Commonwealth Consolidated Acts

MIGRATION ACT 1958 - SECT 245F

Application of section to ships

             (1)  This section applies to a ship that is outside the territorial sea of a foreign country if:

                     (a)  a request to board the ship has been made under section 245B; or

                     (b)  the ship is a foreign ship described in subsection 245C(3) (which allows foreign ships on the high seas to be chased); or

                     (c)  the ship is an Australian ship.

However, this section does not apply to a ship if a request to board the ship has been made under subsection 245B(6) or (7) (certain ships on the high seas), unless an officer is satisfied under subsection 245G(3) that the ship is an Australian ship.

Note:          Section 245G deals with the boarding of ships where a request has been made under subsection 245B(6) or (7).

Application of section to aircraft

             (2)  This section applies to an aircraft that has landed in Australia for boarding as a result of a request made under section 245E.

Officer's powers

             (3)  An officer may:

                     (a)  board and search the ship or aircraft; and

                     (b)  search and examine any goods found on the ship or aircraft; and

                     (c)  secure any goods found on the ship or aircraft; and

                     (d)  require all persons found on the ship or aircraft to answer questions, and produce any documents in their possession, in relation to the following:

                              (i)  the ship or aircraft, its voyage or flight and its cargo, stores, crew and passengers;

                             (ii)  the identity and presence of those persons on the ship or aircraft;

                            (iii)  a contravention, an attempted contravention or an involvement in a contravention or attempted contravention, either in or outside Australia, of this Act; and

                     (e)  copy, or take extracts from, any document:

                              (i)  found on the ship or aircraft; or

                             (ii)  produced by a person found on the ship or aircraft as required under paragraph (d); and

                      (f)  arrest without warrant any person found on the ship or aircraft if:

                              (i)  in the case of a person found on a ship or aircraft that is in Australia--the officer reasonably suspects that the person has committed, is committing or attempting to commit, or is involved in the commission of, an offence, either in or outside Australia, against this Act; and

                             (ii)  in the case of a person found on a ship that is outside Australia--the officer reasonably suspects that the person has committed, is committing or attempting to commit, or is involved in the commission of, an offence in Australia against this Act.

             (4)  Any exercise of the power of arrest referred to in subsection (3) in the contiguous zone in relation to Australia is subject to the obligations of Australia under international law, including obligations under any treaty, convention or other agreement or arrangement between Australia and another country or other countries.

Help to search

             (5)  Without limiting the generality of paragraph (3)(a), an officer may use a dog to assist in searching the ship or aircraft.

Help to examine goods

             (6)  In the exercise of the power under paragraph (3)(b) to examine goods, the officer may do, or arrange for another officer or other person having the necessary experience to do, whatever is reasonably necessary to permit the examination of the goods.

Examples of examining goods

             (7)  Without limiting the generality of subsection (6), examples of what may be done in the examination of goods include the following:

                     (a)  opening any package in which goods are or may be contained;

                     (b)  using a device, such as an X-ray machine or ion scanning equipment, on the goods;

                     (c)  if the goods are a document--reading the document either directly or with the use of an electronic device;

                     (d)  using a dog to assist in examining the goods.

Power to detain and move ship or aircraft

             (8)  An officer may detain the ship or aircraft and bring it, or cause it to be brought, to a port, or to another place (including a place within the territorial sea or the contiguous zone in relation to Australia), that he or she considers appropriate if:

                     (a)  in the case of a ship or aircraft that is in Australia--the officer reasonably suspects that the ship or aircraft is or has been involved in a contravention, either in or outside Australia, of this Act; and

                     (b)  in the case of an Australian ship that is outside Australia--the officer reasonably suspects that the ship is, will be or has been involved in a contravention, either in or outside Australia, of this Act; and

                     (c)  in the case of a foreign ship that is outside Australia--the officer reasonably suspects that the ship is, will be or has been involved in a contravention in Australia of this Act.

However, a ship need not be brought to a port or other place if the Secretary makes a direction in relation to the ship under section 245H.

       (8AA)  To avoid doubt, subsection (8) allows an officer to bring a ship, or cause it to be brought, to a place even if it is necessary for the ship to travel on the high seas to reach the place.

People on detained ships or aircraft

          (8A)  If an officer detains a ship or aircraft under this section, any restraint on the liberty of any person found on the ship or aircraft that results from the detention of the ship or aircraft is not unlawful, and proceedings, whether civil or criminal, in respect of that restraint may not be instituted or continued in any court against the Commonwealth, the officer or any person assisting the officer in detaining the ship or aircraft.

Jurisdiction of High Court

          (8B)  Nothing in subsection (8A) is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.

