(a) if the regulations prescribe a period or periods before the aircraft’s or ship’s departure from a place for the giving of a report under subsection (2) in relation to the passenger or crew member—not later than the start of that period or each of those periods; and
(b) if the regulations prescribe an event or events for the giving of a report under subsection (2) in relation to the passenger or crew member—at the time of that event or each of those events; and
(c) if the regulations prescribe a time or times for the giving of a report under subsection (2) in relation to the passenger or crew member—at that time or each of those times.
(6) To avoid doubt, more than one report may be required to be provided under subsection (2) in relation to a passenger or crew member.
Note: For example, if regulations made for the purposes of subsection (5) prescribe a period of 48 hours before the aircraft’s or ship’s departure from a place on the flight or voyage and also prescribe an event of the passenger or crew member checking‑in for the flight or voyage, then 2 reports would be required to be provided under this section in relation to the passenger or crew member.
245LB Dealing with information collected under this Division etc.
Collection of personal information
(1) The Department may collect information (including personal identifiers) in a report provided under this Division.
Access to, and disclosure of, personal information
(2) The following provisions:
(a) section 336D (which authorises access to identifying information);
(b) section 336E (other than subsection 336E(1)) and section 336F (which authorise disclosure of identifying information);
(c) a provision of an instrument made under section 336D or 336F;
apply to personal information (other than personal identifiers) collected under this Division in the same way as they apply to identifying information.
Effect on interpretation
(4) This section does not, by implication, affect the interpretation of any other provision of this Act or an instrument made under this Act.
245M Approved fall‑back reporting systems may be used in certain circumstances
(1) This section applies if:
(a) the approved primary reporting system for reporting on passengers or crew on an aircraft or ship is an electronic system; and
(b) either:
(i) the operator of the aircraft or ship cannot report on some or all of the passengers or crew (the relevant passengers or crew) using the approved primary reporting system because the system is not working; or
(ii) the Secretary permits the operator of the aircraft or ship to report on some or all of the passengers or crew (the relevant passengers or crew) using an approved fall‑back reporting system.
(2) Sections 245L and 245LA apply in relation to the relevant passengers or crew as if:
(a) the reference in subsections 245L(2) and 245LA(2) to the approved primary reporting system for passengers, or the approved primary reporting system for crew, were instead a reference to an approved fall‑back reporting system; and
(b) the reference in subsections 245L(3) and 245LA(4) to the information that is specified, as mentioned in subsection 245J(3), in relation to the relevant approved primary reporting system were instead a reference to the information that is specified, as mentioned in subsection 245K(2), in relation to the approved fall‑back reporting system that the operator uses in relation to the relevant passengers or crew.
245N Offence for failure to comply with reporting obligations
(1) An operator of an aircraft or ship who intentionally contravenes subsection 245L(2) or 245LA(2) commits an offence punishable, on conviction, by a penalty not exceeding 120 penalty units.
(2) An operator of an aircraft or ship who contravenes subsection 245L(2) or 245LA(2) commits an offence punishable, on conviction, by a penalty not exceeding 60 penalty units.
Note: See also paragraph 504(1)(jaa) (which deals with the payment of a penalty as an alternative to prosecution).
(3) An offence against subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(4) An operator of an aircraft or ship commits a separate offence under subsection (1) or (2) in relation to each passenger or member of the crew in relation to whom the operator contravenes subsection 245L(2) or 245LA(2).
Division 13—Examination, search, detention and identification
246 Appointment of boarding stations
(1) The Governor‑General may, by Proclamation, appoint a place in a port to be the boarding station for that port for the purposes of this Act.
(2) Where a boarding station for a port is for the time being appointed or continued under the Customs Act 1901‑1957, that boarding station shall be deemed to be appointed under this section as the boarding station for that port for the purposes of this Act.
247 Vessels to enter ports and be brought to boarding stations
(1) The master of a vessel which has entered Australia from overseas shall not suffer the vessel to enter any place other than a port.
Penalty: 200 penalty units.
(2) The master of a vessel (other than an aircraft) from overseas bound to or calling at a port:
(a) shall, if so required by the Secretary or Australian Border Force Commissioner, bring the vessel (other than an aircraft) to for boarding under this Act at the boarding station appointed for that port; and
(b) shall not move the vessel (other than an aircraft) from that boarding station until permitted to do so by the Secretary or Australian Border Force Commissioner.
Penalty: 200 penalty units.
(2A) Subsection (2) does not apply if the master moves the vessel from the boarding station with the intention of leaving the port.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).
