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2004-2005
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE HOUSE OF REPRESENTATIVES
BORDER PROTECTION LEGISLATION AMENDMENT
(DETERRENCE OF ILLEGAL FOREIGN FISHING)
BILL 2005
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator the Hon Ian Macdonald,
Minister for Fisheries, Forestry and Conservation)
1
CONTENTS
1. General outline....................................................................................3
2. Financial Impact Statement......................................................................4
3. Notes on clauses....................................................................................5
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BORDER PROTECTION LEGISLATION AMENDMENT
(DETERRENCE OF ILLEGAL FOREIGN FISHING) BILL 2005
1. GENERAL OUTLINE
1.1. The Bill amends the Fisheries Management Act 1991, the Torres Strait Fisheries Act
1984 and the Migration Act 1958 to ensure that breaches of illegal foreign fishing
offences can be managed with significantly improved efficiency. Through the
achievement of such efficiency, the Australian Government will be in a stronger
position to manage foreign fishers found operating illegally in Australian waters.
1.2. The major outcomes of the amendments contained in the Bill will be:
- to provide consistency between the Torres Strait Fisheries Act 1984 and the
Fisheries Management Act 1991 in relation to illegal foreign fishing
arrangements;
- to strengthen the operating proficiency of the partnership between the
Australian Fisheries Management Authority (AFMA) and the Department of
Immigration and Multicultural and Indigenous Affairs (DIMIA) in the
management of detained illegal foreign fishers; and
- to provide for a seamless transition between fisheries detention and
immigration detention for non-citizens suspected of committing illegal
foreign fishing offences and to facilitate the rapid repatriation of detainees to
their home countries.
1.3. Schedule 1 of the Bill provides for a number of amendments to the Fisheries
Management Act 1991 and the Torres Strait Fisheries Act 1984 to ensure that
appropriate standards are maintained in Australia's management of people suspected
of being involved in illegal foreign fishing offences. All amendments to the Torres
Strait Fisheries Act 1984 are consistent with the Treaty between Australia and the
Independent State of Papua New Guinea concerning Sovereignty and Maritime
Boundaries in the area between the two Countries, including the area known as
Torres Strait, and Related Matters (the Torres Strait Treaty) between Australia and
Papua New Guinea.
1.4. Part 1 of Schedule 1 of this Bill will insert a new provision into the Fisheries
Management Act 1991 and the Torres Strait Fisheries Act 1984 to clarify that an
officer controlling a boat, using powers conferred by either of these Acts, is not
unlawfully restraining the liberty of any of the people that are on the boat. This type
of provision is similar to provisions of the Migration Act 1958 and the Customs Act
1901.
1.5. Part 2 of Schedule 1 of the Bill contains a new Schedule for both the Fisheries
Management Act 1991 and the Torres Strait Fisheries Act 1984. These Schedules
are almost identical and contain provisions relating to the detention of foreign fishers
suspected of offences under either of these Acts. These Schedules mirror the
provisions contained in the Migration Act 1958 for dealing with the detention of
unauthorised non-citizens. The powers and duties contained in Part 2 of Schedule 1
of the Bill cover a range of situations including the detention of people suspected of
committing an illegal foreign fishing offence, the searching and screening of detainees
and the carrying out of identification tests on detainees. This new legislative
framework will provide a seamless transition between fisheries detention under either
the Fisheries Management Act 1991 or the Torres Strait Fisheries Act 1984 and
subsequent detention and repatriation under the Migration Act 1958.
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1.6. Schedule 1, Part 3 of the Bill will amend the Fisheries Management Act 1991 and the
Torres Strait Fisheries Management Act 1991 to allow fisheries officers to search
people on boats suspected of being involved in illegal foreign fishing offences for
weapons and evidence of fishing offences. This amendment is a logical extension of
the power to search boats suspected of being involved in illegal foreign fishing
offences and will ensure the safety of fisheries officers from possible attack while
investigating boats suspected of such offence as well as preventing the possibility of
evidence of an offence being thrown overboard before the boat reaches Australia.
This new power to search is complemented by comprehensive rules regarding the
proper manner in which such a search may be conducted.
1.7. Part 4 of Schedule 1 of the Bill will introduce automatic forfeiture provisions into the
Torres Strait Fisheries Act 1984, replicating those already in the Fisheries
Management Act 1991. This will allow for the automatic forfeiture of boats and
other things used in offences involving foreign boats and will provide rules for how
these things may be dealt with by AFMA.
1.8. The amendments proposed in Part 5 of Schedule 1 of the Bill offer greater protection
for officers performing their duties. The offences of assaulting, resisting or
obstructing an officer or using abusive or threatening language against an officer will
amended to ensure consistency between the Fisheries Management Act 1991 and the
Torres Strait Fisheries Act 1984 and to cover all people exercising powers or
performing functions under either Act rather than just officers.
1.9. Schedule 2 of the Bill amends the Migration Act 1958 to ensure that the enforcement
visa regime under the Migration Act 1958 applies consistently to illegal foreign fishing
offences under both the Fisheries Management Act 1991 and the Torres Strait
Fisheries Act 1984. This consistent regime will provide maximum effectiveness for
managing people suspected of committing illegal foreign fishing offences in either the
Australian Fishing Zone or the Torres Strait Protected Zone.
2. FINANCIAL IMPACT STATEMENT
2.1. The amendments are expected to involve additional administrative costs to the
Australian Government and no additional costs to the Australian fishing industry. The
amendments will not result in any specified savings and there will be no loss or gain in
income.
2.2. Amendments requiring the provision of personal identifiers of detained persons will
entail minimal administrative costs (estimated at less than $10,000 per annum in total)
associated with the handling and storage of the data gathered. Positive Identification
technology to collect personal identifiers is estimated to cost $900,000 in the first year
and $100,000 per year in subsequent years. These costs will be met from within
the current and future resources of the Australian Fisheries Management Authority.
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3. NOTES ON CLAUSES
Clause 1: Short Title
3.1. Clause 1 is a formal provision specifying the short title of the Bill. The Act will be
called the Border Protection Legislation Amendment (Deterrence of Illegal Foreign
Fishing) Act 2005.
Clause 2: Commencement
3.2. Sections 1 to 3 and anything not contained in Schedules 1 and 2 of the Bill will
commence on the day on which the Bill receives the Royal Assent.
3.3. Part 1, 4 and 5 of Schedule 1 and Part 2 of Schedule 2 of the Bill will commence on
the day after the Bill receives the Royal Assent.
3.4. Part 2 of Schedule 1 and Part 1 of Schedule 2 of the Bill will not take effect until the
day set by Proclamation. However, if any of the provision(s) do not commence
within six months of the Bill receiving the Royal Assent, they will commence on the
first day after the end of that period. Division 1 of Part 3 of Schedule 1 will also
commence on a day fixed by proclamation or no later than six months after the Bill
receives the Royal Assent.
3.5. Division 2 of Part 3 of Schedule 1 of the Bill will commence immediately after the
commencement of either Part 2 of Schedule 1 or Division 1 of Part 3 of Schedule 1 of
the Bill, whichever is the later.
Clause 3: Schedules
3.6. Clause 3 states that the Fisheries Management Act 1991, the Torres Strait Fisheries
Act 1984 and the Migration Act 1958 are amended or repealed as set out in the
applicable items in Schedules 1 and 2 of the Bill. Any other item in a Schedule to this
Bill has effect according to its terms.
Schedule 1: Fisheries Amendments
Part 1: Control of boats does not unlawfully restrain liberty of persons on the boats
FISHERIES MANAGEMENT ACT 1991
Item 1: After subsection 84(1B)
3.7. This item will amend the Fisheries Management Act 1991 to ensure that an officer
who has used his or her powers under the Act to detain a boat, or make a request of a
master in relation to a boat, is not unlawfully restraining the liberty of any person on
that boat. New subsection 84(1BA) is similar to subsection 245F(8A) of the
Migration Act 1958 and subsection 185(3AAA) of the Customs Act 1901.
3.8. It is necessary for officers to move boats suspected of involvement in illegal foreign
fishing offences to Australia to enable the suspected offences to be properly
investigated. This provision will ensure that officers are protected from legal action
regarding this lawful exercise of their powers under the Act.
3.9. This means that civil or criminal proceedings may not be instituted against an officer,
any person assisting an officer in the exercise of the power, AFMA or the
Commonwealth in respect of a restraint caused by the exercise of that officer's
powers under subsections 84(1)(g), (k), (l) or (m) of this Act.
5
TORRES STRAIT FISHERIES ACT 1984
Item 2: After subsection 42(2)
3.10. This item will amend the Torres Strait Fisheries Act 1984 to ensure that an officer
who has used his or her powers under the Act to detain a boat, or make a request of a
master in relation to a boat, is not unlawfully restraining the liberty of any person on
that boat. New subsection 42(2AAA) is similar to section 245F(8A) of the Migration
Act 1958 and subsection 185(3AAA) of the Customs Act 1901.
3.11. It is necessary for officers move boats suspected of involvement in illegal foreign
fishing offences to Australia to enable the suspected offences to be properly
investigated. This provision will ensure that officers are protected from legal action
regarding this lawful exercise of their powers under the Act.
3.12. This means that civil or criminal proceedings may not be instituted against an officer,
any person assisting an officer in the exercise of the power, AFMA or the
Commonwealth in respect of a restraint caused by the exercise of that officer's
powers under subsections 42(1)(d), (e), (g) or (h) of this Act.
Part 2: Provisions relating to detention of suspected illegal foreign fishers
FISHERIES MANAGEMENT ACT 1991
Item 3: Paragraphs 84(1)(ia), (ib), (ic) and (id)
3.13. This item repeals paragraphs 84(1)(ia), (ib), (ic) and (id) of the Fisheries
Management Act 1991. The powers previously contained in these paragraphs (to
detain suspected illegal foreign fishers, to move detained people, to search a detained
person and taking measurements or photographs of a person for the purposes of
identification) will now be contained in the new Schedule 1A of the Fisheries
Management Act 1991.
Item 4: At the end of subsection 84(1)
3.14. This item adds a note to the end of subsection 84(1) of the Fisheries Management
Act 1991 explaining that the powers of officers in relation to the detention of
suspected illegal foreign fishers are contained in the new Schedule 1A to the Fisheries
Management Act 1991. This is necessary because it would be a reasonable
expectation that that detention powers would be located along with the other powers
of officers in section 84(1) of the Fisheries Management Act 1991.
Item 5: Sections 84A and 84B
3.15. This item repeals sections 84A and 84B of the Fisheries Management Act 1991 that
deal with the release of a detainee from detention and searches of detained persons.
These matters will now be contained in the new Schedule 1A of the Act.
Item 6: Paragraph 87E(1)(aa)
3.16. This item updates a reference to the power to detain a person suspected of being an
illegal foreign fisher to reflect its relocation from its present position in paragraph
84(1)(ia) to its new position in the new Schedule 1A of the Fisheries Management
Act 1991.
Item 7: Paragraph 87E(1)(ab)
6
3.17. This item updates a reference to the power to move detained people to reflect its
relocation from its present position in paragraph 84(1)(ib) to its new position in the
new Schedule 1A of the Fisheries Management Act 1991.
Item 8: Paragraph 87E (1) (ab)
3.18. This item updates a reference to the power to detain a person suspected of being an
illegal foreign fisher to reflect its relocation from its present position in paragraph
84(1)(ia) to its new position in the new Schedule 1A of the Fisheries Management
Act 1991.
Item 9: Subsection 87E(5)
3.19. This item updates a reference to the power to detain a person suspected of being an
illegal foreign fisher and the power to move a detained person to reflect the relocation
of these powers from their present positions in paragraphs 84(1)(ia) and (ib) to their
new positions in the new Schedule 1A of the Fisheries Management Act 1991.
Item 10: Subsection 87E(5) (note)
3.20. This item removes a reference to the section 84A which appears in a note associated
with 87E(5) of the Fisheries Management Act 1991. Section 84A is repealed by Item
5 (above).
Item 11: Section 98A
3.21. This item repeals section 98A of the Fisheries Management Act 1991. The offence
previously contained in this section (regarding escape from detention) will now be
contained in Schedule 1A of the Fisheries Management Act 1991.
Item 12: After Division 5A of Part 6
3.22. This item adds a new Division to Part 6 of the Fisheries Management Act 1991.
New Division 5B relates to the detention of suspected illegal foreign fishers. This item
also inserts new section (105Q), which gives effect to new Schedule 1A of the
Fisheries Management Act 1991.
Item 13: Before Schedule 1
3.23. This item inserts Schedule 1A into the Fisheries Management Act 1991. Schedule
1A contains the powers relating to the detention of suspected illegal foreign fishers.
3.24. Explanatory notes relating to each of the provisions of the new Schedule 1A to the
Fisheries Management Act 1991 are set out below.
3.25. The provisions of new Schedule 1A of the Fisheries Management Act 1991 have
been drafted to ensure maximum consistency with new Schedule 2 of the Torres Strait
Fisheries Act 1984. This means that the explanations of the various provisions of
Schedule 1A of the Fisheries Management Act 1991 substantially replicate the
explanation offered regarding the counterpart provision in Schedule 2 of the Torres
Strait Fisheries Act 1984.
Schedule 1A: Provisions relating to detention of suspected illegal foreign fishers
Part 1: Preliminary
Section 1: Main objects of this Schedule
3.26. New section 1 outlines the three main objects of the new Schedule 1A to the
Fisheries Management Act 1991. These three objects are to provide for the detention
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of suspected illegal foreign fishers, to allow for detainees to be appropriately
searched, screened and identified while protecting the welfare of the detainee and to
facilitate the transition of detainees from fisheries to immigration detention by creating
consistency between the Fisheries Management Act 1991 and the Migration Act
1958.
Section 2: Definitions
3.27. New section 2 adds a definition of `authorised officer', `detainee', `detention' and
`detention officer' for the purposes of Schedule 1A to the Fisheries Management Act
1991.
Section 3: Minister may appoint persons to be detention officers
3.28. New section 3 allows the Minister to appoint, by instrument, a person or members of
a class or group of people to be detention officers. This will allow for the creation of
a new class of officers with certain limited powers of detention under the Fisheries
Management Act 1991. It is envisaged that employees and contractors of DIMIA and
AFMA will be appointed as detention officers under the Fisheries Management Act
1991 in the same way that employees and contractors are currently appointed as
officers under the Migration Act 1958. Officers under the Fisheries Management Act
1991 do not need to also be appointed as detention officers as they already have the
necessary powers.
3.29. New subsection 3(2) provides that an instrument appointing officers can refer to a
class of persons, such as all employees of a particular contracted company, to be
officers. The instrument may also specify that a person may join the specified class of
persons within a particular timeframe, as specified in the instrument.
Section 4: Detention officers subject to directions
3.30. New section 4 provides that detention officers will be subject to the directions of the
Minister or AFMA in the exercise of their powers and the performance of their duties
under the new Schedule 1A of the Fisheries Management Act 1991. In practice, day-
to-day operational directions will be almost always provided to detention officers by
AFMA.
Section 5: Detention officer etc. not liable to certain actions
3.31. New subsection 5(1) provides protection from liability for any kind of court
proceedings for detention officers, or people assisting detention officers, for anything
done in good faith in the exercise of the powers and functions contained in Schedule
1A of the Fisheries Management Act 1991. As noted beneath new section 5(1), this
new section reflects the similar protection provided to officers, and people assisting
officers, in the existing section 90 of the Fisheries Management Act 1991.
3.32. New subsection 5(2) clarifies that new subsection 5(1) does not affect any contractual
liability of a detention officer or a person assisting a detention officer. This exclusion
is to ensure that AFMA retains the potential to sue any detention officer or person
assisting a detention officer for breach of contract if circumstances, which may
constitute a breach of contract, ever arise.
Section 6: AFMA may authorise officers and detention officers
3.33. New section 6 provides that AFMA may authorise one or more officers and/or
detention officers, by instrument, for the purposes of a specified provision of new
Schedule 1A. This provision will ensure that tight control is maintained over the
number and type of people who will be authorised to use certain powers contained in
8
the new Schedule 1A. Persons who are authorised under new section 6 are referred
to in Schedule 1A as `authorised officers'.
Section 7: Persons who are authorised officers for the purposes of Migration Act 1958 are
taken to be authorised for this Schedule
3.34. New section 7 provides for a scheme of automatic authorisation of detention officers
who are authorised to carry out certain powers under the Migration Act 1958.
3.35. New subsection 7(1) provides that a person who is an officer or a detention officer
under the Fisheries Management Act 1991 and is an authorised officer in regards to
specified sections within the Migration Act 1958, is to be considered authorised for
the purposes of the corresponding provisions of the new Schedule 1A of the Fisheries
Management Act 1991. The provisions of the Migration Act 1958 and the
corresponding provisions of the new Schedule 1A of the Fisheries Management Act
1991 are contained in columns two and three of the table beneath new subsection
7(1).
3.36. This provision will allow officers to be dually authorised to use certain powers under
both the Fisheries Management Act 1991 and the Migration Act 1958. This will
assist in providing a seamless transition for people in fisheries and then immigration
detention.
3.37. This provision for automatic authorisation is subject to appropriate limitations
imposed by new subsection 7(2) and (3). These new subsections provide that if
officers are authorised to undertake identity tests, this power is strictly limited to the
specified types of identity tests in that authorisation. Additionally, AFMA may, by
instrument, specify that certain people, who would otherwise be authorised under new
subsection 7(1), are not authorised to undertake certain powers.
Part 2: Detaining suspected illegal foreign fishers
Section 8: Power to detain
3.38. New section 8 provides officers with the power to detain people who are suspected
of committing an illegal foreign fishing offence. This section substantially replicates
the power contained in section 84(1)(ia) of the Fisheries Management Act 1991
which is repealed by Item 3 of this package of amendments.
3.39. New subsection 8(1) gives an officer the power to detain a person for the purposes of
deciding whether or not to charge them with committing an offence against section
99, 100, 100A, 101, 101A, 101B, 105E or 105F of the Fisheries Management Act
1991, or an offence against section 6 of the Crimes Act 1914 relating to such an
offence.
3.40. This power is restricted by the requirement that it can only be used to detain people
where the officer has reasonable grounds to believe that the person is not an
Australian citizen or resident and that the person was on a foreign boat when it was
used in the commission of an offence against one of the sections outlined in new
subsection 8(1).
3.41. New subsection 8(2) clarifies the limits of the power contained in new subsection
8(1) by ensuring that new subsection 8(1) cannot be interpreted as authorising an
officer to use more force in detaining a person than is reasonably necessary.
3.42. New subsection 8(3) preserves the effect of section 87E of the Fisheries
Management Act 1991 which sets limits to the exercise of certain powers in relation
to Fish Stock Agreement (FSA) boats. This exclusion is consistent with Australia's
obligations under the FSA.
9
Section 9: Relationship with Part IC of the Crimes Act 1914
3.43. New section 9 extends the protective provisions and rights that a protected suspect
has under Part IC of the Crimes Act 1914 to detainees under the Fisheries
Management Act 1991. New section 9 substantially replicates current subsection
84A(2) of the Fisheries Management Act 1991, which is repealed by Item 5 of this
package of amendments.
Section 10: Detention officer may detain person already detained by officer
3.44. New subsection 10(1) allows for detention officers to continue the detention
arrangements following the initial detention of a person by an officer. A detention
officer may only detain a person who has been initially detained by an officer and who
is presented by an officer to the detention officer to continue the detention of that
person. This power is limited by new subsection 10(2) which provides that a
detention officer may not detain a person if they have reasonable grounds to believe
that the detained person had, at some point, ceased to be in fisheries detention since
the last time that an officer had detained them under new section 8.
3.45. New subsection 10(2) will apply, in practice, if a detainee escapes following initial
detention. Because escape from detention is not in itself a detainable offence (see
new section 14 below) a detainee, if recaptured, could not be returned to detention
under the Fisheries Management Act 1991 and therefore could not be detained by a
detention officer under the Fisheries Management Act 1991. However, because the
detainee's enforcement visa automatically expires as soon as they escape from
detention, a recaptured detainee would instead be detained in immigration detention,
by a duly authorised officer under the Migration Act 1958, as an unauthorised non-
citizen.
Section 11: Detention on behalf of an officer or detention officer
3.46. New section 11 provides for detention to continue, in certain circumstances, in the
absence of the direct presence of an officer or detention officer. In practice, this new
section will allow for a detainee to be moved to a place where they can be cared for
better while their offences are being investigated. For example, a detainee may be
moved off a boat, if it is unseaworthy or there are poor weather conditions, to a land-
based detention facility. It will also allow detainees to be taken to hospital or other
places, generally on a short term basis.
3.47. New subsection 11(1) provides the places in which a detainee may be detained on
behalf of an officer or a detention officer. As well as including places such as prisons,
police stations and hospitals, the subsection provides that the Minister may approve,
in writing, a particular place for people to be held for the purposes of this section.
Section 12: Power to move detainees
3.48. New subsection 12(1) provides officers and detention officers with the power to
move detainees. This new section substantially replicates section 84(1)(ib) of the
Fisheries Management Act 1991, which is repealed by Item 3 of this package of
amendments.
3.49. A detainee may need to be moved to a place where they can be cared for better while
their offences are being investigated. For example, a detainee may be moved off a
boat, if it is unseaworthy or there are poor weather conditions, to a land-based
detention facility.
3.50. New subsections 12(2) and (3) limit this power to ensure that no more force than is
reasonably necessary is used to move a detainee and that all relevant matters
10
(including the administration of justice and the welfare of the detainee) are considered
before a decision is taken to move a detainee.
3.51. New subsection 12(4) provides that new subsection 12(1) is subject to section 87E of
the Fisheries Management Act 1991 which sets limits on the exercise of certain
powers in relation to Fish Stock Agreement (FSA) boats. This exclusion is consistent
with Australia's obligations under the FSA.
Section 13: End of detention
3.52. New section 13 requires that a detainee be released from detention in certain
circumstances. This new section substantially replicates section 84A of the Fisheries
Management Act 1991, which is repealed by Item 5 of this package of amendments.
3.53. New section 13 states that a detainee must be released under whichever of the
following circumstances occurs first:
- as soon as an officer knows or reasonably believes that the detainee is an
Australian citizen or resident;
- at the time a detainee is brought before a magistrate for a fisheries offence
listed in subclause 8(1);
- at the time a decision is made to charge a detainee with an offence under that
subclause; or
- at the end of 168 hours (7 days) after the detention begins.
3.54. This new section means that the longest a detainee can be held under the Fisheries
Management Act 1991 is 168 hours.
Section 14: Escape from detention
3.55. This section makes escape from detention an offence punishable on conviction by
imprisonment for up to two years. This offence was previously contained in section
98A of the Fisheries Management Act 1991.
3.56. Because escape from detention is not in itself a detainable offence, a detainee, if
recaptured, could not be returned to detention under the Fisheries Management Act
1991 and therefore could not be detained by a detention officer under the Fisheries
Management Act 1991. However, because the detainee's enforcement visa
automatically expires as soon as they have escaped from detention, a recaptured
detainee would instead be detained in immigration detention as an unauthorised non-
citizen, by an officer duly authorised under the Migration Act 1958.
Part 3: Searching and screening detainees and screening their visitors
Section 15: Searches of detainees
3.57. New section 15 allows for an authorised officer to search a detainee in certain
circumstances. This clause substantially replicates old paragraph 84(1)(ic) of the
Fisheries Management Act 1991, which is repealed by Item 3. It also corresponds
closely to section 252 of the Migration Act 1958 and, as such, will facilitate the
seamless transfer of detainees from fisheries detention to immigration detention with
one set of rules applying to the detainee's entire period of detention.
3.58. New subsection 15(1) provides that a detainee, and any clothes or property under the
immediate control of the detainee, may be searched without a warrant for one of the
purposes outlined in new subsection 15(2).
3.59. This power is aimed at ensuring the safety of detainees, and other people, and
ensuring that authorised officers have a means of determining whether a detainee is
concealing evidence of their involvement in the commission of an illegal foreign
fishing offence. As such, new subsection 15(2) limits the power in subsection 15(1)
11
by providing that a search may only be conducted for two purposes. The authorised
officer must only conduct a search for the purpose of determining whether the person
has in their possession, a weapon (or other thing capable of being used to inflict
bodily injury or to help the detainee escape from detention) or any evidence of the
commission of an offence against section 99, 100, 100A, 101, 101A, 101B, 105E or
105F of the Fisheries Management Act 1991 or an offence against section 6 of the
Crimes Act 1914 in relation to one of those offences.
3.60. New subsection 15(3) allows an authorised officer to take and keep in their
possession any of the things described in new subsection 15(2) found during a search,
for such time as the authorised officer thinks is necessary for the purposes of the
Fisheries Management Act 1991 or the Migration Act 1958.
3.61. New subsection 15(4) clarifies that this new section does not allow an authorised
officer, or any other person conducting the search under new subsection 15(5), to
remove any of a detainee's clothing or to require a detainee to remove any of their
clothing, for the purposes of conducting the search.
3.62. New subsection 15(5) requires that a search under new subsection 15(1) be
undertaken by an authorised officer of the same sex as the subject of the search.
Alternatively, where it is not reasonably possible for an authorised officer of the same
sex to conduct the search, the search may be conducted by any other person of the
same sex as the subject who is requested by an authorised officer, and agrees, to
conduct the search.
3.63. New subsection 15(6) provides that if a person assisting an authorised officer, under
new subsection 15(5), acts in good faith and does not contravene the requirement in
new subsection 15(7), they will not be liable for either criminal or civil actions or
proceedings.
3.64. New subsection 15(7) states that an authorised person or other person assisting an
authorised officer must not use more force, or subject a detainee to greater indignity,
than is reasonably necessary in order to conduct the search.
3.65. New subsection 15(8) clarifies that a search may be conducted under this new section
whether or not a screening procedure or a strip search of the detainee (under new
section 16 and 17) are also conducted.
3.66. New section 15 provides sufficient safeguards to ensure that all searches are
conducted in an appropriate manner.
Section 16: Power to conduct a screening procedure
3.67. New section 16 provides authorised officers with the power to conduct screening
procedures on detainees in certain circumstances. This section corresponds closely to
section 252AA of the Migration Act 1958 and, as such, will facilitate the seamless
transfer of detainees from fisheries detention to immigration detention with one set of
rules applying to the detainee's entire period of detention.
3.68. New subsection 16(1) allows authorised officers to conduct screening procedures
without a warrant in relation to a detainee (other than those held in State or Territory
prisons (see new section 22)). This power is aimed at ensuring the safety of
detainees, and other people, and is limited to determining whether the detainee is
concealing a weapon or any other thing capable of inflicting bodily harm or being used
to escape from detention.
3.69. New subsections 16(2) and (3) provide safeguards restricting the power to conduct
screening procedures. An officer who conducts a screening procedure is prohibited
from using greater force, or subjecting the detainee to greater indignity, than is
reasonably necessary in order to conduct the screening procedure. Similarly, an
authorised officer must not remove any of the detainee's clothing, or to require the
12
detainee to remove any of their clothing for the purpose of conducting the screening
procedure.
3.70. New subsection 16(4) clarifies that a screening procedure may be conducted under
this new section whether or not a search or a strip search of the detainee (under new
section 15 and 17) are also conducted.
3.71. New subsection 16(5) provides definitions of `conducting a screening procedure' and
`screening equipment' for the purposes of new section 16. Screening procedures
include the use of metal detectors on detainees and x-rays on a detainee's possessions.
Section 17: Power to conduct a strip search
3.72. New section 17 allows for authorised officers to conduct strip searches on detainees
in limited circumstances. This clause corresponds closely to section 252A of the
Migration Act 1958 and, as such, will facilitate the seamless transfer of detainees from
fisheries detention to immigration detention with one set of rules applying to the
detainee's entire period of detention.
3.73. New subsection 17(1) provides that an authorised officer may conduct a strip search
on a detainee, other than those held in State or Territory prisons (see new section 22),
without a warrant. A strip search must only be conducted for the purposes of
determining whether the detainee has a weapon or other thing capable of being used
to inflict bodily injury or to escape detention on their person or in their possession.
The strip search must be conducted in accordance with the stringent rules set out in
new section 18.
3.74. `Strip search' is defined in new subsection 17(2) as a search of the detainee, of his or
her clothing or of a thing in his or her possession. A strip search may include a
requirement that the detainee remove some or all of their clothing and that the
detainee's body and clothing be examined. It does not include searching the detainee's
body cavities. A strip search may be as limited as requiring the removal of a jacket, or
the detainee's socks and shoes, to search for the weapon or other thing.
3.75. New subsection 17(3) provides that an authorised officer may only conduct a strip
search if they suspect, on reasonable grounds, that the detainee has a weapon or thing
capable of inflicting bodily harm or being used to escape detention, hidden on their
person, or in their clothes or possession, and that it is necessary to conduct a strip
search in order to recover that weapon or other thing.
3.76. New subsection 17(4) states that an authorised officer may form a suspicion on
reasonable grounds that a strip search is necessary on the basis of a search (under new
section 15) or a screening procedure (under new section 16) even if the authorised
officer was not the officer who conducted the search or screening procedure. The
suspicion may also be based on any other information that is available to the
authorised officer.
3.77. In addition to this reasonable suspicion, there must be a high level authorisation for
the strip search. A strip search of a detainee who is 18 years or older must be
authorised by the Managing Director of AFMA, the Secretary of the Department or
an SES Band 3 employee in the Department who is satisfied that there are reasonable
grounds for those suspicions. A strip search of a minor between the ages of 10 and
18 years must be ordered by a magistrate after they are satisfied that there are
reasonable grounds for those suspicions.
3.78. New subsections 17(5), (6) and (7) state the means by which approval under new
subsection 17(4) must be provided. This authorisation must be recorded in writing
and signed by the person giving the high level authorisation.
13
3.79. New subsection 17(8) provides that the power to authorise a strip search cannot be
delegated to any other person. This ensures that strip searches will only ever be
authorised as a last resort by a person of sufficient authority to make such a decision.
3.80. New subsections 17(9), (10) and (11) provide that a magistrate can choose not to
accept the power conferred under paragraph 17(3) (c). If they do accept the power
they will be exercising it in their personal capacity rather than in their capacity as a
court or a member of the court while retaining all protection and immunity covering
decisions made by, or as a member of, that court. This makes it clear that the exercise
of the power conferred by new section 17 must be voluntary.
3.81. New subsection 17(12) clarifies that a strip search may be conducted under this new
section whether or not a search or a screening procedure (under new sections 15 and
16) have also been carried out on the detainee.
3.82. New subsection 17(13) defines `business day' and `SES Band 3 employee' for the
purposes of new section 17.
Section 18: Rules for conducting a strip search
3.83. New section 18 outlines comprehensive rules that must be complied with in
conducting a strip search of a detainee under the new section 17. These rules are
based on those contained in section 252B of the Migration Act 1958 which, in turn,
are based on those contained in 3ZI of the Crimes Act 1914.
3.84. The addition of new section 18 to the Fisheries Management Act 1991 will facilitate
the seamless transfer of detainees from fisheries detention to immigration detention
with one set of rules applying to the detainee's entire period of detention.
3.85. The rules contained in this new section will ensure that strip searches are conducted
in a way that will protect the dignity of the detainee as much as possible while still
allowing strip searches in very limited circumstances to ensure the safety of the
detainee and other people.
3.86. New paragraph 18(1)(a) provides that a detainee must not be subjected to greater
indignity than is reasonably necessary to conduct the strip search.
3.87. New paragraph 18(1)(b) provides that a strip search of a detainee must be conducted
in a private area.
3.88. New paragraph 18(1)(c) provides that a strip search must only be conducted by an
authorised officer of the same sex as the detainee.
3.89. New paragraph 18(1)(d) additionally provides that a strip search must not be
conducted in the presence or view of a person who is the opposite sex to the detainee.
This stipulation is subject to new subsections 18(2), (3) and (5) which provide some
limited exceptions to this rule. A parent, guardian, person representing the detainee's
interest or a person nominated by the detainee to be present for the strip search does
not have to be of the same sex as the detainee. Additionally, if a medical practitioner
is assisting an authorised officer to conduct the strip search, they may be of the
opposite sex of the detainee if a medical practitioner of the same sex is not available
within a reasonable time.
3.90. New paragraph 18(1)(e) provides that a strip search must not be conducted in the
presence or view of a person who's presence is not necessary for the purposes of
conducting the strip search. This new paragraph is also subject to new subsections
18(2), (3) and (5).
3.91. New paragraph 18(1)(f) prohibits a strip search of a detainee who is under 10 years
of age.
3.92. New paragraph 18(1)(g) introduces an additional requirement where the detainee is
between the ages of 10 and 18 or is incapable of managing their own affairs. In these
circumstances, a strip search must be conducted in the presence of the detainee's
14
parent or guardian (where that person is in detention with the detainee and is readily
available) or, where the presence of a parent or guardian is not acceptable to the
detainee or such a person is not readily available as specified, another person, other
than the authorised officer. This other person must be capable of representing the
detainee's interests and be, as far as is practicable in the circumstances, acceptable to
the detainee.
3.93. New paragraph 18(1)(h) provides that strip search of a detainee who is at least 18
years old and capable of managing their own affairs must be conducted in the
presence of another person, if nominated by the detainee where that other person is
readily available and willing to attend the strip search.
3.94. New paragraph 18(1)(i) provides that a strip search must not involve a search of the
person's body cavities. This is consistent with the definition of a strip search
contained in the new subsection 17(2).
3.95. New paragraph 18(1)(j) provides that a strip search must not involve the removal of
more items of clothing or more visual inspection than the authorised officer
conducting the search believes, on reasonable grounds, to be necessary to determine
whether there is a weapon, or other thing described in new subsection 17(1), hidden
on the body of the detainee, in their clothing or within a thing in their possession.
3.96. New paragraph 18(1)(k) restricts the use of force to that which is reasonably
necessary to conduct the strip search.
3.97. New subsection 18(4) provides that neither a detainee's refusal or failure to nominate
a person to be present during the strip search under new paragraph 18(1)(h) within
reasonable time, nor a detainee's inability to nominate a person who is readily
available and willing to attend the strip search within a reasonable time, will prevent a
strip search from being conducted.
3.98. New subsection 18(5) provides that a strip search may be conducted with the
assistance of another person where the authorised officer conducting the strip search
considers such assistance to be necessary, for the purposes of conducting the strip
search. Any other person assisting the authorised officer conducting the strip search
must be of the same sex as the detainee unless they are a medical practitioner and a
medical practitioner of the same sex as the detainee is not available within a
reasonable time.
3.99. New subsection 18(6) excludes liability for any action against a person who, at the
request of an authorised officer, assists in conducting a strip search of a detainee
where that person acts in good faith and does not contravene any part of new section
18.
3.100. New subsection 18(7) provides that a detainee must be provided with adequate
clothing if any of his or her clothing is damaged, destroyed or retained under new
section 19 as a result of the strip search. This ensures that the welfare and dignity of
the detainee is considered after the search is conducted.
Section 19: Possession and retention of certain things obtained during a screening
procedure or strip search
3.101. New section 19 provides for the retention of certain thing found during a screening
procedure (under new section 16) or a strip search (under 17) of a detainee. This new
section closely corresponds to section 252C of the Migration Act 1958 and section
3ZV of the Crimes Act 191.
3.102. The addition of new section 19 to the Fisheries Management Act 1991 will facilitate
the seamless transfer of detainees from fisheries detention to immigration detention
with one set of rules applying to the detainee's entire period of detention.
15
3.103. New subsection 19(1) allows an authorised officer to take possession of and retain a
thing found in the course of conducting a screening procedure or a strip search if the
thing might provide evidence of the commission of an offence against the Fisheries
Management Act 1991 or the thing is forfeited to the Commonwealth.
3.104. New subsection 19(2) states that a weapon or other thing which can be used to
inflict bodily injury or help a detainee to escape from detention, described in
subsections 16(1) or 17(1), is forfeited to the Commonwealth if it is found in the
course of conducting a screening procedure or a strip search.
3.105. New subsection 19(3) prohibits an authorised officer from returning a thing forfeited
to the Commonwealth to the person from which it was taken. Instead, the authorised
officer must give the thing forfeited under new subsection 19(2) to a constable as
soon as practicable. Under subsection 3(1) of the Crimes Act 1914, `constable' is
defined as meaning a member or special member of the Australian Federal Police, or a
member of the police force or police service of a State or Territory.
3.106. It is noted beneath new subsection 19(3) that Subdivision C of Division 6 of Part 6
of the Fisheries Management Act 1991 sets out the procedure for dealing with thing
seized as being forfeited under section 106A. This note makes a distinction between
things that are automatically forfeited under section 106A and weapons that are
forfeited to the Commonwealth under new subsection 19(2).
3.107. New subsection 19(4) outlines certain circumstances in which an authorised officer
is required to take reasonable steps to return a thing retained under new subsection
19(1) that is not forfeited to the Commonwealth. The thing should be returned to the
person from whom it was taken or to the owner (if the person from whom it was
taken is not entitled to possess it). These circumstances are either where it is decided
that the retained thing is not to be used in evidence or when a period of 60 days from
when the authorised officer took possession of the thing has passed.
3.108. However, new subsection 19(5) sets out circumstances in which an authorised
officer is not required to return the retained thing under new subsection 19(4). These
include instances where proceedings related to the evidence have been instituted
before the end of the 60 day period and have not been completed, an order under new
section 21 has been made permitting an authorised officer to retain the thing for a
further period, or the officer is otherwise authorised to retain, destroy or dispose of
the thing.
Section 20: Authorised officer may apply for a thing to be retained for a further period
3.109. New section 20 provides an avenue for an authorised officer to apply for an
extension of the period for which they may keep a thing retained during a screening
procedure or strip search under the new section 19. It corresponds closely with
section 252C of the Migration Act 1958 and 3ZW of the Crimes Act 1914. The
addition of new section 20 to the Fisheries Management Act 1991 will facilitate the
seamless transfer of detainees from fisheries detention to immigration detention with
one set of rules applying to the detainee's entire period of detention.
3.110. Under new subsections 20(1) and (2), an authorised officer may apply to a
magistrate for an order that a thing, retained under new subsection 19(1) and due to
be returned under new subsection 19(4), may be retained for a further period. Such
an application may be made in circumstances where proceedings have not yet been
instituted and the 60 day period, or a period specified in an order of a magistrate
under new section 21, is almost finished.
3.111. New subsection 21(3) requires that an authorised officer must take reasonable steps
to discover and notify any persons whose interests would be affected by the retention
of the thing before applying for an extension of the retention. This provision allows
16
evidence to be preserved for use in court proceedings in cases where a delay in court
proceedings has occurred. It also provides for the interests of other parties affected
by the retention of the thing to be ascertained.
Section 21: Magistrate may order that thing be retained
3.112. New section 21 provides the circumstances in which a magistrate may make an
order allowing an authorised officer to retain, for an extended period, an item found
during a screening procedure or strip search of a detainee. This section closely
corresponds to section 252E of the Migration Act 1958 and, as such, will facilitate the
seamless transfer of detainees from fisheries detention to immigration detention with
one set of rules applying to the detainee's entire period of detention.
3.113. New subsection 21(1) states that a magistrate may order that the authorised officer
who made an application for an extension of the retention period for a thing under
new section 20 may retain the thing. A magistrate may make such an order where
they are satisfied that the extension is necessary for the purposes of an investigation as
to whether an offence has been committed or to enable evidence of an offence to be
secured for the purposes of a prosecution.
3.114. New subsection 21(2) states that the order must specify the period for which the
authorised officer may retain the thing.
3.115. New subsections 21(3), (4) and (5) provide that a magistrate can choose not to
accept the power conferred under paragraph 21(1) but that if they do accept the
power they will be exercising it in their personal capacity rather than in their capacity
as a court or a member of the court while retaining all protection and immunity
covering decisions made by, or as a member of, that court. This makes it clear that
the exercise of the power conferred by new section 21 must be voluntary.
Section 22: Detainees held in State or Territory prisons or remand centres
3.116. New section 22 makes provision for searching detainees held in detention in a prison
or remand centre of a State or Territory. This new section closely corresponds with
section 252F of the Migration Act 1958 and, as such, will facilitate the seamless
transfer of detainees from fisheries detention to immigration detention with one set of
rules applying to the detainee's entire period of detention.
3.117. This new section provides that detainees held in State or Territory prisons or
remand centres may be searched according to the relevant law of that State or
Territory. New subsection 22(3) clarifies that new sections 16 and 17, regarding
powers to conduct screening procedures and strip searches, do not apply where a
detainee is held in a State or Territory prison or remand centre.
Section 23: Powers concerning entry to premises where detainee is detained
3.118. New section 23 provides certain powers relating to the entry of detainees' visitors to
a premise where detainees are detained. This new section closely corresponds to
section 252G of the Migration Act 1958 and, as such, will facilitate the seamless
transfer of detainees from fisheries detention to immigration detention with one set of
rules applying to the detainee's entire period of detention.
3.119. This power is required for the good order and security of detention centres as well
as the safety of detainees, staff and other persons located there.
3.120. Under new subsection 23(1), an officer or detention officer may request that a
person about to enter a premise where a detainee is in detention, be screened. The
screening procedure may involve walking through screening equipment or passing
hand-held screening equipment over or around the person or around things in the
person's possession or x-raying or screening things in a person's possession.
17
3.121. New subsection 23(2) defines `screening equipment' as a metal detector or similar
device for detecting objects or particular substances.
3.122. New subsection 23(3) allows an authorised officer, in certain circumstances, to
request a person, about to enter premises where a detainee is in detention, to do some
or all of the things outlined in new subsection 23(4). An authorised officer may make
such a request where they suspect on reasonable grounds that the person has in their
possession a thing that might:
- endanger the safety of the detainees, staff or other persons on the premises;
or
- disrupt the order or security arrangements on the premises.
This request can be made in addition to the screening procedure outlined in subsection
23(1).
3.123. New subsection 23(4) lists the things that an authorised officer may request a
person, entering a premises where detainees are detained, to do. Such a person may
be requested to:
- allow the authorised officer to inspect the things in the person's possession;
- remove some or all of their outer clothing (such as a jacket or coat);
- remove items from the pockets of their clothing;
- open a thing in their possession, or remove the thing's contents, to allow the
authorised officer to fully inspect the thing or its contents;
- leave a thing in their possession, or some or all of its contents, in a place
specified by the authorised officer where the authorised officer suspects, on
reasonable grounds, that the thing or its contents are capable of concealing
something that might endanger the safety of the detainees, staff or other
persons on the premises or disrupt the order or security arrangements at the
detention centre.
3.124. New subsection 23(5) provides that a person who leaves a thing in a place specified
by an authorised officer (under new subsection 23(4)(e)) is entitled to its return when
they leave the premises.
3.125. However, under new subsection 23(6), if the possession of the thing, or anything in
its contents, by the person is unlawful under a Commonwealth, State or Territory law
applying to the premises the thing, or its contents, it must not be returned to the
person, but rather, as soon as practicable, be given to a constable. Under subsection
3(1) of the Crimes Act 1914, `constable' is defined as meaning a member or special
member of the Australian Federal Police, or a member of the police force or police
service of a State or Territory. This new subsection avoids the inappropriate situation
of an authorised officer having to return an item found in the possession of a person
visiting a detainee, if that person's possession of the item is illegal.
3.126. Under new subsection 23(7), a person who does not comply with a request under
new section 23 may be refused entry to the premises where a detainee is being
detained.
Part 4: Detainees' rights to facilities for obtaining legal advice etc
Section 24: Detainee may have access to certain advice, facilities etc.
3.127. Under new section 24, the person responsible for the detention of a detainee must, if
requested by the detainee, provide the detainee with access to reasonable facilities for
obtaining legal advice or taking legal proceedings in relation to his or her detention.
This section closely corresponds to section 256 of the Migration Act 1958 and, as
such, will facilitate the seamless transfer of detainees from fisheries detention to
18
immigration detention with one set of rules applying to the detainee's entire period of
detention.
Part 5: Identifying detainees
Section 25: Definitions
3.128. This section adds several definitions for the purposes of new Part 5 of Schedule 1A
of the Fisheries Management Act 1991. These definitions closely correspond to the
definitions of these terms provided in section 5 of the Migration Act 1958 and, as
such; will facilitate the seamless transfer of detainees from fisheries detention to
immigration detention with one set of rules applying to the detainee's entire period of
detention.
Section 26: Meaning of personal identifier
3.129. New subsection 26 provides a specific definition of a `personal identifier' for the
purposes of the new Part 5 of Schedule 1A of the Fisheries Management Act 1991.
This section closely corresponds to section 5A of the Migration Act 1958 and, as
such, will facilitate the seamless transfer of detainees from fisheries detention to
immigration detention with one set of rules applying to the detainee's entire period of
detention.
3.130. New subsection 26(1) states that `personal identifier' means any of the following,
including any of the following in digital form:
- fingerprints or handprints of a person (including those taken using paper and
ink or digital live scanning technologies);
- a measurement of a person's height and weight;
- a photograph or other image of a person's face and shoulders;
- an audio or a video recording of a person (other than a video recording of an
identification test under new section 37);
- an iris scan;
- a person's signature;
- any other identifier prescribed by the regulations, other than an identifier the
obtaining of which would involve the carrying out of an intimate forensic
procedure within the meaning of section 23WA of the Crimes Act 1914.
3.131. An "intimate forensic procedure" is defined by section 23WA of the Crimes Act
1914 and is prohibited under the Fisheries Management Act 1991. These prohibited
procedures include:
- an external examination of the genital or anal area, the buttocks or, in the
case of a female or a transgender person who identifies as a female, the
breasts;
- the taking of a sample of blood;
- the taking of a sample of saliva, or a sample by buccal swab;
- the taking of a sample of pubic hair;
- the taking of a sample by swab or washing from the external genital or anal
area, the buttocks or, in the case of a female or a transgender person who
identifies as a female, the breasts;
- the taking of a sample by vacuum suction, by scraping or by lifting by tape
from the external genital or anal area, the buttocks or, in the case of a female
or a transgender person who identifies as a female, the breasts;
- the taking of a dental impression;
19
- the taking of a photograph or video recording of, or an impression or cast of
a wound from, the genital or anal area, the buttocks or, in the case of a
female or a transgender person who identifies as a female, the breasts.
3.132. New subsection 26(2) imposes requirements on the Minister before the Governor-
General can make regulations for the purposes of adding to the list of personal
identifiers under new subsection 26(1). The Minister must be satisfied that:
- obtaining the identifier would not involve the carrying out of the intimate
forensic procedures contained in section 23WA of the Crimes Act 1914
(outlined in the previous paragraph); and
- the identifier is an image of or a measurement or recording of, an external
part of the body; and
- obtaining the identifier will promote one or more of the purposes referred to
in new subsection 26(3).
In practice, subsection 26(2) means that any regulations proposed to be made under
new section 26 will be drafted in consultation with the Attorney-General.
3.133. New subsection 26(3) contains an extensive list of purposes referred to in new
subsection 26(2)(c). The effect of new subsection 26(2)(c) is that the Minister must
be satisfied that obtaining a new type of personal identifier will promote one or more
of the following purposes before tabling any regulations under new section 26. These
purposes are:
- to assist in the identification of, and to authenticate the identity of, any non-
citizen who can be required under this Act to provide a personal identifier;
- to assist in identifying, in the future, any such non-citizen;
- to enhance AFMA's ability to identify non-citizens who have a criminal
history relating to fisheries;
- to combat document and identity fraud in fisheries matters;
- to complement anti-people smuggling measures;
- to inform the governments of foreign countries of the identity of non-citizens
who have been detained under, or charged with offences against, this Act;
- to facilitate international cooperation to combat fishing activities that
involves a breach of the laws of Australia or of a foreign country.
