ii)  wholly or partly on board an Australian aircraft or an Australian ship; or

                     (b)  the person's conduct that allegedly contravenes the provision occurs wholly outside Australia and, at the time of the alleged contravention, the person is:

                              (i)  an Australian citizen; or

                             (ii)  a resident of Australia; or

                            (iii)  a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or

                     (c)  all of the following conditions are satisfied:

                              (i)  the person's conduct allegedly contravenes the provision because of section 486ZD (the ancillary contravention );

                             (ii)  the conduct occurs wholly outside Australia;

                            (iii)  the conduct constituting the primary contravention to which the ancillary contravention relates occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.

Defences relating to contraventions of civil penalty provisions

             (3)  In civil proceedings relating to a primary contravention by a person, it is a defence if:

                     (a)  the conduct constituting the alleged primary contravention occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and

                     (b)  the person is neither:

                              (i)  an Australian citizen; nor

                             (ii)  a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and

                     (c)  there is not in force in:

                              (i)  the foreign country where the conduct constituting the alleged primary contravention occurs; or

                             (ii)  the part of the foreign country where the conduct constituting the alleged primary contravention occurs;

                            a law of that foreign country, or a law of that part of that foreign country, that provides for a pecuniary or criminal penalty for such conduct.

             (4)  In civil proceedings relating to a contravention (the ancillary contravention ) by a person of a civil penalty provision in this Subdivision because of section 486ZD, it is a defence if:

                     (a)  the conduct constituting the alleged ancillary contravention occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and

                     (b)  the conduct (the primary conduct ) constituting the primary contravention to which the ancillary contravention relates occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and

                     (c)  the person is neither:

                              (i)  an Australian citizen; nor

                             (ii)  a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and

                     (d)  there is not in force in:

                              (i)  the foreign country where the primary conduct occurs or is intended by the person to occur; or

                             (ii)  the part of the foreign country where the primary conduct occurs or is intended by the person to occur;

                            a law of that foreign country, or a law of that part of that foreign country, that provides for a pecuniary or criminal penalty for the primary conduct.

             (5)  A defendant bears an evidential burden in relation to the matter in subsection (3) or (4).

Attorney-General's consent needed for certain proceedings

             (6)  Civil proceedings relating to a contravention of a civil penalty provision in this Subdivision must not be commenced without the Attorney-General's written consent if:

                     (a)  the conduct constituting the alleged contravention occurs wholly in a foreign country; and

                     (b)  at the time of the alleged contravention, the person alleged to have contravened the provision is neither:

                              (i)  an Australian citizen; nor

                             (ii)  a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

When conduct taken to occur partly in Australia

             (7)  For the purposes of this section, if a person sends a thing, or causes a thing to be sent:

                     (a)  from a point outside Australia to a point in Australia; or

                     (b)  from a point in Australia to a point outside Australia;

that conduct is taken to have occurred partly in Australia.

             (8)  For the purposes of this section, if a person sends, or causes to be sent, an electronic communication:

                     (a)  from a point outside Australia to a point in Australia; or

                     (b)  from a point in Australia to a point outside Australia;

that conduct is taken to have occurred partly in Australia.

Definitions

             (9)  In this section:

"Australian aircraft has the same meaning as in the Criminal Code" .

"Australian ship has the same meaning as in the Criminal Code" .

"electronic communication has the same meaning as in the Criminal Code" .

"foreign country has the same meaning as in the Criminal Code" .

"point " has the same meaning as in section 16.2 of the Criminal Code .

"primary contravention " means a contravention of a civil penalty provision in this Subdivision other than because of section 486ZD.

"resident of Australia has the same meaning as in the Criminal Code" .



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