(a) state the name of the authorised officer who caused the notice to be served; and
(b) if the notice is for the alleged commission of an offence—set out:
(i) the day on which the offence is alleged to have been committed; and
(ii) if the offence is against section 229 or 230 of the Act, the place at which the offence is alleged to have been committed; or
(ba) if the notice is for an alleged contravention of a civil penalty provision—set out the day on which, or the period over which, the civil penalty provision is alleged to have been contravened; and
(c) give brief particulars of the alleged offence or the alleged contravention of a civil penalty provision; and
(d) set out the infringement notice penalty; and
(e) state that, if the person on whom it is served does not wish the matter to be dealt with by a court, he or she may pay that penalty within 28 days after the date of service of the notice unless the notice is withdrawn before the end of that period; and
(f) specify where and how that penalty may be paid; and
(g) set out the procedures relating to the withdrawal of notices and the consequences of the withdrawal of a notice.
(2) An infringement notice for a contravention of a sponsorship‑related civil penalty provision must also state that if the provision is contravened after the day on which, or the period over which, the contravention specified in the notice occurred:
(a) the person will have contravened the provision again; and
(b) further action may be taken as mentioned in section 140K of the Act.
(3) An infringement notice for a contravention of a work‑related civil penalty provision, or subsection 245AR(5) or 245AS(1) of the Act, must also state the grounds on which the infringement notice may be withdrawn.
(4) An infringement notice for a contravention of a work‑related civil penalty provision, or subsection 245AR(5) or 245AS(1) of the Act, must also state that the grounds on which the infringement notice may be withdrawn are not exhaustive.
(5) An infringement notice may contain any other particulars that the authorised officer considers necessary.
5.24 Can the time for payment be extended?
If an infringement notice has been served on a person, an authorised officer may, if he or she is satisfied that in all the circumstances it is proper to do so, allow a further period for payment of the infringement notice penalty, whether or not the period of 28 days after the date of service of the notice has expired.
5.25 What happens if the infringement notice penalty is paid?
If the person on whom an infringement notice is served pays the infringement notice penalty in relation to the alleged offence or the alleged contravention of a civil penalty provision before:
(a) the end of:
(i) the period of 28 days after the date of service of the notice; or
(ii) if a further period has been allowed under regulation 5.24—that further period; or
(b) the notice is withdrawn;
whichever happens first, then:
(c) any liability of the person in respect of the alleged offence or the alleged contravention of the civil penalty provision is discharged; and
(d) no further proceedings may be taken in respect of the alleged offence or the alleged contravention of the civil penalty provision; and
(e) the person is not to be taken to have been convicted of the alleged offence.
5.26 Can an infringement notice be withdrawn?
(1) If an infringement notice has been served on a person, an authorised officer may withdraw it by notice in writing served on the person in accordance with these Regulations, at any time before:
(a) the end of 28 days after the date of service of the notice; or
(b) if a further period has been allowed under regulation 5.24—the end of that further period.
(2) An infringement notice for:
(a) an alleged offence against section 229 or 230 of the Act; or
(b) an alleged contravention of a civil penalty provision;
must not be withdrawn under subregulation (1) after the expiry of 3 months commencing on the day on which the notice was served.
5.27 Refund of infringement notice penalty if notice withdrawn
If:
(a) an infringement notice has been served on a person; and
(b) the person has paid the infringement notice penalty in accordance with the notice; and
(c) the notice is subsequently withdrawn;
an authorised officer must arrange for the refund to the person of an amount equal to the amount so paid.
5.28 Evidence
(1) In the hearing of proceedings for:
(a) a prosecution for an offence specified in an infringement notice; or
(b) an application for a pecuniary penalty order in relation to a contravention of a civil penalty provision specified in an infringement notice;
a certificate signed by an authorised officer and stating a matter mentioned in subregulation (2) is evidence of the matter.
(2) The matter is that:
(a) the authorised officer did not allow further time for payment of the infringement notice penalty and the penalty was not paid within 28 days after the date of service of the infringement notice; or
(b) the authorised officer allowed a further period (as specified in the certificate) for payment of the infringement notice penalty and the penalty was not paid within the further period; or
(c) the authorised officer withdrew the infringement notice on a day specified in the certificate.
(3) A certificate that purports to have been signed by an authorised officer is taken to have been signed by that person unless the contrary is proved.
5.29 Can there be more than one infringement notice for the same offence or contravention of a civil penalty provision?
This Division does not prevent more than one infringement notice being served on a person for the same offence or the same contravention of a civil penalty provision, but regulation 5.25 applies to the person if the person pays the infringement notice penalty in accordance with one of the infringement notices.
5.30 What if payment is made by cheque?
If a cheque is offered to Immigration as payment of all or part of the amount of a penalty specified in an infringement notice, payment is taken not to have been made unless the cheque is honoured upon presentation.
