(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 aircraft
(8) An officer may detain the aircraft and bring it, or cause it to be brought, to a port, or to another place, that he or she considers appropriate if the officer reasonably suspects that the aircraft is or has been involved in a contravention, either in or outside Australia, of this Act.
People on detained aircraft
(8A) If an officer detains an aircraft under this section, any restraint on the liberty of any person found on the aircraft that results from the detention of the 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 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 aircraft
(9) If an officer detains an aircraft under this section, the officer may:
(a) detain any person found on the 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).
(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 aircraft
(11) In boarding and searching the aircraft and searching or examining goods found on the aircraft, an officer must not damage the aircraft or goods by forcing open a part of the aircraft or goods unless:
(a) the person (if any) apparently in charge of the 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 aircraft
(12) In arresting or detaining a person found on the 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 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).
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 the aircraft from which the relevant request under section 245E was made; and
(b) a member of the Australian Defence Force.
Interpretation
(19) In this section:
(a) a reference to a person found on the aircraft includes a reference to a person suspected on reasonable grounds by an officer of having landed from or left the aircraft; and
(b) a reference to goods found on the aircraft includes a reference to goods suspected on reasonable grounds by an officer of having been removed from the aircraft.
245FA Searches of people on certain ships or aircraft
(1) For the purposes set out in subsection (2), a person, and the person’s clothing and any property under the immediate control of the person, may, without warrant, be searched if the person:
(a) is on an aircraft that has been detained under subsection 245F(8); or
(b) has been placed on a ship or aircraft under subsection 245F(9A).
Note: Division 13 of Part 2 provides search powers in respect of persons who are in immigration detention.
(2) The purpose for which a person, and the person’s clothing and any property under the immediate control of the person, may be searched under this section is to find out whether the person is carrying, or there is hidden on the person, in the clothing or in the property, a weapon or other thing capable of being used to inflict bodily injury or to help the person to escape.
(3) If, in the course of a search under this section, a weapon or other thing referred to in subsection (2) is found, an officer:
(a) may take possession of the weapon or other thing; and
(b) may retain the weapon or other thing for such time as he or she thinks necessary for the purposes of this Act.
(4) This section does not authorise an officer, or another person conducting a search pursuant to subsection (5), to remove any of the person’s clothing, or to require a person to remove any of his or her clothing, except the person’s outer garments (including but not limited to the person’s overcoat, coat, jacket, gloves, shoes and head covering).
(5) A search under this section of a person, and the person’s clothing, must be conducted by:
(a) an officer of the same sex as the person; or
(b) in a case where an officer of the same sex as the person is not available to conduct the search—any other person who is of the same sex and:
(i) is requested by an officer; and
(ii) agrees;
to conduct the search.
(6) An action or proceeding, whether civil or criminal, does not lie against a person who, at the request of an officer, conducts a search under this section if the person acts in good faith and does not contravene subsection (7).
(7) An officer or other person who conducts a search under this section must not use more force, or subject a person to greater indignity, than is reasonably necessary in order to conduct the search.
(8) In this section, officer has the same meaning as it has in section 245F.
Division 12B—Reporting on passengers and crew of aircraft and ships
245I Definitions
(1) In this Division:
approved fall‑back reporting system means a system approved under section 245K.
approved primary reporting system means a system approved under section 245J.
approved primary reporting system for crew, for an aircraft or ship of a kind to which this Division applies, means the system approved under section 245J for reporting on crew on an aircraft or ship of that kind.
approved primary reporting system for passengers, for an aircraft or ship of a kind to which this Division applies, means the system approved under section 245J for reporting on passengers on an aircraft or ship of that kind.
arrival means:
(a) in relation to an aircraft—the aircraft coming to a stop after landing; or
(b) in relation to a ship—the securing of the ship for the loading or unloading of passengers, cargo or ship’s stores.
kind of aircraft or ship to which this Division applies means a kind of aircraft or ship specified in the regulations as a kind of aircraft or ship to which this Division applies.
Note: Kind has a meaning affected by subsection (2).
operator of an aircraft or ship for a particular flight or voyage means:
(a) the airline or shipping line responsible for the operation of the aircraft or ship for the flight or voyage; or
(b) if there is no such airline or shipping line, or no such airline or shipping line that is represented by a person in Australia—the pilot of the aircraft or the master of the ship.
(2) For the purposes of this Division (and of regulations and approvals made for the purposes of provisions of this Division), a kind of aircraft or ship may be identified by reference to matters including all or any of the following:
(a) the type, size or capacity of the aircraft or ship;
(b) the kind of operation or service the aircraft or ship is engaged in on the flight or voyage to or from Australia;
(c) other circumstances related to the aircraft or ship or its use, or related to the operator of the aircraft or ship.
245J Approval of primary reporting systems
(1) The Secretary must, for each kind of aircraft or ship to which this Division applies, by legislative instrument, approve a system for the purposes of reporting under this Division. The system may be an electronic system or a system requiring reports to be provided in documentary form.
