(i) proceedings in respect of which the thing might afford evidence have been instituted before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or
(ii) the authorised officer may retain the thing because of an order under section 268CU; or
(b) in any case—the authorised officer is otherwise authorised (by a law, or an order of a court or a tribunal, of the Commonwealth or a State) to retain, destroy or dispose of the thing; or
(c) the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
268CT Authorised officer may apply for a thing to be retained for a further period
(1) This section applies if an authorised officer has seized a thing under section 268CR and proceedings in respect of which the thing might afford evidence have not commenced before the end of:
(a) 60 days after the seizure; or
(b) a period previously specified in an order of a magistrate or ART member under section 268CU.
(2) The authorised officer may apply to a magistrate or ART member for an order that the officer may retain the thing for a further period.
(3) Before making the application, the authorised officer must:
(a) take reasonable steps to discover which persons’ interests would be affected by the retention of the thing; and
(b) if it is practicable to do so, notify each person who the officer believes to be such a person of the proposed application.
268CU Magistrate or ART member may order that thing be retained
(1) The magistrate or ART member may order that the authorised officer who made an application under section 268CT may retain the thing if the magistrate or ART member is satisfied that it is necessary for the officer to do so:
(a) for the purposes of an investigation as to whether an offence has been committed; or
(b) to enable evidence of an offence to be secured for the purposes of a prosecution.
(2) The order must specify the period for which the officer may retain the thing.
268CV Occupier to provide authorised officer with all facilities and assistance
(1) The occupier of the premises to which a monitoring warrant relates must provide the authorised officer executing the warrant and any person assisting that officer with all reasonable facilities and assistance for the effective exercise of their powers.
(2) A person commits an offence if the person contravenes subsection (1).
Penalty for contravention of this subsection: 10 penalty units.
An authorised officer executing a monitoring warrant must, before entering premises under the warrant:
(a) announce that he or she is authorised to enter the premises; and
(b) give a person on the premises (if there is one) an opportunity to allow entry to the premises.
268CX Copy of monitoring warrant to be given to occupier before entry
(1) If a monitoring warrant is being executed on premises and the occupier of the premises is present, the authorised officer must make a copy of the warrant available to the occupier.
(2) The authorised officer must identify himself or herself to that person.
268CY Compensation for damage to electronic equipment or data
(1) This section applies if:
(a) damage is caused to equipment as a result of it being operated as mentioned in section 268CO; or
(b) the data recorded on the equipment is damaged or programs associated with its use are damaged or corrupted;
because:
(c) insufficient care was exercised in selecting the person who was to operate the equipment; or
(d) insufficient care was exercised by the person operating the equipment.
(2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as they agree on.
(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court for such reasonable amount of compensation as the Court determines.
(4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises and his or her employees and agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.
(5) Compensation is payable out of money appropriated by the Parliament.
(6) For the purposes of subsection (1), damage to data includes damage by erasure of data or addition of other data.
268CZ Occupier entitled to be present during execution of monitoring warrant
(1) If a monitoring warrant is being executed at premises and the occupier of the premises is present, the occupier is entitled to observe the execution of the warrant.
(2) The right to observe the execution of the warrant ceases if the occupier impedes that execution.
(3) This section does not prevent the execution of the warrant in 2 or more areas of the premises at the same time.
268CZA Identity cards
(1) For the purposes of this Subdivision, an authorised officer’s identity card must be in a form approved by the Secretary or Australian Border Force Commissioner. It must contain a recent photograph of the authorised officer.
(2) A person commits an offence if:
(a) the person holds or held an identity card for the purposes of this Subdivision; and
(b) the person ceases to be an authorised officer for all purposes under this Act; and
(c) the person does not, as soon as is practicable after so ceasing, return the identity card to the Secretary or Australian Border Force Commissioner.
Penalty: 1 penalty unit.
(3) This offence is one of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(4) However, the person does not commit the offence if the identity card was lost or destroyed.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3) of the Criminal Code.
(5) An authorised officer must carry an identity card at all times when exercising powers under this Subdivision.
268CZB Authorised officer must produce identity card on request
An authorised officer is not entitled to exercise any powers under this Subdivision in relation to premises if:
(a) the occupier of the premises requests the authorised officer to show his or her identity card to the occupier; and
(b) the authorised officer fails to comply with the request.
268CZC Officer may apply for warrants by telephone etc.
(1) An authorised officer may apply to a magistrate or ART member for a warrant under section 268CE by telephone, fax or other electronic means if the officer thinks it necessary to do so because of urgent circumstances.
(2) The magistrate or ART member may require communication by voice to the extent that it is practicable in the circumstances.
(3) Before making the application, the authorised officer must prepare an information that sets out the grounds for seeking the warrant.
(4) However, the officer may make the application before the information has been sworn or affirmed, if necessary.
268CZD Magistrate or ART member may grant warrant by telephone etc.
(1) Before issuing the warrant the magistrate or ART member must:
(a) consider the information prepared under subsection 268CZC(3); and
(b) receive any further information that the magistrate or ART member may require about the grounds on which the warrant is being sought.
(2) The magistrate or ART member may issue the warrant if the magistrate or ART member is satisfied:
(a) that it is reasonably necessary that one or more authorised officers have access to the premises for a visa monitoring purpose; and
(b) that there are reasonable grounds for issuing the warrant by telephone, fax or other electronic means.
268CZE Procedure for issuing warrant by telephone etc.
(1) If the magistrate or ART member issues a monitoring warrant under section 268CZD, the magistrate or ART member must complete and sign a warrant that is the same as the monitoring warrant that the magistrate or ART member would have issued if the application had been made under section 268CD.
(2) The magistrate or ART member must also:
(a) inform the authorised officer of:
(i) the terms of the warrant; and
(ii) the day and time when it was signed; and
(iii) the time at which it ceases to have effect (which must be no later than 48 hours after it is signed); and
(b) record on the warrant the reasons for issuing it.
(3) The authorised officer must:
(a) complete a form of warrant in the terms given to the authorised officer by the magistrate or ART member; and
(b) write on it the magistrate’s or ART member’s name and the day and time when the warrant was signed.
268CZF Procedure after telephone warrant ceases or is executed
(1) An authorised officer who completes a form of warrant under section 268CZE must send the magistrate or ART member who signed the monitoring warrant:
(a) the form of warrant completed by the authorised officer; and
(b) the information duly sworn or affirmed in connection with the warrant.
(2) The form of warrant and information must be sent by the end of the day after the earlier of:
(a) the day on which the warrant ceases to have effect; or
(b) the day on which the warrant is executed.
(3) The magistrate or ART member must:
(a) attach the monitoring warrant signed by the magistrate or ART member under section 268CZE to the form of warrant and information; and
(b) deal with the documents in the same way that the magistrate or ART member would have dealt with them if the application for the warrant had been made under section 268CD.
268CZG Form of warrant authorises exercise of power
The form of warrant completed under section 268CZE is authority for any exercise of a power that the monitoring warrant issued under section 268CZD is authority for, if the form of warrant is in accordance with the terms of the monitoring warrant.
268CZH Court to assume that exercise of power not authorised by telephone etc. warrant
A court must assume (unless the contrary is proved) that an exercise of power was not authorised by a monitoring warrant if the monitoring warrant signed by the magistrate or ART member under section 268CZE is not produced in evidence.
Division 15—General
269 Securities
(1) An authorized officer may, subject to subsection (1A), require and take security for compliance with the provisions of this Act or the regulations or with any condition imposed in pursuance of, or for the purposes of, this Act or the regulations:
(a) by a deposit of cash, Treasury Bonds or negotiable instruments, together with a memorandum of deposit in a form approved by the Minister; or
(b) in accordance with a form of security approved by the Minister.
(1A) The power of an authorized officer to require and take security under subsection (1) in relation to an application for a visa applies only if:
(a) the security is for compliance with conditions that will be imposed on the visa in pursuance of, or for the purposes of, this Act or the regulations, if the visa is granted; and
(b) the officer has indicated those conditions to the applicant.
(2) A security given in accordance with a form approved by the Minister shall, without sealing, bind its subscribers as if it were sealed and, unless otherwise provided in the security, jointly and severally and for the full amount.
(3) Whenever a security under this Act is put in suit, the production of the security without further proof shall entitle the Commonwealth to judgment for their stated liabilities against the persons appearing to have executed the security unless the defendants prove compliance with the conditions of the security or that the security was not executed by them or release or satisfaction.
(4) If it appears to the court that a non‑compliance with a condition of a security under this Act has occurred, the security shall not be deemed to have been discharged or invalidated, and the subscribers shall not be deemed to have been released or discharged from liability, by reason of:
(a) an extension of time or other concession;
(b) any consent to, or acquiescence in, a previous non‑compliance with a condition; or
(c) any failure to bring suit against the subscribers upon the occurrence of a previous non‑compliance with the condition.