Section 27: Limiting the types of identification tests that authorised officers may carry out
3.134. New section 27 allows AFMA to limit the types of identification tests that may be
carried out by an authorised officer. This new section closely corresponds to section
5D of the Migration Act 1958 and, as such, will facilitate the seamless transfer of
detainees from fisheries detention to immigration detention with one set of rules
applying to the detainee's entire period of detention.
3.135. New subsection 27(1) will allow AFMA to authorise officers to carry out one or
more types of identification tests without necessarily authorising them to conduct all
types of identity tests. In this way, AFMA retains tight control over the type of
identity tests that are being carried out on non-citizens.
3.136. New subsection 27(2) clarifies that an authorised officer is not authorised to carry
out an identification test that is not a type of test specified in the instrument
appointing the officer or detention officer as an authorised officer.
Section 28: Detainees must provide personal identifiers
3.137. Broadly, new section 28 requires that non-citizens in detention provide personal
identifiers to authorised officers. This new section corresponds closely with section
261AA of the Migration Act 1958 and, as such, will facilitate the seamless transfer of
20
detainees from fisheries detention to immigration detention with one set of rules
applying to the detainee's entire period of detention.
3.138. New subsection 28(1) makes it compulsory for a non-citizen in detention to provide
one or more personal identifiers to an authorised officer. This new subsection also
provides that there could be prescribed circumstances in which a non-citizen does not
have to provide personal identifiers to an authorised officer.
3.139. New subsection 28(2) states that an authorised officer must not require a non-citizen
in detention to provide a personal identifier other than:
- fingerprints or handprints of the person (including those taken using paper
and ink or digital live scanning technologies);
- a measurement of the person's height and weight;
- a photograph or other image of the person's face and shoulders;
- the person's signature;
- any other personal identifier of a type prescribed under new section 26(1)(g)
for the purposes of this paragraph.
3.140. New subsection 28(3) provides that the authorised officer must act in accordance
with new Division 2 of Part 5 of Schedule 1A when taking personal identifiers.
3.141. It is noted beneath new section 28 that new section 32 allows reasonable force to be
used in carrying out an identification test in limited circumstances.
Section 29: Authorised officers must require and carry out identification tests
3.142. New section 29 requires that authorised officers carry out one or more identification
tests on non-citizens and specifies the manner in which identification tests must be
carried out. Subsections (1) and (2) correspond closely to section 261AB of the
Migration Act 1958 and, as such, will facilitate the seamless transfer of detainees from
fisheries detention to immigration detention with one set of rules applying to the
detainee's entire period of detention.
3.143. New subsection 29(1) states that an authorised officer must require the non-citizen
to provide at least one personal identifier by way of one or more identification tests
unless prescribed circumstances under new section 28(1) exist.
3.144. New subsection 29(2) provides certain restrictions that must be observed in carrying
out an identification test under this section.
3.145. New paragraph 29(2)(a) reinforces that an officer may only carry out an
identification test on a non-citizen if they have been specifically authorised to carry
out an identification test of that type by AFMA under new sections 26 and 27.
3.146. New paragraph 29(2)(b) requires that each identification test be carried out in
accordance with the rules contained in new Subdivision B of Part 5. These rules
provide for the conducting of identification tests and the circumstances in which force
may be used.
3.147. New paragraph 29(2)(c) provides that identification tests must be carried in
accordance with new Division 3 of Part 5, unless the authorised officer has reasonable
grounds to believe that the non-citizen is not a minor or incapable person. This
provision ensures that the more stringent conditions that apply to minors
and incapable persons will always apply as the default position in the Fisheries
Management Act 1991, unless there are reasons to believe that the non-citizen is not a
minor or an incapable person. `Minor' and `incapable person' are defined for the
purposes of new Part 5 in new section 25.
3.148. New subsection 29(3) ensures that new subsection 29(2)(a) applies to officers who
have dual authorisations to do certain things under the Fisheries Management Act
1991 and the Migration Act 1958 (as per new section 7). Such officers are limited to
performing only the types of identity tests that they have been authorised to perform
21
under the Migration Act 1958. New subsection 29(3) provides that if migration
officers have limited authorisation to conduct identification tests under 5D of the
Migration Act 1958, they will be limited to performing those types of identity tests
under the Fisheries Management Act 1991 as if a limiting authorisation had been
issued by AFMA under new section 27.
Section 30: Information to be provided before carrying out identification tests
3.149. New section 30 provides that non-citizens must be provided with certain
information before an identity test is carried out. This information is to be provided
by the authorised officer who will be performing the identity tests. This new section
closely corresponds with section 261AC of the Migration Act 1958 and, as such, will
facilitate the seamless transfer of detainees from fisheries detention to immigration
detention with one set of rules applying to the detainee's entire period of detention.
3.150. New subsection 30(1) provides that a non-citizen must be informed:
- that they may request that an independent person be present while the
identification test is carried out and that the test be carried out by a person of
the same sex as him or her; and
- of such other matters as are specified in the regulations.
3.151. New subsection 30(2) further explains that the authorised officer must inform the
non-citizen using a language (including sign language or braille) in which the non-
citizen is able to communicate with reasonable fluency. The non-citizen can be
informed through an interpreter, if necessary.
3.152. New subsection 30(3), provides that the authorised officer may inform a non-citizen
of the matters in new subsection 30(1) by giving the non-citizen a form setting out the
information contained in the regulations. However, the form must be in a language in
which the non-citizen is able to communicate with reasonable fluency (including
braille).
3.153. The kind of information that may be prescribed in the regulations includes:
- the purpose and reasons for the test;
- the way in which the test is to be carried out, including the power to use
reasonable force, if necessary;
- the ways in which the information that is collated can be used; the
circumstances in which the information obtained may be disclosed to third
parties;
- that the identification test may produce evidence against the non-citizen that
might be used in a court of law;
- that a video recording may be made of the test; and
- the non-citizen's right to make a complaint to the Privacy Commissioner, or
to make an application under the Freedom of Information Act 1982 and how
the non-citizen may go about doing so.
Section 31: General rules for carrying our identification tests
3.154. New section 31 contains the general rules for carrying out identification tests on a
non-citizen in fisheries detention under new Part 5 of Schedule 1A. This new section
closely corresponds to section 261AD of the Migration Act 1991 which, in turn, is
based on the rules contained in section 23XI of the Crimes Act 1914.
3.155. The addition of new section 31 to the Fisheries Management Act 1991 will facilitate
the seamless transfer of detainees from fisheries detention to immigration detention
with one set of rules applying to the detainee's entire period of detention.
3.156. These rules state that an identification test:
22
- must be carried out in circumstances affording reasonable privacy to the non-
citizen; and
- must not be carried out in the presence or view of a person who is of the
opposite sex to the person if requested by the non-citizen and it is practicable
to comply with the request; and
- must not be carried in the presence or view of a person whose presence is
not necessary for the purposes of the identification test or is not required or
permitted by any other provision of this Act; and
- must not involve the removal of more clothing than is necessary for the
carrying out of the test; and
- must not involve more visual inspection than is necessary for carrying out the
test; and
- must be carried out at the same time as any other identification tests that are
to be carried out on the non-citizen, where it is practicable to do so.
These general rules ensure that the dignity and welfare of the non-citizen is
respected, while such tests are being carried out.
Section 32: Use of force in carrying out identification tests
3.157. New section 32 contains the rules regarding use of reasonable force in carrying out
an identification test. This new section closely corresponds to section 261AE of the
Migration Act 1958 and, as such, will facilitate the seamless transfer of detainees from
fisheries detention to immigration detention with one set of rules applying to the
detainee's entire period of detention.
3.158. New section 32(1) provides that an authorised officer may use reasonable force to
enable an identification test to be carried out or to prevent the loss, destruction or
contamination of any personal identifier or any meaningful identifier derived from the
person identifier.
3.159. However, new section 32(1) limits the use of this power by prohibiting the use of
force on a minor or incapable person or where the personal identifier in question is a
person's signature.
3.160. A person who has been authorised under new section 34 to help an authorised
officer to use reasonable force, is subject to the same limitations as an authorised
officer.
3.161. New subsection 32(2) sets out a number of pre-conditions that must exist before
reasonable force can be exercised under new subsection 32(1). The authorised officer
or person authorised to help the authorised officer must not use any force unless:
- the non-citizen required to provide the personal identifier in question has
refused to allow the identification test to be carried out; and
- all reasonable measures to carry out the identification test without the use of
force have been exhausted; and
- use of force in carrying out the identification test is authorised under new
subsection 32(4).
3.162. New subsection 32(3) allows an authorised officer to apply to a senior authorising
officer (other than themselves, if they are a senior authorising officer) as defined in
new subsection 32, for an authorisation to use force in carrying out the identification
test. This means that an individual application for authorisation must be made for
each identification test for which an authorised officer believes that there are grounds
for the use of reasonable force.
3.163. Under new subsection 32(4), the senior authorising officer who has received an
application under new subsection 32(3) may authorise the use of force in carrying out
the identification test if he or she is satisfied that:
23
- the non-citizen required to provide the personal identifier in question has
refused to allow the identification test to be carried out; and
- all reasonable measures to carry out the identification test without the use of
force have been exhausted.
3.164. New subsections 32(5), (6) and (7) state the means by which a senior authorising
officer may provide authorisation for the use of reasonable force in carrying out an
identification test.
3.165. New subsection 32(8) states that a senior authorising officer cannot delegate their
power of authorisation to any other person.
3.166. New subsection 32(8) defines `senior authorising officer' to mean an officer, or
detention officer, whom AFMA has authorised, or who is included in a class of
officers or detention officer whom AFMA has authorised, to perform the functions of
a senior authorising officer under new section 32.
Section 33: Identification tests not to be carried out in a cruel, inhuman or degrading
manner etc.
3.167. New section 33 states that for the purposes of the Fisheries Management Act 1991,
the carrying out of an identification test is not innately taken to be cruel, inhuman or
degrading or to be a failure to treat a person with humanity and with respect for
human dignity.
3.168. However, new section 33 also states that nothing in the Fisheries Management Act
1991 authorises the carrying out of an identification test in a cruel, inhuman or
degrading manner, or in a manner that fails to treat a person with humanity and with
respect for human dignity.
3.169. New section 33 closely corresponds with section 261AF of the Migration Act 1958
and reflects Articles 7 and 10(1) of the International Covenant on Civil and Political
Rights. The addition of new section 33 to the Fisheries Management Act 1991 will
facilitate the seamless transfer of detainees from fisheries detention to immigration
detention with one set of rules applying to the detainee's entire period of detention.
Section 34: Authorised officer may get help to carry out identification tests
3.170. New section 34 enables an authorised officer to ask another authorised officer,
officer or detention officer to help them to carry out an identification test. It also
provides that an authorised officer, officer or detention officer that has been so
requested, is authorised to provide that help.
3.171. New section 34 closely corresponds to section 261AG of the Migration Act 1958
and, as such, will facilitate the seamless transfer of detainees from fisheries detention
to immigration detention with one set of rules applying to the detainee's entire period
of detention.
Section 35: Identification tests to be carried out by authorised officer of same sex as non-
citizen
3.172. New section 35 provides that if a non-citizen requests that an identification test be
carried out by an authorised officer of the same sex as the non-citizen, the
identification test must be carried out by an authorised officer of that sex.
3.173. There is no automatic requirement that identification tests be carried out by an
authorised officer as the same sex, as is the case for searches, because identification
tests are not considered to be invasive.
3.174. This new section corresponds closely with section 261AH of the Migration Act
1958 and, as such, will facilitate the seamless transfer of detainees from fisheries
24
detention to immigration detention with one set of rules applying to the detainee's
entire period of detention.
Section 36: Independent person to be present
3.175. New subsection 36 provides that an independent person must be present during the
carrying out of an identification test in two situations. It corresponds closely with
section 261AI of the Migration Act 1958 and, as such, will facilitate the seamless
transfer of detainees from fisheries detention to immigration detention with one set of
rules applying to the detainee's entire period of detention.
3.176. Under new subsection 36(a) an independent person must be present where an
identification test is carried out with the use of force (authorised under new section
32).
3.177. Under new subsection 36(b) an independent person must be present where an
identification test is carried out if the non-citizen requests that such a person is present
and an independent person is readily available at the same place as the non-citizen and
is willing to attend the test within a reasonable time.
3.178. `Independent person' is defined in new section 25 for the purposes of new Part 5.
Section 37: Recording of identification tests
3.179. New section 37 provides for authorised officers to video record the carrying out of
identification tests. This new section closely corresponds to section 261AJ of the
Migration Act 1958 and, as such, will facilitate the seamless transfer of detainees from
fisheries detention to immigration detention with one set of rules applying to the
detainee's entire period of detention.
3.180. New subsection 37(2) states that if the identification test is not video recorded, the
authorised officer may decide that the identification test must be carried out in the
presence of an independent person.
3.181. The non-citizen will be able to request a copy of a video recording of an identity test
performed upon them though the Freedom of Information Act 1982.
Section 38: Retesting
3.182. New section 38 sets out the circumstances in which an authorised officer may
require a non-citizen to undertake the same identification test more than once. This
new section closely corresponds to section 261AK of the Migration Act 1958 and, as
such, will facilitate the seamless transfer of detainees from fisheries detention to
immigration detention with one set of rules applying to the detainee's entire period of
detention.
3.183. New subsection 38(1) sets out the conditions that must exist before a retest is
permitted. An authorised officer may retest a non-citizen where:
- the result of an earlier identification tests is unusable; or
- an authorised officer, officer or detention officer is not satisfied as to the
integrity of the personal identifier from an earlier identification test.
3.184. Examples of unusable identifiers include smudged fingerprints, photographs that
lack definition or a failure of the technology that is being used to obtain the personal
identifier.
3.185. New paragraphs 38(1)(c) and (d) create an additional layer of protection for the
non-citizen, stating that even if an identifier is unusable or its integrity is questionable
there are only two circumstances in which a re-test is permitted. The first
circumstance is where an authorised officer makes the requirement that the retest be
conducted while the earlier identification test is being carried out or immediately after
25
the earlier test is carried out. The second circumstance is where authorisation for a
retest is given under new subsection 38(4).
3.186. New subsection 38(2) provides that where the conditions outlined in new subsection
38(1) are met and a non-citizen is required to again provide a personal identifier, the
non-citizen is taken, for the purposes of Division 2 of Part 5 of Schedule 1A, not to
have provided the personal identifier as a result of the earlier test being carried out.
3.187. New subsection 38(3) enables an authorised officer to apply for authorisation to
retest a non-citizen. It specifies that depending on the number of tests performed,
applications for authorisation must be made to different classes of people. Where a
retest has not previously been authorised under new subsection 38(4), an application
must be made to a senior authorising officer as defined in new subsection 38(11).
Where an earlier retest has been authorised by a senior authorising officer under new
subsection 38(4), an application for a subsequent retest must be made to the
Managing Director of AFMA, the Secretary of the Department or an SES Band 3
employee in the Department.
3.188. New subsection 38(3) also makes it clear that authorisation for a retest cannot be
given by the same officer requiring the non-citizen to provide another personal
identifier under new section 38(1).
3.189. New subsection 38(4) provides that a senior authorising officer, the Managing
Director of AFMA, the Secretary of the Department or an SES Band 3 employee of
the Department may authorise a retest where:
- they are reasonably satisfied that the personal identifier that has been
provided by the non-citizen as a result of an earlier identification test is
unusable; or
- they are not reasonably satisfied about the integrity of that personal
identifier.
3.190. New paragraph 38(5), (6) and (7) state the means by which a senior authorising
officer, the Managing Director of AFMA, the Secretary of the Department or a SES
Band 3 employee of the Department may provide authorisation for the retest.
3.191. New subsection 38(8) states that the power to authorise retests cannot be delegated.
This requirement ensures that a person who makes an authorisation under new
section 38 has sufficient authority to do so.
3.192. New subsection 38(9) clarifies that an authorisation under new subsection 38(4)
does not authorise the use of force in carrying out an identification test.
3.193. New subsection 38(10) states that where an application for authorisation to carry
out a retest is denied (that is, authorisation is not given under new subsection 38(4)),
the non-citizen is taken to have complied with any requirement under the Fisheries
Management Act 1991 to provide the personal identifier.
3.194. New subsection 38(11) provides definitions of `senior authorising officer' and `SES
Band 3 employee' for the purposes of this clause.
3.195. The two tiers of authorisation required to conduct personal identification tests is
designed to safeguard the rights and welfare of the detainee.
Section 39: Definitions
3.196. New section 39 provides definitions of `permitted provision', `provide', `related
document' and `video recording' for the purposes of Subdivision C of Part 5. This
new section corresponds closely to section 261AKA of the Migration Act 1958.
Section 40: Accessing video recordings
26
3.197. New section 40 outlines the circumstances in which accessing a video recording of
an identification test is an offence. This new section closely corresponds to section
261AKB of the Migration Act 1958.
3.198. New subsection 40(1) makes it an offence for a person who is not authorised under
new section 41 to access a video recording, or for a person who is authorised to
access a video recording, to access a video for an unauthorised purpose. This offence
carries a maximum penalty of imprisonment for two years.
3.199. New subsection 40(2) states that this clause will not apply if the access is through a
permitted provision of the videotape. A permitted provision of a video tape is defined
in new section 39 as having the meaning assigned to it in new section 42(2). This
definition includes circumstances such as the provision of the videotape to the non-
citizen to whom it related, the provision of the video to a court or tribunal for a
purpose relating to the subject of the videotape or the provision of the videotape for
the purpose of storage.
3.200. The note below new section 40 states that a defendant bears the evidentiary burden
in relation to new subsection 40(2). That is, the defendant must provide evidence that
shows, beyond a reasonable doubt, that their access of the videotape was through a
permitted provision of the videotape. This requirement is consistent with subsection
13.3(3) of the Criminal Code.
Section 41: Authorising access to video recordings
3.201. New section 41 outlines the circumstances in which AFMA may authorise access to
video recordings of an identification test carried out on a non-citizen. This new
section corresponds closely to section 261AKC of the Migration Act 1958 and, as
such, will facilitate the seamless transfer of detainees from fisheries detention to
immigration detention with one set of rules applying to the detainee's entire period of
detention.
3.202. New subsection 41(1) provides that AFMA may authorise a specified person, or any
person within a specified class of people, to access all video recordings made under
new section 37 or to access a specified video recording or video recordings of a
specified kind. This new subsection also states that such authorisation must be given
in writing.
3.203. New subsection 41(2) requires that, in granting an authorisation under new
subsection 41(1), AFMA must specify one or more of the purposes contained in that
subsection. This provides an additional safeguard to the power to authorise access to
video recordings.
3.204. New subsection 41(3) places a further restriction on an authorisation made under
new subsection 41(1) regarding a prescribed type of personal identifier. AFMA must
not authorise access if the purpose of that access would involve the purposes of
investigating an offence against a law of the Commonwealth or a State or Territory
(other than an offence involving whether an identification test was carried out
lawfully) or prosecuting a person for such an offence.
Section 42: Providing video recordings
3.205. New section 42 outlines the circumstances in which providing a video recording of
an identification test is an offence. This new section closely corresponds to section
261AKD of the Migration Act 1958.
3.206. Under new subsection 42(1) it is an offence to cause a video recording of an
identification test to be provided to another person where such a provision is not a
permitted provision of the recording. This offence carries a maximum penalty of
imprisonment for two years.
27
3.207. New subsection 42(2) contains the circumstances in which a provision of a
videotape of an identification test is a `permitted provision'. These circumstances
include the provision of a videotape for the purpose of administering or managing the
storage of video recordings; or making the video recording available to the non-
citizen to whom it relates; or for the purpose of a proceeding, before a court or a
tribunal, relating to the non-citizen to whom the video recording in question relates;
or for any purpose connected with determining whether a civil or criminal liability has
arisen from a person carrying out or helping to carry out an identification test under
the Fisheries Management Act 1991.
3.208. New subsection 42(3) further provides that a provision of the videotape is not a
permitted provision if it constitutes a disclosure of a prescribed type of personal
identifier and the provision is for the purposes of either investigating an offence
against a law of the Commonwealth or a State or Territory (other than an offence
involving whether an identification test was carried out lawfully) or prosecuting a
person for such an offence.
Section 43: Unauthorised modification of video recordings
3.209. New section 43 outlines the circumstances in which modifying a video recording of
an identification test is an offence. This new section closely corresponds to section
261AKE of the Migration Act 1958.
3.210. New section 43 makes it an offence to cause any unauthorised modification of a
video recording of an identification test, where such modification was made with
intent to modify and with knowledge that such modification is unauthorised. This
offence carries a maximum penalty of imprisonment for two years.
3.211. New section 45 further explains the parameters of unauthorised modification.
Section 44: Unauthorised impairment of video recordings
3.212. New section 44 outlines the circumstances in which impairing a video recording of
an identification test is an offence. This new section closely corresponds to section
261AKF of the Migration Act 1958.
3.213. New section 44 makes it an offence for a person to cause any unauthorised
impairment of:
- the reliability of a video recording; or
- the security of the storage of a video recording; or
- the operation of a system by which a video recording is stored
where that person intends to cause the impairment and knows that the impairment is
unauthorised. This offence carries a maximum penalty of imprisonment for two
years.
3.214. New section 45 further explains the parameters of unauthorised impairment.
Section 45: Meanings of unauthorised modification and unauthorised impairment etc.
3.215. New section 45 explains the terms "unauthorised" and "caused" in the context of
new sections 43 and 44. This section closely corresponds to section 261AKG of the
Migration Act 1958.
3.216. New subsection 45(1) explains that for the purposes of Subdivision C of Division 2
of Part 5 any action described in new section 43 and 44 is unauthorised if the person
is not entitled to cause that modification or impairment.
28
3.217. New subsection 45(2) states that any modification or impairment caused by the
person is not unauthorised merely because that person has an ulterior purpose for
causing it.
3.218. New subsection 45(3) states that a person causes any modification or impairment of
a video recording if the person's conduct substantially contributes towards it. This
means that where two or more people have jointly caused an unauthorised
modification or impairment of a video recording they may all be liable under the
offences outlines in new sections 43 and 44.
3.219. New subsection 45(4) provides that where a modification or impairment of a video
recording is done by a person under a warrant issued under the law of the
Commonwealth, a State or a Territory this is authorised impairment or modification.
Section 46: Destroying video recordings
3.220. New section 46 outlines the circumstances in which failing to destroy a video
recording of an identification test within ten years is an offence. This new section
closely corresponds to section 261AKH of the Migration Act 1958.
3.221. New section 46 makes it an offence for a person who has day-to-day responsibility
for the system under which video recordings of identification tests are stored to fail to
physically destroy the video recording, and all copies of that recording, within 10
years of it being made. The maximum penalty for this offence is two years
imprisonment.
3.222. This provision safeguards the use of personal information and limits the period in
which the information may be stored.
Section 47: Minors
3.223. New section 47 contains special rules to be applied in carrying out identification
tests on minors. Minors are defined for the purposes of Part 5 of Schedule 1A by new
section 25 as persons who are less than 18 years old. This section closely
corresponds to subsections 261AL(1), (5) and (6) of the Migration Act 1958 and, as
such, will facilitate the seamless transfer of detainees from fisheries detention to
immigration detention with one set of rules applying to the detainee's entire period of
detention.
3.224. New subsection 47(1) restricts the types of personal identifiers that can be required
from non-citizen minors who are less than 15 years old. The only personal identifiers
that may be required from a person who is less than 15 years old are measurements of
their height and weight or a photograph, or other image, of their face and shoulders.
3.225. The age limit on the requirement to provide personal identifiers was set at 15 years
so as to be consistent with international comparisons and the Migration Act 1958.
3.226. New subsections 47(2) and (3) set out the requirement for a parent, guardian or
independent person to be present while an identification test is carried out on any non-
citizen minor, not just those who are less than 15 years old.
3.227. New subsection 47(3) further requires that where the guardian of the child is the
Minister administering the Immigration (Guardianship of Children) Act 1946, the
identification test must be carried out in the presence of an independent person other
than that Minister.
Section 48: Incapable persons
3.228. New section 48 contains special rules to be applied in carrying out identification
tests on incapable persons. Incapable persons are defined for the purposes of Part 5
Schedule 1A by new section 25 as a person who is incapable of understanding the
general nature and effect of, and purposes of, a requirement to provide a personal
29
identifier. This new section corresponds closely to subsections 261AM(1) and (4) of
the Migration Act 1958 and, as such, will facilitate the seamless transfer of detainees
from fisheries detention to immigration detention with one set of rules applying to the
detainee's entire period of detention.
3.229. New subsection 48(1) restricts the type of identifiers that can be required from
incapable persons under the Fisheries Management Act 1991. The only personal
identifiers that may be required from an incapable person are measurements of their
height and weight or a photograph, or other image, of the non-citizen's face and
shoulders.
3.230. New subsection 47(2) states that an identification test on an incapable person must
be carried out in the presence of either a parent or guardian of the incapable person or
an independent person.
Section 49: Definitions
3.231. New section 49 provides definitions of `disclose', `identifying information',
`permitted disclosure', `unauthorised impairment' and `unauthorised modification' for
the purposes of Division 4 of Part 5 of Schedule 1A. This section closely corresponds
to section 336A of the Migration Act 1958.
Section 50: Application
3.232. New section 50 makes it clear that section 15.4 of the Criminal Code (which relates
to extended geographical jurisdiction) applies to all offences against Division 4 of Part
5 of Schedule 1A. This new section corresponds closely with section 336B of the
Migration Act 1958.
3.233. The application of section 15.4 of the Criminal Code means that the offences under
Division 4 of Part 5 of Schedule 1A can be committed regardless of whether or not
the conduct (or the result of the conduct) constituting the alleged offence occurred in
Australia. This provision is necessary as some of the offences could potentially relate
to the disclosure of information to a foreign country and this provision puts beyond
doubt that the disclosure of the information will constitute an offence regardless of
whether the disclosure was made or received in a foreign location.
Section 51: Accessing identifying information
3.234. New section 51 outlines the circumstances in which accessing identifying
information is an offence. This new section corresponds closely with section 336C of
the Migration Act 1958.
3.235. New subsection 51(1) makes it an offence for a person to access identifying
information where that person has not been authorised to access the identifying
information for the purpose for which the person accessed it. The maximum penalty
for this offence is two years imprisonment.
3.236. New subsection 51(2) provides that the offence contained in new section 30(1) does
not apply if a person accesses identifying information through a permitted disclosure.
The term "permitted disclosure' is defined in new subsections 53(2) and (3) of
Division 4 of Part 5 of Schedule 1A.
3.237. The note at the end of new subsection 51(2) states that a defendant bears the
evidentiary burden in relation to new subsection 51(2). That is, the defendant must
provide evidence that shows, beyond a reasonable doubt, that their access of the
videotape was through a permitted provision of the videotape. This requirement is
consistent with subsection 13.3(3) of the Criminal Code.
30
Section 52: Authorising access to identifying information
3.238. New section 52 outlines the circumstances in which AFMA may authorise access to
identifying information about a non-citizen. This new section corresponds closely to
section 336D of the Migration Act 1958 and, as such, will facilitate the seamless
transfer of detainees from fisheries detention to immigration detention with one set of
rules applying to the detainee's entire period of detention.
3.239. New subsection 52(1) provides that AFMA may authorise a specified person, or any
person within a specified class of people, to access identifying information of the kind
specified in the authorisation. This new subsection also states that such authorisation
must be given in writing.
3.240. New subsection 52(2) requires that, in granting an authorisation under new
subsection 52(1), AFMA must specify one or more purposes for which access is
authorised. These purposes are:
- One or more of the purposes set out in new subsection 26(3), which includes
purposes such as assisting in the identification of non-citizens and enhancing
AFMA's ability to identify non-citizens who have a criminal history relating
to fisheries;
- Disclosing identifying information in accordance with Division 4 of Part 5 of
Schedule 1A;
- Administering or managing the storage of identifying information;
- Making identifying information available to the person to whom it relates;
- Modifying identifying information to enable it to be matched with other
identifying information;
- Modifying identifying information in order to correct errors or ensure
compliance with appropriate standards;
- Making decisions under the Fisheries Management Act 1991;
- Complying with laws of the Commonwealth or the States or Territories; or
- Disclosing personal information under clause 59 (about disclosure of
information about a person who has been in detention for the purposes of the
immigration detention or removal of the person).
3.241. New subsection 52(3) places a further restriction on an authorisation made under
new subsection 52(1). Where the identifying information in question relates to a
personal identifier of a prescribed type, an authorising purpose under new subsection
52(2) must not include or involve the purposes of investigating an offence against a
law of the Commonwealth or a State or Territory (other than an offence involving
whether an identification test was carried out lawfully) or prosecuting a person for
such an offence.
Section 53: Disclosing identifying information
3.242. New section 53 outlines the circumstances in which disclosing identifying
information is an offence. This new section corresponds closely with section 336E of
the Migration Act 1958.
3.243. New subsection 53(1) makes it an offence for a person to engage in conduct that
causes the disclosure of identifying information unless that disclosure is a permitted
disclosure. The maximum penalty for this offence is two years imprisonment.
3.244. New subsection 53(2) defines `permitted disclosure' to include a disclosure for the
purpose of data matching, managing the storage of identifying information, making
the identifying information available to the non-citizen to whom it relates and
disclosures permitted under new sections 54 and 59.
31
3.245. New subsection 53(3) places a further restriction on an authorisation made under
new subsection 53(1) regarding a prescribed type of personal identifier. Such a
disclosure is not permitted for the purposes of either investigating an offence against a
law of the Commonwealth or a State or Territory (other than an offence involving
whether an identification test was carried out lawfully) or prosecuting a person for
such an offence.
Section 54: Authorising disclosure of identifying information to foreign countries etc.
3.246. New section 54 states the circumstances in which AFMA may authorise the
disclosure of identifying information to foreign countries and organisations. This new
section closely corresponds to subsections 336F(1) and (2) of the Migration Act 1958
and, as such, will facilitate the seamless transfer of detainees from fisheries detention
to immigration detention with one set of rules applying to the detainee's entire period
of detention.
3.247. New subsection 54(1) allows AFMA to authorise a specified officer or detention
officer, or any officer or detention officer included in a specified class of officers or
detention officers, or an Agency prescribed in the regulations, to disclose certain
identifying information to one or more foreign countries (or their respective police
services, law enforcement bodies, border control bodies or a prescribed body),
specified international organisations or specified organisations of foreign countries,
that are responsible for fisheries matters or prescribed bodies of the Commonwealth
or of a State or Territory.
3.248. New section 54 allows AFMA to authorise an agency to disclose information to
foreign governments and organisations. The Department of Foreign Affairs and
Trade (DFAT) is an agency that will be prescribed in regulations to transmit such
information to the governments of foreign countries using diplomatic channels.
However, this section will not allow DFAT (or any other agency prescribed in the
regulations) to control of the information for their own purposes.
3.249. New subsection 54(2) provides that AFMA must specify the purpose(s) for which
the disclosure is authorised as set out in subsection 26(3).
Section 55: Unauthorised modification of identifying information
3.250. New section 55 outlines the circumstances in which modifying identifying
information is an offence. This new section closely corresponds to section 336G of
the Migration Act 1958.
3.251. New section 55 makes it an offence to cause any unauthorised modification of
identifying information, where that person intends to cause the modification and
knows that the modification is unauthorised. This offence carries a maximum penalty
of imprisonment for two years.
3.252. New section 57 further explains the parameters of unauthorised modification.
Section 56: Unauthorised impairment of identifying information
3.253. New section 56 outlines the circumstances in which impairing identifying
information is an offence. This new section closely corresponds to section 336H of
the Migration Act 1958.
3.254. New section 56 makes it an offence for a person to cause any unauthorised
impairment of:
- the reliability of identifying information; or
- the security of the storage of identifying information; or
- the operation of a system by which identifying information is stored
32
where that person intends to cause the impairment and knows that the impairment is
unauthorised. This offence carries a maximum penalty of imprisonment for two
years.
3.255. New section 57 further explains the parameters of unauthorised impairment.
Section 57: Meanings of unauthorised modification and unauthorised impairment etc.
3.256. New section 57 explains the terms "unauthorised" and "caused" in the context of
new sections 55 and 56. This section closely corresponds to section 336J of the
Migration Act 1958.
3.257. New subsection 57(1) explains that for the purposes of Division 4 of Part 5 any
action described in new section 55 and 56 is unauthorised if the person is not entitled
to cause that modification or impairment.
3.258. New subsection 57(2) states that any such modification or impairment caused by
the person is not unauthorised merely because that person has an ulterior purpose for
causing it.
3.259. New subsection 57(3) states that a person causes any modification or impairment of
identifying information if the person's conduct substantially contributes towards it.
This means that where two or more people have jointly caused an unauthorised
modification or impairment of identifying information they may all be liable under the
offences outlines in new sections 55 and 56.
3.260. New subsection 57(4) provides that where such modification or impairment is done
by a person under a warrant issued under the law of the Commonwealth, a State or a
Territory, this is authorised.
Section 58: Identifying information may be indefinitely retained
3.261. New section 58 simply provides that identifying information may be indefinitely
retained. This section corresponds closely with paragraph 336L(1)(a) of the
Migration Act 1958 because under Schedule 1A of the Fisheries Management Act
1991 any identifying information will always be about someone who is, or has been, in
detention. As such, this new section will facilitate the seamless transfer of detainees
from fisheries detention to immigration detention with one set of rules applying to the
detainee's entire period of detention.
Part 6: Disclosure of detainees' personal information
Section 59: Disclosure of detainees' personal information
3.262. New section 59 outlines the circumstances and purposes for which an agency or
organisation that has been responsible for the detention of an individual may disclose
personal information about the detainee.
3.263. New subsection 59(1) contains the types of agencies and organisations to which
personal information pertaining to a detainee may be disclosed by an agency which is,
or has been, responsible for the detention of that detainee. The agencies and
organisations to whom a disclosure of personal information about a detainee may be
made, are agencies or organisations that are, or will be, responsible for:
- taking the individual into immigration detention; or
- keeping the individual in immigration detention; or
- causing the individual to be kept in immigration detention; or
- the removal of the individual.
3.264. A disclosure of personal information may only be made to an organisation or agency
of:
- the immigration detention of the individual; and
33
- the removal of the individual; and
- the welfare of the individual while in immigration detention or being
removed.
3.265. This places a stringent restriction on the purposes by which personal information
may be shared. Information about detainees will only be disclosed to an agency or
organisation which has a legislative reason to know such information (in accordance
with new section 59). This will facilitate the seamless transfer of detainees from
fisheries detention to immigration detention with one set of rules applying to the
detainee's entire period of detention. The types of information that may be disclosed
would include medical, behavioural and identity information.
3.266. New subsection 59(3) defines `agency', `immigration detention', `organisation',
`personal information' and `removal' for the purposes of new section 59.
Item 14: Transitional - persons detained just before commencement
3.267. Item 14 states that if a person has been detained just before the commencement of
the new Schedule 1A of the Fisheries Management Act 1991, new Schedule 1A will
apply to that person as if they had been detained by the officer under that Schedule.
This provides certainty for officers and detainees during the transition period when
Schedule 1A comes into force.
TORRES STRAIT FISHERIES ACT 1984
Item 15: Subsection 3(1)
3.268. Item 15 inserts a definition of `Australian resident' into section 3(1) of the Torres
Strait Fisheries Act 1984. This definition replicates the definition of `Australian
resident' already included in section 4(1) of the Fisheries Management Act 1991.
Item 16: At the end of subsection 42(1)
3.269. This item adds a note referring to new Schedule 2 to the end of subsection 42(1) of
the Torres Strait Fisheries Act 1984 to the same effect as the amendment made to the
Fisheries Management Act 1991 by Item 4. Schedule 2 relates to the detention of
illegal foreign fishers.
Item 17: After subsection 42(6)
3.270. This item adds a provision mirroring section 90 of the Fisheries Management Act
1991 to section 42 of the Torres Strait Fisheries Act 1984. New subsection 42(6AA)
will protect officers, and people assisting officers, from liability when exercising
powers under the Torres Strait Fisheries Act 1984 for all things done in good faith.
This provides the same protection as section 90 of the Fisheries Management Act
1991.
3.271. This amendment is one of a package of amendments aimed at creating maximum
consistency between the Fisheries Management Act 1991 and the Torres Strait
Fisheries Act 1984.
Item 18: At the end of Part VI
34
3.272. This Item adds a Division heading and a new section 54A referring to the provisions
relating to the detention of suspected illegal foreign fishers which will be contained in
the new Schedule 2 of the Torres Strait Fisheries Act 1984. The purpose of this new
section is to give effect to new Schedule 2.
Item 19: Schedule (heading)
3.273. This item relabels the heading of the existing Schedule to the Torres Strait Fisheries
Act 1984 as `Schedule 1' to provide for the addition of new Schedule 2 to the Act.
Item 20: At the end of the Act
3.274. This item inserts new Schedule 2 at the end of the Torres Strait Fisheries Act 1984.
Schedule 2 will contain powers relating to the detention of suspected illegal foreign
fishers.
3.275. The provisions of new Schedule 2 of the Torres Strait Fisheries Act 1984 have been
drafted to ensure maximum consistency with new Schedule 1A of the Fisheries
Management Act 1991. This means that the explanations of the various provisions of
Schedule 2 of the Torres Strait Fisheries Act 1984 substantially replicate the
explanation offered regarding the counterpart provision in Schedule 1A of the
Fisheries Management Act 1991.
Part 1: Preliminary
Section 1: Main objects of this Schedule
3.276. New section 1 outlines the three main objects of the new Schedule 2 to the Torres
Strait Fisheries Act 1984. These three objects are to provide for the detention of
suspected illegal foreign fishers, to allow for detainees to be appropriately searched,
screened and identified while protecting the welfare of the detainee and to facilitate
the transition of detainees from fisheries to immigration detention by creating
consistency between the Torres Strait Fisheries Act 1984 and the Migration Act
1958.
Section 2: Definitions
3.277. New section 2 adds a definition of `authorised officer', `detainee', `detention' and
`detention officer' for the purposes of Schedule 2 to the Torres Strait Fisheries Act
1984.
Section 3: Minister may appoint persons to be detention officers
3.278. New section 3 allows the Minister to appoint, by instrument, a person or members
of a class or group of people to be detention officers. This will allow for the creation
of a new class of officers with certain limited powers of detention under the Torres
Strait Fisheries Act 1984. It is envisaged that employees and contractors of DIMIA
and AFMA will be appointed as detention officers under the Torres Strait Fisheries
Act 1984 in the same way that employees and contractors are currently appointed as
officers under the Migration Act 1958. Officers under the Torres Strait Fisheries Act
1984 do not need to also be appointed as detention officers as they already have the
necessary powers.
3.279. New subsection 3(2) provides that an instrument appointing officers can refer to a
class of persons, such as all employees of a particular contracted company, to be
officers. The instrument may also specify that a person may join the specified class of
persons within a particular timeframe, as specified in the instrument.
35
Section 4: Detention officers subject to directions
3.280. New section 4 provides that detention officers are subject to the directions of the
Minister or AFMA in the exercise of their powers, and the performance of their
duties, under Schedule 2 of the Torres Strait Fisheries Act 1984. In practice, day-to-
day operational directions will almost always be provided to detention officers by
AFMA.
Section 5: Detention officer etc. not liable to certain actions
3.281. New subsection 5(1) provides protection from liability for any kind of court
proceedings for detention officers, or people assisting detention officers, for anything
done in good faith in the exercise of the powers and functions contained in Schedule 2
of the Torres Strait Fisheries Act 1984. As noted beneath new section 5(1), this new
section reflects the similar protection provided to officers, and people assisting
officers, in the new subsection 42(6AA) of the Torres Strait Fisheries Act 1984 (see
Item 17 above).
3.282. New subsection 5(2) clarifies that new subsection 5(1) does not affect any
contractual liability of a detention officer or a person assisting a detention officer.
This exclusion is to ensure that AFMA retains the potential to sue any detention
officer or person assisting a detention officer for breach of contract if circumstances,
which may constitute a breach of contract, ever arise.
Section 6: AFMA may authorise officers and detention officers
3.283. New section 6 provides that AFMA may authorise one or more officers and/or
detention officers, by instrument, for the purposes of a specified provision of new
Schedule 1A. This provision will ensure that tight control is maintained over the
number and type of people who will be authorised to use certain powers contained in
the new Schedule 2. Persons who are authorised under new section 6 are referred to
in Schedule 1A as `authorised officers'.
Section 7: Persons who are authorised officers for the purposes of Migration Act 1958 are
taken to be authorised for this Schedule
3.284. New section 7 provides for a scheme of automatic authorisation of detention
officers who are authorised to carry out certain powers under the Migration Act
1958.
3.285. New subsection 7(1) states that a person who is an officer or a detention officer
under the Torres Strait Fisheries Act 1984 and is an authorised officer in regards to
specified sections within the Migration Act 1958, is to be considered authorised for
the purposes of the corresponding provisions of the new Schedule 2 of the Torres
Strait Fisheries Act 1984. The provisions of the Migration Act 1958 and the
corresponding provisions of the new Schedule 2 of the Torres Strait Fisheries Act
1984 are contained in columns two and three of the table beneath new subsection
7(1).
3.286. This provision will allow officers to be dually authorised to use certain powers under
both the Torres Strait Fisheries Act 1984 and the Migration Act 1958. This will
assist in providing a seamless transition for people in fisheries and then immigration
detention.
3.287. This provision for automatic authorisation is subject to appropriate limitations
imposed by new subsection 7(2) and (3). These new subsections provide that if
officers are authorised to undertake identity tests, this power is strictly limited to the
specified types of identity tests in that authorisation. Additionally, AFMA may, by
36
instrument, specify that certain people, who would otherwise be authorised under new
subsection 7(1), are not authorised to undertake certain powers.
Part 2: Detaining suspected illegal foreign fishers
Section 8: Power to detain
3.288. New section 8 provides officers with the power to detain people who are suspected
of committing an illegal foreign fishing offence. This section substantially replicates
the power contained in section 84(1)(ia) of the Fisheries Management Act 1991
which is repealed by Item 3 of this package of amendments and is being added to the
Torres Strait Fisheries Act 1984 to ensure maximum consistency between the Torres
Strait Fisheries Act 1984, the Fisheries Management Act 1991 and the Migration Act
1958.
3.289. New subsection 8(1) gives an officer the power to detain a person, in certain
circumstances, for the purposes of deciding whether or not to charge them with
committing an offence against section 45, 48, 49 or 51 of the Torres Strait Fisheries
Act 1984, or an offence against section 6 of the Crimes Act 1914 relating to such an
offence.
3.290. This power is restricted by the requirement that it can only be used to detain people
where the officer has reasonable grounds to believe that the person is not an
Australian citizen or resident and that the person was on a foreign boat, or a Papua
New Guinea boat, when it was used in the commission of an offence against one of
the sections outlined in new subsection 8(1).
3.291. New subsection 8(2) clarifies the limits of the power contained in new subsection
8(1) by ensuring that new subsection 8(1) cannot be interpreted as authorising an
officer to use more force in detaining a person than is reasonably necessary.
Section 9: Relationship with Part IC of the Crimes Act 1914
3.292. New section 9 extends the protective provisions and rights that a protected suspect
has under Part IC of the Crimes Act 1914 to detainees under the Torres Strait
Fisheries Act 1984. New section 9 substantially replicates current subsection 84A(2)
of the Fisheries Management Act 1991, which is repealed by Item 5 of this package
of amendments and is being added to the Torres Strait Fisheries Act 1984 to ensure
maximum consistency between the Torres Strait Fisheries Act 1984, the Fisheries
Management Act 1991 and the Migration Act 1958.
Section 10: Detention officer may detain person already detained by officer
3.293. New subsection 10(1) allows for detention officers to continue the detention
arrangements following the initial detention of a person by an officer. A detention
officer may only detain a person who has been initially detained by an officer and who
is presented by an officer to the detention officer to continue the detention of that
person. This power is limited by new subsection 10(2) which provides that a
detention officer may not detain a person if they have reasonable grounds to believe
that the detained person had, at some point, ceased to be in fisheries detention since
the last time that an officer had detained them under new section 8.
3.294. New subsection 10(2) will apply, in practice, if a detainee escapes following initial
detention. Because escape from detention is not in itself a detainable offence (see
new section 14 below) a detainee, if recaptured, could not be returned to detention
under the Torres Strait Fisheries Act 1984 and therefore could not be detained by a
detention officer under the Torres Strait Fisheries Act 1984. However, because the
37
detainee's enforcement visa automatically expires as soon as they escape from
detention, a recaptured detainee would instead be detained in immigration detention,
by a duly authorised officer under the Migration Act 1958, as an unauthorised non-
citizen.
Section 11: Detention on behalf of an officer or detention officer
3.295. New section 11 provides for detention to continue, in certain circumstances, in the
absence of the direct presence of an officer or detention officer. In practice, this new
section will allow for a detainee to be moved to a place where they can be cared for
better while their offences are being investigated. For example, a detainee may be
moved off a boat, if it is unseaworthy or there are poor weather conditions, to a land-
based detention facility. It will also allow detainees to be taken to hospital or other
places, generally on a short term basis.
3.296. New subsection 11(1) provides the places in which a detainee may be detained on
behalf of an officer or a detention officer. As well as including places such as prisons,
police stations and hospitals, the subsection provides that the Minister may approve,
in writing, a particular place for people to be held for the purposes of this section.
Section 12: Power to move detainees
3.297. New section 12(1) provides officers and detention officers with the power to move
detainees. This section substantially replicates current section 84(1)(ib) of the
Fisheries Management Act 1991, which is repealed in Item 3 of this package of
amendments and is being added to the Torres Strait Fisheries Act 1984 to ensure
maximum consistency between the Torres Strait Fisheries Act 1984, the Fisheries
Management Act 1991 and the Migration Act 1958.
3.298. A detainee may need to be moved to a place where they can bee cared for better
while their offences are being investigated. For example, a detainee may be moved off
a boat, if it is unseaworthy or there are poor weather conditions, to a land-based
detention facility.
3.299. New subsections 12(2) and (3) limit this power to ensure that no more force than is
reasonably necessary is used to move a detainee and that all relevant matters
(including the administration of justice and the welfare of the detainee) are considered
before a decision is taken to move a detainee.
Section 13: End of detention
3.300. New section 13 outlines the circumstances in which a detainee must be released
from detention. New subsection 13(1) substantially replicates the old section 84A of
the Fisheries Management Act 1991, which is repealed by Item 5 of this package of
amendments. This new section is being added to the Torres Strait Fisheries Act 1984
to ensure maximum consistency between the Torres Strait Fisheries Act 1984, the
Fisheries Management Act 1991 and the Migration Act 1958. New subsection 13(2),
(3) and (4) have been drafted to accommodate Australia's obligations under the
Torres Strait Treaty.
3.301. New section 13 is split into three sections outlining the different rules for dealing
with the end of detention for different types of people.
3.302. New subsection 13(1) outlines the rules for the end of detention for a detainee, who
is suspected of being an illegal fisher from a foreign boat.
3.303. New subsection 13(1) states that a detainee who was detained under new subsection
8(1), because the officer had reasonable grounds to believe they were engaged in
illegal activities on a foreign boat, must be released under whichever of the following
circumstances occurs first:
38
- as soon as an officer knows, or reasonably believes, that the detainee is an
Australian citizen or resident;
- at the time a detainee is brought before a magistrate for a fisheries offence
against section 45, 48, 49 or 51 of the Torres Strait Fisheries Act 1984;
- at the time a decision is made to charge a detainee with an offence; or
- at the end of 168 hours (7 days) after the detention begins.
