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MIGRATION AMENDMENT REGULATIONS 2001 (NO. 10) 2001 NO. 284
EXPLANATORY STATEMENTSTATUTORY RULES 2001 No. 284
Issued by the Authority of the Minister for Immigration and Multicultural Affairs
Migration Act 1958
Migration Amendment Regulations 2001 (No. 10)
Subsection 504(1) of the Migration Act 1958 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
In addition, regulations may be made pursuant to the powers listed in Attachment A.
In general terms, the regulations are about search powers that may be exercised at sea in relation to persons found on board ships attempting to enter Australian waters without lawful authority. They also allow for detention, search and movement of the ship involved.
More specifically, the powers may be exercised where:
• an officer is satisfied that the ship is one that is entitled to fly the flag of a foreign country, and
• Australia has an agreement or arrangement with that country which enables the exercise of Australian jurisdiction over the ship.
The Regulations, however, only apply where there is an agreement or arrangement with a foreign country which enables the exercise of Australian jurisdiction over a ship entitled to fly the flag of that country. They do not purport to apply generally in all circumstances where a ship is boarded at sea under powers found in the Act and must also be exercised consistently with the agreement or arrangement itself.
The Regulations also provide for the protection of officers and others acting in good faith from actions and proceedings (whether civil or criminal) flowing from the exercise of the powers.
The Regulations are part of a package of legislative amendments in response to the unauthorised arrival in Australia by groups of non-citizens. They are intended to strengthen the legal framework by which the Government can protect its orders.
Details of the Regulations are contained in Attachment B to this memorandum. The Regulations commence on gazettal.
Attachment A
Details of other relevant regulation-making powers are as follows:
• section 245F of the Act provides the power for officers, including members of the Australian Defence Force, to board and search ships and aircraft in certain circumstances;
• subsection 245F(14) of the Act provides that if the ship is a foreign ship that is entitled to fly the flag of a country and Australia has an agreement or arrangement with that country which enable the exercise of Australian jurisdiction over ships of that country; then the officer may exercise any powers prescribed by the regulations;
• subsection 245F(14) also provides that the powers may only be exercised in a manner consistent with the agreement or arrangement in relation to the ship or persons found on the ship; and
• section 245G of the Act allows the boarding of certain ships on the high seas, and includes provisions similar to that described above.
Attachment B
Regulation 1 - Name of Regulations
This regulation provides that these Regulations are the Migration Amendment Regulations 2001 (No. 10).
Regulation 2 - Commencement
This regulation provides that these Regulations commence on gazettal.
Regulation 3 - Amendment of Migration Regulations 1994
This regulation provides that Schedule 1 to these Regulations amends the Migration Regulations 1994 (the Regulations).
Schedule 1 - Amendment
Item 1 - After Division 5.6
Item 1 inserts new Division 5.6A after Division 5.6 in Part 5 of the Regulations.
New Division 5.6A - Powers under an agreement with a foreign country
New Division 5.6A is intended to support action by, inter alia, Defence Force personnel in escorting vessels back to a country with which Australia has an agreement or arrangement which enables the exercise of Australian jurisdiction over ships of that country. In doing so, officers are given certain powers in relation to the ship or persons found on the ship.
The new Division contains new regulations 5.35A, 5.35B, 5.35C, 5.35D, 5.35E and 5.35F. In brief, these new regulations:
• contain definitions for the purposes of the new Division;
• set out, for the new Division, the extent to which powers relating to restraining individuals may be exercised;
• set out, for the new Division, the extent to which powers relating to searching individuals, or property under the immediate control of individuals, may be exercised;
• protect officers and individuals assisting officers from civil or criminal actions or proceedings in relation to certain action taken under the new Division;
• prescribe powers pursuant to subsection 245F(14) of the Act. Section 245F deals, in part, with the power to board and search a ship that is outside the territorial sea of a foreign country; and
• prescribe powers pursuant to subsection 245G(4) of the Act. Section 245G deals, in part, with the power to board a ship on the high seas.
New regulation 5.35A - Definitions
New regulation 5.35A sets out definitions of place and weapon, for the purposes of new Division 5.6A.
"Place" is defined to mean any place in or outside Australia. Therefore, under new paragraphs 5.35E(e) and 5.35F(1)(f), a ship can be brought to a place in or outside Australia that the officer considers appropriate.