270 Reports of absences of crews of vessels
(1) Where, at or after the departure from a port in Australia of a vessel that has entered Australia from overseas, the master, owner, charterer or agent of the vessel reports in writing to an officer that a specified person was a member of the crew of the vessel on board the vessel at the time of its arrival at that port and is or was absent from the vessel at the time of its departure from that port, and states in the report whether that member left the vessel at that port with leave or without leave, that report is, for the purposes of proceedings under or in relation to this Act, prima facie evidence of the matters contained in the report and:
(a) if the report states that the member left the vessel with leave—that the member entered Australia, with leave, from the vessel during the vessel’s stay at that port and remained in Australia after the vessel left that port; or
(b) if the report states that the member left the vessel without leave—that the member entered Australia, without leave, from the vessel during the vessel’s stay at that port.
(2) Where, during the stay at a port in Australia of a vessel that has entered Australia from overseas, the master of the vessel reports in writing to an officer that a specified person was included in the complement of the vessel, or a member of the crew of the vessel, on board the vessel at the time of its arrival at that port and:
(a) at any time during the vessel’s stay at that port, left the vessel without leave; or
(b) at any time during the vessel’s stay at that port, left the vessel with leave, but has become absent without leave;
the report is, for the purposes of proceedings under or in relation to this Act, prima facie evidence of the matters contained in the report.
271 Proof of certain matters
(1) In migration proceedings:
(a) official documents of the Commonwealth or of a State or Territory, and letters and telegrams, or copies of letters and telegrams, and affidavits produced out of official custody and purporting to have been sent or made by an officer, are, if they contain information or statements upon matters relevant to the proceedings, admissible as evidence of that information or of the matters stated; and
(b) a certificate signed by an officer stating that:
(i) at a time, or during a period, specified in the certificate a specified person was, or was not, the holder of, a visa that was in effect; or
(ii) a specified visa was granted subject to specified conditions or to a specified limitation as to period;
is prima facie evidence of the matters stated in the certificate; and
(c) the production out of official custody of a document purporting to be a report made by the master, owner, charterer or agent of a vessel to an officer as to a matter relevant to the operation of this Act is prima facie evidence that the document is such a report; and
(d) a list of passengers in a vessel, or a passenger card relating to a passenger in a vessel, furnished in accordance with the regulations, is prima facie evidence that the person named on the list or card as the operator of the vessel is the operator of the vessel; and
(e) a notation in a person’s passport specifying a proclaimed airport and date (being a notation made by an authorised officer in a form approved by the Minister) is prima facie evidence that the person was immigration cleared on that date; and
(f) a notation in a person’s passport to the effect that the person departed on a specified pre‑cleared flight from a specified foreign country on a specified date (being a notation made by an authorised officer in a form approved by the Minister) is prima facie evidence that the person entered Australia on that pre‑cleared flight; and
(g) for the purpose of proving that a person entered Australia on, or left Australia in, an aircraft (whether or not the person travelled to Australia on a pre‑cleared flight), a certified printout of the relevant movement records is prima facie evidence of the matters contained in the printout; and
(h) for the purpose of proving that a person entered Australia on, or left Australia on, a vessel, a list of any passengers on that vessel, or a passenger card relating to a passenger on that vessel, furnished in accordance with the regulations is admissible in evidence, and production of such a list or passenger card bearing a name that is the same as the name of that person shall be deemed to be proof that that person entered Australia on, or left Australia on, that vessel on the voyage in respect of which the list or passenger card was furnished, unless the contrary is proved; and
(i) for the purpose of proving that a person has, in a place outside Australia, been convicted of a particular crime (including an attempt to commit a crime) and has been sentenced to a particular sentence in respect of the conviction, fingerprint records, photographs and documents or copies thereof, and certificates in relation to any fingerprint records, photographs or documents or copies thereof, are admissible in the evidence if they:
(i) are produced out of the custody of a police or prison officer of the Commonwealth or of a State or Territory; and
(ii) purport to be certified or given under the hand of a police or prison officer, or like authority, of a place outside Australia;
and any such certificate is prima facie evidence of the matters stated in the certificate; and
(j) evidence that a person who travelled to and entered Australia on board a vessel, when entering, either: