(2) However, this Division does not make the Crown liable to be prosecuted for an offence.
(3) To avoid doubt, subsection (2) does not prevent the Crown being liable to pay a pecuniary penalty under this Division.
Division 4—Criminal justice visitors
Subdivision A—Preliminary
141 Object of Division
This Division is enacted so that, if the administration of criminal justice requires the presence in Australia of a non‑citizen, that non‑citizen may be brought to, or allowed to stay in, Australia for the purposes of that administration.
142 Interpretation
In this Division:
administration of criminal justice means:
(a) an investigation to find out whether an offence has been committed; or
(b) the prosecution of a person for an offence; or
(c) the punishment by way of imprisonment of a person for the commission of an offence.
Australia means the migration zone.
authorised official, in relation to a State, means a person authorised under section 144 to be an authorised official for that State.
criminal justice certificate means:
(a) a criminal justice entry certificate; or
(b) a criminal justice stay certificate.
criminal justice entry certificate means:
(a) a certificate given under section 145; or
(b) a certificate given under subsection 146(1) and endorsed under subsection 146(2).
criminal justice entry visa has the meaning given by section 155.
criminal justice stay certificate means a certificate given under section 147 or 148.
criminal justice stay visa has the meaning given by section 155.
criminal justice stay warrant means a warrant described in section 151.
criminal justice visa has the meaning given by section 38.
State includes Territory.
143 Delegation by Minister
(1) The Minister may, in writing, delegate any of his or her powers under this Division to:
(a) the Secretary of the Department; or
(b) an SES employee, or acting SES employee, in the Department.
(2) Subject to subsection (3), the Minister may, in writing, delegate his or her power under section 147 to a commissioned police officer (within the meaning of the Australian Federal Police Act 1979).
(3) A delegation under subsection (2) must provide that:
(a) the power may only be exercised in relation to a person at a port; and
(b) any certificate that is issued by the member is to remain in force for no longer than 5 days.
(4) The Minister may, at any time, by written notice, revoke a certificate issued by a person exercising a power delegated under subsection (2).
144 Authorised officials
The Minister may, in writing, appoint as an authorised official for a State for the purposes of this Division:
(a) the Attorney‑General of the State; or
(b) a person holding an office under a law of the State that is like the office of the Director of Public Prosecutions; or
(c) the highest ranking member of the police force of the State.
Subdivision B—Criminal justice certificates for entry
(a) the temporary presence in Australia of a non‑citizen who is outside Australia is required for the purposes of:
(i) the Extradition Act 1988; or
(ia) the International War Crimes Tribunals Act 1995; or
(ib) the International Criminal Court Act 2002; or
(ii) the Mutual Assistance in Criminal Matters Act 1987; or
(iii) the administration of criminal justice in relation to an offence against a law of the Commonwealth; and
(b) the presence of the non‑citizen in Australia for the relevant purposes would not hinder the national interest in any way to such an extent that the non‑citizen should not be present in Australia; and
(c) satisfactory arrangements have been made to make sure that the person or organisation who wants the non‑citizen for the relevant purposes or the non‑citizen or both will meet the cost of bringing the non‑citizen to, keeping the non‑citizen in, and removing the non‑citizen from, Australia;
the Minister may give a certificate that the presence of the non‑citizen in Australia is required for the administration of criminal justice.
(2) For the purposes of paragraph (1)(c), the cost of keeping the non‑citizen in Australia does not include the cost of immigration detention (if any).
146 State criminal justice entry certificate
(1) If an authorised official for a State considers that:
(a) the temporary presence in Australia of a non‑citizen who is outside Australia is required for the purposes of the administration of criminal justice in relation to an offence against a law of the State; and
(b) satisfactory arrangements have been made to make sure that the person or organisation who wants the non‑citizen for those purposes or the non‑citizen or both will meet the cost of bringing the non‑citizen to, keeping the non‑citizen in, and removing the non‑citizen from, Australia;
the official may give a certificate that the presence of the non‑citizen in Australia is required for the administration of criminal justice by the State.
(2) If:
(a) a certificate has been given under subsection (1) about a non‑citizen; and
(b) the Minister considers that the temporary presence of the non‑citizen in Australia in order to advance the administration of criminal justice by the State would not hinder the national interest in any way to such an extent that the non‑citizen should not be present in Australia;
the Minister may endorse the certificate with a statement that it is to be a criminal justice certificate for the purposes of this Division.
(3) For the purposes of paragraph (1)(b), the cost of keeping the non‑citizen in Australia does not include the cost of immigration detention (if any).
Subdivision C—Criminal justice certificates etc. staying removal or deportation
(a) an unlawful non‑citizen is to be, or is likely to be, removed or deported; and
(b) the Minister considers that the non‑citizen should remain in Australia temporarily for the purposes of:
(i) the Extradition Act 1988; or
(ia) the International War Crimes Tribunals Act 1995; or
(ib) the International Criminal Court Act 2002; or
(ii) the Mutual Assistance in Criminal Matters Act 1987; or
(iii) the administration of criminal justice in relation to an offence against a law of the Commonwealth; and
(c) the Minister considers that satisfactory arrangements have been made to make sure that the person or organisation who wants the non‑citizen for the relevant purposes or the non‑citizen or both will meet the cost of keeping the non‑citizen in Australia;
the Minister may give a certificate that the stay of the non‑citizen’s removal or deportation is required for the administration of criminal justice.
(2) For the purposes of paragraph (1)(c), the cost of keeping the non‑citizen in Australia does not include the cost of immigration detention (if any).
148 State criminal justice stay certificate
(1) If:
(a) an unlawful non‑citizen is to be, or is likely to be, removed or deported; and
(b) an authorised official for a State considers that the non‑citizen should remain in Australia temporarily for the purposes of the administration of criminal justice in relation to an offence against a law of the State; and
(c) that authorised official considers that satisfactory arrangements have been made to make sure that the person or organisation who wants the non‑citizen for those purposes or the non‑citizen or both will meet the cost of keeping the non‑citizen in Australia;
the official may give a certificate that the stay of the non‑citizen’s removal or deportation is required for the administration of criminal justice by the State.
(2) For the purposes of paragraph (1)(c), the cost of keeping the non‑citizen in Australia does not include the cost of immigration detention (if any).
149 Application for visa not to prevent certificate
A criminal justice stay certificate for a non‑citizen may be given even though an application for a visa for the non‑citizen has been made but not finalised.
150 Criminal justice stay certificates stay removal or deportation
If a criminal justice stay certificate about a non‑citizen is in force, the non‑citizen is not to be removed or deported.
151 Certain warrants stay removal or deportation
(1) If an unlawful non‑citizen is to be, or is likely to be, removed or deported, this Act does not prevent a court issuing for the purposes of the administration of criminal justice in relation to an offence against a law a warrant to stay the removal or deportation.
(2) If a criminal justice stay warrant about a non‑citizen is in force, the non‑citizen is not to be removed or deported.
(3) If a court issues a criminal justice stay warrant about a non‑citizen, the applicant for the warrant is responsible for the costs of any maintenance or accommodation (other than immigration detention) of the non‑citizen while the warrant is in force.
152 Certain subjects of stay certificates and stay warrants may be detained etc.
If:
(a) a criminal justice stay certificate or a criminal justice stay warrant about a non‑citizen is in force; and
(b) the non‑citizen does not have a visa to remain in Australia;
the certificate or warrant does not limit any power under this Act relating to the detention of the non‑citizen.
153 Removal or deportation not contempt etc. if no stay certificate or warrant
(1) Subject to subsection (2), if:
(a) this Act requires the removal or deportation of a non‑citizen; and
(b) there is no criminal justice stay certificate or criminal justice stay warrant about the non‑citizen;
any other law, or anything done under any other law, of the Commonwealth or a State (whether passed or made before or after the commencement of this section), not being an Act passed after that commencement expressed to be exempt from this section, does not prevent the removal or deportation.
(2) Subsection (1) does not permit the removal or deportation of a non‑citizen if that removal or deportation would be in breach of an order of the High Court, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2).
154 Officer not liable—criminal justice stay certificates or warrants
An officer is not liable to any civil or criminal action for doing in good faith, or failing in good faith to do, any act or thing for the purpose of exercising a power under this Act to keep a person who is the subject of a criminal justice stay certificate or criminal justice stay warrant in immigration detention.
Subdivision D—Criminal justice visas
155 Criminal justice visas
(1) A criminal justice visa may be a visa permitting a non‑citizen to travel to and enter, and remain temporarily in, Australia, to be known as a criminal justice entry visa.
(2) A criminal justice visa may be a visa permitting a non‑citizen to remain temporarily in Australia, to be known as a criminal justice stay visa.
156 Criterion for criminal justice entry visas
A criterion for a criminal justice entry visa for a non‑citizen is that a criminal justice entry certificate about the non‑citizen is in force.
157 Criterion for criminal justice stay visas
A criterion for a criminal justice stay visa for a non‑citizen is that either:
(a) a criminal justice stay certificate about the non‑citizen is in force; or
(b) a criminal justice stay warrant about the non‑citizen is in force.
158 Criteria for criminal justice visas
The criteria for a criminal justice visa for a non‑citizen are, and only are:
(a) the criterion required by section 156 or 157; and
(b) the criterion that the Minister, having had regard to:
(i) the safety of individuals and people generally; and
(ii) in the case of a criminal justice entry visa, arrangements to ensure that if the non‑citizen enters Australia, the non‑citizen can be removed; and
(iii) any other matters that the Minister considers relevant;
has decided, in the Minister’s absolute discretion, that it is appropriate for the visa to be granted.
159 Procedure for obtaining criminal justice visa
(1) If a criminal justice certificate, or a criminal justice stay warrant, in relation to a non‑citizen is in force, the Minister may consider the grant of a criminal justice visa for the non‑citizen.
(2) If the Minister, after considering the grant of a criminal justice visa for a non‑citizen, is satisfied that the criteria for it have been met, the Minister may, in his or her absolute discretion:
(a) grant it by causing a record of it to be made; and
(b) give such evidence of it as the Minister considers appropriate.
160 Conditions of criminal justice visa
(1) The regulations may provide that criminal justice visas are subject to specified conditions.
(2) It is a condition of a criminal justice entry visa for a non‑citizen that the non‑citizen must not do any work in Australia, whether for reward or otherwise.
(3) In subsection (2):
work, in relation to a non‑citizen, does not include work for the purposes for which there is a criminal justice certificate or criminal justice stay warrant about the non‑citizen, including, if those purposes are or include the imprisonment of the non‑citizen, work as a prisoner.
161 Effect of criminal justice visas
(1) A criminal justice entry visa for a non‑citizen is permission for the non‑citizen to travel to and enter and remain in Australia while it is in effect.
(2) A criminal justice stay visa for a non‑citizen:
(a) is permission for the non‑citizen to remain in Australia while it is in effect; and
(b) if the non‑citizen is in immigration detention, entitles the non‑citizen to be released from that detention.
(3) A criminal justice visa for a person does not prevent the non‑citizen leaving Australia.
(4) Subsection (3) does not limit the operation of any order or warrant of a court.
(5) The holder of a criminal justice entry visa may not apply for a visa other than a protection visa.
(6) If a non‑citizen who has held a criminal justice entry visa remains in Australia when the visa is cancelled, the non‑citizen may not make an application for a visa other than a protection visa.
Subdivision E—Cancellation etc. of criminal justice certificates and criminal justice visas
162 Criminal justice certificates to be cancelled
(1) If the presence in Australia of a non‑citizen in respect of whom a criminal justice certificate has been given is no longer required for the purposes for which it was given, then:
(a) if it was given under section 145 or 147—the Minister; or
(b) if it was given under section 146 or 148—an authorised official;
is to cancel it.
(2) Before cancelling a certificate given under section 146 or 148, an authorised official is, an adequate time before doing so, to tell the Secretary:
(a) when it is to be cancelled; and
(b) the expected whereabouts of the non‑citizen when it is cancelled; and
(c) the arrangements for the non‑citizen’s departure from Australia.
163 Stay warrant to be cancelled
(1) If:
(a) the presence in Australia of a non‑citizen in respect of whom a criminal justice stay warrant has been given is no longer required for the purposes for which it was given; and
(b) if the warrant is to expire at a certain time—that time has not been reached;
a person entitled to apply for the warrant’s cancellation must apply to the court for the cancellation.
(2) The applicant for a criminal justice stay warrant in respect of a non‑citizen is to tell the Secretary a reasonable time before the warrant expires:
(a) the time it will expire; and
(b) the expected whereabouts of the non‑citizen at the time of expiry; and
(c) the arrangements for the non‑citizen’s departure from Australia.
(3) An applicant for the cancellation of a criminal justice stay warrant is to tell the Secretary, as soon as practicable:
(a) the time of cancellation for which application will be made; and
(b) if the time of cancellation is different from that applied for, the time of cancellation; and
(c) the expected whereabouts of the non‑citizen at the expected time, and, if paragraph (b) applies, the time of cancellation; and
(d) the arrangements for the non‑citizen’s departure from Australia.
164 Effect of cancellation etc. on criminal justice visa
If:
(a) a criminal justice certificate is cancelled; or
(b) a criminal justice stay warrant is cancelled or expires;
any criminal justice visa granted because of the certificate or warrant is cancelled and the Minister is to make a record of the cancellation.
Division 4A—Enforcement visas
164A Definitions
In this Division:
Commonwealth aircraft has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.
Commonwealth ship has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.
enforcement visa (environment matters) means an enforcement visa that is granted by section 164BA.
enforcement visa (fisheries matters) means an enforcement visa that is granted by section 164B.
environment detention means detention under Schedule 1 to the Environment Protection and Biodiversity Conservation Act 1999.
fisheries detention means detention under:
(a) Schedule 1A to the Fisheries Management Act 1991; or
(b) Schedule 2 to the Torres Strait Fisheries Act 1984.
164B Grant of enforcement visas (fisheries matters)
Non‑citizen on foreign vessel outside migration zone
(1) A non‑citizen on a foreign vessel outside the migration zone is granted an enforcement visa when the vessel is detained under section 69 of the Maritime Powers Act 2013 in relation to a fisheries detention offence.
Note: The grant of an enforcement visa effectively cancels any temporary visa that the non‑citizen may have held (see subsection 82(2A)).