5.31 Infringement notice not compulsory
Nothing in this Division:
(a) requires an infringement notice to be served on a person in relation to an offence or a contravention of a civil penalty provision; or
(b) affects the liability of a person to be prosecuted for an offence or to be subject to proceedings in relation to a contravention of a civil penalty provision if the person does not comply with an infringement notice; or
(c) affects the liability of a person to be prosecuted for an offence or to be subject to proceedings in relation to a contravention of a civil penalty provision if an infringement notice is not served on the person in relation to the offence or in relation to a contravention of a civil penalty provision; or
(d) affects the liability of a person to be prosecuted for an offence or to be subject to proceedings in relation to a contravention of a civil penalty provision if an infringement notice is served and withdrawn; or
(e) limits the amount of:
(i) the fine that may be imposed by a court on a person convicted of an offence; or
(ii) the pecuniary penalty that may be imposed by a court on a person for a contravention of a civil penalty provision.
Division 5.6—Miscellaneous
5.32 Search warrants (Act, ss 223(14) and 251(4))
(1) A search warrant for the purposes of subsection 223(14) of the Act (dealing with directions about, and seizure of, the valuables of non‑citizens in detention) is to be in accordance with prescribed form 1.
(2) A search warrant for the purposes of subsection 251(4) of the Act (dealing with entry and search for unlawful non‑citizens) is to be in accordance with prescribed form 2.
5.32A Work performed by unlawful non‑citizen in detention centre
For subsection 235(6) of the Act, the circumstance is that the work:
(a) is performed by an unlawful non‑citizen who is detained in a detention centre established under the Act; and
(b) is allocated to the unlawful non‑citizen, at the non‑citizen’s request, by an officer at the detention centre.
5.34 Application of Chapter 2 of the Criminal Code
Chapter 2 of the Criminal Code applies, on and after 1 November 2001, to offences against these Regulations.
5.34D Disclosure of information to prescribed bodies
For paragraph 336F(1)(d) of the Act (which deals with the authorised disclosure of identifying information to various bodies), a body of:
(a) a foreign country; or
(b) the Commonwealth; or
(c) a State; or
(d) a Territory;
that is specified in a legislative instrument made by the Minister for this regulation is a prescribed body.
5.34E Disclosure of information to prescribed international organisations
For paragraph 336F(1)(e) of the Act (which deals with the authorised disclosure of identifying information to international organisations), an organisation that is specified in a legislative instrument made by the Minister for this regulation is a prescribed international organisation.
5.34F Disclosure of information to police and Australian Criminal Intelligence Commission
(1) This regulation applies in relation to the following:
(a) a person who holds:
(i) a Subclass 050 (Bridging (General)) visa; or
(ii) a Subclass 051 (Bridging (Protection Visa Applicant)) visa;
(b) a person covered by a residence determination.
(2) The Minister may authorise the disclosure of any information mentioned in subregulation (4) about the person, or a class of such persons, to the following:
(a) the Australian Federal Police;
(b) the police force or police service of a State or Territory;
(c) the Australian Criminal Intelligence Commission.
(3) The Minister may authorise the disclosure only if the Minister reasonably believes the disclosure is necessary or appropriate for the performance of functions or the exercise of powers under the Act.
(4) For subregulation (2), the information is the following:
(a) the name of the person or the names of persons in the class;
(b) the residential address of the person or the residential addresses of persons in the class;
(c) the sex of the person or of persons in the class;
(d) the date of birth of the person or the dates of birth of persons in the class;
(e) the immigration status of the person or of persons in the class;
(f) the CNI number of the person or persons;
(g) the client number of the person or persons.
5.35 Medical treatment of persons in detention under the Act
(1) In this regulation:
detainee means a person held at a detention centre in detention under the Act.
medical treatment includes:
(a) the administration of nourishment and fluids; and
(b) treatment in a hospital.
(2) The Secretary may authorise medical treatment to be given to a detainee if:
(a) the Secretary, acting in person and on the written advice of:
(i) a Commonwealth Medical Officer; or
(ii) another registered medical practitioner;
forms the opinion that:
(iii) that detainee needs medical treatment; and
(iv) if medical treatment is not given to that detainee, there will be a serious risk to his or her life or health; and
(b) that detainee fails to give, refuses to give, or is not reasonably capable of giving, consent to the medical treatment.
(3) An authorisation by the Secretary under subregulation (2) is authority for the use of reasonable force (including the reasonable use of restraint and sedatives) for the purpose of giving medical treatment to a detainee.
(4) A detainee to whom medical treatment is given under an authorisation under subregulation (2) is taken for all purposes to have consented to the treatment.
(5) Medical treatment that is given under an authorisation under subregulation (2) must be given by, or in the presence of, a registered medical practitioner.
(6) Nothing in this regulation authorises the Secretary to require a registered medical practitioner to act in a way contrary to the ethical, moral or religious convictions of that medical practitioner.