(3) The master of an aircraft from overseas arriving in Australia shall not suffer the aircraft to land at any other proclaimed airport until the aircraft has first landed:
(a) at such proclaimed airport for which a boarding station is appointed as is nearest to the place at which the aircraft entered Australia; or
(b) at such other airport for which a boarding station is appointed as has been approved by the Secretary or Australian Border Force Commissioner, in writing, as an airport at which that aircraft, or a class of aircraft in which that aircraft is included, may land on arriving in Australia from overseas.
Penalty: 200 penalty units.
(4) The master of an aircraft which is engaged on an air service or flight from a place overseas to a place in Australia:
(a) shall not suffer the aircraft to land at a proclaimed airport for which a boarding station is not appointed;
(b) shall, as soon as practicable after the aircraft lands at a proclaimed airport, bring the aircraft for boarding to the boarding station appointed for that airport; and
(c) shall not move the aircraft from that boarding station until permitted to do so by the Secretary or Australian Border Force Commissioner.
Penalty: 200 penalty units.
(5) It is a defence to a prosecution for an offence against subsection (1), (3) or (4) if the person charged proves that he or she was prevented from complying with the subsection by stress of weather or other reasonable cause.
Note: A defendant bears a legal burden in relation to the matters in subsection (5) (see section 13.4 of the Criminal Code).
(5A) An offence against any of subsections (1) to (4) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(6) While a vessel is at a boarding station, an officer may go and remain on board the vessel for the purposes of this Act.
(7) The master of a vessel shall do all things reasonably required by an officer to facilitate the boarding of the vessel under this section and the performance by the officer of duties for the purposes of this Act.
Penalty for any contravention of this subsection: 100 penalty units.
(8) An offence against subsection (7) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
248 Exemption
Where the Minister is satisfied that it is no longer necessary for the purposes of this Act that a provision of section 247 should continue to apply in relation to a vessel, the Minister shall, by writing under his or her hand, exempt the master of that vessel from liability to comply with that provision.
249 Certain persons may be prevented from entering or landing
(1) An officer may:
(a) prevent a person whom the officer reasonably suspects to be an unlawful non‑citizen from leaving a vessel on which the person arrived in Australia; or
(b) prevent a removee or deportee from leaving a vessel on which he or she has been placed;
and may take such action and use such force as are necessary for that purpose.
(1AA) An officer may prevent a person from leaving a vessel on which the person arrived in Australia if the officer reasonably suspects that the person:
(a) is seeking to enter the migration zone; and
(b) would, if in the migration zone, be an unlawful non‑citizen.
(1A) To avoid doubt, and without limiting the generality of subsections (1) and (1AA), if a person of a kind referred to in paragraph (1)(a) or subsection (1AA) is on board a vessel (other than an aircraft), the actions that may be taken by an officer under subsections (1) and (1AA) include:
(a) requiring the vessel to travel to a port; and
(b) requiring the person to remain on the vessel until it arrives at the port.
(2) The master of a vessel may, in relation to persons on board the vessel, do all things which an officer is, under subsections (1) and (1AA), authorized to do.
250 Detention of suspected offenders
(1) In this section:
suspect means a non‑citizen who:
(a) travelled, or was brought, to the migration zone; and
(b) is believed by an authorised officer on reasonable grounds to have been on board a vessel (not being an aircraft) when it was used in connection with the commission of an offence against a law in force in the whole or any part of Australia.
(2) For the purposes of section 189, an officer has a suspicion described in that section about a person if, but not only if, the person is a suspect.
(3) A non‑citizen detained because of subsection (2) may be kept in immigration detention for:
(a) such period as is required for:
(i) the making of a decision whether to prosecute the suspect in connection with the offence concerned; or
(ii) instituting such a prosecution; and
(b) if such a prosecution is instituted within that period—such further period as is required for the purposes of the prosecution.
(4) Without limiting the generality of paragraph (3)(b), the period that is required for the purposes of a prosecution includes any period required for:
(a) any proceedings in connection with the prosecution; and
(b) the serving of any custodial sentence imposed because of the prosecution; and
(c) the institution of, and any proceedings in connection with, any appeal from any decision in relation to the prosecution.
(5) If the period for which a person may be kept in immigration detention under subsection (3) ends, he or she:
(a) must, unless he or she has become the holder of a visa, that is in effect, to remain in Australia, be expeditiously removed from Australia under section 198; and
(b) may, at the direction of an authorised officer, continue to be detained under section 189 until so removed.
251 Powers of entry and search
(1) An officer may at any time board and search a vessel if the officer reasonably suspects there is on board the vessel:
(a) an unlawful non‑citizen; or
(b) a person seeking to enter the migration zone who would, if in the migration zone, be an unlawful non‑citizen.
(2) The master of a vessel shall do all things reasonably required by an officer to facilitate the boarding and searching of the vessel by the officer under subsection (1).
Penalty: 100 penalty units.
(2A) An offence against subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) A reference in subsection (1) or (2) to a vessel includes a reference to an Australian resources installation and to an Australian sea installation.
(4) The Secretary or Australian Border Force Commissioner may issue to an officer a search warrant in accordance with the prescribed form.
(5) A search warrant shall be expressed to remain in force for a specified period not exceeding 3 months and ceases to be in force at the expiration of the specified period.
(6) An officer having with him or her a search warrant issued to him or her under this section and remaining in force may, at any time in the day or night with such assistance as the officer thinks necessary, enter and search any building, premises, vessel, vehicle or place in which the officer has reasonable cause to believe there may be found:
(a) an unlawful non‑citizen, a removee or a deportee;
(b) a person to whom a temporary visa has been issued subject to a condition with respect to the work that is to be performed by that person;
(c) any document, book or paper relating to the entry or proposed entry into Australia of a person in circumstances in which that person:
(i) would have become a prohibited immigrant within the meaning of this Act as in force from time to time before the commencement of the Migration Amendment Act 1983; or
(ii) would have become a prohibited non‑citizen within the meaning of this Act as in force from time to time after the commencement of the Migration Amendment Act 1983 but before the commencement of section 4 of the Migration Legislation Amendment Act 1989; or
(iii) would have been an illegal entrant within the meaning of the Act as in force from time to time after the commencement of section 4 of the Migration Legislation Amendment Act 1989 but before 1 September 1994; or
(iv) would have become, or would become, an unlawful non‑citizen; or
(d) any passport or document of identity of, or any ticket for the conveyance from a place within Australia to a place outside Australia of an unlawful non‑citizen, a removee or a deportee;
and may seize any such document, book, paper, passport, document of identity or ticket, as the case may be, and impound and detain it for such time as the officer thinks necessary.
(7) For the purposes of the exercise of his or her powers under this section an officer may stop any vessel or vehicle.
(8) An officer may use such reasonable force as is necessary for the exercise of his or her powers under this section.
251A Searches of detainees etc.—prohibited things
(1) A thing is a prohibited thing in relation to a person in detention (whether or not the person is detained in an immigration detention facility), or in relation to an immigration detention facility, if:
(a) both:
(i) possession of the thing is unlawful because of a law of the Commonwealth, or a law of the State or Territory in which the person is detained or in which the facility is located; and
(ii) the thing is determined under paragraph (2)(a); or
(b) the thing is determined under paragraph (2)(b).
Example 1: A thing may be a prohibited thing in relation to an immigration detention facility for the purposes of a search of such a facility under section 252BA and the seizure of prohibited things in the course of such a search under section 252C or 252CA.
Example 2: A mobile phone may, if determined under paragraph (2)(b), be a prohibited thing in relation to a person in detention even if the person is not detained in an immigration detention facility.
(2) The Minister may, by legislative instrument, determine a thing for the purposes of subsection (1) if the Minister is satisfied that:
(a) possession of the thing is prohibited by law in a place or places in Australia; or
(b) possession or use of the thing in an immigration detention facility might be a risk (an immigration detention facility risk) to the health, safety or security of persons in the facility, or to the order of the facility.
Examples: The following things may be determined to be prohibited things if the Minister is satisfied that they pose a risk mentioned in paragraph (b):
(a) mobile phones;
(b) SIM cards;
(c) computers and other electronic devices designed to be capable of being connected to the internet.
(3) However, if a medication or health care supplement is determined under paragraph (2)(b), the medication or supplement is not a prohibited thing in relation to a particular person detained in an immigration detention facility if the medication or supplement has been prescribed or supplied for the person’s individual use by a health service provider authorised for the purpose by the person in charge of the facility.
(4) Despite any regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003, section 42 of that Act (disallowance of legislative instruments) applies to a legislative instrument made under subsection (2) of this section.
(5) An immigration detention facility is:
(a) a detention centre established under this Act (see section 273); or
(b) another place approved by the Minister in writing for the purposes of subparagraph (b)(v) of the definition of immigration detention in subsection 5(1).
251AA Searches of detainees etc.—exercise of powers relating to prohibited things determined under paragraph 251A(2)(b)
Purpose and belief relating to immigration detention facility risks
(1) The exercise of a power covered by subsection (7) is authorised only if the purpose of exercising the power is to prevent or lessen an immigration detention facility risk.