Powers of officers in respect of people found on detained ships or aircraft

             (9)  If an officer detains a ship or aircraft under this section, the officer may:

                     (a)  detain any person found on the ship or aircraft and bring the person, or cause the person to be brought, to the migration zone; or

                     (b)  take the person, or cause the person to be taken, to a place outside Australia.

Powers to move people

          (9A)  For the purpose of moving a person under subsection (9), an officer may, within or outside Australia:

                     (a)  place the person on a ship or aircraft; or

                     (b)  restrain the person on a ship or aircraft; or

                     (c)  remove the person from a ship or aircraft.

Protection if officers etc. act in good faith

          (9B)  Proceedings, whether civil or criminal, may not be instituted or continued, in respect of any action taken under subsection (9A), against the Commonwealth, an officer or any person assisting an officer if the officer or person who took the action acted in good faith and used no more force than was authorised by subsection (10).

Use of necessary and reasonable force

           (10)  An officer may use such force as is necessary and reasonable in the exercise of a power under this section.

Limit on use of force to board and search ships or aircraft

           (11)  In boarding and searching the ship or aircraft and searching or examining goods found on the ship or aircraft, an officer must not damage the ship, aircraft or goods by forcing open a part of the ship, aircraft or goods unless:

                     (a)  the person (if any) apparently in charge of the ship or aircraft has been given a reasonable opportunity to open that part or the goods; or

                     (b)  it is not reasonably practicable to give that person such an opportunity.

This subsection has effect despite paragraphs (3)(a) and (b) and subsection (10).

Limit on use of force to arrest or detain person on ships or aircraft

           (12)  In arresting or detaining a person found on the ship or aircraft, an officer:

                     (a)  must not use more force, or subject the person to greater indignity, than is necessary and reasonable to make the arrest or detention, or to prevent the person escaping after the arrest or detention; and

                     (b)  must not do anything likely to cause the person grievous bodily harm unless the officer believes on reasonable grounds that doing the thing is necessary to protect life or prevent serious injury of another person (including the officer).

This subsection has effect despite paragraph (3)(f) and subsection (10).

Limit on use of force to arrest fleeing person

           (13)  In arresting a person found on the ship or aircraft who is fleeing to escape arrest, an officer must not do anything likely to cause the person grievous bodily harm unless:

                     (a)  the person has, if practicable, been called on to surrender and the officer believes on reasonable grounds that the person cannot be apprehended in any other way; or

                     (b)  the officer believes on reasonable grounds that doing the thing is necessary to protect life or prevent serious injury of another person (including the officer).

This subsection applies in addition to subsection (12) and has effect despite paragraph (3)(f) and subsection (10).

If ship covered by agreement, officer may exercise other powers

           (14)  If:

                     (a)  an officer is satisfied that the ship is a foreign ship that is entitled to fly the flag of a country; and

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

then the officer may exercise any powers prescribed by the regulations consistently with the agreement or arrangement in relation to the ship or persons found on the ship.

Complying with requirement by officer

           (15)  A person must not refuse or fail to comply with a requirement made by an officer under this section.

Penalty:  100 penalty units.

        (15A)  Subsection (15) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (15A) (see subsection 13.3(3) of the Criminal Code ).

        (15B)  An offence against subsection (15) is an offence of strict liability.

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

Evidence may be used in prosecutions etc.

           (16)  To avoid doubt, if, when exercising powers under this section, an officer obtains evidence of the commission of an offence against a law of the Commonwealth, a State or a Territory, then that evidence may be used, or given to another body for use, in:

                     (a)  investigating the offence; or

                     (b)  proceedings for the prosecution for the offence.

However, this subsection does not override or limit the operation of a law of a State about the evidence that may be used in proceedings for the prosecution for an offence against a law of that State.

Section not to limit officer's other powers

           (17)  This section does not limit the use by an officer of any other powers under this Act.

Definition of officer

           (18)  In this section, officer means an officer within the meaning of section 5, and includes:

                     (a)  any person who is in command, or a member of the crew, of:

                              (i)  the ship or aircraft from which the relevant request under section 245B or 245E was made; or

                             (ii)  a ship or aircraft that was used under section 245C or 245D to chase the ship in relation to which this section applies; and

                     (b)  a member of the Australian Defence Force.

Interpretation

           (19)  In this section:

                     (a)  a reference to a person found on the ship or aircraft includes a reference to a person suspected on reasonable grounds by an officer of having landed from or left the ship or aircraft; and

                     (b)  a reference to goods found on the ship or aircraft includes a reference to goods suspected on reasonable grounds by an officer of having been removed from the ship or aircraft.