Bills Digest No. 70 1999-2000 Border Protection Legislation Amendment Bill 1999

Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details

Passage History

Border Protection Legislation Amendment Bill 1999

Date Introduced: 22 September 1999

House: House of Representatives

Portfolio: Immigration and Multicultural Affairs

Commencement: Upon Proclamation, or 6 months following Royal Assent, whichever is the earlier, except for

• Sch1 Pt 3 Div 2 and Sch 3 Pt 2 Div 2 (amendments to the Migration Act 1958 and the Fisheries Management Act 1991 relating to the Fish Stocks Agreement): these provisions commence when Schedule 2 to the Fisheries Legislation Amendment Act (No 1) 1999 commences.

• certain items of Sch 2 (amendments to the Customs Act 1901): these provisions will not commence until in addition certain provisions of the Customs Legislation Amendment Act (No 1) 1999 commence.

• Sch 3 Parts 1 and 3 (certain amendments to the Fisheries Management Act 1991): these provisions will not commence until new section 189A of the Customs Act 1901 commences.

Purpose

The Border Protection Legislation Amendment Bill 1999 strengthens the provisions of the Customs Act 1901 (the Customs Act) and the Migration Act 1958 (the Migration Act) relating to the interception and prevention of people smuggling operations. The Bill also amends the Migration Act and the Fisheries Management Act 1991 (the Fisheries Management Act) to allow for the detention of Indonesian citizens who are arrested for fishing illegally in Australian waters, pending their prosecution.

Background

Coastal Surveillance Task Force

In March and April 1999, illegal entrants made undetected landings on the eastern coast of Australia, as far south as Scotts Head, New South Wales.(1) In response to public concern over the landings, on 12 April 1999 the Prime Minister established a Coastal Surveillance Task Force, chaired by the Secretary of the Department of Prime Minister and Cabinet, Mr Max Moore-Wilton. The Task Force reported in June 1999 and on 27 June 1999, the Prime Minister announced that the Government would implement all the recommendations of the Task Force.(2)

Two of the recommendations of the Task Force were as follows:

• comprehensive legislative amendments be introduced to further strengthen maritime investigatory and enforcement powers against Australian and foreign flag vessels (recommendation 17). One aspect of recommendation 17 is that Commonwealth laws dealing with enforcement offshore should incorporate all of the powers available to Australia under international law including the 1982 United Nations Convention on the Law of the Sea (paragraph 35);
• the Commonwealth introduce legislation to create a forfeiture regime in relation to all boats or vehicles used in connection with the smuggling of migrants to Australia (recommendation 18).

Cost of Combating Illegal Entry

The Department of Immigration and Multicultural Affairs' (DIMA's) 1997-98 Annual Report indicates that in the same financial year, approximately one quarter of the Department's $400 million expenditure was on Border Control and Compliance.(3) According to a figure published in the Prime Minister's Media Release, each illegal arrival in Australia costs some $50 000 in processing costs.(4)

Australia's Extraterritorial Jurisdiction at International Law

This Bill confers powers on Australian officers to do acts outside Australia, in relation to people and objects outside Australia. It is appropriate, therefore, to make some brief observations about the extraterritorial jurisdiction of the Australian Parliament. It is noted in passing that territorial jurisdiction (jurisdiction by Australia over property, persons, acts or events occurring in Australia), is clearly conceded by international law.

It is well settled that as a matter of constitutional law, the Australian Federal Parliament may make laws for people, whether Australian citizens or not, outside Australia.(5) Whether or not those laws are valid under international law is another matter. The validity of Australian laws that have extraterritorial effect is determined by applicable international law, including treaty and customary law. This Bill relies on one international treaty in particular for its validity at international law.