5.35AA Decisions that are not privative clause decisions
For subsection 474(5) of the Act, a decision, or a decision included in a class of decisions, made under a provision of the Act set out in the following table is not a privative clause decision.
Item
Provision
Subject matter of provision
1
section 252AA
Power to conduct a screening procedure
2
section 252A
Power to conduct a strip search
3
section 252B
Rules for conducting a strip search
4
section 252C
Possession and retention of certain things obtained during a screening procedure or strip search
5
section 252D
Authorised officer may apply for a thing to be retained for a further period
6
section 252E
Magistrate may order that thing be retained
7
section 252G
Powers concerning entry to a detention centre
8
Division 13A of Part 2
Automatic forfeiture of things used in certain offences
5.35AB Tax file numbers
(1) For the purposes of subsection 506B(1) of the Act, the following kinds of visas are prescribed:
(a) a Subclass 124 (Distinguished Talent) visa;
(b) a Subclass 132 (Business Talent) visa;
(c) a Subclass 186 (Employer Nomination Scheme) visa;
(d) a Subclass 187 (Regional Sponsored Migration Scheme) visa;
(e) a Subclass 188 (Business Innovation and Investment (Provisional)) visa;
(f) a Subclass 189 (Skilled—Independent) visa;
(g) a Subclass 190 (Skilled—Nominated) visa;
(ga) a Subclass 191 (Permanent Residence (Skilled Regional)) visa;
(h) a Subclass 457 (Temporary Work (Skilled)) visa;
(i) a Subclass 476 (Skilled—Recognised Graduate) visa;
(ja) a Subclass 482 (Skills in Demand) visa;
(j) a Subclass 482 (Temporary Skill Shortage) visa;
(k) a Subclass 485 (Temporary Graduate) visa;
(l) a Subclass 489 (Skilled—Regional (Provisional)) visa;
(la) a Subclass 491 (Skilled Work Regional (Provisional)) visa;
(lb) a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa;
(m) a Subclass 858 (National Innovation) visa;
(n) a Subclass 887 (Skilled—Regional) visa;
(o) a Subclass 888 (Business Innovation and Investment (Permanent)) visa;
(p) a Subclass 890 (Business Owner) visa;
(q) a Subclass 891 (Investor) visa;
(r) a Subclass 892 (State/Territory Sponsored Business Owner) visa;
(s) a Subclass 893 (State/Territory Sponsored Investor) visa.
Note: As a result of this regulation, the Secretary may request certain persons to provide tax file numbers of applicants for, or holders or former holders of, the kinds of visas prescribed.
Purposes for using, recording or disclosing tax file numbers
(2) For the purposes of subsection 506B(7) of the Act, a tax file number provided under section 506B may be used, recorded or disclosed by an officer for any of the following purposes:
(a) verifying the identity of persons in relation to whom tax file numbers have been provided;
(b) ensuring compliance with the Act and these regulations by such persons, including compliance with sponsorship obligations and visa conditions;
(c) developing policy relating to visas of a kind prescribed under subregulation (1);
(d) researching, gathering intelligence, or identifying trends or risks, in relation to visas of a kind prescribed under subregulation (1).
Division 5.6A—Powers under an agreement or arrangement with a foreign country
5.35A Definitions
In this Division:
place means any place in or outside Australia.
weapon includes any thing capable of being used to inflict bodily injury or to help an individual escape from restraint.
5.35B Exercise of power to restrain an individual
(1) In the exercise of a power under this Division to restrain an individual, the officer:
(a) must not use more force, or subject the individual to greater indignity, than is reasonably necessary to exercise the power; and
(b) must not do anything likely to cause the individual grievous bodily harm unless the officer believes on reasonable grounds that doing the thing is necessary to protect life or prevent serious injury to the individual or another individual (including the officer).
(2) In this regulation:
officer includes an individual assisting the officer.
5.35C Exercise of power to search an individual
(1) This regulation applies to a search under this Division of an individual, clothing of an individual or property under the immediate control of an individual.
(2) The purpose for which an individual, clothing of the individual or any property under the immediate control of the individual may be searched is to find out whether the individual is carrying a weapon, or a weapon is hidden on the individual, in the clothing or in the property.
(3) This regulation does not authorise an officer, or another individual conducting a search under subregulation (4), to remove any of the individual’s clothing, or to require an individual to remove any of his or her clothing, except the individual’s outer garments (including but not limited to the individual’s overcoat, coat, jacket, gloves, shoes and head covering).
(4) A search of an individual, and the individual’s clothing, must be conducted by:
(a) an officer of the same sex as the individual; or
(b) if an officer of the same sex as the individual is not available to conduct the search—any other individual who is of the same sex and:
(i) is requested by an officer; and
(ii) agrees;
to conduct the search.
(5) An officer or other individual who conducts a search to which this regulation applies must not use more force, or subject the individual to greater indignity, than is reasonably necessary to conduct the search.
5.35D Protection of persons when acts done in good faith