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1998-1999-2000-2001
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
BORDER PROTECTION BILL 2001
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Minister for Immigration
and Multicultural Affairs,
the Honourable Philip Ruddock MP)
TABLE OF CONTENTS
Page
GENERAL OUTLINE 1
FINANCIAL IMPACT STATEMENT 1
NOTES ON CLAUSES 2
The Bill seeks, for more abundant caution, to ensure that there is no doubt about the Government’s ability to order ships to leave Australia’s territorial waters. Provision is also made to avoid the possibility of legal action being taken in Australian courts as a result of any action taken under the Act. Once assented to, the Act will operate from 9.00 am on 29 August 2001 (by legal time in the Australian Capital Territory). Transitional provisions will ensure actions taken in relation to ships during any period between the commencement time and Royal Assent will be covered by the substantive provisions of the Act.
There will be no financial impact of this Bill.
1. This clause provides that the Act may be cited as the Border
Protection Act 2001.
2. Clause 2 provides that the Bill is taken to have commenced on 29
August 2001 at 9.00 am by legal time in the Australian Capital
Territory.
3. Clause 3 defines certain terms used in the
Bill.
4. Australia is defined to include the external
Territories.
5. Officer is defined as a person authorised for
the purposes of the Act by the Prime Minister or the Minister for Immigration
and Multicultural Affairs. The definition provides that the only people who can
be so authorised are the Secretary or an employee of the Department of
Immigration and Multicultural Affairs, an officer for the purposes of the
Customs Act 1901, a member of the Australian Federal Police or of the
police force of a State or internal or external Territory, or a member of the
Australian Defence Force.
6. Ship is defined to mean any
vessel used in navigation (other than air navigation), including a barge,
lighter or other floating vessel.
7. Territorial sea is defined
as the territorial sea as declared under the Seas and Submerged Lands Act
1973.
8. Clause 4 of the Bill enables an authorised officer to direct that a
ship that is within the outer limits of the territorial sea be taken outside the
territorial sea. That direction would cover all persons on board the ship.
Subclause (3) enables the officer to use any reasonable means to give the
direction, and subclause (4) ensures that the direction is effective even if it
is claimed that that the master was not on board the ship at the time, or did
not receive, or could not understand, the order.
9. Clause 5 provides that a direction given under clause 4 may be enforced by
an officer, who may detain the ship and take it, or cause it to be taken,
outside the territorial sea. The clause provides that reasonable means,
including reasonable force, may be used to do so.
10. Clause 6 provides that an officer may return a person to a ship if
the person was on board the ship when a direction was given under clause 4
requiring the ship to be taken outside the territorial sea. This is to ensure
that people on board a ship who seek to avoid preventative action by jumping
overboard may be returned to the ship. Also, people who are removed from the
ship for humanitarian reasons (for instance for medical treatment) may be
returned to the ship.
11. Clause 7 provides that no proceedings, whether civil or criminal, may
be taken or continued against the Commonwealth, an officer, or a person
assisting, in respect of any action taken under clause 5 or 6 (ie action to
remove a ship from Australian territorial waters or to return a person to a
ship).
12. Clause 8 ensures that proceedings may not be instituted or continued
to prevent a ship from being removed from the territorial sea of Australia
pursuant to a direction under section 4. It also ensures that such proceedings
cannot prevent the removal of persons who are on the ship.
13. Subclause (1) ensures that persons who are on board a ship when a
direction is given under clause 4 cannot apply for a protection visa. Subclause
(2), by applying section 91F of the Migration Act 1958, gives the
Minister a non-compellable power to accept a application in certain limited
circumstances.
14. Clause 10 ensures that this Bill has effect in spite of any other
law.
15. Clause 11 ensures that certain actions taken after 9 am by legal time
in the Australian Capital Territory on 29 August 2001, and before this Bill
receives the Royal Assent, are covered by this Act. In particular, it ensures
that, where the Prime Minister or the Minister has authorised a person to direct
a ship to be removed from the territorial sea, any action of the kind described
in clause 5 or 6 (ie action to remove a ship from Australian territorial waters
or to return a person to a ship) is deemed for all purposes to be validly done
under this Bill. In addition, it ensures that clauses 7 and 8 apply in these
circumstances to prevent the institution or continuation of proceedings, and
that any person on a ship that is the subject of a direction during the period
between commencement and Royal Assent is prevented by clause 9 from applying for
a protection visa.