United Nations Convention on the Law of the Sea

On 10 December 1982 Australia signed the United Nations Convention on the Law of the Sea (UNCLOS), which came into force on 16 November 1994. The Convention adopts the basic principle of customary international law that each country has jurisdiction over ships that sail by its flag. As the Explanatory Memorandum points out, this means that every country may exercise powers over its own ships anywhere in the world, except in the territorial sea of another country.(6)

UNCLOS provides exceptions to the basic principle. The exceptions to a state's sovereignty over its ships depend on the maritime zone a ship is in. The Explanatory Memorandum contains a useful summary of the exceptions, which are further summarised in tabular form below.

Ships that do fly any flag, or that fly more than one flag, are also dealt with in UNCLOS. The Convention provides a right to 'visit' (board for the purposes of verifying nationality) a foreign ship on the high seas where there is reasonable ground to suspect that the ship does not have any nationality (if, for example, the ship does not fly a flag).(7) A ship that for convenience sails under the flags of more than one country may be assimilated to a ship without nationality.(8)

Agreements Between Australia and Foreign Countries

In addition to UNCLOS, another source of jurisdiction at international law for Australia to legislate with respect to foreign ships on the high seas is bilateral treaties. Australia is free to enter into agreements or arrangements with foreign countries that give Australia jurisdiction over ships of that country on the high seas. The Bill contains provisions to make use of any jurisdiction conferred on Australia by such agreements or arrangements.

 

Power of Commonwealth Parliament to Legislate for Foreign Ships under UNCLOS

Maritime zone	Legislative powers
Internal waters waters on the landward side of the territorial baseline*	complete
Territorial sea waters extending for 12 nm from the territorial baseline*	Foreign ships have the right of innocent passage through the territorial sea. Australia may make laws relating to the innocent passage of foreign ships in respect of: conservation of living resources of the sea prevention of the infringement of the fisheries laws and regulations of Australia the prevention of infringement of the customs, fiscal, immigration or sanitary laws of Australia measures to suppress illicit traffic in narcotic drugs and psychotropic substances Australia can only arrest persons or investigate crimes, on board a foreign ship passing through the territorial sea when: the consequences of the crime extend to Australia; or the crime is of a kind to disturb the peace of Australia or the good order of the territorial sea.
Contiguous zone waters extending from 12 nm to 24 nm from the territorial baseline*	Australia may exercise control necessary to: prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within Australia or its territorial sea; and punish infringement of its customs, fiscal, immigration or sanitary laws committed within Australia or its territorial sea.
Exclusive Economic Zone (EEZ) waters extending from 24 nm to 200 nm from the territorial baseline*	Australia can make laws with respect to the exploration, exploitation, conservation and management of living and non-living resources, and the protection and preservation of the marine environment.
High Seas waters extending beyond the exclusive economic zone	Australia has the right of 'hot pursuit' where it has good reason to believe that a foreign ship has entered the high seas having violated Australian laws or regulations in Australia's territorial sea, contiguous zone or exclusive economic zone. The right of 'hot pursuit' also exists where craft are working as a team and using the foreign ship as a mother ship.

* The territorial baseline is the low-water line along the coast, as marked on official large-scale charts of Australia.

Ombudsman's Report on Detention of Indonesian Fishermen in Australia

In accordance with a Memorandum of Understanding (MOU) signed between Indonesia and Australia in 1974, traditional Indonesian fishermen have the right to fish off the north-west coast of Australia in the Australian Fishing Zone (AFZ). In recent years Indonesian fishermen have breached the MOU and committed offences under the Fisheries Management Act, for which they have been arrested and brought to Australia. For more details concerning this issue, the reader is referred to Bills Digest No 66 of 1999-2000. The illegal fishermen have then been detained pending prosecution.

While the Fisheries Management Act contains powers to intercept and prosecute illegal fishermen, it contains no power to detain them pending prosecution. The current arrangements for the detention of illegal fishermen are grounded in the provisions of the Migration Act that require that all unlawful non-citizens in the migration zone to be detained until they are removed from Australia.(9) As the illegal fishermen are brought to Australia by the Fisheries Management Authority without visas, they then must be detained under the Migration Act.