3.304. New section 13(1) does not apply to Papua New Guinean citizens or residents or
any other foreign nationals found on Papua New Guinean boats. Subsection 13(1)
provides that foreign nationals (other than Papua New Guinean citizens or residents)
on foreign boats (other than Papua New Guinean boats) cannot be held in fisheries
detention under the Torres Strait Fisheries Act 1984 for longer than 168 hours.
3.305. New subsection 13(2) outlines the rules for end of detention for any detainee from a
Papua New Guinean boat.
3.306. New subsection 13(2) states that a detainee who was detained under new subsection
8(1) because the officer had reasonable grounds to believe they were on a Papua New
Guinean boat must be released under whichever of the following circumstances occurs
first:
- as soon as an officer knows or reasonably believes that the detainee is an
Australian citizen or resident;
- as soon as an officer believes that the detainee did not commit an offence
described in new subsection 8(1);
- as soon as an officer finishes investigating whether the detainee committed
an offence; or
- at the end of 72 hours (3 days) after the detention begins.
3.307. New subsection 13(2) provides a slightly different detention regime for Papua New
Guinean nationals and residents, and any other foreign nationals found on Papua New
Guinean boats. This regime is in accordance with the Torres Strait Treaty. The
Torres Strait Treaty obliges Australia to return Papua New Guinean citizens, residents
and any other foreign nationals found on Papua New Guinean boats, to Papua New
Guinea for prosecution of offences under Papua New Guinean laws.
3.308. New subsection 13(3) outlines the rules for end of detention for a Papua New
Guinean national or resident who is found illegally fishing on a foreign boat.
3.309. New subsection 13(3) states that where an officer or detention officer knows or
reasonably believes that the detainee is either a citizen of Papua New Guinea or a
person who is usually resident in Papua New Guinea they will be treated in the
manner described in 13(2). Therefore, they cannot be held for longer than 72 hours.
3.310. New subsection 13(4) provides for circumstances where people are detained on a
foreign boat, which was found illegally fishing, and it was later discovered that one or
more of the persons detained were Papua New Guinean nationals or people normally
resident in Papua New Guinea.
3.311. If a Papua New Guinean national or resident in such circumstances has been already
detained for more than 72 hours, the effect of the provision is to validate the period in
which they have been detained (if there was any doubt in this regard) and to require
their immediate release from fisheries detention. If the Papua New Guinean national
or resident had been detained for less than 72 hours, they will be subject to the
conditions prescribed in new subsection 13(2) and must only be held for a maximum
of 72 hours. If there is any doubt, the subsection also provides that the period for
which they had been detained was valid.
Section 14: Escape from detention
39
3.312. This section makes escape from detention an offence punishable on conviction by
imprisonment for up to two years. This section substantially replicates current section
98A of the Fisheries Management Act 1991, which is repealed in Item 11 of this
package of amendments and is being added to the Torres Strait Fisheries Act 1984 to
ensure maximum consistency between Torres Strait Fisheries Act 1984, the Fisheries
Management Act 1991 and the Migration Act 1958.
3.313. Because escape from detention is not in itself a detainable offence, a detainee, if
recaptured, could not be returned to detention under the Torres Strait Fisheries Act
1984 and therefore could not be detained by a detention officer under the Torres
Strait Fisheries Act 1984. However, because the detainee's enforcement visa
automatically expires as soon as they have escaped from detention, a recaptured
detainee would instead be detained in immigration detention as an unauthorised non-
citizen, by an officer duly authorised under the Migration Act 1958.
Part 3: Searching and screening detainees and screening their visitors
Section 15: Searches of detainees
3.314. New section 15 allows for an authorised officer to search a detainee in certain
circumstances. This clause substantially replicates old paragraph 84(1)(ic) of the
Fisheries Management Act 1991, which is repealed by Item 3. It also corresponds
closely to section 252 of the Migration Act 1958 and, as such, will facilitate the
seamless transfer of detainees from fisheries detention to immigration detention with
one set of rules applying to the detainee's entire period of detention.
3.315. New subsection 15(1) provides that a detainee, and any clothes or property under
the immediate control of the detainee, may be searched without a warrant for one of
the purposes outlined in new subsection 15(2).
3.316. This power is aimed at ensuring the safety of detainees, and other people, and
ensuring that authorised officers have a means of determining whether a detainee is
concealing evidence of their involvement in the commission of an illegal foreign
fishing offence. As such, new subsection 15(2) limits the power in subsection 15(1)
by providing that a search may only be conducted for two purposes. The authorised
officer must only conduct a search for the purpose of determining whether the person
has in their possession, a weapon (or other thing capable of being used to inflict
bodily injury or to help the detainee escape from detention) or any evidence of the
commission of an offence against section 45, 48, 49 or 51 of the Torres Strait
Fisheries Act 1984 or an offence against section 6 of the Crimes Act 1914 in relation
to one of those offences.
3.317. New subsection 15(3) allows an authorised officer to take and keep in their
possession any of the things described in new subsection 15(2) found during a search,
for such time as the authorised officer thinks is necessary for the purposes of the
Torres Strait Fisheries Act 1984 or the Migration Act 1958.
3.318. New subsection 15(4) clarifies that this new section does not allow an authorised
officer, or any other person conducting the search under new subsection 15(5), to
remove any of a detainee's clothing or to require a detainee to remove any of their
clothing, for the purposes of conducting the search.
3.319. New subsection 15(5) requires that a search under new subsection 15(1) be
undertaken by an authorised officer of the same sex as the subject of the search.
Alternatively, where it is not reasonably possible for an authorised officer of the same
sex to conduct the search, the search may be conducted by any other person of the
same sex as the subject who is requested by an authorised officer, and agrees, to
conduct the search.
40
3.320. New subsection 15(6) provides that if a person assisting an authorised officer, under
new subsection 15(5), acts in good faith and does not contravene the requirement in
new subsection 15(7), they will not be liable for either criminal or civil actions or
proceedings.
3.321. New subsection 15(7) states that an authorised person or other person assisting an
authorised officer must not use more force, or subject a detainee to greater indignity,
than is reasonably necessary in order to conduct the search.
3.322. New subsection 15(8) clarifies that a search may be conducted under this new
section whether or not a screening procedure or a strip search of the detainee (under
new section 16 and 17) are also conducted.
3.323. New section 15 provides sufficient safeguards to ensure that all searches are
conducted in an appropriate manner.
Section 16: Power to conduct a screening procedure
3.324. New section 16 provides authorised officers with the power to conduct screening
procedures on detainees in certain circumstances. This section corresponds closely to
section 252AA of the Migration Act 1958 and, as such, will facilitate the seamless
transfer of detainees from fisheries detention to immigration detention with one set of
rules applying to the detainee's entire period of detention.
3.325. New subsection 16(1) allows authorised officers to conduct screening procedures
without a warrant in relation to a detainee (other than those held in State or Territory
prisons (see new section 22)). This power is aimed at ensuring the safety of
detainees, and other people, and is limited to determining whether the detainee is
concealing a weapon or any other thing capable of inflicting bodily harm or being used
to escape from detention.
3.326. New subsections 16(2) and (3) provide safeguards restricting the power to conduct
screening procedures. An officer who conducts a screening procedure is prohibited
from using greater force, or subjecting the detainee to greater indignity, than is
reasonably necessary in order to conduct the screening procedure. Similarly, an
authorised officer must not remove any of the detainee's clothing, or to require the
detainee to remove any of their clothing for the purpose of conducting the screening
procedure.
3.327. New subsection 16(4) clarifies that a screening procedure may be conducted under
this new section whether or not a search or a strip search of the detainee (under new
section 15 and 17) are also conducted.
3.328. New subsection 16(5) provides definitions of `conducting a screening procedure'
and `screening equipment' for the purposes of new section 16. Screening procedures
include the use of metal detectors on detainees and x-rays on a detainee's possessions.
Section 17: Power to conduct a strip search
3.329. New section 17 allows for authorised officers to conduct strip searches on detainees
in limited circumstances. This clause corresponds closely to section 252A of the
Migration Act 1958 and, as such, will facilitate the seamless transfer of detainees from
fisheries detention to immigration detention with one set of rules applying to the
detainee's entire period of detention.
3.330. New subsection 17(1) provides that an authorised officer may conduct a strip search
on a detainee, other than those held in State or Territory prisons (see new section 22),
without a warrant. A strip search must only be conducted for the purposes of
determining whether the detainee has a weapon or other thing capable of being used
to inflict bodily injury or to escape detention on their person or in their possession.
41
The strip search must be conducted in accordance with the stringent rules set out in
new section 18.
3.331. `Strip search' is defined in new subsection 17(2) as a search of the detainee, of his
or her clothing or of a thing in his or her possession. A strip search may include a
requirement that the detainee remove some or all of their clothing and that the
detainee's body and clothing be examined. It does not include searching the
detainee's body cavities. A strip search may be as limited as requiring the removal of
a jacket, or the detainee's socks and shoes, to search for the weapon or other thing.
3.332. New subsection 17(3) provides that an authorised officer may only conduct a strip
search if they suspect, on reasonable grounds, that the detainee has a weapon or thing
capable of inflicting bodily harm or being used to escape detention, hidden on their
person, or in their clothes or possession, and that it is necessary to conduct a strip
search in order to recover that weapon or other thing.
3.333. New subsection 17(4) states that an authorised officer may form a suspicion on
reasonable grounds that a strip search is necessary on the basis of a search (under new
section 15) or a screening procedure (under new section 16) even if the authorised
officer was not the officer who conducted the search or screening procedure. The
suspicion may also be based on any other information that is available to the
authorised officer.
3.334. In addition to this reasonable suspicion, there must be a high level authorisation for
a strip search. A strip search of a detainee who is 18 years or older must be
authorised by the Managing Director of AFMA, the Secretary of the Department or
an SES Band 3 employee in the Department who is satisfied that there are reasonable
grounds for those suspicions. A strip search of a minor between the ages of 10 and
18 years must be ordered by a magistrate after they are satisfied that there are
reasonable grounds for those suspicions.
3.335. New subsections 17(5), (6) and (7) state the means by which approval under new
subsection 17(4) must be provided. This authorisation must be recorded in writing
and signed by the person giving the high level authorisation.
3.336. New subsection 17(8) provides that the power to authorise a strip search cannot be
delegated to any other person. This ensures that strip searches will only ever be
authorised as a last resort by a person of sufficient authority to make such a decision.
3.337. New subsections 17(9), (10) and (11) provide that a magistrate can choose not to
accept the power conferred under paragraph 17(3) (c), If they do accept the power,
they will be exercising it in their personal capacity rather than in their capacity as a
court or a member of the court while retaining all protection and immunity covering
decisions made by, or as a member of, that court. This makes it clear that the exercise
of the power conferred by new section 17 must be voluntary.
3.338. New subsection 17(12) clarifies that a strip search may be conducted under this new
section whether or not a search or a screening procedure (under new sections 15 and
16) have also been carried out on the detainee.
3.339. New subsection 17(13) defines `business day' and `SES Band 3 employee' for the
purposes of new section 17.
Section 18: Rules for conducting a strip search
3.340. The new section 18 outlines comprehensive rules for conducting a strip search of a
detainee under the new section 17. These rules are based on those contained in
section 252B of the Migration Act 1958 which, in turn, are based on those contained
in 3ZI of the Crimes Act 1914.
42
3.341. The addition of new section 18 to the Torres Strait Fisheries Act 1984 will facilitate
the seamless transfer of detainees from fisheries detention to immigration with one set
of rules applying to the detainee's entire period of detention.
3.342. The rules contained in this new section will ensure that strip searches are conducted
in a way that will protect the dignity of the detainee as much as possible while still
allowing strip searches in very limited circumstances to ensure the safety of the
detainee and other people.
3.343. New paragraph 18(1)(a) provides that a detainee must not be subjected to greater
indignity than is reasonably necessary to conduct the strip search.
3.344. New paragraph 18(1)(b) provides that a strip search of a detainee must be
conducted in a private area.
3.345. New paragraph 18(1)(c) provides that a strip search must only be conducted by an
authorised officer of the same sex as the detainee.
3.346. New paragraph 18(1)(d) additionally provides that a strip search must not be
conducted in the presence or view of a person who is the opposite sex to the detainee.
This stipulation is subject to new subsections 18(2), (3) and (5) which provide some
limited exceptions to this rule. A parent, guardian, person representing the detainee's
interest or a person nominated by the detainee to be present for the strip search does
not have to be of the same sex as the detainee. Additionally, if a medical practitioner
is assisting an authorised officer to conduct the strip search, they may be of the
opposite sex of the detainee if a medical practitioner of the same sex is not available
within a reasonable time.
3.347. New paragraph 18(1)(e) provides that a strip search must not be conducted in the
presence or view of a person who's presence is not necessary for the purposes of
conducting the strip search. This new paragraph is also subject to new subsections
18(2), (3) and (5).
3.348. New paragraph 18(1)(f) prohibits a strip search of a detainee who is under 10 years
of age.
3.349. New paragraph 18(1)(g) introduces an additional requirement where the detainee is
between the ages of 10 and 18 or is incapable of managing their own affairs. In these
circumstances, a strip search must be conducted in the presence of the detainee's
parent or guardian (where that person is in detention with the detainee and is readily
available) or, where the presence of a parent or guardian is not acceptable to the
detainee or such a person is not readily available as specified, another person, other
than the authorised officer. This other person must be capable of representing the
detainee's interests and be, as far as is practicable in the circumstances, acceptable to
the detainee.
3.350. New paragraph 18(1)(h) provides that strip search of a detainee who is at least 18
years old and capable of managing their own affairs must be conducted in the
presence of another person, if nominated by the detainee where that other person is
readily available and willing to attend the strip search.
3.351. New paragraph 18(1)(i) provides that a strip search must not involve a search of the
person's body cavities. This is consistent with the definition of a strip search
contained in the new subsection 17(2).
3.352. New paragraph 18(1)(j) provides that a strip search must not involve the removal of
more items of clothing or more visual inspection than the authorised officer
conducting the search believes, on reasonable grounds, to be necessary to determine
whether there is a weapon, or other thing described in new subsection 17(1,) hidden
on the detainee, in their clothing or in a thing in their possession.
3.353. New paragraph 18(1)(k) restricts the use of force to that which is reasonably
necessary to conduct the strip search.
43
3.354. New subsection 18(4) provides that neither a detainee's refusal or failure to
nominate a person to be present during the strip search under new paragraph 18(1)(h)
within reasonable time, nor a detainee's inability to nominate a person under that new
paragraph who is readily available and willing to attend the strip search within a
reasonable time will prevent a strip search from being conducted.
3.355. New subsection 18(5) provides that a strip search may be conducted with the
assistance of another person where the authorised officer conducting the strip search
considers such assistance to be necessary, for the purposes of conducting the strip
search. Any other person assisting the authorised officer conducting the strip search
must be of the same sex as the detainee unless they are a medical practitioner and a
medical practitioner of the same sex as the detainee is not available within a
reasonable time.
3.356. New subsection 18(6) excludes liability for any action against a person who, at the
request of an authorised officer, assists in conducting a strip search of a detainee
where that person acts in good faith and does not contravene any part of new section
18.
3.357. New subsection 18(7) provides that a detainee must be provided with adequate
clothing if any of his or her clothing is damaged, destroyed or retained under new
section 19 as a result of the strip search. This ensures that the welfare and dignity of
the detainee is considered after the search is conducted.
Section 19: Possession and retention of certain things obtained during a screening
procedure or strip search
3.358. New section 19 provides for the retention of certain thing found during a screening
procedure (under new section 16) or a strip search (under 17) of a detainee. This new
section closely corresponds to section 252C of the Migration Act 1958 and section
3ZV of the Crimes Act 1918.
3.359. The addition of new section 19 to the Torres Strait Fisheries Act 1984 will facilitate
the seamless transfer of detainees from fisheries detention to immigration detention
with one set of rules applying to the detainee's entire period of detention.
3.360. New subsection 19(1) allows an authorised officer to take possession of and retain a
thing found in the course of conducting a screening procedure or a strip search if the
thing might provide evidence of the commission of an offence against the Torres
Strait Fisheries Act 1984 or the thing is forfeited to the Commonwealth.
3.361. New subsection 19(2) states that a weapon or other thing which can be used to
inflict bodily injury or help a detainee to escape from detention, described in
subsections 16(1) or 17(1), is forfeited to the Commonwealth if it is found in the
course of conducting a screening procedure or a strip search.
3.362. New subsection 19(3) prohibits an authorised officer from returning a thing forfeited
to the Commonwealth. Instead, the authorised officer must give the thing forfeited
under new subsection 19(2) to a constable as soon as practicable. Under subsection
3(1) of the Crimes Act 1914, `constable' is defined as meaning a member or special
member of the Australian Federal Police, or a member of the police force or police
service of a State or Territory.
3.363. It is noted beneath new subsection 19(3) that Subdivision C of Division 6 of Part 6
of the Torres Strait Fisheries Act 1984 sets out the procedure for dealing with thing
seized as being forfeited under section 106A. This note makes a distinction between
things that are automatically forfeited under section 106A and weapons that are
forfeited to the Commonwealth under new subsection 19(2).
3.364. New subsection 19(4) outlines certain circumstances in which an authorised officer
is required to take reasonable steps to return a thing retained under new subsection
44
19(1) that is not forfeited to the Commonwealth. The thing should be returned to the
person from whom it was taken, or to the owner (if that person is not entitled to
possess it). These circumstances are either where it is decided that the retained thing
is not to be used in evidence or when a period of 60 days from when the authorised
officer took possession of the thing has passed.
3.365. However, new subsection 19(5) sets out circumstances in which an authorised
officer is not required to return the retained thing under new subsection 19(4). These
include instances where proceedings related to the evidence have been instituted
before the end of the 60 day period and have not been completed, an order under new
section 21 has been made permitting an authorised officer to retain the thing for a
further period, or the officer is otherwise authorised to retain, destroy or dispose of
the thing.
Section 20: Authorised officer may apply for a thing to be retained for a further period
3.366. New section 20 provides an avenue for an authorised officer to apply for an
extension of the period for which they may keep a thing retained during a screening
procedure or strip search under the new section 19. It corresponds closely with
section 252C of the Migration Act 1958 and 3ZW of the Crimes Act 1914. The
addition of new section 20 to the Torres Strait Fisheries Act 1984 will facilitate the
seamless transfer of detainees from fisheries detention to immigration detention with
one set of rules applying to the detainee's entire period of detention.
3.367. Under new subsections 20(1) and (2), an authorised officer may apply to a
magistrate for an order that a thing, retained under new subsection 19(1) and due to
be returned under new subsection 19(4), may be retained for a further period. Such
an application may be made in circumstances where proceedings have not yet been
instituted and the 60 day period, or a period specified in an order of a magistrate
under new section 21, is almost finished.
3.368. New subsection 21(3) requires that an authorised officer must take reasonable steps
to discover and notify any persons whose interests would be affected by the retention
of the thing before applying for an extension of the retention. This provision allows
evidence to be preserved for use in court proceedings in cases where a delay in court
proceedings has occurred. It also provides for the interests of other parties affected
by the retention of the thing to be ascertained.
Section 21: Magistrate may order that thing be retained
3.369. New section 21 provides the circumstances in which a magistrate may make an
order allowing an authorised officer to retain, for an extended period, an item found
during a screening procedure or strip search of a detainee. This section closely
corresponds to section 252E of the Migration Act 1958 and, as such, will facilitate the
seamless transfer of detainees from fisheries detention to immigration detention with
one set of rules applying to the detainee's entire period of detention.
3.370. New subsection 21(1) states that a magistrate may order that the authorised officer
who made an application for an extension of the retention period for a thing under
new section 20 may retain the thing. A magistrate may make such an order where
they are satisfied that the extension is necessary for the purposes of an investigation as
to whether an offence has been committed or to enable evidence of an offence to be
secured for the purposes of a prosecution.
3.371. New subsection 21(2) states that the order must specify the period for which the
authorised officer may retain the thing.
3.372. New subsections 21(3), (4) and (5) provide that a magistrate can choose not to
accept the power conferred under paragraph 21(1) but that if they do accept the
45
power they will be exercising it in their personal capacity rather than in their capacity
as a court or a member of the court while retaining all protection and immunity
covering decisions made by, or as a member of, that court. This makes it clear that
the exercise of the power conferred by new section 21 must be voluntary.
Section 22: Detainees held in State or Territory prisons or remand centres
3.373. New section 22 makes provision for searching detainees held in detention in a prison
or remand centre of a State or Territory. This new section closely corresponds with
section 252F of the Migration Act 1958 and, as such, will facilitate the seamless
transfer of detainees from fisheries detention to immigration detention with one set of
rules applying to the detainee's entire period of detention.
3.374. This new section provides that detainees held in State or Territory prisons or
remand centres may be searched according to the relevant law of that State or
Territory. New subsection 22(3) clarifies that new sections 16 and 17, regarding
powers to conduct screening procedures and strip searches, do not apply where a
detainee is held in a State or Territory prison or remand centre.
Section 23: Powers concerning entry to premises where detainee is detained
3.375. New section 23 provides certain powers relating to the entry of detainees' visitors to
a premise where detainees are detained. This new section closely corresponds to
section 252G of the Migration Act 1958 and, as such, will facilitate the seamless
transfer of detainees from fisheries detention to immigration detention with one set of
rules applying to the detainee's entire period of detention.
3.376. This power is required for the good order and security of detention centres as well
as the safety of detainees, staff and other persons located there.
3.377. Under new subsection 23(1), an officer or detention officer may request that a
person, about to enter a premise where a detainee is in detention, be screened. The
screening procedure may involve walking through screening equipment or passing
hand-held screening equipment over or around the person or around things in the
person's possession or x-raying or screening things in a person's possession.
3.378. New subsection 23(2) defines `screening equipment' as a metal detector or similar
device for detecting objects or particular substances.
3.379. New subsection 23(3) allows an authorised officer, in certain circumstances, to
request a person, about to enter premises where a detainee is in detention, to do some
or all of the things outlined in new subsection 23(4). An authorised officer may make
such a request where they suspect on reasonable grounds that the person has in their
possession a thing that might:
- endanger the safety of the detainees, staff or other persons on the premises;
or
- disrupt the order or security arrangements on the premises.
This request can be made in addition to the screening procedure outlined in subsection
23(1).
3.380. New subsection 23(4) lists the things that an authorised officer may request a
person, entering a premises where detainees are detained, to do. Such a person may
be requested to:
- allow the authorised officer to inspect the things in the person's possession;
- remove some or all of their outer clothing (such as a jacket or coat);
- remove items from the pockets of their clothing;
- open a thing in their possession, or remove the thing's contents, to allow the
authorised officer to fully inspect the thing or its contents;
46
- leave a thing in their possession, or some or all of its contents, in a place
specified by the authorised officer where the authorised officer suspects, on
reasonable grounds, that the thing or its contents are capable of concealing
something that might endanger the safety of the detainees, staff or other
persons on the premises or disrupt the order or security arrangements at the
detention centre.
3.381. New subsection 23(5) provides that a person who leaves a thing in a place specified
by an authorised officer (under new subsection 23(4)(e)) is entitled to its return when
they leave the premises.
3.382. However, under new subsection 23(6), if the possession of the thing, or anything in
its contents, by the person is unlawful under a Commonwealth, State or Territory law
applying to the premises the thing, or its contents, it must not be returned to the
person, but rather, as soon as practicable, be given to a constable. Under subsection
3(1) of the Crimes Act 1914, `constable' is defined as meaning a member or special
member of the Australian Federal Police, or a member of the police force or police
service of a State or Territory. This new subsection avoids the inappropriate situation
of an authorised officer having to return an item found in the possession of a person
visiting a detainee, if that person's possession of the item is illegal.
3.383. Under new subsection 23(7), a person who does not comply with a request under
new section 23 may be refused entry to the premises where a detainee is being
detained.
3.384. New subsection 23(8) defines `premises' to include a place, a vessel and an aircraft
for the purposes of new section 23.
Part 4: Detainees' rights to facilities for obtaining legal advice etc
Section 24: Detainee may have access to certain advice, facilities etc.
Under new section 24, the person responsible for the detention of a detainee must, if
requested by the detainee, provide the detainee with access to reasonable facilities for
obtaining legal advice or taking legal proceedings in relation to his or her detention. This
section closely corresponds to section 256 of the Migration Act 1958 and, as such, will
facilitate the seamless transfer of detainees from fisheries detention to immigration detention
with one set of rules applying to the detainee's entire period of detention.
Part 5: Identifying detainees
Section 25: Definitions
3.385. This section adds several definitions for the purposes of new Part 5 of Schedule 2 of
the Torres Strait Fisheries Act 1984. These definitions closely correspond to the
definitions of these terms provided in section 5 of the Migration Act 1958 and, as
such; will facilitate the seamless transfer of detainees from fisheries detention to
immigration detention with one set of rules applying to the detainee's entire period of
detention.
Section 26: Meaning of personal identifier
3.386. New subsection 26 provides a specific definition of a `personal identifier' for the
purposes of the new Part 5 of Schedule 2 of the Torres Strait Fisheries Act 1984.
This section closely corresponds to section 5A of the Migration Act 1958 and, as
such, will facilitate the seamless transfer of detainees from fisheries detention to
47
immigration detention with one set of rules applying to the detainee's entire period of
detention.
3.387. New subsection 26(1) states that `personal identifier' means any of the following,
including any of the following in digital form:
- fingerprints or handprints of a person (including those taken using paper and
ink or digital live scanning technologies);
- a measurement of a person's height and weight;
- a photograph or other image of a person's face and shoulders;
- an audio or a video recording of a person (other than a video recording of an
identification test under new section 37);
- an iris scan;
- a person's signature;
- any other identifier prescribed by the regulations, other than an identifier the
obtaining of which would involve the carrying out of an intimate forensic
procedure within the meaning of section 23WA of the Crimes Act 1914.
3.388. An "intimate forensic procedure" is defined by section 23WA of the Crimes Act
1914 and is prohibited under the Torres Strait Fisheries Act 1984. These prohibited
procedures include:
- an external examination of the genital or anal area, the buttocks or, in the
case of a female or a transgender person who identifies as a female, the
breasts;
- the taking of a sample of blood;
- the taking of a sample of saliva, or a sample by buccal swab;
- the taking of a sample of pubic hair;
- the taking of a sample by swab or washing from the external genital or anal
area, the buttocks or, in the case of a female or a transgender person who
identifies as a female, the breasts;
- the taking of a sample by vacuum suction, by scraping or by lifting by tape
from the external genital or anal area, the buttocks or, in the case of a female
or a transgender person who identifies as a female, the breasts;
- the taking of a dental impression;
- the taking of a photograph or video recording of, or an impression or cast of
a wound from, the genital or anal area, the buttocks or, in the case of a
female or a transgender person who identifies as a female, the breasts.
3.389. New subsection 26(2) imposes requirements on the Minister before the Governor-
General can make regulations for the purposes of adding to the list of personal
identifiers under new subsection 26(1). The Minister must be satisfied that:
- obtaining the identifier would not involve the carrying out of the intimate
forensic procedures contained in section 23WA of the Crimes Act 1914
(outlined in the previous paragraph); and
- the identifier is an image of or a measurement or recording of, an external
part of the body; and
- obtaining the identifier will promote one or more of the purposes referred to
in new subsection 26(3).
In practice, subsection 26(2) means that any regulations proposed to be made under
new section 26 will be drafted in consultation with the Attorney-General.
3.390. New subsection 26(3) contains an extensive list of purposes referred to in new
subsection 26(2)(c). The effect of new subsection 26(2)(c) is that the Minister must
be satisfied that obtaining a new type of personal identifier will promote one or more
of the following purposes before tabling any regulations under new section 26. These
purposes are:
48
- to assist in the identification of, and to authenticate the identity of, any non-
citizen who can be required under this Act to provide a personal identifier;
- to assist in identifying, in the future, any such non-citizen;
- to enhance AFMA's ability to identify non-citizens who have a criminal
history relating to fisheries;
- to combat document and identity fraud in fisheries matters;
- to complement anti-people smuggling measures;
- to inform the governments of foreign countries of the identity of non-citizens
who have been detained under, or charged with offences against, this Act;
- to facilitate international cooperation to combat fishing activities that
involves a breach of the laws of Australia or of a foreign country.
Section 27: Limiting the types of identification tests that authorised officers may carry out
3.391. New section 27 allows AFMA to limit the types of identification tests that may be
carried out by an authorised officer. This new section closely corresponds to section
5D of the Migration Act 1958 and, as such, will facilitate the seamless transfer of
detainees from fisheries detention to immigration detention with one set of rules
applying to the detainee's entire period of detention.
3.392. New subsection 27(1) will allow AFMA to authorise officers to carry out one or
more types of identification tests without necessarily authorising them to conduct all
types of identity tests. In this way, AFMA retains tight control over the type of
identity tests that are being carried out on non-citizens.
3.393. New subsection 27(2) clarifies that an authorised officer is not authorised to carry
out an identification test that is not a type of test specified in the instrument
appointing the officer or detention officer as an authorised officer.
Section 28: Detainees must provide personal identifiers
3.394. Broadly, new section 28 requires that non-citizens in detention provide personal
identifiers to authorised officers. This new section corresponds closely with section
262A of the Migration Act 1958 and, as such, will facilitate the seamless transfer of
detainees from fisheries detention to immigration detention with one set of rules
applying to the detainee's entire period of detention.
3.395. New subsection 28(1) makes it compulsory for a non-citizen in detention to provide
one or more personal identifiers to an authorised officer. This new subsection also
provides that there could be prescribed circumstances in which a non-citizen does not
have to provide personal identifiers to an authorised officer.
3.396. New subsection 28(2) states that an authorised officer must not require a non-citizen
in detention to provide a personal identifier other than:
- fingerprints or handprints of the person (including those taken using paper
and ink or digital live scanning technologies);
- a measurement of the person's height and weight;
- a photograph or other image of the person's face and shoulders;
- the person's signature;
- any other personal identifier of a type prescribed under new section 26(1)(g)
for the purposes of this paragraph.
3.397. New subsection 28(3) provides that the authorised officer must act in accordance
with new Division 2 of Part 5 of Schedule 2 when taking personal identifiers.
3.398. It is noted beneath new section 28 that new section 32 allows reasonable force to be
used in carrying out an identification test in limited circumstances.
Section 29: Authorised officers must require and carry out identification tests
49
3.399. New section 29 requires that authorised officers carry out one or more identification
tests on non-citizens and specifies the manner in which identification tests must be
carried out. Subsections (1) and (2) correspond closely to section 262B of the
Migration Act 1958 and, as such, will facilitate the seamless transfer of detainees from
fisheries detention to immigration detention with one set of rules applying to the
detainee's entire period of detention.
3.400. New subsection29(1) states that an authorised officer must require the non-citizen
to provide at least one personal identifier by way of one or more identification tests
unless prescribed circumstances under new section 28(1) exist.
3.401. New subsection 29(2) provides certain restrictions that must be observed in carrying
out an identification test under this section.
3.402. New paragraph 29(2)(a) reinforces that an officer may only carry out an
identification test on a non-citizen if they have been specifically authorised to carry
out an identification test of that type by AFMA under new sections 2 and 27.
3.403. New paragraph 29(2)(b) requires that each identification test be carried out in
accordance with the rules contained in new Subdivision B of Part 5. These rules
provide for the conducting of identification tests and the circumstances in which force
may be used.
3.404. New paragraph 29(2)(c) provides that identification tests must be carried in
accordance with new Division 3 of Part 5, unless the authorised officer has reasonable
grounds to believe that the non-citizen is not a minor or incapable person. This
provision ensures that the more stringent conditions that apply to minors
and incapable persons will always apply as the default position in the Torres Strait
Fisheries Act 1984; unless there are reasons to believe that the non-citizen is not a
minor or an incapable person. `Minor' and `incapable person' are defined for the
purposes of new Part 5 in new section 25.
3.405. New subsection 29(3) ensures that new subsection 29(2)(a) applies to officers who
have dual authorisations to do certain things under the Torres Strait Fisheries Act
1984 and the Migration Act 1958 (as per new section 7). Such officers are limited to
performing only the types of identity tests that they have been authorised to perform
under the Migration Act 1958. New subsection 29(3) provides that if migration
officers have limited authorisation to conduct identification tests under 5D of the
Migration Act 1958, they will be limited to performing those types of identity tests
under the Torres Strait Fisheries Act 1984 as if a limiting authorisation had been
issued by AFMA under new section 27.
Section 30: Information to be provided before carrying out identification tests
3.406. New section 30 provides that non-citizens must be provided with certain
information before an identity test is carried out. This information is to be provided
by the authorised officer who will be performing the identity tests. This new section
closely corresponds with section 262C of the Migration Act 1958 and, as such, will
facilitate the seamless transfer of detainees from fisheries detention to immigration
detention with one set of rules applying to the detainee's entire period of detention.
3.407. New subsection 30(1) provides that a non-citizen must be informed:
- that they may request that an independent person be present while the
identification test is carried out and that the test be carried out by a person of
the same sex as him or her; and
- of such other matters as are specified in the regulations.
3.408. New subsection 30(2) further explains that the authorised officer must inform the
non-citizen using a language (including sign language or braille) in which the non-
50
citizen is able to communicate with reasonable fluency. The non-citizen can be
informed through an interpreter, if necessary.
3.409. New subsection 30(3), provides that the authorised officer may inform a non-citizen
of the matters in new subsection 30(1) by giving the non-citizen a form setting out the
information contained in the regulations. However, the form must be in a language in
which the non-citizen is able to communicate with reasonable fluency (including
braille).
3.410. The kind of information that may be prescribed in the regulations includes:
- the purpose and reasons for the test;
- the way in which the test is to be carried out, including the power to use
reasonable force, if necessary;
- the ways in which the information that is collated can be used; the
circumstances in which the information obtained may be disclosed to third
parties;
- that the identification test may produce evidence against the non-citizen that
might be used in a court of law;
- that a video recording may be made of the test; and
- the non-citizen's right to make a complaint to the Privacy Commissioner, or
to make an application under the Freedom of Information Act 1982 and how
the non-citizen may go about doing so.
Section 31: General rules for carrying our identification tests
3.411. New section 31 contains the general rules for carrying out identification tests on a
non-citizen in fisheries detention under new Part 5 of Schedule 2. This new section
closely corresponds to section 262D of the Migration Act 1958 which, in turn, is
based on the rules contained in section 23XI of the Crimes Act 1914.
3.412. The addition of new section 31 to the Torres Strait Fisheries Act 1984 will facilitate
the seamless transfer of detainees from fisheries detention to immigration detention
with one set of rules applying to the detainee's entire period of detention.
3.413. These rules state that an identification test:
- must be carried out in circumstances affording reasonable privacy to the non-
citizen; and
- must not be carried out in the presence or view of a person who is of the
opposite sex to the person if requested by the non-citizen and it is practicable
to comply with the request; and
- must not be carried in the presence or view of a person whose presence is
not necessary for the purposes of the identification test or is not required or
permitted by any other provision of this Act; and
- must not involve the removal of more clothing than is necessary for the
carrying out of the test; and
- must not involve more visual inspection than is necessary for carrying out the
test; and
- must be carried out at the same time as any other identification tests that are
to be carried out on the non-citizen, where it is practicable to do so.
These general rules ensure that the dignity and welfare of the non-citizen is
respected, while such tests are being carried out.
Section 32: Use of force in carrying out identification tests
3.414. New section 32 contains the rules regarding use of reasonable force in carrying out
an identification test. This new section closely corresponds to section 262E of the
Migration Act 1958 and, as such, will facilitate the seamless transfer of detainees from
51
fisheries detention to immigration detention with one set of rules applying to the
detainee's entire period of detention.
3.415. New section 32(1) provides that an authorised officer may use reasonable force to
enable an identification test to be carried out or to prevent the loss, destruction or
contamination of any personal identifier or any meaningful identifier derived from the
person identifier.
3.416. However, new section 32(1) limits the use of this power by prohibiting the use of
force on a minor or incapable person or where the personal identifier in question is a
person's signature.
3.417. A person who has been authorised under new section 34 to help an authorised
officer to use reasonable force, is subject to the same limitations as an authorised
officer.
3.418. New subsection 32(2) sets out a number of pre-conditions that must exist before
reasonable force can be exercised under new subsection 32(1). The authorised officer
or person authorised to help the authorised officer must not use any force unless:
- the non-citizen required to provide the personal identifier in question has
refused to allow the identification test to be carried out; and
- all reasonable measures to carry out the identification test without the use of
force have been exhausted; and
- use of force in carrying out the identification test is authorised under new
subsection 32(4).
3.419. New subsection 32(3) allows an authorised officer intending to use reasonable force
in carrying out an identification test to apply to a senior authorising officer (other than
themselves, if they are a senior authorising officer) as defined in new subsection 32,
for an authorisation to use force in carrying out the identification test. This means
that an individual application for authorisation must be made for each identification
test for which an authorised officer believes that there are grounds for the use of
reasonable force.
3.420. Under new subsection 32(4), the senior authorising officer who has received an
application under new subsection 32(3) may authorise the use of force in carrying out
the identification test if he or she is satisfied that:
- the non-citizen required to provide the personal identifier in question has
refused to allow the identification test to be carried out; and
- all reasonable measures to carry out the identification test without the use of
force have been exhausted.
3.421. New subsections 32(5), (6) and (7) state the means by which a senior authorising
officer may provide authorisation for the use of reasonable force in carrying out an
identification test.
3.422. New subsection 32(8) states that a senior authorising officer cannot delegate their
power of authorisation to any other person.
3.423. New subsection 32(8) defines `senior authorising officer' to mean an officer, or
detention officer, whom AFMA has authorised, or who is included in a class of
officers or detention officer whom AFMA has authorised, to perform the functions of
a senior authorising officer under new section 32.
Section 33: Identification tests not to be carried out in a cruel, inhuman or degrading
manner etc.
3.424. New section 33 states that for the purposes of the Torres Strait Fisheries Act 1984,
the carrying out of an identification test is not innately taken to be cruel, inhuman or
degrading or to be a failure to treat a person with humanity and with respect for
human dignity.
52
3.425. However, new section 33 also states that nothing in the Torres Strait Fisheries Act
1984 authorises the carrying out of an identification test in a cruel, inhuman or
degrading manner, or in a manner that fails to treat a person with humanity and with
respect for human dignity.
3.426. New section 33 closely corresponds with section 262F of the Migration Act 1958
and reflects Articles 7 and 10(1) of the International Covenant on Civil and Political
Rights. The addition of new section 33 to the Torres Strait Fisheries Act 1984 will
facilitate the seamless transfer of detainees from fisheries detention to immigration
detention with one set of rules applying to the detainee's entire period of detention.
Section 34: Authorised officer may get help to carry out identification tests
3.427. New section 34 enables an authorised officer to ask another authorised officer,
officer or detention officer to help them to carry out an identification test. It also
provides that an authorised officer, officer or detention officer that has been so
requested, is authorised to provide that help.
3.428. New section 34 closely corresponds to section 262AG of the Migration Act 1958
and, as such, will facilitate the seamless transfer of detainees from fisheries detention
to immigration detention with one set of rules applying to the detainee's entire period
of detention.
Section 35: Identification tests to be carried out by authorised officer of same sex as non
citizen
3.429. New section 35 provides that if a non-citizen requests that an identification test be
carried out by an authorised officer of the same sex as the non-citizen, the
identification test must be carried out by an authorised officer of that sex.
3.430. There is no automatic requirement that identification tests be carried out by an
authorised officer as the same sex, as is the case for searches, because identification
tests are not considered to be invasive.
3.431. This new section corresponds closely with section 262H of the Migration Act 1958
and, as such, will facilitate the seamless transfer of detainees from fisheries detention
to immigration detention with one set of rules applying to the detainee's entire period
of detention.
Section 36: Independent person to be present
3.432. New subsection 36 provides that an independent person must be present during the
carrying out of an identification test in two situations. It corresponds closely with
section 262IAI of the Migration Act 1958 and, as such, will facilitate the seamless
transfer of detainees from fisheries detention to immigration detention with one set of
rules applying to the detainee's entire period of detention.
3.433. Under new subsection 36(a) an independent person must be present where an
identification test is carried out with the use of force (authorised under new section
32).
3.434. Under new subsection 36(b) an independent person must be present where an
identification test is carried out if the non-citizen requests that such a person is present
and an independent person is readily available at the same place as the non-citizen and
is willing to attend the test within a reasonable time.
3.435. `Independent person' is defined in new section 25 for the purposes of new Part 5.
Section 37: Recording of identification tests
3.436. New section 37 provides for authorised officers to video record the carrying out of
identification tests. This new section closely corresponds to section 262J of the
53
Migration Act 1958 and, as such, will facilitate the seamless transfer of detainees from
fisheries detention to immigration detention with one set of rules applying to the
detainee's entire period of detention.
3.437. New subsection 37(2) states that if the identification test is not video recorded, the
authorised officer may decide that the identification test must be carried out in the
presence of an independent person.
3.438. The non-citizen will be able to request a copy of a video recording of an identity test
performed upon them though the Freedom of Information Act 1982.
Section 38: Retesting
3.439. New section 38 sets out the circumstances in which an authorised officer may
require a non-citizen to undertake the same identification test more than once. This
new section closely corresponds to section 262K of the Migration Act 1958 and, as
such, will facilitate the seamless transfer of detainees from fisheries detention to
immigration detention with one set of rules applying to the detainee's entire period of
detention.
3.440. New subsection 38(1) sets out the conditions that must exist before a retest is
permitted. An authorised officer may retest a non-citizen where:
- the result of an earlier identification tests is unusable; or
- an authorised officer, officer or detention officer is not satisfied as to the
integrity of the personal identifier from an earlier identification test.
3.441. Examples of unusable identifiers include smudged fingerprints, photographs that
lack definition or a failure of the technology that is being used to obtain the personal
identifier.
3.442. New paragraphs 38(1)(c) and (d) create an additional layer of protection for the
non-citizen, stating that even if an identifier is unusable or its integrity is questionable
there are only two circumstances in which a re-test is permitted. The first
circumstance is where an authorised officer makes the requirement that the retest be
conducted while the earlier identification test is being carried out or immediately after
the earlier test is carried out. The second circumstance is where authorisation for a
retest is given under new subsection 38(4).
3.443. New subsection 38(2) provides that where the conditions outlined in new subsection
38(1) are met and a non-citizen is required to again provide a personal identifier, the
non-citizen is taken, for the purposes of Division 2 of Part 5 of Schedule 2, not to
have provided the personal identifier as a result of the earlier test being carried out.
3.444. New subsection 38(3) enables an authorised officer to apply for authorisation to
retest a non-citizen. It specifies that, depending on the number of tests performed,
applications for authorisation must be made to different classes of people. Where a
retest has not previously been authorised under new subsection 38(4), an application
must be made to a senior authorising officer as defined in new subsection 38(11).
Where an earlier retest has been authorised by a senior authorising officer under new
subsection 38(4), an application for a subsequent retest must be made to the
Managing Director of AFMA, the Secretary of the Department or an SES Band 3
employee in the Department.
3.445. New subsection 38(3) also makes it clear that authorisation for a retest cannot be
given by the same officer requiring the non-citizen to provide another personal
identifier under new section 38(1).
3.446. New subsection 38(4) provides that a senior authorising officer, the Managing
Director of AFMA, the Secretary of the Department or an SES Band 3 employee of
the Department may authorise a retest where:
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- they are reasonably satisfied that the personal identifier that has been
provided by the non-citizen as a result of an earlier identification test is
unusable; or
- they are not reasonably satisfied about the integrity of that personal
identifier.
3.447. New paragraph 38(5), (6) and (7) state the means by which a senior authorising
officer, the Managing Director of AFMA, the Secretary of the Department or a SES
Band 3 employee of the Department may provide authorisation for the retest.
3.448. New subsection 38(8) states that the power to authorise retests cannot be delegated.
This requirement ensures that a person who makes an authorisation under new
section 38 has sufficient authority to do so.
3.449. New subsection 38(9) clarifies that an authorisation under new subsection 38(4)
does not authorise the use of force in carrying out an identification test.
3.450. New subsection 38(10) states that where an application for authorisation to carry
out a retest is denied (that is, authorisation is not given under new subsection 38(4)),
the non-citizen is taken to have complied with any requirement under the Torres
Strait Fisheries Act 1984 to provide the personal identifier.
3.451. New subsection 38(11) provides definitions of `senior authorising officer' and `SES
Band 3 employee' for the purposes of this clause.
3.452. The two tiers of authorisation required to conduct personal identification tests is
designed to safeguard the rights and welfare of the detainee.
Section 39: Definitions
3.453. New section 39 provides definitions of `permitted provision', `provide', `related
document' and `video recording' for the purposes of Subdivision C of Part 5. This
new section corresponds closely to section 262KA of the Migration Act 1958.
Section 40: Accessing video recordings
3.454. New section 40 outlines the circumstances in which accessing a video recording of
an identification test is an offence. This new section closely corresponds to section
262KB of the Migration Act 1958.
3.455. New subsection 40(1) makes it an offence for a person who is not authorised under
new section 41 to access a video recording, or for a person who is authorised to
access a video recording, to access a video for an unauthorised purpose. This offence
carries a maximum penalty of imprisonment for two years.
3.456. New subsection 40(2) states that this clause will not apply if the access is through a
permitted provision of the videotape. A permitted provision of a video tape is defined
in new section 39 as having the meaning assigned to it in new section 42(2). This
definition includes circumstances such as the provision of the videotape to the non-
citizen to whom it related, the provision of the video to a court or tribunal for a
purpose relating to the subject of the videotape or the provision of the videotape for
the purpose of storage.
3.457. The note below new section 40 states that a defendant bears the evidentiary burden
in relation to new subsection 40(2). That is, the defendant must provide evidence that
shows, beyond a reasonable doubt, that their access of the videotape was through a
permitted provision of the videotape. This requirement is consistent with subsection
13.3(3) of the Criminal Code.
Section 41: Authorising access to video recordings
3.458. New section 41 outlines the circumstances in which AFMA may authorise access to
video recordings of an identification test carried out on a non-citizen. This new
55
section corresponds closely to section 262KC of the Migration Act 1958 and, as such,
will facilitate the seamless transfer of detainees from fisheries detention to
immigration detention with one set of rules applying to the detainee's entire period of
detention.
3.459. New subsection 41(1) provides that AFMA may authorise a specified person, or any
person within a specified class of people, to access all video recordings made under
new section 37 or to access a specified video recording or video recordings of a
specified kind. This new subsection also states that such authorisation must be given
in writing.
3.460. New subsection 41(2) requires that, in granting an authorisation under new
subsection 41(1), AFMA must specify one or more of the purposes contained in that
subsection. This provides an additional safeguard to the power to authorise access to
video recordings.
3.461. New subsection 41(3) places a further restriction on an authorisation made under
new subsection 41(1) regarding a prescribed type of personal identifier. AFMA must
not authorise access if the purpose of that access would involve the purposes of
investigating an offence against a law of the Commonwealth or a State or Territory
(other than an offence involving whether an identification test was carried out
lawfully) or prosecuting a person for such an offence.
Section 42: Providing video recordings
3.462. New section 42 outlines the circumstances in which providing a video recording of
an identification test is an offence. This new section closely corresponds to section
262KD of the Migration Act 1958.
3.463. Under new subsection 42(1) it is an offence to cause a video recording of an
identification test to be provided to another person where such a provision is not a
permitted provision of the recording. This offence carries a maximum penalty of
imprisonment for two years.
3.464. New subsection 42(2) contains the circumstances in which a provision of a
videotape of an identification test is a `permitted provision'. These circumstances
include the provision of a videotape for the purpose of administering or managing the
storage of video recordings; or making the video recording available to the non-
citizen to whom it relates; or for the purpose of a proceeding, before a court or a
tribunal, relating to the non-citizen to whom the video recording in question relates;
or for any purpose connected with determining whether a civil or criminal liability has
arisen from a person carrying out or helping to carry out an identification test under
the Torres Strait Fisheries Act 1984.
3.465. New subsection 42(3) further provides that a provision of the videotape is not a
permitted provision if it constitutes a disclosure of a prescribed type of personal
identifier and the provision is for the purposes of either investigating an offence
against a law of the Commonwealth or a State or Territory (other than an offence
involving whether an identification test was carried out lawfully) or prosecuting a
person for such an offence.
Section 43: Unauthorised modifications of video recordings
3.466. New section 43 outlines the circumstances in which modifying a video recording of
an identification test is an offence. This new section closely corresponds to section
262KE of the Migration Act 1958.
3.467. New section 43 makes it an offence to cause any unauthorised modification of a
video recording of an identification test, where such modification was made with
56
intent to modify and with knowledge that such modification is unauthorised. This
offence carries a maximum penalty of imprisonment for two years.
3.468. New section 45 further explains the parameters of unauthorised modification.
Section 44: Unauthorised impairment of video recordings
3.469. New section 44 outlines the circumstances in which impairing a video recording of
an identification test is an offence. This new section closely corresponds to section
262KF of the Migration Act 1958.
3.470. New section 44 makes it an offence for a person to cause any unauthorised
impairment of:
- the reliability of a video recording; or
- the security of the storage of a video recording; or
- the operation of a system by which a video recording is stored
where that person intends to cause the impairment and knows that the impairment is
unauthorised. This offence carries a maximum penalty of imprisonment for two
years.
3.471. New section 45 further explains the parameters of unauthorised impairment.
Section 45: Meanings of unauthorised modification and unauthorised impairment etc.
3.472. New section 45 explains the terms "unauthorised" and "caused" in the context of
new sections 43 and 44. This section closely corresponds to section 262KG of the
Migration Act 1958 and, as such, will facilitate the seamless transfer of detainees from
fisheries detention to immigration detention with one set of rules applying to the
detainee's entire period of detention.
3.473. New subsection 45(1) explains that for the purposes of Subdivision C of Division 2
of Part 5 any action described in new section 43 and 44 is unauthorised if the person
is not entitled to cause that modification or impairment.
3.474. New subsection 45(2) states that any modification or impairment caused by the
person is not unauthorised merely because that person has an ulterior purpose for
causing it.
3.475. New subsection 45(3) states that a person causes any modification or impairment of
a video recording if the person's conduct substantially contributes towards it. This
means that where two or more people have jointly caused an unauthorised
modification or impairment of a video recording they may all be liable under the
offences outlines in new sections 43 and 44.
3.476. New subsection 45(4) provides that where a modification or impairment of a video
recording is done by a person under a warrant issued under the law of the
Commonwealth, a State or a Territory this is authorised impairment or modification.
Section 46: Destroying video recordings
3.477. New section 46 outlines the circumstances in which failing to destroy a video
recording of an identification test within ten years is an offence. This new section
closely corresponds to section 262KH of the Migration Act 1958.
3.478. New section 46 makes it an offence for a person who has day-to-day responsibility
for the system under which video recordings of identification tests are stored to fail to
physically destroy the video recording, and all copies of that recording, within 10
years of it being made. The maximum penalty for this offence is two years
imprisonment. This provision safeguards the use of personal information and limits
the period in which the information may be stored.
Section 47: Minors
57
3.479. New section 47 contains special rules to be applied in carrying out identification
tests on minors. Minors are defined for the purposes of Part 5 of Schedule 2 by new
section 25 as persons who are less than 18 years old. This section closely
corresponds to subsections 262L(1), (5) and (6) of the Migration Act 1958 and, as
such, will facilitate the seamless transfer of detainees from fisheries detention to
immigration detention with one set of rules applying to the detainee's entire period of
detention.
3.480. New subsection 47(1) restricts the types of personal identifiers that can be required
from non-citizen minors who are less than 15 years old. The only personal identifiers
that may be required from a person who is are less than 15 years old are
measurements of their height and weight or a photograph, or other image, of their
face and shoulders.
3.481. The age limit on the requirement to provide personal identifiers was set at 15 years
so as to be consistent with international comparisons and the Migration Act 1958.
3.482. New subsections 47(2) and (3) set out the requirement for a parent, guardian or
independent person to be present while an identification test is carried out on any non-
citizen minor, not just those who are less than 15 years old.
3.483. New subsection 47(3) further requires that where the guardian of the child is the
Minister administering the Immigration (Guardianship of Children) Act 1946, the
identification test must be carried out in the presence of an independent person other
than that Minister.
Section 48: Incapable persons
3.484. New section 48 contains special rules to be applied in carrying out identification
tests on incapable persons. Incapable persons are defined for the purposes of Part 5
Schedule 2 by new section 25 as a person who is incapable of understanding the
general nature and effect of, and purposes of, a requirement to provide a personal
identifier. This new section corresponds closely to subsections 262M(1) and (4) of
the Migration Act 1958 and, as such, will facilitate the seamless transfer of detainees
from fisheries detention to immigration detention with one set of rules applying to the
detainee's entire period of detention.
3.485. New subsection 48(1) restricts the type of identifiers that can be required from
incapable persons under the Torres Strait Fisheries Act 1984. The only personal
identifiers that may be required from an incapable person are measurements of their
height and weight or a photograph, or other image, of the non-citizen's face and
shoulders.
3.486. New subsection 47(2) states that an identification test on an incapable person must
be carried out in the presence of either a parent or guardian of the incapable person or
an independent person.
Section 49: Definitions
3.487. New section 49 provides definitions of `disclose', `identifying information',
`permitted disclosure', `unauthorised impairment' and `unauthorised modification' for
the purposes of Division 4 of Part 5 of Schedule 2. This section closely corresponds
to section 336A of the Migration Act 1958.
Section 50: Application
3.488. New section 50 makes it clear that section 15.4 of the Criminal Code (which relates
to extended geographical jurisdiction) applies to all offences against Division 4 of Part
5 of Schedule 1A. This new section corresponds closely with section 336B of the
Migration Act 1958.
58
3.489. The application of section 15.4 of the Criminal Code means that the offences under
Division 4 of Part 5 of Schedule 1A can be committed regardless of whether or not
the conduct (or the result of the conduct) constituting the alleged offence occurred in
Australia. This provision is necessary as some of the offences could potentially relate
to the disclosure of information to a foreign country and this provision puts beyond
doubt that the disclosure of the information will constitute an offence regardless of
whether the disclosure was made or received in a foreign location.
Section 51: Accessing identifying information
3.490. New section 51 outlines the circumstances in which accessing identifying
information is an offence. This new section corresponds closely with section 336C of
the Migration Act 1958.
3.491. New subsection 51(1) makes it an offence for a person to access identifying
information where that person has not been authorised to access the identifying
information for the purpose for which the person accessed it. The maximum penalty
for this offence is two years imprisonment.
3.492. New subsection 51(2) provides that the offence contained in new section 30(1) does
not apply if a person accesses identifying information through a permitted disclosure.
The term "permitted disclosure' is defined in new subsections 53(2) and (3) of
Division 4 of Part 5 of Schedule 2.
3.493. The note at the end of new subsection 51(2) states that a defendant bears the
evidentiary burden in relation to new subsection 51(2). That is, the defendant must
provide evidence that shows, beyond a reasonable doubt, that their access of the
videotape was through a permitted provision of the videotape. This requirement is
consistent with subsection 13.3(3) of the Criminal Code.
Section 52: Authorising access to identifying information
3.494. New section 52 outlines the circumstances in which AFMA may authorise access to
identifying information about a non-citizen. This new section corresponds closely to
section 336D of the Migration Act 1958 and, as such, will facilitate the seamless
transfer of detainees from fisheries detention to immigration detention with one set of
rules applying to the detainee's entire period of detention.
3.495. New subsection 52(1) provides that AFMA may authorise a specified person, or any
person within a specified class of people, to access identifying information of the kind
specified in the authorisation. This new subsection also states that such authorisation
must be given in writing.
3.496. New subsection 52(2) requires that, in granting an authorisation under new
subsection 52(1), AFMA must specify one or more purposes for which access is
authorised. These purposes are:
- One or more of the purposes set out in new subsection 26(3), which includes
purposes such as assisting in the identification of non-citizens and enhancing
AFMA's ability to identify non-citizens who have a criminal history relating
to fisheries;
- Disclosing identifying information in accordance with Division 4 of Part 5 of
Schedule 2;
- Administering or managing the storage of identifying information;
- Making identifying information available to the person to whom it relates;
- Modifying identifying information to enable it to be matched with other
identifying information;
- Modifying identifying information in order to correct errors or ensure
compliance with appropriate standards;
59
- Making decisions under the Torres Strait Fisheries Act 1984;
- Complying with laws of the Commonwealth or the States or Territories; or
- Disclosing personal information under clause 59 (about disclosure of
information about a person who has been in detention for the purposes of the
immigration detention or removal of the person).
3.497. New subsection 52(3) places a further restriction on an authorisation made under
new subsection 52(1). Where the identifying information in question relates to a
personal identifier of a prescribed type, an authorising purpose under new subsection
52(2) must not include or involve the purposes of investigating an offence against a
law of the Commonwealth or a State or Territory (other than an offence involving
whether an identification test was carried out lawfully) or prosecuting a person for
such an offence.
Section 53: Disclosing identifying information
3.498. New section 53 outlines the circumstances in which disclosing identifying
information is an offence. This new section corresponds closely with section 336E of
the Migration Act 1958.
3.499. New subsection 53(1) makes it an offence for a person to engage in conduct that
causes the disclosure of identifying information unless that disclosure is a permitted
disclosure. The maximum penalty for this offence is two years imprisonment.
3.500. New subsection 53(2) defines `permitted disclosure' to include a disclosure for the
purpose of data matching, managing the storage of identifying information, making
the identifying information available to the non-citizen to whom it relates and
disclosures permitted under new sections 54 and 59.
3.501. New subsection 53(3) places a further restriction on an authorisation made under
new subsection 53(1) regarding a prescribed type of personal identifier. Such a
disclosure is not permitted for the purposes of either investigating an offence against a
law of the Commonwealth or a State or Territory (other than an offence involving
whether an identification test was carried out lawfully) or prosecuting a person for
such an offence.
Section 54: Authorising disclosure of identifying information to foreign countries etc.
3.502. New section 54 states the circumstances in which AFMA may authorise the
disclosure of identifying information to foreign countries and organisations. This new
section closely corresponds to subsections 336F(1) and (2) of the Migration Act 1958
and, as such, will facilitate the seamless transfer of detainees from fisheries detention
to immigration detention with one set of rules applying to the detainee's entire period
of detention.
3.503. New subsection 54(1) allows AFMA to authorise a specified officer or detention
officer, or any officer or detention officer included in a specified class of officers or
detention officers, or an Agency prescribed in the regulations, to disclose certain
identifying information to one or more foreign countries (or their respective police
services, law enforcement bodies, border control bodies or a prescribed body),
specified international organisations or specified organisations of foreign countries,
that are responsible for fisheries matters or prescribed bodies of the Commonwealth
or of a State or Territory.
3.504. New section 54 allows AFMA to authorise an agency to disclose information to
foreign governments and organisations. The Department of Foreign Affairs and
Trade (DFAT) is an agency that will be prescribed in regulations to transmit such
information to the governments of foreign countries using diplomatic channels.
60
However, this section will not allow DFAT (or any other agency prescribed in the
regulations) to control of the information for their own purposes.
3.505. New subsection 54(2) provides that AFMA must specify the purpose(s) for which
the disclosure is authorised as set out in subsection 26(3).
Section 55: Unauthorised modification of identifying information
3.506. New section 55 outlines the circumstances in which modifying identifying
information is an offence. This new section closely corresponds to section 336G of
the Migration Act 1958.
3.507. New section 55 makes it an offence to cause any unauthorised modification of
identifying information, where that person intends to cause the modification and
knows that the modification is unauthorised. This offence carries a maximum penalty
of imprisonment for two years.
3.508. New section 57 further explains the parameters of unauthorised modification.
Section 56: Unauthorised impairment of identifying information
3.509. New section 56 outlines the circumstances in which impairing identifying
information is an offence. This new section closely corresponds to section 336H of
the Migration Act 1958.
3.510. New section 56 makes it an offence for a person to cause any unauthorised
impairment of:
- the reliability of identifying information; or
- the security of the storage of identifying information; or
- the operation of a system by which identifying information is stored
where that person intends to cause the impairment and knows that the impairment is
unauthorised. This offence carries a maximum penalty of imprisonment for two
years.
3.511. New section 57 further explains the parameters of unauthorised impairment.
Section 57: Meanings of unauthorised modification and unauthorised impairment etc.
3.512. New section 57 explains the terms "unauthorised" and "caused" in the context of
new sections 55 and 56. This section closely corresponds to section 336J of the
Migration Act 1958.
3.513. New subsection 57(1) explains that for the purposes of Division 4 of Part 5 any
action described in new section 55 and 56 is unauthorised if the person is not entitled
to cause that modification or impairment.
3.514. New subsection 57(2) states that any such modification or impairment caused by
the person is not unauthorised merely because that person has an ulterior purpose for
causing it.
3.515. New subsection 57(3) states that a person causes any modification or impairment of
identifying information if the person's conduct substantially contributes towards it.
This means that where two or more people have jointly caused an unauthorised
modification or impairment of identifying information they may all be liable under the
offences outlines in new sections 55 and 56.
3.516. New subsection 57(4) provides that where such modification or impairment is done
by a person under a warrant issued under the law of the Commonwealth, a State or a
Territory, this is authorised.
Section 58: Identifying information may be indefinitely retained
3.517. New section 58 simply provides that identifying information may be indefinitely
retained. This section corresponds closely with paragraph 336L(1)(a) of the
61
Migration Act 1958 because under Schedule 2 of the Torres Strait Fisheries Act 1984
any identifying information will always be about someone who is, or has been, in
detention. As such, this new section will facilitate the seamless transfer of detainees
from fisheries detention to immigration detention with one set of rules applying to the
detainee's entire period of detention.
Part 6: Disclosure of detainees' personal information
Section 59: Disclosure of detainees' personal information
3.518. New section 59 outlines the circumstances and purposes for which an agency or
organisation that has been responsible for the detention of an individual may disclose
personal information about the detainee.
3.519. New subsection 59(1) contains the types of agencies and organisations to which
personal information pertaining to a detainee may be disclosed by an agency which is,
or has been, responsible for the detention of that detainee. The agencies and
organisations to whom a disclosure of personal information about a detainee may be
made, are agencies or organisations that are, or will be, responsible for:
- taking the individual into immigration detention; or
- keeping the individual in immigration detention; or
- causing the individual to be kept in immigration detention; or
- the removal of the individual.
3.520. A disclosure of personal information may only be made to an organisation or agency
of:
- the immigration detention of the individual; and
- the removal of the individual; and
- the welfare of the individual while in immigration detention or being
removed.
3.521. This places a stringent restriction on the purposes by which personal information
may be shared. Information about detainees will only be disclosed to an agency or
organisation which has a legislative reason to know such information (in accordance
with new section 59). This will facilitate the seamless transfer of detainees from
fisheries detention to immigration detention with one set of rules applying to the
detainee's entire period of detention. The types of information that may be disclosed
would include medical, behavioural and identity information.
3.522. New subsection 59(3) defines `agency', `immigration detention', `organisation',
`personal information' and `removal' for the purposes of new section 59.
Part 3: Searching persons on boats suspected of illegal fishing
Division 1: Main amendments
FISHERIES MANAGEMENT ACT 1991
Item 21: After paragraph 84(1)(a)
3.523. This item amends section 84 of the Fisheries Management Act 1991 to confer an
additional search power on officers. New paragraph 84(1)(aaa) will enable officers to
search people on boats suspected of fishing illegally, or supporting a boat that is
suspected of fishing illegally, in the Australian Fishing Zone for the purpose of
determining whether any dangerous objects or evidence of an offence against
62
subsection 95(2) or section 99, 100, 100A, 101, 101A or 101B of the Act are being
held or concealed by the person.
3.524. Currently, officers have the power to search boats and seize evidence but the power
to search people does not apply until after they have been detained (once the boat has
reached Australia). This new power will ensure that objects that could present a
danger or constitute evidence of an offence can be secured by officers immediately,
removing the possibility of attack or loss of evidence due to a time delay before a
search can be conducted.
3.525. New paragraph 84(1)(aaa) of the Fisheries Management Act 1991 will be subject to
new section 84AA (see Item 23 below) which contains appropriate limitations on the
manner in which searches may be carried out under new paragraph 84(1)(aaa). New
section 84AA substantially replicates the conditions that already exist in relation to
searching detainees without a warrant, found in existing section 84B of the Fisheries
Management Act 1991.
Item 22: Paragraph 84(1)(c)
3.526. This item extends the power to examine things found during a search conferred on
officers in subsection 84(1)(c) of the Fisheries Management Act 1991 to cover items
found under new paragraph 84(1)(aaa) (Item 21 above).
Item 23: After section 84
3.527. This item places appropriate limitations on the new power to conduct searches that
will be added at section 84(1)(aaa) of the Fisheries Management Act 1991 (Item 21,
above). New section 84AA substantially replicates the conditions that already exist in
relation to searching detainees without a warrant, found in existing section 84B of the
Fisheries Management Act 1991.
3.528. New subsection 84AA(1) requires that a search conducted under new paragraph
84(1)(aaa) of Fisheries Management Act 1991 must only be conducted by an officer
of the same sex as the subject of the search (the subject).
3.529. However, new subsection 84AA(2) provides that where an officer of the same sex is
not available to conduct the search, the search may be conducted by another person
who is the same sex as the subject if that other person agrees, at the request of an
officer, to conduct the search.
3.530. New subsection 84AA(3) clarifies that nothing in this section or new paragraph
84(1)(aaa) authorises the officer, or other person conducting the search, to remove,
or require the subject to remove, any of the subject's clothing. Additionally, no
officer, or other person conducting the search, may use more force, or subject the
subject to greater indignity, than is reasonably necessary to conduct the search.
3.531. New subsection 84AA(4) provides that where an officer finds a weapon (or thing
capable of being used to inflict bodily harm) or evidence of detainable offences
(subsection 95(2) or sections 99, 100, 100A, 101, 101A or 101B of the Fisheries
Management Act 1991) while conducting a search, the officer may take possession of
that thing and keep the thing for as long as that officer thinks is necessary for the
purposes of the Fisheries Management Act 1991. This will allow officers to keep
items to be used as evidence of an offence or to prevent the item being used to cause
harm to another person while the subject is in the company of officers or in detention
in Australia.
3.532. New subsection 84AA(5) requires that where a person other than an officer finds an
item under new paragraph 84(1)(aaa), that person must take possession of the item
and give it to an officer who may keep it for as long as they think is necessary for the
purposes of the Fisheries Management Act 1991.
63
3.533. New subsection 84AA(6) provides that the item found during a search may be
retained for as long as is necessary for the purposes of the Fisheries Management Act
1991 or the Migration Act 1958, if the subject is eventually detained under the
Fisheries Management Act 1991.
3.534. The note beneath new subsection 84B(6) explains that the time that an item may be
kept can be extended because once a subject is detained under the Fisheries
Management Act 1991 that person will generally also be detained under the Migration
Act 1958 following the expiry of their enforcement visa. The reasons for retaining a
weapon, for example, remain the same despite changing from fisheries to immigration
detention.
Item 24: Subsection 87A(1)
3.535. This item amends subsection 87A(1), which relates to the powers of officers in
relation to a Fish Stocks Agreement (FSA) boat (a boat of the nationality of a foreign
country that is party to the FSA) on the high seas to include the new search powers
contained in new paragraph 84(1)(aaa) (Item 21 above). The power to conduct a
search does not extend to the searching for evidence. This power is consistent with
the FSA.
Item 25: Subsection 87B(1) (after table item 2)
3.536. This item amends section 87B to include a new item in the table within that section.
This addition to the table will clarify the application of powers of officers in relation
to a Fish Stocks Agreement (FSA) boat by directing that the reference in the new
section 84(1) (aaa) (Item 21 above) to section 99, 100, 100A, 101 or 101A be applied
as if it was a reference to an offence against section 105E or 105F of the Fisheries
Management Act 1991. Sections 105E or 105F are offences relating to the
intentional breach of a regional management measure or arrangement.
3.537. This amendment also provides that a reference to a foreign boat used as the support
boat in an offence against section 101B should be omitted in applying the power
contained in new paragraph 84(1)(aaa) to FSA boats on the high seas.
3.538. This amendment will enable the amendment to subsection 87A(1), outlined in Item
24 above, to take effect. That is, officers will have the power to search a person on
an FSA boat on the high seas without warrant where they reasonably suspect that the
FSA boat has been used in an offence against sections 105E or 105F of the Fisheries
Management Act 1991.
Item 26: After subsection 87H(2)
3.539. This item amends section 87H of the Fisheries Management Act 1991 to extend the
powers of officers in relation to boats on the high seas without a nationality.
3.540. New subsection 87H(2A) will allow officers to search people, without a warrant, on
boats on the high seas without a nationality for weapons or anything capable of being
used to injure another person.
3.541. New subsection 84H(2B) provides that the limitations and rules for retaining items
under the new section 84AA (Item 23) will also apply to new subsection 87H(2A).
3.542. This new power to search people on boats on the high seas without a nationality will
ensure the safety of fisheries officers from any possibility of attack while they are
exercising their existing power under subsection 87H(1) to board and inspect boats on
the high seas where the officer has reasonable grounds to believe that the boat has no
nationality.
TORRES STRAIT FISHERIES ACT 1984
64
Item 27: At the end of paragraph 42(1)(a)
3.543. This item allows Item 28 (below) to be added to section 42(1) of the Torres Strait
Fisheries Act 1984 and clarifies, along with Items 29, 31 and 32 (below), that the use
of one of the powers contained in section 42(1) does not preclude the use of one or
more of the other powers contained in that section.
Item 28: After paragraph 42(1)(a)
3.544. This item amends section 42 of the Torres Strait Fisheries Act 1984 to confer a
search power on officers. This new section replicates new paragraph 84(1)(aaa) of
the Fisheries Management Act 1991 (Item 21 above).
3.545. New paragraph 42(1)(aa) will enable officers to search people on boats suspected of
fishing illegally, in the Torres Strait Protected Zone for the purpose of determining
whether any dangerous objects or evidence of an offence against subsection 45(1)(a)
or section 48, 49 or 51 of the Torres Strait Fisheries Act 1984 are being held or
concealed by the person.
3.546. This new power will ensure that objects that could present a danger or constitute
evidence of an offence can be secured by officers, removing the possibility of attack
or loss of evidence due to a time delay before a search could be conducted.
3.547. New paragraph 42(1)(aa) of the Torres Strait Fisheries Act 1984 will be subject to
new section 42A (see Item 33 below) which contains appropriate limitations on the
manner in which searches may be carried out under new paragraph 42(1)(aa). This
new section exactly replicates new subsection 84AA(1) of the Fisheries Management
Act 1991 (Item 23 above).
Item 29: At the end of paragraphs 42(1)(b) and (ba)
3.548. This item clarifies, along with Items 27 (above), 31 and 32 (below), that the use of
one of the powers contained in section 42(1) of the Torres Strait Fisheries Act 1984
does not preclude the use of one or more of the other powers contained in that
section.
Item 30: Paragraph 42(1)(c)
3.549. This item extends the power to examine things found during a search conferred on
officers in subsection 42(1)(c) of the Torres Strait Fisheries Act 1984 to cover new
paragraph 42(1)(aa) (Item 28 above). This amendment mirrors the amendment made
to the Fisheries Management Act 1991 by Item 22 above.
Item 31: At the end of paragraphs 42(1)(d) and (e)
3.550. This item clarifies, along with Item 27, 29 (above) and 32 (below), that the use of
one of the powers contained in section 42(1) of the Torres Strait Fisheries Act 1984
does not preclude the use of one or more of the other powers contained in that
section.