"Weapon" is defined to include any thing capable of being used to inflict bodily injury or to help an individual escape from restraint. The new definition relates to the ability of an officer or an individual assisting an officer to search an individual under new regulation 5.35C (see subregulation 5.35C(2)).
In addition, the new definition relates to the ability of an officer to take possession of a weapon under new paragraphs 5.35E(b) and 5.35F(1)(c).
New regulation 5.35B - Exercise of power to restrain an individual
This new regulation sets out, for new Division 5.6A, the extent to which powers relating to restraining individuals may be exercised.
Under new paragraph 5.35B(1)(a), an officer or individual who assists the officer in the exercise of a power under the new Division to restrain an individual must not use more force, or subject a person to greater indignity, than is reasonably necessary in order to conduct the search.
Under new paragraph 5.35B(1)(b), an officer or individual who assists the officer in the exercise of a power under the new Division to restrain an individual must not do anything likely to cause the person (in relation to whom the power is being exercised) grievous bodily harm unless the officer or individual assisting the officer believes on reasonable grounds that doing the thing is necessary to protect life or prevent serious injury to the person or another person (including the officer or the other person assisting the officer).
New subregulation 5.35B(2) contains a definition of officer for the purposes of regulation 5.35B. "Officer" is defined to include an individual assisting the officer.
New regulation 5.35C - Exercise of power to search an individual
This new regulation sets out, for new Division 5.6A, the extent to which powers relating to searching individuals, the clothing of individuals, or property under the immediate control of individuals, may be exercised.
The purpose for which such powers may be exercised is set out in new subregulation 5.35C(2). It provides that a search of an individual, the clothing of the individual, or property under the immediate control of the individual may be conducted to find out whether a person is carrying, or there is hidden on a person, in his or her clothing or in his or her property, a weapon or other thing capable of being used to inflict bodily injury or to help the person to escape (see also definition of "weapon" in new regulation 5.35A).
New subregulation 5.35C(3) makes it clear that under the new Division, the powers relating to searching individuals, the clothing of individuals, or property under the immediate control of individuals are only frisk or pat-down search powers. In other words, such search powers under new Division 5.6A do not authorise an officer, or another person conducting a search of an individual under new subregulation 5.35C(4), to remove a person's clothing or to require a person to remove his or her clothing.
However, new subregulation 5.35C(3) does permit the removal of a person's outer garments (including but not limited to the person's overcoat, coat, jacket, gloves, shoes and head covering).
New subregulation 5.35C(4) imposes a same-sex requirement in relation to the officer or person who conducts a search of a person under new regulation 5.35C.
New paragraph 5.35C(4)(a) provides that a search of a person, and that person's clothing, must be conducted by an officer of the same sex as the person.
New paragraph 5.35C(4)(b) provides for the situation where an officer of the same sex as the person to be searched is not available to conduct the search. It allows any other person, who is of the same sex as the person to be searched, to conduct the search if requested by an officer.
New regulation 5.35D - Protection of persons when acts done in good faith
New subregulation 5.35D(1) provides that an action or proceeding (whether civil or criminal) does not lie against the Commonwealth, an officer, or any person assisting an officer who restrains a person under new Division 5.6A. This is the case as long as the officer, or any person assisting an officer, who took the action acted in good faith and used no more force than was authorised by new regulation 5.35B.
New subregulation 5.35D(2) provides that an action or proceeding (whether civil or criminal) does not lie against a person who, at the request of an officer under subregulation 5.35C(4), conducts a search under that subregulation. This is the case as long as the person acts in good faith and does not contravene new subregulation 5.35C(5).
New regulation 5.35E - Powers when boarding certain foreign ships (Act s 245F (14))
New regulation 5.35E prescribes powers pursuant to subsection 245F(14) of the Act. Section 245F deals, in part, with the power to board and search a ship that is outside the territorial sea of a foreign country. Subsection 245F(14) allows an officer to exercise any powers prescribed by the regulations in certain circumstances, including where Australia has an agreement or arrangement with a foreign country, the flag of which the ship is flying.
The new powers in regulation 5.35E are only able to be exercised where they are consistent with the agreement or arrangement with the foreign country.
New paragraph 5.35E(a) allows a person on the ship, his or her clothing and any property under the immediate control of the person, to be searched without a warrant.