In July 1998, following two complaints on behalf of Indonesian fishermen, the Commonwealth Ombudsman reported on this issue.(10) The Ombudsman observed that while detention under the Migration Act may be a practical solution to the problem, it uses the Migration Act for an unintended purpose.(11) The Ombudsman proposed that a new visa class be created to cover the period Indonesian fishermen remain in Australia pending prosecution or participation in a trial. Power to hold the fishermen in administrative detention for such periods should be founded in Commonwealth and State fisheries legislation. The Bill implements the Ombudsman's proposal (see Part 3 of Schedule 1 and Part 2 of Schedule 3).

Main Provisions

Schedule 1 - Amendments to the Migration Act 1958

Part 1 - Powers to board, chase, search move and destroy ships and aircraft

Item 2 inserts new Division 12A into Part 2 of the Act. The new provisions empower Australian law enforcement officers to board, chase, search, move and destroy ships and aircraft involved in people smuggling operations.

Definitions

New section 245A contains definitions relevant to the new division. It is noted that the definitions of 'aircraft' and 'ship' are broad enough to include all types of craft. Furthermore, 'Australian aircraft' and 'Australian ship' are defined so as to include craft that are not registered in a foreign country and are wholly owned or solely operated by Australian residents or nationals.

A 'Commonwealth aircraft' or 'Commonwealth ship' is defined so as to include Australian Customs Service craft as well as Australian Defence Force (ADF) craft.

New section 245A also contains, by reference to the Seas and Submerged Lands Act 1973, definitions for the 'territorial sea' and the 'contiguous zone'. The definitions are important because the Commonwealth's legislative powers under UNCLOS differ within different maritime boundaries (see above).

Power to request to board

New section 245B sets out the circumstances in which the commander of a Commonwealth ship can request the master of a ship to permit a member of the commander's crew to board the master's ship. The new section makes full use of the jurisdiction conferred on Australia by UNCLOS. In short, a request to board can be made when:

• an Australian ship is outside the territorial waters of any country: new subsection 245B(3)
• a foreign ship is:

• within the Australian territorial sea: new subsection 245B(2)
• within Australia's contiguous zone or near an Australian installation(12) and the commander wants to establish the identity of the ship, or reasonably suspects that the ship has been, is, or will be involved in a migration offence(13) or attempted offence in Australia: new subsection 245B(4)
• in Australia's EEZ or on the high seas, and the commander reasonably suspects the ship (in this case called a 'mother ship') is, was or will be directly supporting another ship in committing a migration offence in Australia: new subsection 245B(5)
• in Australia's EEZ or on the high seas, and the ship is flying the flag of a country with which Australia has an agreement, or the ship is not flying a flag, or is flying a flag the commander suspects that the ship is not entitled to fly, and the commander wants to establish the identity of the ship: new subsections 245(6) and (7)

A request to board can be made by any reasonable means, and must be complied with unless the master has a reasonable excuse: subsections 245B(8) and (10). The penalty for failing to comply is 2 years' imprisonment.

Power to chase

New section 245C provides a right for the commander of a Commonwealth ship to chase a foreign ship for boarding (in the language of UNCLOS, the right of 'hot pursuit'). The section has been drafted so that it conforms with Article 111 of UNCLOS. In particular, a chase may only commence after a signal to stop has been given,(14) and it may continue until the ship being chased enters the territorial sea of a foreign country: new subsection 245C(1), although the chase must not be interrupted(15): new subsection 245C(5). The commander of the Commonwealth ship in hot pursuit can use necessary and reasonable force, including firing at a ship in order to disable it: new subsection 245C(6).

New section 245D provides a similar right for the commander of a Commonwealth ship to chase an Australian ship to the territorial sea of a foreign country. The main difference is that an Australian ship can be chased without being requested to stop.(16)

Power to request to identify and land for boarding

New section 245E is the air-equivalent of new section 245C. The two sections are different, however, because UNCLOS naturally does not apply in the aerial domain. Even so, general principles of international law apply: new section 245E applies to Australian aircraft anywhere other than over a foreign country, and to foreign aircraft(17) over Australia: new subsection 245E(1).

The commander of a Commonwealth aircraft can:

• use the Commonwealth aircraft to intercept the foreign aircraft and request the pilot to identify the aircraft, its flight path and plan, and its passengers, if the commander cannot identify the foreign aircraft: new subsection 245E(2)
• request the pilot of the foreign aircraft to land for boarding in Australia, if the pilot will not identify the aircraft, its flight plan or path or its passengers, or the commander suspects that the aircraft is or has been involved in a migration offence or attempted offence: new subsection 245E(3).

A request to identify or land can be made by any reasonable means, and must be complied with unless the pilot has a reasonable excuse: new subsections 245E(4) and (6). The penalty for failing to comply is 2 years' imprisonment.

Powers to board, enter and search

Having requested to board a ship under new section 245B, or for an aircraft to be landed for boarding under new section 245E, new section 245F provides an officer with extensive powers to search the craft. New section 245F also applies to Australian ships and mother ships pursued under new section 245C(3). Under new subsection 245F(3), an officer may:

• board, search and examine any goods contained on the craft
• require people on the craft to answer questions and produce documents
• copy documents found or produced
• arrest without warrant a person on:

• an aircraft or vessel in Australia if the officer reasonably suspects that the person has been or is involved in a migration offence or attempted offence in Australia or overseas
• a vessel outside Australia if the officer reasonably suspects that the person has been or is involved in a migration offence in Australia or Australia's EEZ (new subsection 245F(3)(f)).

• detain the craft or direct that it be moved to another port or place. An aircraft can only be detained in Australia and only if an officer reasonably suspects that it was or is involved in a migration offence inside or outside Australia. The circumstances in which an officer can detain a ship outside Australia depend on whether it is an Australian ship or a foreign ship.
• detain a person found on a detained craft, and bring them to the migration zone.(18)

The officer 'may use such force as necessary' (new subsection 245F(10)), subject to the following provisos: (19)

• in opening parts of a craft while searching for or examining goods, an officer must not damage the craft until the person in charge has been given an opportunity(20) to open the part: new subsection 245F(11)
• in arresting or detaining a person on a craft, an officer must not use more force or cause greater indignity than is necessary and must not inflict grievous bodily harm unless the officer believes it is necessary to protect life or prevent serious injury: new subsection 245F(12)
• in arresting a person escaping from a craft, must not inflict grievous bodily harm unless the officer believes that, after calling for surrender, there is no other way to apprehend the person or that it is necessary to protect life or prevent serious injury: new subsection 245F(13)
• if the ship belongs to a country with which Australia has an agreement, an officer may exercise powers under regulations made in accordance with that agreement: new subsection 245F(14)

New subsection 245F(19) extends an officer's powers to people whom he or she suspects, on reasonable grounds, of having left the craft.

New subsection 245F(18) defines an 'officer' so as to include a member of the crew of a Commonwealth ship or aircraft that has made a request to board, or has chased a foreign vessel, as well as a member of the ADF.

Power to board, enter and search ships without nationality on the high seas

New section 245G makes special provision for the boarding of ships in the EEZ and on the high seas in accordance with UNCLOS. New section 245G applies if a request to board has been made under new section 245B(6) or (7).

New subsection 245G(2) empowers an officer to ask people on board a ship questions about, and to produce documents in relation to, the identity of the ship and the voyage. New subsections 245G(3)-(6) spell out what the officer is to do once he or she has discovered the nationality of the ship. The three cases in which an officer may proceed to search the ship are: when he or she is satisfied that the ship is an Australian ship (section 245F then applies), or a ship without nationality, or a ship with whose country Australia has an agreement.(21)

Relationship between new powers of entry and search to existing ones

Item 3 and 4 respectively amend subsection 251(1) (dealing with the power to search ships)(22) and section 252 (dealing with searches of the person)(23) to take account of the powers contained in new section 245F.

Item 3 gives precedence to new section 245F: searches will only be able to be carried out under section 251 if they cannot be carried out under new section 245F. The only situation in which section 251(1) as amended is likely to remain relevant is in searching foreign ships on the high seas.

Item 4 restricts searches of the person in respect of people who are detained, to those detained in Australia or on Australian ships.

Moving and destroying hazardous ships

New section 245H gives the Secretary for DIMA power to move or destroy a ship which is unseaworthy, or which poses a serious risk to navigation, quarantine, safety or public health, or to property or the environment: new subsection 245H(3).

New section 245H applies to ships in Australia and Australian ships outside Australia which an officer reasonably suspects have been or are involved in a migration offence or attempted offence inside or outside Australia, and to foreign ships detained outside Australia which an officer reasonably suspects have been or are involved in a migration offence in Australia: new subsections 245H(1) and (2).

After destroying a ship, the Secretary for DIMA must give the owner or controller a notice stating that it has been destroyed, the reason why, and that compensation may be payable: new subsections 245H(4) and (5).

New subsection 245H(7) explains that new section 245H has effect in spite of sections 260 and 261.(25)

Constitutional safeguard for the Migration Act

Item 1 inserts new section 5B, providing for compensation for the acquisition of property. Section 51(xxxi) of the Constitution stipulates that the Commonwealth can only acquire property from a person on just terms. New section 5B has been inserted into the Act to ensure its constitutional validity. It provides that the Commonwealth must pay reasonable compensation for acquisition of property by the Commonwealth pursuant to the Migration Act. The amount of compensation is to be agreed, or determined by a court.

Part 2 - Automatic forfeiture

Item 10 inserts new Division 13A into Part 2 of the Migration Act. The new division establishes a regime for the forfeiture to the Commonwealth of any vessel, vehicle or equipment used in people smuggling operations. New section 261J makes it clear that the new regime is not limited by existing sections 260 and 261,(26) and item 11 confirms that the regime does not have retrospective effect.

Automatic forfeiture, seizure and condemnation

New section 261A provides that any vessel used in Australia in a migration offence involving the bringing of illegal entrants to Australia, or the entry or proposed entry of illegal entrants into Australia, is forfeited to the Commonwealth, together with any vehicle or equipment on the vessel or used in the migration offence.

New section 261B enables an officer to seize anything forfeited under new section 261A, or anything he or she reasonably suspects to be forfeited under new section 261A.

Destruction and disposal

New section 261E allows the Secretary for DIMA to destroy or dispose of a seized object before it is condemned if its custody or maintenance (until condemnation) are likely to create serious difficulties, or exceed the object's value.

Procedure in respect of claims

If a forfeited object is seized under new section 261B, the officer must give a written notice to the owner or controller(27) of the object, or if these people cannot be found, must attach the notice to the object: new section 261D. The notice must explain the forfeiture and the reason for it, as well as the effect of new section 261F.(28)

New section 261F provides that a seized object is condemned as forfeited to the Commonwealth 14 days after a seizure notice is given under new section 261D, unless the owner or controller gives the Secretary for DIMA within that time a written claim for the object in English.

If the Secretary for DIMA receives a claim for an object, then in order for it to be condemned as forfeited, the Secretary must send the claimant a written notice stating that the object will be condemned if proceedings against its condemnation are not commenced within one month: new sections 261G(1) and 261H(1).

The Secretary for DIMA may retain custody of the object regardless of whether proceedings against its condemnation have been instituted: new section 261G(1).

The object will be condemned as forfeited to the Commonwealth unless proceedings are commenced by the claimant within one month and a court makes an order that the object is not forfeited: new sections 261H(2)-(4).(29)

An object condemned as forfeited to the Commonwealth must be dealt with in accordance with the directions of the Secretary for DIMA: new section 261I.

Part 3 - Enforcement visas

Part 3 creates the new visa class recommended by the Commonwealth Ombudsman in his report. The new visa - called an enforcement visa - will regularise the migration status of foreign fishermen who are brought to Australia to be prosecuted.

Fisheries detention offences

Item 14 inserts the definition of 'fisheries detention offence' into section 5(1) of the Migration Act. A fisheries detention offence is one of a specified set of offences under the Fisheries Management Act, that relate to fishing by foreign boats in the Australian Fishing Zone (see Schedule 3 Part 2 below).

A person who is detained pending prosecution for any of the above offences is said to be in 'fisheries detention': new section 164A.

Enforcement visas

New section 38A (inserted by item 17) establishes the enforcement visa as a type of temporary visa, while item 16 amends section 5(1) of the Migration Act to make it clear that an enforcement visa is not a substantive visa. The usual provisions concerning applications for, and the grant of, visas do not apply to enforcement visas (items 18-21). The note to new subsection 164B(5) explains that no administrative action is necessary to grant an enforcement visa; it is granted by force of that section.

Item 22 amends section 82(2) so that foreign fishermen will not be able to hold more than one non-permanent visa at a time.(30)

Item 23 inserts new Division 4A into the Migration Act, dealing with enforcement visas.

New section 164B deals with the circumstances in which a non-citizen is taken to have been granted an enforcement visa. An enforcement visa is granted to a non-citizen

• on a foreign boat outside the migration zone when a fisheries officer brings a boat, or requires the boat to be brought within the migration zone because the officer reasonably suspects that the boat has, is or will be involved in a fisheries detention offence: new subsection (1)
• in Australia when they are placed in fisheries detention pending prosecution because an officer reasonably suspects that they were involved in a fisheries detention offence: new subsection 164B(2)
• in prescribed circumstances when a fisheries officer exercises a prescribed power: new subsection 164B(3)
• on a foreign boat in prescribed circumstances when a fisheries officer exercises a prescribed power: new subsection 164B(4)

The Explanatory Memorandum explains that the last two provisions are designed to accommodate unforeseen changes to the kinds of powers that a fisheries officer may exercise, which would result in the need for a non-citizen to be granted an enforcement visa.(31)

New subsections 164B(6) and (7) enable the Minister for Immigration and Multicultural Affairs to prevent, if he or she thinks it desirable, a person or class of people from receiving enforcement visa(s).

New subsection 164B(8) stipulates in effect that permanent residents of Australia and New Zealand citizens cannot receive enforcement visas.

New section 164C specifies the circumstances in which an enforcement ceases to be in effect. A non-citizen ceases to hold an enforcement visa as soon as:

• they escape or are released from fisheries detention: new subsection 164C(1)(a); or
• a decision is made not to charge them with a fisheries detention offence: new subsection 164C(2)(a); or
• the Minister makes a declaration that the person, or a class of which the person is a member, is not to receive enforcement visas: new subsections 164C(1)(b) and 164C(2)(b); or
• a prescribed event occurs: new subsections 164C(1)(c) and 164(2)(c).

Consequences of Holding an Enforcement Visa

New section 164D prevents a person who holds or has held an enforcement visa from applying in Australia for another visa (other than a protection visa).

Item 24 amends section 193 to exempt DIMA officers from providing certain information to unlawful non-citizens held in immigration detention, who have previously held enforcement visas and have not in the meantime become lawful.

Part 4 - Miscellaneous amendments

Part 4 makes a number of amendments to the legal framework governing entry into Australia by non-citizens, and to provisions relating to the bringing of non-citizens to Australia. The amendments mostly make structural and technical changes to the legal framework, and will not be discussed in detail here. However, some of the amendments are significant in preventing people smuggling operations, and they are discussed below.