Item 32: After section 42
3.551. This item clarifies, along with Items 27, 29 and 32 (above), that the use of one of
the powers contained in section 42(1) of the Torres Strait Fisheries Act 1984 does
not preclude the use of one or more of the other powers contained in that section.
Item 33: Searches under paragraph 42(1)(aa)
3.552. This item adds new section 42A to the Torres Strait Fisheries Act 1984 which
places appropriate limitations on the new power to conduct searches that will be
65
added by new paragraph 42(1)(aa) of the Torres Strait Fisheries Act 1984
(Item 28, above). This new section closely replicates new subsections 84AA(1), (2),
(3), (4) and (5) of the Fisheries Management Act 1991 (Item 23 above).
Division 2: Amendment contingent on detention power
TORRES STRAIT FISHERIES ACT 1984
Item 34: At the end of section 42A
3.553. This item will add another subsection to new section 42A which is contingent on the
addition of detention powers to the Torres Strait Fisheries Act 1984 also contained in
this package of amendments. This new section closely replicates new subsection
84AA(6) of the Fisheries Management Act 1991 (Item 23 above).
Part 4: Forfeiture etc. of things involved in illegal fishing
Division 1: Main amendments
TORRES STRAIT FISHERIES ACT 1984
Item 35: After paragraph 42(1)(e)
3.554. This item adds new paragraph 42(1)(ea) to the Torres Strait Fisheries Act 1984.
This new paragraph empowers officers to seize boats, equipment and fish where those
items have been automatically forfeited to the Commonwealth under new section 52A
of the Torres Strait Fisheries Act 1984 (Item 36 below) or the officer has reasonable
grounds to believe that the items have been forfeited under that section.
Item 36: After section 52
3.555. This item adds an automatic forfeiture scheme to the Torres Strait Fisheries Act
1984, similar the scheme already contained in sections 106A to 106H of the Fisheries
Management Act 1991. This addition will provide for greater consistency in
Australia's approach to the management of boats and other things (things) used in
fisheries offences. At present, boats, equipment and catch seized under the Torres
Strait Fisheries Act 1984 can only be forfeited by a court. Automatic forfeiture will
provide an additional deterrent to illegal fishing activity.
Subdivision B: Automatic forfeiture of things used in certain offences
Section 52A: Forfeiture of things used in certain offences
3.556. New section 52A provides for the automatic forfeiture of boats used in offences
against subsection 45(2) or sections 48, 49 or 51 of the Torres Strait Fisheries Act
1984. Automatic forfeiture will also apply to equipment and fish that were either on a
boat at the time of an offence against those provisions or used or involved in the
commission of the offence. This provision is located in new Subdivision B of Part VI
of the Torres Strait Fisheries Act 1984.
Subdivision C: Dealing with things seized as automatically forfeited
3.557. New Subdivision C of Division 3 of Part VI of the Torres Strait Fisheries Act 1984
(new sections 52B, 52C, 52D, 52E, 52F, 52G and 52H) contains the rules for dealing
66
with things seized under new section 52A as being automatically forfeited to the
Commonwealth.
Section 52B: Application of this Subdivision
3.558. New section 52B states that the purpose of new Subdivision C is to set out rules
applying to things seized under the new power contained in new paragraph 42(1)(ea),
because it was forfeited under new section 52A or the officer had reasonable grounds
to believe that it had been forfeited under new section52A. New section 52B
substantially replicates the existing section 106B of the Fisheries Management Act
1991.
Section 52C: Notice of seizure
3.559. New section 52C provides the rules for giving notice of the seizure of a thing which
is automatically forfeited to the Commonwealth. New section 52C substantially
replicates existing section 106C of the Fisheries Management Act 1991.
3.560. New subsection 52C(1) states that a written notice of the seizure must be given to
the person who was, or who the officer has reasonable grounds to believe was, the
master of the boat immediately prior to its seizure. New subsection 52C(2) provides
that the notice of seizure must identify the thing that has been seized as being
automatically forfeited to the Commonwealth and state that it has been seized. The
notice must also state that the thing will be condemned as forfeited unless the owner
of the thing or the person who had possession, custody or control of the thing
immediately before it was seized makes a written claim to the Managing Director of
AFMA, within 30 days. Condemnation of the thing occurs under sections 52E and
52G of the Act
Section 52D: Dealing with the thing before it is condemned
3.561. New section 52D provides the rules for dealing with a thing before it has been
condemned under new section 52E or 52G. New section 52D substantially replicates
the existing section 106D of the Fisheries Management Act 1991.
3.562. Under new subsection 52D(1), AFMA may destroy a boat that has been seized as
forfeited to the Commonwealth in certain circumstances. These circumstances are
where the boat is unseaworthy or poses a serious risk to safety, public health,
quarantine, other property or the environment. A boat may also be destroyed or
disposed of where the expenses of custody and maintenance of the boat in the period
between the time of its seizure and the time of its condemnation are likely to be
greater than its value.
3.563. New subsection 52D(2) provides that where AFMA causes the boat to be disposed,
this may be made subject to certain conditions.
3.564. New subsection 52D(3) contains a table which list the other provisions of the Torres
Strait Fisheries Act 1984 that are relevant to dealing with things, other than boats,
before they have been condemned. Paragraph 42(1)(q) grants an officer the power to
sell any fish seized under the Torres Strait Fisheries Act 1984 and new section 52I
which provides for the release of things to the owner of the thing on certain
conditions.
Section 52E: Thing condemned if not claimed in time
3.565. New subsection 52E(1) provides that a thing is condemned as forfeited to the
Commonwealth if a written claim for the thing is not received by the Managing
Director from the owner, or person who had possession of the thing immediately prior
to seizure, within 30 days of a notice being issued under new section 52C. This new
67
section substantially replicates the existing section 106E of the Fisheries Management
Act 1991.
3.566. New subsection 52E(2) clarifies that an owner of a thing, or person who had
possession of the thing immediately prior to seizure, may claim the thing even if it is
disposed of or destroyed either before or after the claim is made.
Section 52F: Dealing with claim for thing
3.567. New section 52F outlines the procedure for dealing with a thing after it has been
claimed. New section 52F substantially replicates the existing section 106F of the
Fisheries Management Act 1991.
3.568. New paragraph 52F(1)(a) provides that where a thing is claimed, an officer may
retain possession of the thing without initiating any proceedings for the condemnation
of the thing.
3.569. New paragraph 52F(1)(b) states that the Managing Director of AFMA may choose
to provide the claimant a written notice stating that the thing will be condemned if the
claimant does not institute proceedings against the Commonwealth within two
months. The proceedings that may be instituted to avoid condemnation of the thing
are either:
- to recover the thing; or
- for a declaration that the thing is not forfeited.
3.570. The second note below new subsection 52F(1) clarifies that if the Managing
Director of AFMA does give the notice referred to in new paragraph 52F(1)(b) and
the claimant does institute proceedings, whether the claimant will recover the thing or
not will depend on the Court's decision in those proceedings.
3.571. New subsection 52F(2) states for the purposes of section 29 of the Acts
Interpretation Act 1901 the notice in new paragraph 52F(1)(b) may be given to the
claimant by posting it to the last address of the claimant that is known to the
Managing Director of AFMA. In practice, the last known address of the claimant is
likely to be the address that was provided in the notice of claim (as required by new
paragraph 52E(1)(c)).
3.572. New subsection 52F(3) states that the Managing Director of AFMA is not limited in
the ways that notice can be given to the claimant.
3.573. The note associated with new subsection 52F(3) states that section 28A and 29 of
the Acts Interpretation Act 1901 contain the relevant procedures for providing a
notice under new paragraph 52F(1)(b).
3.574. New subsection 52F(4) is provided to ensure that there is no doubt that notice may
be given under new paragraph 52F(1)(b) even if the thing has already been released
under new section 52I.
Section 52G: Condemnation of thing if it claimed
3.575. New section 52G provides the procedures that follow the provision of a notice by
the Managing Director of AFMA under the new section 52F. New section 52G
substantially replicates the existing section 106G of the Fisheries Management Act
1991.
3.576. New subsection 52G(1) states that new section 52G applies where the Managing
Director of AFMA has given a claimant a notice under new section 52F about the
possibility of instituting proceedings to recover the thing or for a declaration that the
thing is not forfeited.
3.577. New subsection 52G(2) provides that if the claimant to whom the notice under new
section 52F was provided does not institute proceedings within 2 months (of that
notice being provided), the thing is condemned as forfeited to the Commonwealth.
68
3.578. New subsection 52G(3) provides that where proceedings are instituted by the
claimant within 2 months, the thing will be condemned as forfeited to the
Commonwealth at the end of those proceedings unless those proceedings result in:
- an order for the claimant to recover the thing; or
- an order for the Commonwealth to pay the claimant the proceeds of the sale
of the thing if it has been sold before the end of the proceedings; or
- an order for the Commonwealth to pay the claimant the market value of the
thing at the time it was disposed of (except by sale) or destroyed, if it has
been disposed of (except by sale) or destroyed before the end of the
proceedings; or
- a declaration that the thing is not forfeited.
3.579. New subsection 52G(4) clarifies for the purposes of new section 52G(3) that the
end of proceedings, if the proceedings go to judgment, is:
- at the end of the period for lodging an appeal against the judgement, if no
appeal is lodged within that period; or
- when an appeal lapses or is finally determined, if an appeal is lodged against
the judgment within that period.
3.580. New subsection 52G(5) clarifies that proceedings relating to the claimed thing may
be instituted or continued even if the claimed thing is disposed of or destroyed.
3.581. New subsection 52G(6) requires that, in certain circumstances, a court must order
the Commonwealth to pay a person an amount equal to:
- the proceeds of the sale of the thing, if it has been sold before the end of the
proceedings; or
- the market value of the thing at the time it was disposed of (except by sale)
or destroyed, where it has been disposed of (except by sale) or destroyed
before the end of the proceedings.
3.582. The circumstances in which a court is required to make such an order is where the
claimed thing has been disposed of or destroyed and the court decides that it would
have ordered that the thing be delivered to the claimant apart from the fact that the
thing had been disposed of or destroyed.
Section 52H: Dealing with thing after it is condemned
3.583. New section 52H provides that if a thing is condemned as forfeited to the
Commonwealth, the thing must be dealt with or disposed of in accordance with the
directions of the Minister. New section 52H exactly replicates the existing section
106H of the Fisheries Management Act 1991.
Division 4: Dealing with property that has been seized etc.
3.584. New Division 4 of Part VI of the Torres Strait Fisheries Act 1984 (new sections 52I
and 52J) contains procedures for dealing with property that has been seized, bonding
of property to owners and the status of the Admiralty Act 1988.
3.585. A new heading has been added for Division 4 which will make the different sections
of the Torres Strait Fisheries Act 1984 easier to interpret and is consistent with the
format of the Fisheries Management Act 1991.
Section 52I: Release of property that has been seized etc.
3.586. New section 52I deals with the release of property that has been seized and
substantially replicates the existing section 88 of the Fisheries Management Act 1991.
3.587. New section 52I will allow AFMA to release things forfeited under the Torres Strait
Fisheries Act 1984, on whatever conditions they believe appropriate, in the same
manner that property is currently released under the Fisheries Management Act 1991.
69
This will allow Australia to effectively comply with its international obligations, under
the United Nations Convention on the Law of the Sea, to provide an opportunity for
owners of seized vessels to pay a bond to have their property returned to them.
3.588. This power can only be exercised before the property has been either condemned or
ordered by a court to be restored to its owner.
3.589. New paragraphs 52I(1)(a) and (b) provide that the property can be released to either
the owner or master of a boat (where the property in question is a boat) or to the
owner of the property or the person from whom the property was removed.
3.590. New paragraphs 52I(1)(c) and (d) include examples of the types of conditions that
AFMA may place on the release of property. These examples relate to the value of
the property if it is forfeited or the payment of any fines that may be imposed under
the Torres Strait Fisheries Act 1984.
3.591. New subsection 52I(2) provides that in some circumstances, the conditions on
which the property may be released may include payment of the costs of the
prosecution, where there is a possibility that a court could order that such a payment
be made in relation to an offence relating to the property. This can only be done if it
is property referred to in new subsection 52I(1) and is also property referred to in
section 52, which deals with court ordered forfeiture of property related to illegal
foreign fishing offences.
3.592. New subsection 52I(3) clarifies that fish is included in a reference to property in new
section 52I and that property is taken to be in the control of an officer where the
possessor of the property is subject to the direction of an officer, whether or not an
officer is directly in possession of the property.
Section 52J: Seizure or forfeiture has effect despite admiralty proceedings
3.593. New section 52J specifies that the seizure, detention or forfeiture of a boat under the
Torres Strait Fisheries Act 1984 overrides certain actions taken under the Admiralty
Act 1988. New section 52J substantially replicates section 108A of the Fisheries
Management Act 1991.
3.594. This new section will ensure that Australian investigations and judicial actions are
not frustrated by third parties such as foreign mortgagees. As well as providing
consistency with the Fisheries Management Act 1991, this protection is also
important given the possibility of larger foreign boats fishing illegally in the Torres
Strait in the future.
3.595. New subsection 52J(1) states that the seizure, detention or forfeiture of a boat under
the Torres Strait Fisheries Act 1984 will have effect despite the arrest of a boat under
the Admiralty Act 1988 or the making of an order for the sale of the boat or the actual
sale of the boat due to court proceedings brought under the Admiralty Act 1988.
3.596. New subsection 52J(2) clarifies that new subsection 52J(1) has effect regardless of
the relative timing of any these actions.
Division 2 - Related Amendments
TORRES STRAIT FISHERIES ACT 1984
Item 37: Before section 42
3.597. A new heading has been added for Division 1 which will make the different sections
of the Torres Strait Fisheries Act 1984 easier to interpret and is consistent with the
format of the Fisheries Management Act 1991.
70
Item 38: Before section 44
3.598. A new heading has been added for Division 2 which will make the different sections
of the Torres Strait Fisheries Act 1984 easier to interpret and is consistent with the
format of the Fisheries Management Act 1991.
Item 39: Before section 52
3.599. A new heading has been added for Division 3 which will make the different sections
of the Torres Strait Fisheries Act 1984 easier to interpret and is consistent with the
format of the Fisheries Management Act 1991.
Item 40: Before section 53
3.600. A new heading has been added for Division 5 which will make the different sections
of the Torres Strait Fisheries Act 1984 easier to interpret and is consistent with the
format of the Fisheries Management Act 1991.
Item 41: Before section 54
3.601. A new heading has been added for Division 6 which will make the different sections
of the Torres Strait Fisheries Act 1984 easier to interpret and is consistent with the
format of the Fisheries Management Act 1991.
Part 5: Offences against persons with powers and functions under fisheries law
FISHERIES MANAGEMENT ACT 1991
Item 42: Paragraph 108(1)(e)
3.602. This item broadens the offence contained in section 108(1)(e) to include using
abusive or threatening language to any person exercising a power or performing a
function under the Fisheries Management Act 1991. This amendment has been
included to ensure the safety of every person who is exercising or performing any
power, function or duty under the Fisheries Management Act 1991, such as AFMA
officials, detention officers and others who may not be "officers" under the Fisheries
Management Act 1991.
Item 43: Paragraph 108(1)(f)
3.603. This item broadens the offence contained in section 108(1)(f) to include assaulting,
resisting or obstructing any person exercising a power or performing a duty under the
Fisheries Management Act 1991. This amendment has been included to ensure the
safety of every person who is exercising or performing any power, function or duty
under the Fisheries Management Act 1991, such as AFMA officials, detention
officers and others who may not be "officers" under the Fisheries Management Act
1991.
TORRES STRAIT FISHERIES ACT 1984
Item 44: At the end of paragraph 43(1)(e)
3.604. This item broadens the offence contained in section 43(1)(e) to include using
abusive or threatening language to any person exercising a power or performing a
function under the of the Torres Strait Fisheries Act 1984. This amendment exactly
replicates the amendment made to section 108(1)(e) of the Fisheries Management Act
1991 (Item 42 above).
71
Item 45: After paragraph 43(1)(e)
3.605. This item adds the offence of assaulting, resisting or obstructing an officer or a
person who is exercising or performing any power, function or duty of an officer to
the Torres Strait Fisheries Act 1984. New paragraph 43(1)(f) exactly replicates
section 108(1)(f) of the Fisheries Management Act 1991 (as amended by Item 43
above) and is essential both to ensuring the safety of every person who is exercising
or performing any power or function under the Torres Strait Fisheries Act 1984 and
providing consistency with the Fisheries Management Act 1991.
Schedule 2: Enforcement visas etc.
Part 1: Visas etc. relating to exercise of powers under Torres Strait Fisheries Act
1984
MIGRATION ACT 1958
Item 1: Subsection 5(1) (definition of fisheries detention offence)
3.606. This item replaces the current definition of "fisheries detention offence" in the
Migration Act 1958 with a new definition which includes offences against section 45,
48, 49 or 51 of the Torres Strait Fisheries Act 1984 and section 6 of the Crimes Act
1914 (as it relates to the other offences listed in the definition) as well as sections 99,
100, 100A, 101, 101A, 101B, 105E or 105F of the Fisheries Management Act 1991
which are included in the existing section.
3.607. This amendment is part of a package of amendments that will ensure that
exemptions from certain visa requirements contained in the Migration Act 1958 refer
to people held under certain offences in the Torres Strait Fisheries Act 1984. Once a
person is detained under these offences, an enforcement visa will be granted to the
non-citizen by operation of law.
Item 2: Subsection 5(1) (definition of fisheries officer)
3.608. This item replaces the current definition of "fisheries officer" in the Migration Act
1958 to include an officer appointed under the Torres Strait Fisheries Act 1984 as
well as officers as defined in the Fisheries Management Act 1991.
3.609. This amendment is part of a package of amendments that will ensure that
exemptions from certain visa requirements contained in the Migration Act 1958 refer
to relevant circumstances in the Torres Strait Fisheries Act 1984 as well as the
Fisheries Management Act 1991.
Item 3: Subparagraph 43(3)(b)(i)
3.610. This item extends the exemption from the requirement to enter Australia through a
port or by way of a pre-cleared flight under paragraph 43(3)(b) of the Migration Act
1958. Subparagraph 43(3)(b)(i) will now include a reference to people brought into
Australia on a boat that has been required to enter Australia by a fisheries officer
under section 42(1)(g) of the Torres Strait Fisheries Act 1984 as well as people
brought to Australia under a similar requirement authorised by either paragraph
84(1)(k)(ii) or 84(1)(l) of the Fisheries Management Act 1991.
3.611. This amendment is part of a package of amendments that will ensure that
exemptions from certain visa requirements contained in the Migration Act 1958 refer
to relevant circumstances in the Torres Strait Fisheries Act 1984 as well as the
Fisheries Management Act 1991.
72
Item 4: Subparagraph 43(3)(b)(ii)
3.612. This item also extends the exemption from the requirement to enter Australia
through a port or by way of a pre-cleared flight mentioned in the previous paragraph
by amending subparagraph 43(3)(b)(ii) of the Migration Act 1958. This subsection
will now include people brought into Australia on a boat that has been required to
enter Australia by a fisheries officer under paragraphs 42(1)(h) of the Torres Strait
Fisheries Act 1984 as well as under paragraph 84(1)(m) of the Fisheries Management
Act 1991.
3.613. This amendment is part of a package of amendments that will ensure that
exemptions from certain visa requirements contained in the Migration Act 1958 refer
to relevant circumstances in the Torres Strait Fisheries Act 1984 as well as the
Fisheries Management Act 1991.
Item 5: Paragraph 164B(1)(a)
3.614. This item extends the circumstances in which an enforcement visa will be granted to
a non-citizen on a foreign boat outside Australia's migration zone, outlined in
paragraph 164B(1) of the Migration Act 1958 to include offences under the Torres
Strait Fisheries Act 1984 as well as the Fisheries Management Act 1991.
3.615. The amendment to paragraph 164B(1)(a) will allow an enforcement visa to be
granted in circumstances where a fisheries officer has reasonable grounds to believe
that the boat has been, currently is, or will be involved in the commission of a fisheries
detention offence and a fisheries officer has made a requirement of the boat's master
under paragraph 42(1)(g) of the Torres Strait Fisheries Act 1984 or subparagraph
84(1)(k)(ii) or paragraph 84(1)(l) of the Fisheries Management Act 1991.
3.616. This amendment is part of a package of amendments that will ensure that the
enforcement visa regime contained in Division 4A of the Migration Act 1958 can be
applied to illegal foreign fishing offences under the Torres Strait Fisheries Act 1984
as well as to offences under the Fisheries Management Act 1991.
Item 6: Paragraph 164B(1)(b)
3.617. This item also extends the circumstances in which an enforcement visa will be
granted to a non-citizen on a foreign boat outside Australia's migration zone, as
outlined in paragraph 164B(1) of the Migration Act 1958.
3.618. The amendment to paragraph 164B(1)(b) will allow an enforcement visa to be
granted in circumstances where a fisheries officer exercises his or her power under
paragraph 42(1)(h) of the Torres Strait Fisheries Act 1984 or paragraph 84(1)(m) of
the Fisheries Management Act 1991 in relation to the boat due to its suspected
involvement in an illegal activity.
3.619. This amendment is part of a package of amendments that will ensure that the
`enforcement visa regime' contained in Division 4A of the Migration Act 1958 can be
applied to illegal foreign fishing offences under the Torres Strait Fisheries Act 1984
as well as to offences under the Fisheries Management Act 1991.
Item 7: Subsection 164B(1)(note 2)
3.620. This item explains that under paragraph 42(1)(g) of the Torres Strait Fisheries Act
1984, a fisheries officer may require the master of a boat to bring or take the boat into
the migration zone. Under paragraph 42(1)(h) of the Act, a fisheries officer may
bring a boat into the migration zone.
Item 8: Subsections 164B(3) and (4)
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3.621. This item adds to subsections 164B(3) and (4). This is so that enforcement visas
can be granted where prescribed actions are taken by fisheries officers in prescribed
circumstances in relation to non-citizens and/or boats under the Torres Strait
Fisheries Act 1984 as well as the Fisheries Management Act 1991.
3.622. This amendment is part of a package of amendments that will ensure that the
enforcement visa regime contained in Division 4A of the Migration Act 1958 can be
applied to illegal foreign fishing offences under the Torres Strait Fisheries Act 1984
as well as to offences under the Fisheries Management Act 1991.
Item 9: Saving of enforcement visas
3.623. This item ensures that any enforcement visas issued before the commencement of
the amendments outlined in Part 1 of Schedule 2 will remain valid following
commencement of those provisions.
Part 2: Amendments relating to new fisheries detention provisions
MIGRATION ACT 1958
Item 10: Section 164A (definition of fisheries detention)
3.624. This item replaces the current definition of "fisheries detention" in the Migration Act
1958 to reflect the new definitions to be included in new section 2 of Schedule 2 of
the Torres Strait Fisheries Act 1984 and new section 2 of Schedule 1A of the
Fisheries Management Act 1991.
3.625. This amendment is part of a package of amendments that will ensure that the
enforcement visa regime contained in Division 4A of the Migration Act 1958 can be
applied to illegal foreign fishing offences under the Torres Strait Fisheries Act 1984
as well as to offences under the Fisheries Management Act 1991.
Item 11: Subsection 164B(2)
3.626. This amendment replaces a reference to officers' powers under the Fisheries
Management Act 1991 with an updated reference to the relevant Schedules of the
Fisheries Management Act 1991 and the Torres Strait Fisheries Act 1984 regarding
the detention of illegal fishers.
3.627. This amendment is part of a package of amendments that will ensure that the
enforcement visa regime contained in Division 4A of the Migration Act 1958 can be
applied to illegal foreign fishing offences under the Torres Strait Fisheries Act 1984
as well as to offences under the Fisheries Management Act 1991.
Item 12: Saving of enforcement visas
3.628. This item ensures that any enforcement visas issued before the commencement of
the amendments outlined in Part 2 of Schedule 2 will remain valid following
commencement of those provisions.
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