The purpose for which the new search power in paragraph 5.35E(a) may be exercised is set out in new regulation 5.35C. It provides that a search may be conducted under new Division 5.6A to find out whether a person is carrying, or there is hidden on a person, in his or her clothing or in his or her property, a weapon or other thing capable of being used to inflict bodily injury or to help the person to escape.
If a weapon or other thing (see definition of "weapon" in new regulation 5.35A) is found in the course of a search, new paragraph 5.35E(b) allows an officer to:
• take possession of the weapon or other thing; and
• retain the weapon or other thing for such time as he or she thinks necessary for the purposes of regulation 5.35E.
New paragraph 5.35E(c) allows an officer to restrain any person on board the ship for such time as he or she thinks necessary for the purposes of regulation 5.35E.
New paragraph 5.35E(d) allows the officer to detain the ship for as long as he or she thinks necessary for the purposes of regulation 5.35E.
New paragraph 5.35E(e) allows the officer to bring the ship, or cause it to be brought, to a place that he or she considers to be appropriate.
If an officer detains a ship under new paragraph 5.35E(d), the officer may, under new paragraphs 5.35E(c) and 5.35E(c), restrain any person found on the ship and bring the ship, or cause the ship to be brought:
• to the migration zone; or
• to a place outside Australia (see definition of "place" in new regulation 5.35A).
New regulation 5.35F - Powers when boarding certain foreign ships on the high seas (Act s 245G (4))
New regulation 5.35F prescribes powers pursuant to subsection 245G(4) of the Act. Section 245G deals, in part, with the power to board a ship on the high seas. Subsection 245G(4) allows an officer to exercise any powers prescribed by the regulations in certain circumstances, including where Australia has an agreement or arrangement with a foreign country, the flag of which the ship is flying.
The new powers in regulation 5.35F are only able to be exercised where they are consistent with the agreement or arrangement with the foreign country.
New paragraph 5.35F(1)(a) allows an officer to search the ship.
New paragraph 5.35F(1)(b) allows a person on the ship, his or her clothing and any property under the immediate control of the person, to be searched without a warrant.
The purpose for which the new search power in paragraph 5.35F(1)(b) may be exercised is set out in new regulation 5.35C. It provides that a search may be conducted under new Division 5.6A to find out whether a person is carrying, or there is hidden on a person, in his or her clothing or in his or her property, a weapon or other thing capable of being used to inflict bodily injury or to help the person to escape.
If a weapon or other thing (see definition of "weapon" in new regulation 5.35A) is found in the course of a search, new paragraph 5.35F(1)(c) allows an officer to:
• take possession of the weapon or other thing; and
• retain the weapon or other thing for such time as he or she thinks necessary for the purposes of regulation 5.35F.
New paragraph 5.35F(1)(d) allows an officer to restrain any person on board the ship for such time as he or she thinks necessary for the purposes of regulation 5.35F.
New paragraph 5.35F(1)(e) allows the officer to detain the ship for as long as he or she thinks necessary for the purposes of regulation 5.35F.
New paragraph 5.35F(1)(f) allows the officer to bring the ship, or cause it to be brought, to a port or other place that he or she considers to be appropriate.
If an officer detains a ship under new paragraph 5.35F(1)(e), the officer may, under new paragraphs 5.35F(1)(c) and 5.35F(1)(f), restrain any person found on the ship and bring the ship, or cause the ship to be brought:
• to a port;
• to the migration zone; or
• to a place outside Australia (see definition of "place" in new regulation 5.35A).
New paragraph 5.35F(1)(g) introduces a new power to return a person who leaves a ship, where the person was on the ship when it was detained under paragraph 5.35F(1)(e).
However, under new subregulation 5.35F(4), a person may only be returned to a ship under paragraph 5.35F(1)(g) if the officer is satisfied that it is safe to return the person to the ship.
Under new subregulation 5.35F(2), reasonable means, including reasonable force, may be used by the officer in the exercise of a power under regulation 5.35F.
Subregulation 5.35F(3) provides that in searching the ship, the officer must not damage the ship or any goods on the ship by forcing open a part of the ship or the goods. However, paragraphs 5.35F(3)(a) and (b) provide that this is permitted if the individual (if any) apparently in charge of the ship has been given a reasonable opportunity to open that part of the ship or the goods, or it is not reasonably practical to give that individual such an opportunity.