Note: For strict liability, see section 6.1 of the Criminal Code.
(6) Subsection (4) does not apply if the identity card was lost or destroyed.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3) of the Criminal Code.
Subdivision H—Powers of issuing officers
487ZH Powers of issuing officers
Powers conferred personally
(1) A power conferred on an issuing officer by this Division is conferred on the issuing officer:
(a) in a personal capacity; and
(b) not as a court or a member of a court.
Powers need not be accepted
(2) The issuing officer need not accept the power conferred.
Protection and immunity
(3) An issuing officer exercising a power conferred by this Division has the same protection and immunity as if the issuing officer were exercising the power:
(a) as the court of which the issuing officer is a member; or
(b) as a member of the court of which the issuing officer is a member.
Part 9—Miscellaneous
Division 1—Bogus documents
487ZI Prohibition on, and forfeiture of, bogus documents
(1) A person (whether a citizen or non‑citizen) must not give, present, produce or provide a bogus document to an officer, an authorised system, the Minister, a tribunal or any other person or body performing a function or purpose under, or in relation to, this Act (the official), or cause such a document to be so given, presented, produced or provided.
(2) A bogus document given, presented, produced or provided in contravention of subsection (1) is forfeited to the Commonwealth.
487ZJ Seizure of bogus documents
(1) If an officer reasonably suspects that a document is forfeited under subsection 487ZI(2), then the officer may seize the document.
(2) As soon as practicable after seizing the document, the officer must give written notice of the seizure to the person who gave, presented, produced or provided the document to the official under subsection 487ZI(1).
(3) The notice must:
(a) identify the document; and
(b) state that the document has been seized; and
(c) specify the reason for the seizure; and
(d) state that the document will be condemned as forfeited unless the person institutes proceedings against the Commonwealth before the end of the period specified in the notice:
(i) to recover the document; or
(ii) for a declaration that the document is not forfeited.
(4) For the purposes of paragraph (3)(d), the period must:
(a) start on the date of the notice; and
(b) end 90 days after that date.
487ZK Document condemned as forfeited
(1) If a document is seized under subsection 487ZJ(1), then:
(a) the person who gave, presented, produced or provided the document to the official under subsection 487ZI(1); and
(b) if that person is not the owner of the document—the owner;
may, subject to paragraph (2)(b), institute proceedings in a court of competent jurisdiction:
(c) to recover the document; or
(d) for a declaration that the document is not forfeited.
(2) The proceedings:
(a) may be instituted even if the seizure notice required to be given under subsection 487ZJ(2) in relation to the document has not yet been given; and
(b) may only be instituted before the end of the period specified in the seizure notice.
(3) If, before the end of the period specified in the seizure notice, the person or owner does not institute the proceedings, the document is condemned as forfeited to the Commonwealth immediately after the end of that period.
(4) If, before the end of the period specified in the seizure notice, the person or owner does institute the proceedings, the document is condemned as forfeited to the Commonwealth at the end of the proceedings unless there is:
(a) an order for the person or owner to recover the document; or
(b) a declaration that the document is not forfeited.
(5) For the purposes of subsection (4), if the proceedings go to judgment, they end:
(a) if no appeal against the judgment is lodged within the period for lodging such an appeal—at the end of that period; or
(b) if an appeal against the judgment is lodged within that period—when the appeal lapses or is finally determined.
487ZL Dealing with a document after it is condemned as forfeited
(1) If, under section 487ZK, a document is condemned as forfeited to the Commonwealth, it must be dealt with or disposed of (including by being given to another person) in accordance with any direction given by the Minister under section 499.
(2) If the Minister considers that the document may be relevant to proceedings in a court or tribunal, then the Minister:
(a) must give a direction under section 499 for the safe keeping of the document; and
(b) must authorise access to the document for the purposes of those proceedings.
Division 2—Other
487 Liability for identification tests
No civil or criminal liability is incurred, by a person who carries out or helps to carry out an identification test under this Act, in respect of a thing done by the person if:
(a) it was properly and necessarily done in good faith in carrying out or helping to carry out the identification test; and
(b) the person believed on reasonable grounds that the identification test was carried out in accordance with this Act.
Note: This section does not provide any protection in respect of action taken maliciously.
488 Tampering with movements records
(1) A person must not:
(a) read; or
(b) examine; or
(c) reproduce by any means; or
(d) use; or
(e) disclose by any means;
any part of the movement records, otherwise than in accordance with an authority given under subsection (2).
Penalty: Imprisonment for 2 years.
(2) The Minister may:
(a) authorise an officer to perform for the purposes of one or more of the following:
(i) this Act;
(ii) the Family Law Act 1975;
(iii) a law relating to customs or excise;
(iv) a law relating to biosecurity risks (within the meaning of the Biosecurity Act 2015), quarantine or health;
(v) law enforcement;
(vi) the Education Services for Overseas Students Act 2000;
(vii) prescribed Commonwealth, State or Territory legislation;
one or more of the actions prohibited by subsection (1); or
(aa) authorise an officer, for the purpose of making a movement record available to, and for the use of:
(i) the person to whom the record relates; or
(ii) the duly appointed agent of that person;
to perform one or more of those actions; or
(b) authorise an officer of the Attorney‑General’s Department to perform for the purposes of the Family Law Act 1975 one or more of those actions; or
(c) authorise an officer of Customs, within the meaning of the Customs Act 1901, to perform for the purposes of a law relating to customs or excise one or more of those actions; or
(d) authorise a biosecurity officer (within the meaning of the Biosecurity Act 2015) to perform for the purposes of a law relating to biosecurity risks (within the meaning of that Act), or a law relating to quarantine or health, one or more of those actions; or
(e) authorise a member of the Australian Federal Police to perform for the purposes of law enforcement one or more of those actions; or
(f) authorise an employee of the Department whose Minister administers the Education Services for Overseas Students Act 2000 to perform for the purposes of that Act one or more of those actions; or
(g) authorise a prescribed employee of a prescribed agency of the Commonwealth, or of a State or Territory, to perform for prescribed purposes one or more of those actions.
(3) Authority under subsection (2) to disclose any part of the movement records may be limited to authority to so disclose to a specified person, a person in a specified class, or a specified organisation, only.
(4) A person (other than an authorised officer carrying out duties or performing functions under or for the purposes of this Act) shall not:
(a) delete, alter or add to any part of the movement records;
(b) alter any computer program connected with making, transferring or keeping movement records; or
(c) in any other way tamper with a notified data base.
Penalty: Imprisonment for 10 years.
488A Giving information to other relevant agencies
(1) For the purposes of:
(a) assisting with the regulation of providers; or
(b) promoting compliance with the conditions of a particular student visa or visas, or of student visas generally;
the Secretary may give information obtained or received for the purposes of this Act to an agency of the Commonwealth, or of a State or Territory, that is responsible for or otherwise concerned with the regulation of providers.
(2) However, subsection (1) does not override section 488.
Note: Section 488 prohibits the disclosure etc. of movement records except in limited circumstances.
(3) In this section:
provider has the same meaning as in the Education Services for Overseas Students Act 2000.
488AA Things seized under Crimes Act search warrant and information about such things
(1) This section applies to the following:
(a) a thing seized (warrant material) under a search warrant issued under Division 2 of Part 1AA of the Crimes Act 1914;
(b) information (warrant information) that is about, or obtained from, warrant material.
(2) A constable or Commonwealth officer who, under subsection 3ZQU(1) of the Crimes Act 1914, may use or make available warrant material, is authorised to make available warrant material or warrant information:
(a) to a person covered by subsection (4); and
(b) for a purpose mentioned in subsection (3).
(3) A person covered by subsection (4) is authorised to receive and use warrant material and warrant information, or make it available to another person covered by subsection (4), for the following purposes:
(a) making a decision, or assisting in making a decision, to grant or refuse to grant a visa;
(b) making a decision, or assisting in making a decision, to cancel a visa;
(c) making a decision, or assisting in making a decision, to revoke a cancellation of a visa;
(d) making a decision in relation to the detention, removal or deportation of a non‑citizen from Australia.
Note: Subsection 3ZQU(4) of the Crimes Act 1914 contemplates that another law of the Commonwealth may require or authorise the use or making available of a document or other thing to persons, or for purposes, in addition to those listed in subsection 3ZQU(1) of that Act.
(4) The following persons are covered by this subsection:
(a) the Minister;
(b) an officer, including the Secretary.
488B Authorisation to disclose information to an officer
(1) An airline operator, a shipping operator, a travel agent or a prescribed organisation may, for any purpose that is likely to facilitate the administration or enforcement of this Act or the regulations, disclose to an officer information about any matter relating to travel:
(a) that has been, is being, or is proposed to be, undertaken by any person on the way (directly or indirectly) to the migration zone; or
(b) that has been, is being, or is proposed to be, undertaken and that involves the departure from the migration zone of any person;
even if the information is personal information.