Item 36 inserts new section 228A to clarify that general offences relating to the entry into Australia by non-citizens, and the bringing of non-citizens to Australia, can be committed both inside and outside Australia. The Explanatory Memorandum indicates that this was always the case, but that new section 228A has been inserted to 'dispel any uncertainty'.(32)

Section 232A creates the offence of organising to bring to Australia groups of 5 or more non-citizens, knowing that upon entry the non-citizens will become unlawful. Item 49 amends section 232A so that the organiser is guilty of the offence if he or she is reckless as to whether the non-citizen had a lawful right to come to Australia. As the Explanatory Memorandum notes, this will ensure that smugglers cannot avoid liability by claiming that they did not have the technical knowledge to know that the non-citizens would be unlawful upon entry.(33)

Items 50-54 amend section 249, which empowers a DIMA officer to prevent an unlawful non-citizen from leaving a vessel on which the non-citizen arrived in Australia. Under the amendments, a DIMA officer can prevent a person from leaving when he or she reasonably suspects (as opposed to knows) that the person aboard the vessel is, or would upon entry into the migration zone be, an unlawful non-citizen.

Item 56 extends the application of certain evidentiary presumptions (as to when a person is a non-citizen and when a person does not hold a visa) contained in existing sections 229(3) and (4) to proceedings under the Migration Act generally.

Item 57 increases the pecuniary penalty(34) in respect of the offences of bringing a non-citizen to Australia, and arriving in Australia with a concealed non-citizen aboard a vessel.

Item 58 makes it clear that none of the amendments in Part 4 have retrospective effect.

Schedule 2 - Amendments to the Customs Act 1901

Part 1 - Powers to board, chase, search move and destroy ships and aircraft

The amendments to the Customs Act in Schedule 2 Part 1 mirror almost exactly the amendments to the Migration Act in Schedule 1 Part 1. The same powers to board vessels and aircraft, to chase vessels, to search and examine vessels and aircraft and to arrest persons thereon, as well as to move and destroy vessels, will exist under the Customs Act as under the Migration Act.

Before discussing the amendments to the Customs Act in detail, the salient differences between the amendments and those made to the Migration Act will be pointed out, for the benefit of those readers who do not wish to read material which is largely repetitious.

The amendments to the Customs Act differ from those to the Migration Act in the following respects:

• the powers to board and chase vessels extend to vessels connected with offences committed in Australia's EEZ
• there are special powers relating to the seizure without warrant of narcotic drugs
• there are provisions enabling the officers of customs vessels to carry firearms and items of personal defence equipment

Power to request to board

New section 184A sets out the circumstances in which the commander of a Commonwealth ship can request the master of a ship to permit a member of the commander's crew to board the master's ship. The new section makes full use of the jurisdiction conferred on Australia by UNCLOS. In short, a request to board can be made when:

• an Australian ship is outside the territorial waters of any country: new subsection 184A(3)
• a foreign ship is:

• within the Australian territorial sea: new subsection 184A(2)
• within Australia's contiguous zone or near an Australian installation (35)and the commander wants to establish the identity of the ship, or reasonably suspects that the ship has been, is, or will be involved in a customs (36)or other prescribed offence (37)or attempted offence in Australia: new subsection 184A(4)
• in Australia's EEZ and the commander reasonably suspects that the ship was, is or will be involved in a contravention in the EEZ of a prescribed offence or attempted offence: new subsection 184A(6)
• in Australia's EEZ or on the high seas, and the commander reasonably suspects the ship (in this case called a 'mother ship') is, was or will be directly supporting another ship in committing a customs or other prescribed offence in Australia: new subsection 184A(5)
• in Australia's EEZ or on the high seas, and the ship is flying the flag of a country with which Australia has an agreement, or the ship is not flying any flag, or is flying a flag the commander suspects that the ship is not entitled to fly, and the commander wants to establish the identity of the ship: new subsections 184A(8) and (9)
• on the high seas and the commander reasonably suspects that the ship (a 'mother ship') was, is or will be directly supporting another ship in committing a prescribed offence in Australia's EEZ: new subsection 184A(7)

A request to board can be made by any reasonable means, and must be complied with unless the master has a reasonable excuse: new subsections 184A(10) and (12). The penalty for failing to comply is 2 years' imprisonment.

Relationship between new powers to board and existing ones

Item 9 repeals section 59, the existing section which contains power to make a request for boarding.

