Commonwealth Consolidated Acts

MIGRATION ACT 1958 - SECT 245B

General power to request to board

             (1)  In the circumstances described in subsection (2), (3), (4), (5), (6) or (7), the commander of a Commonwealth ship or Commonwealth aircraft may request the master of a ship to permit the commander, a member of the commander's crew or an officer to board the master's ship.

Note:          Sections 245F and 245G give power to board the master's ship if a request is made under this section.

Foreign ships in Australian waters

             (2)  The commander may make the request if the master's ship is a foreign ship that is on the landward side of the outer edge of Australia's territorial sea. However, the request must be made for the purposes of this Act.

Australian ships outside territorial seas of other countries

             (3)  The commander may make the request if:

                     (a)  the master's ship is an Australian ship; and

                     (b)  the master's ship is outside the territorial sea of any foreign country.

The commander must not make the request under this subsection if it may be made under subsection (7).

Foreign ships in contiguous zone or near installations

             (4)  The commander may make the request if:

                     (a)  the master's ship is a foreign ship; and

                     (b)  the master's ship is either:

                              (i)  in the contiguous zone of Australia; or

                             (ii)  within 500 metres of an Australian resources installation or Australian sea installation; and

                     (c)  the commander:

                              (i)  wishes to establish the identity of the master's ship; or

                             (ii)  reasonably suspects that the master's ship is, will be or has been involved in a contravention, or an attempted contravention, in Australia of this Act.

Mother ships on high seas supporting contraventions in Australia

             (5)  The commander may make the request if:

                     (a)  the master's ship is a foreign ship; and

                     (b)  the master's ship is:

                              (i)  outside the outer edge of the contiguous zone of Australia; and

                             (ii)  not within 500 metres of an Australian resources installation or Australian sea installation; and

                            (iii)  outside the territorial sea of a foreign country; and

                     (c)  the commander reasonably suspects that the master's ship is being or was used in direct support of, or in preparation for, a contravention in Australia of this Act, where the contravention involves another ship (whether a foreign ship or an Australian ship); and

                     (d)  the request is made as soon as practicable after the contravention happens.

Foreign ships on high seas and covered by an agreement etc.

             (6)  The commander may make the request if:

                     (a)  the master's ship is:

                              (i)  outside the outer edge of the contiguous zone of Australia; and

                             (ii)  outside the territorial sea of a foreign country; and

                     (b)  the commander reasonably suspects that the master's ship is a foreign ship that is entitled to fly the flag of a country; and

                     (c)  Australia has an agreement or arrangement with that country which enables the exercise of Australian jurisdiction over ships of that country.

The commander must not make the request under this subsection if it may be made under subsection (5).

Ships without nationality on high seas

             (7)  The commander may make the request if:

                     (a)  the master's ship is:

                              (i)  outside the outer edge of the contiguous zone of Australia; and

                             (ii)  outside the territorial sea of a foreign country; and

                     (b)  any of the following applies:

                              (i)  the master's ship is not flying a flag of a country;

                             (ii)  the master's ship is flying a flag of a country and the commander reasonably suspects that the master's ship is not entitled to fly that flag;

                            (iii)  the commander reasonably suspects that the master's ship is not entitled to fly the flag of a country or has been flying the flag of more than one country; and

                     (c)  the Commander wishes to establish the identity of the master's ship.

The commander must not make the request under this subsection if it may be made under subsection (5) or (6).

Means of making request

             (8)  The commander of a Commonwealth ship or Commonwealth aircraft may use any reasonable means to make a request under this section.

Request still made even if no master on the ship etc.

             (9)  To avoid doubt, a request is still made under this section even if:

                     (a)  there was no master on board the ship to receive the request; or

                     (b)  the master did not receive or understand the request.

Master must comply with request

           (10)  The master of a ship must comply with a request made under this section (other than subsection (7)).

Penalty:  Imprisonment for 2 years.

Note:          The master's ship can still be boarded under section 245F or 245G even though the master has not complied with a request to board under this section.

           (11)  Subsection (10) does not apply if the master has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (11) (see subsection 13.3(3) of the Criminal Code ).

           (12)  In this section:

"commander" , in relation to a Commonwealth ship or Commonwealth aircraft, includes a reference to the following:

                     (a)  a commissioned officer of the Australian Defence Force;

                     (b)  the most senior officer of Customs on board the ship or aircraft.

"commissioned officer of the Australian Defence Force" means an officer within the meaning of the Defence Act 1903 .

"member of the commander's crew" includes, in relation to a commander of a Commonwealth ship or Commonwealth aircraft who is a commissioned officer of the Australian Defence Force, a person acting under the command of the commissioned officer.