Note 1: An approval under this subsection can be varied or revoked under subsection 33(3) of the Acts Interpretation Act 1901.
Note 2: It is anticipated that, ultimately, documentary systems will be phased out and all approved systems will be electronic systems.
(2) Under subsection (1), the Secretary may, for a kind of aircraft or ship, approve a single system for reporting on both passengers and crew or may approve one system for reporting on passengers, and another system for reporting on crew.
(2A) The information about passengers or crew that is to be reported by a system must be about:
(a) if the system is for reporting on passengers—passengers individually; or
(b) if the system is for reporting on crew—members of the crew individually; or
(c) if the system is for reporting on both passengers and crew—passengers individually and members of the crew individually.
(3) The instrument of approval of a system for reporting on passengers or crew must also specify the information (including personal identifiers) about passengers or crew that is to be reported by that system.
245K Approval of fall‑back reporting systems
(1) The Secretary must, by legislative instrument, approve one or more systems as fall‑back reporting systems. A system may be an electronic system or a system requiring reports to be provided in documentary form.
Note: An approval under this subsection can be varied or revoked under subsection 33(3) of the Acts Interpretation Act 1901.
(1A) The information about passengers or crew that is to be reported by a system must be about:
(a) if the system is for reporting on passengers—passengers individually; or
(b) if the system is for reporting on crew—members of the crew individually; or
(c) if the system is for reporting on both passengers and crew—passengers individually and members of the crew individually.
(2) The instrument of approval of a system must also specify the information (including personal identifiers) about passengers or crew that is to be reported by that system.
245L Obligation to report on persons arriving in Australia
Aircraft and ships to which section applies
(1) This section applies to an aircraft or ship of a kind to which this Division applies that is due to arrive at a place in Australia from a place outside Australia.
Obligation to report on passengers and crew
(2) The operator of the aircraft or ship must, in accordance with this section:
(a) report to the Department, using the approved primary reporting system for passengers, on each passenger who will be on board the aircraft or ship at the time of its arrival at the place in Australia; and
(b) report to the Department, using the approved primary reporting system for crew, on each member of the crew who will be on board the aircraft or ship at the time of its arrival at the place in Australia.
Note 1: This obligation must be complied with even if the information concerned is personal information.
Note 2: Section 245N contains an offence for failure to comply with this subsection.
Information to be reported
(3) A report on passengers or crew under subsection (2) must include the information relating to those passengers or crew that is specified, as mentioned in subsection 245J(3), in relation to the relevant approved primary reporting system.
Deadline for reporting—aircraft
(4) A report on passengers or crew on an aircraft must be given not later than:
(a) if the flight from the last place outside Australia is likely to take not less than 3 hours—3 hours before the aircraft’s likely time of arrival at the place in Australia; or
(b) if the flight from the last place outside Australia is likely to take less than 3 hours—one hour before the aircraft’s likely time of arrival at the place in Australia.
Deadline for reporting—ships
(5) A report on passengers or crew on a ship must be given not later than:
(a) the start of the prescribed period before the ship’s estimated time of arrival at the place in Australia; or
(b) if the journey is of a kind described in regulations made for the purposes of this paragraph—the start of the shorter period specified in those regulations before the ship’s estimated time of arrival at the place in Australia.
(5A) Regulations made for the purposes of paragraph (5)(b) may prescribe matters of a transitional nature (including prescribing any saving or application provisions) arising out of the making of regulations for those purposes.
245LA Obligation to report on persons departing from Australia
Aircraft and ships to which section applies
(1) This section applies to an aircraft or ship of a kind to which this Division applies that is due to depart from a place in Australia on a flight or voyage to a place outside Australia (whether or not after calling at other places in Australia).
Obligation to report on passengers and crew
(2) The operator of the aircraft or ship must, in accordance with this section:
(a) report to the Department, using the approved primary reporting system for passengers, on each passenger who is on, or is expected to be on, the flight or voyage (including any part of the flight or voyage); and
(b) report to the Department, using the approved primary reporting system for crew, on each member of the crew who is on, or is expected to be on, the flight or voyage (including any part of the flight or voyage).
Note 1: This obligation must be complied with even if the information concerned is personal information.
Note 2: Section 245N contains an offence for failure to comply with this subsection.
(3) However, if:
(a) on the flight or voyage, the aircraft or ship calls at one or more places in Australia before departing to the place outside Australia; and
(b) the regulations prescribe that a report under subsection (2) must only relate to the part of the flight or voyage that is from the last place in Australia to the place outside Australia;
then the report must be on each passenger or crew member who is on, or is expected to be on, that part of the flight or voyage.
Information to be reported
(4) A report on a passenger or crew member under subsection (2) must include the information relating to the passenger or crew member that is specified, as mentioned in subsection 245J(3), in relation to the relevant approved primary reporting system.
Deadline for providing a report
(5) A report on a passenger or crew member under subsection (2) must be provided: