If, under this Division, 2 or more persons are liable to pay the Commonwealth the costs of a non‑citizen’s removal or deportation they are jointly and severally liable to pay those costs.
215 Costs are debts due to the Commonwealth
Without limiting any other provision of this Act, costs payable by a person to the Commonwealth under this Division may be recovered by the Commonwealth as a debt due to the Commonwealth in a court of competent jurisdiction.
216 Use of existing ticket for removal or deportation
If:
(a) a non‑citizen is to be removed or deported; and
(b) the non‑citizen or another person holds a ticket for the conveyance of the non‑citizen from a place within Australia to a place outside Australia;
the Secretary or Australian Border Force Commissioner may, on behalf of the ticket holder arrange (with or without the ticket holder’s consent) for the ticket to be applied for or towards the conveyance of the non‑citizen.
217 Vessels required to convey certain removees
(1) If a person covered by subsection 193(1) is to be removed, the Secretary or Australian Border Force Commissioner may give the controller of the vessel on which the person travelled to and entered Australia written notice requiring the controller to transport the person from Australia.
(2) Subject to section 219, the controller must comply with the notice within 72 hours of the giving of the notice or such further time as the Secretary or Australian Border Force Commissioner allows.
Penalty: 100 penalty units.
(3) An offence against subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
218 Vessels required to convey deportees or other removees
(1) Subject to section 217, if a person is to be removed or deported, the Secretary or Australian Border Force Commissioner may give the controller of a vessel or vessels a written notice requiring the controller to transport the person from Australia to a destination of the vessel or one of the vessels specified in the notice.
(2) Subject to sections 219 and 220, the controller must comply with the notice within 72 hours of the giving of the notice or such further time as the Secretary or Australian Border Force Commissioner allows.
Penalty: 100 penalty units.
(3) An offence against subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
219 Exemption from complying
It is a defence to a prosecution for an offence against section 217 or 218 of failing to comply with a notice to transport a non‑citizen if the defendant proves:
(a) that the defendant was prevented from complying with the notice because of stress of weather or other reasonable cause; or
(b) the defendant gave reasonable notice to the Secretary or Australian Border Force Commissioner of the person’s willingness to receive the non‑citizen on board a specified vessel at a specified port on a specified day within 72 hours of the giving of the notice for removal or deportation, but the non‑citizen was not made available at that port on that date for boarding the vessel.
Note: A defendant bears a legal burden in relation to the matters in this section (see section 13.4 of the Criminal Code).
220 Waiver of requirement
(1) If:
(a) a notice has been given under section 218 requiring the transport of an unlawful non‑citizen to a country; and
(b) the government of that country notifies the Minister that the non‑citizen would not be permitted to enter that country;
the Minister is to give the controller written notice revoking the notice under that section.
(2) The revocation of a notice does not prevent another notice under section 218 or affect any liability for costs.
221 Cost of removal under notice
(1) If:
(a) the controller of a vessel is given a notice under section 218 to transport a non‑citizen; and
(b) the controller was a carrier of the non‑citizen; and
(c) paragraphs 213(1)(a) and (b) apply to the non‑citizen;
then the Commonwealth is not liable for the costs of transporting the non‑citizen.
(2) If:
(a) the controller of a vessel is given a notice under section 218 to transport a non‑citizen; and
(b) subsection (1) does not apply;
then:
(c) the Commonwealth is liable to pay the controller’s costs of the transport; and
(d) sections 210 to 216 apply to the transport and those costs.
222 Orders restraining certain non‑citizens from disposing etc. of property
(1) Where, on an application by the Secretary or Australian Border Force Commissioner relating to property of a non‑citizen, a court is satisfied that:
(a) the non‑citizen is liable, or may, on deportation or removal, become liable, to pay the Commonwealth an amount under section 210 or 212; and
(b) if the court does not make an order under this subsection there is a risk that the Commonwealth will not be able to recover the whole or a part of any amount that the non‑citizen is, or becomes, liable to pay to the Commonwealth under section 210 or 212;
the court may make an order restraining any dealing with the property, or such part of the property as is specified in the order.
(2) The Secretary or Australian Border Force Commissioner may apply to a court for an order under subsection (1) in respect of:
(a) any of a non‑citizen’s property that is in Australia; or
(b) specified property of a non‑citizen that is in Australia.
(3) Where an application is made for an order under subsection (1), the court may, before considering the application, grant an interim order, being an order of the kind applied for that is expressed to have effect pending the determination of the application.
(4) An order under subsection (1) has effect for the period specified in the order.
(5) A court may rescind, vary or discharge an order made by it under this section.
(6) A court may suspend the operation of an order made by it under this section.
(7) An order under subsection (1) may be made subject to such conditions as the court thinks fit and, without limiting the generality of this, may make provision for meeting, out of the property or a specified part of the property to which the order relates, either or both of the following:
(a) the non‑citizen’s reasonable living expenses (including the reasonable living expenses of the non‑citizen’s dependants (if any));
(b) reasonable legal expenses incurred by the non‑citizen in relation to a matter arising under this Act.
(8) A person shall not contravene an order under this section.
Penalty: Imprisonment for 2 years.
(8A) Subsection (8) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (8A) (see subsection 13.3(3) of the Criminal Code).
(9) In this section:
court means a court of competent jurisdiction.
property means real or personal property of every description, whether tangible or intangible, that is situated in Australia, and includes an interest in any such real or personal property.
223 Secretary or Australian Border Force Commissioner may give direction about valuables of detained non‑citizens
(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.
224 Dealing with seized valuables
(1) Where the Secretary or Australian Border Force Commissioner takes possession of valuables pursuant to subsection 223(5), the provisions of this section have effect.
(2) The Secretary or Australian Border Force Commissioner shall arrange for the valuables to be kept until they are dealt with in accordance with a provision of this section, and shall ensure that all reasonable steps are taken to preserve the valuables while they are so kept.
(3) The Secretary or Australian Border Force Commissioner shall arrange for the valuables to be returned to the person from whom they were taken if:
(a) the authorising notice stops being in force;
(b) the notified detainee:
(i) is granted a visa; or
(ii) stops being a deportee;
(c) the notified detainee is not, when the authorising notice is given, liable to pay an amount to the Commonwealth under section 210 or 212, and does not, within 6 months after the giving of that notice, becomes so liable; or
(d) all amounts that the notified detainee is or becomes liable to pay to the Commonwealth under section 210 or 212 are paid to the Commonwealth.
(4) If, when the Secretary or Australian Border Force Commissioner takes possession of valuables, the notified detainee is liable under section 210 or 212 to pay an amount to the Commonwealth, the Secretary or Australian Border Force Commissioner shall, unless he or she is required to arrange for the return of the valuables because of paragraph (3)(d):
(a) apply the valuables towards the payment of the amount owed to the Commonwealth; and
(b) return any surplus to the person from whom the valuables were taken.
(5) If, while valuables are being kept pursuant to subsection (2), the notified detainee becomes liable under section 210 or 212 to pay an amount to the Commonwealth, the Secretary or Australian Border Force Commissioner shall, unless he or she is required to arrange for the return of the valuables because of paragraph (3)(d):
(a) apply the valuables towards the payment of the amount owed to the Commonwealth; and
(b) return any surplus to the person from whom the valuables were taken.
(6) In this section:
authorising notice means the notice pursuant to which the Secretary or Australian Border Force Commissioner took possession of the valuables.
notified detainee means the person served with the notice under section 223.
Division 11—Duties of masters in relation to crews
225 Production of identity documents and mustering of crew
(1) This section applies to a vessel, other than a vessel of the regular armed forces of a government recognised by the Commonwealth, which has entered Australia from overseas.
(2) On the arrival of a vessel at a port, an officer may require the master of the vessel to muster the vessel’s crew in the presence of the officer.
(3) An officer may require the master of a vessel to muster the vessel’s crew in the presence of the officer before the vessel departs from a port.
(4) An officer may require a member of the crew of a vessel to produce his or her identity documents to the officer for inspection.
(5) A person must not fail to comply with a requirement made under this section.
Penalty: 40 penalty units.
(6) Subsection (5) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).
(7) An offence against subsection (5) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
226 Production of identity documents by persons on board resources installation
(1) This section applies to a resources installation that has been brought into Australian waters from a place outside the outer limits of Australian waters for the purpose of being attached to the Australian seabed.
(2) On the arrival of a resources installation at the place where it is to be attached to the Australian seabed, an officer may require the person in charge of the installation to muster, in the presence of the officer, all of the people on board the installation.
(3) An officer may require the person in charge of a resources installation to muster, in the presence of the officer, all of the people on board the installation before the installation is detached from the Australian seabed for the purpose of being taken to a place outside the outer limits of Australian waters.
(4) An officer may require a person on board a resources installation that is attached to the Australian seabed or to another resources installation that is so attached to produce to the officer for inspection the person’s identity documents.
(5) A person must not fail to comply with a requirement made under this section.
Penalty: 40 penalty units.
(6) Subsection (5) does not apply if the person has a reasonable excuse.