(2) To avoid doubt, this section does not:
(a) require anyone to disclose information; or
(b) affect a requirement of, or under, a provision of this Act or the regulations for a person to disclose information (whether by answering a question, by providing a document or by other means).
(3) In this section:
officer includes a person who is a clearance officer within the meaning of section 165.
organisation has the same meaning as in the Privacy Act 1988.
travel agent includes an organisation that is involved in arranging or facilitating travel.
489 Notified data bases
The Minister may, by notice in the Gazette, declare a data base containing information kept for the purposes of this Act in relation to the entry of persons into, and departure of persons from, Australia to be a notified data base for the purposes of this section.
490 Identification card to be deemed to continue to be in a form approved by the Minister
Where the Minister revokes the approval of a form of identification card in relation to members of the crews of vessels, an identification card in accordance with that form signed by the master of a vessel not later than 3 months after the date of that revocation shall, notwithstanding that revocation, be deemed, for the purposes of this Act, to continue to be an identification card in accordance with a form approved by the Minister.
492 Commencement of prosecutions
(1) Subject to this section, a prosecution for an offence against this Act or the regulations may be instituted at any time within 5 years after the commission of that offence.
(2) A prosecution of a person for an offence against section 234, 236 or 243 that is alleged to have been committed after the commencement of this subsection may be instituted at any time.
(3) A prosecution for an offence:
(a) against section 232A, 233 or 233A of this Act as in force before the commencement of this subsection; and
(b) alleged to have been committed after the commencement of the Migration Legislation Amendment Act (No. 1) 1999;
may be instituted at any time.
(4) A prosecution for an offence against section 233A, 233B, 233C, 233D, 233E or 234A that is alleged to have been committed after the commencement of this subsection may be instituted at any time.
493 Conduct of directors, employees and agents
(1) Where, in proceedings for an offence against this Act or the regulations or for a civil penalty order, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:
(a) the conduct was engaged in by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and
(b) that the director, employee or agent had the state of mind.
(2) Any conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority shall be taken, for the purposes of a prosecution for an offence against this Act or the regulations or of proceedings for a civil penalty order, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.
(3) Where, in proceedings for an offence against this Act or the regulations or for a civil penalty order, it is necessary to establish the state of mind of a person other than a body corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by an employee or agent of the person within the scope of his or her actual or apparent authority; and
(b) that the employee or agent had the state of mind.
(4) Any conduct engaged in on behalf of a person other than a body corporate by an employee or agent of the person within the scope of his or her actual or apparent authority shall be taken, for the purposes of a prosecution for an offence against this Act or the regulations or of proceedings for a civil penalty order, to have been engaged in also by the first‑mentioned person unless the first‑mentioned person establishes that the first‑mentioned person took reasonable precautions and exercised due diligence to avoid the conduct.
(5) Where:
(a) a person other than a body corporate is convicted of an offence; and
(b) the person would not have been convicted of the offence if subsections (3) and (4) had not been enacted;
the person is not liable to be punished by imprisonment for that offence.
(6) A reference in subsection (1) or (3) to the state of mind of a person includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
(7) A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory.
(8) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.
494 Jurisdiction of courts
(1) A provision of the Judiciary Act 1903 by which a court of a State is invested with jurisdiction with respect to offences against the laws of the Commonwealth has effect, in relation to offences against this Act, as if that jurisdiction were so invested without limitation as to locality other than the limitation imposed by section 80 of the Constitution.
(2) Subject to section 80 of the Constitution, where a person has committed an offence against a provision of this Act outside a Territory and is found in, or brought into, the Territory, a court of the Territory has the same jurisdiction in respect of the offence as it would have if the offence had been committed in the Territory.
(3) The trial of an offence against a provision of this Act not committed within a State may be held by a court of competent jurisdiction at any place where the court may sit.
494AA Bar on certain legal proceedings relating to unauthorised maritime arrivals
(1) The following proceedings against the Commonwealth may not be instituted or continued in any court:
(a) proceedings relating to an unauthorised entry by an unauthorised maritime arrival;
(b) proceedings relating to the status of an unauthorised maritime arrival as an unlawful non‑citizen during any part of the ineligibility period;
(c) proceedings relating to the lawfulness of the detention of an unauthorised maritime arrival during the ineligibility period, being a detention based on the status of the unauthorised maritime arrival as an unlawful non‑citizen;
(d) proceedings relating to the exercise of powers under repealed section 198A;