Power to chase

New section 184B provides a right for the commander of a Commonwealth ship to chase a foreign ship for boarding (in the language of UNCLOS, the right of 'hot pursuit'). The section has been drafted so that it conforms with Article 111 of UNCLOS. In particular, a chase may only commence after a signal to stop has been given,(38) and it may continue until the ship being chased enters the territorial sea of a foreign country: new subsection 184B(1), although the chase must not be interrupted: (39)new subsection 184B(5). The commander of the Commonwealth ship in hot pursuit can use necessary and reasonable force, including firing at a ship in order to disable it: new subsection 184B(6).

New section 184C provides a similar right for the commander of a Commonwealth ship to chase an Australian ship to the territorial sea of a foreign country. The main difference is that an Australian ship can be chased without being requested to stop.(40)

Power to request to identify and land for boarding

New section 184D applies to Australian aircraft anywhere other than over a foreign country, and to foreign aircraft over Australia: new subsection 184D(1).

The commander of a Commonwealth aircraft can:

• use the Commonwealth aircraft to intercept the foreign aircraft (41)and request the pilot to identify the aircraft, its flight path and plan, and its passengers, if the commander cannot identify the foreign aircraft: new subsection 184D(2)
• request the pilot of the foreign aircraft to land for boarding in Australia, if the pilot will not identify the aircraft, its flight plan or path or its passengers, or the commander suspects that the aircraft is or has been involved in an customs offence or attempted offence: new subsection 184D(3).

A request to identify or land can be made by any reasonable means, and must be complied with unless the pilot has a reasonable excuse: new subsections 184D(4) and (6). The penalty for failing to comply is 2 years' imprisonment.

Powers to board, enter and search

Item 15 -27 amend section 185 to provide officers with more extensive powers to search aircraft and vessels. The amended section applies to vessels and aircraft boarded under sections 184A and 184D as well as to Australian ships and mother ships pursued under section 184B(3). The powers include:

• copy documents found on the craft or produced by people on the craft as a result of questioning: new paragraph 185(2)(ca)
• arrest without warrant a person on:

• an aircraft or vessel in Australia if the officer reasonably suspects that the person has been or is involved in a customs or other prescribed offence or attempted offence in Australia or overseas
• a vessel outside Australia if the officer reasonably suspects that the person has been or is involved in an customs (or other prescribed) offence or attempted offence in Australia or Australia's EEZ: new subsection 185(2)(d)

• seize without warrant any narcotic goods found on the ship or aircraft: new subsection 185(2)(e)
• examine goods in a number of different ways: new subsections 185(2B)-(2D)
• detain a craft or direct that it be moved to another port or place. An aircraft can only be detained in Australia and if an officer reasonably suspects that it was or is involved in a customs offence or other prescribed offence inside or outside Australia. The circumstances in which an officer can detain a ship outside Australia depend on whether it is an Australian ship or a foreign ship: new subsection 185(3)
• detain a person found on a detained craft, and bring them to the migration zone: new subsection 185(3A)(42)

The officer 'may use such force as necessary' (new subsection 185(3B)), subject to the following provisos: (43)

• in opening parts of a craft while searching for or examining goods, must not damage the craft until the person in charge has been given an opportunity (44)to open the part: new subsection 185(3C)
• in arresting or detaining a person on a craft, must not use more force or cause greater indignity than is necessary and must not inflict grievous bodily harm unless the officer believes it is necessary to protect life or prevent serious injury: new subsection 185 (3D)
• in arresting a person escaping from a craft, must not inflict grievous bodily harm unless the officer believes that, after calling for surrender, there is no other way to apprehend the person or that it is necessary to protect life or prevent serious injury: new subsection 185(3E)
• if the ship belongs to a country with which Australia has an agreement, an officer may exercise powers under regulations made in accordance with that agreement: new subsection 185(3F)

Item 26 increases the penalty for failing to comply with a requirement made by an officer under section 185 to 100 penalty units.

Item 27 confirms that evidence obtained in a search under section 185 may be used in investigating or prosecuting an offence.

Item 28 amends section 185(5) to enlarge the definition of 'officer' so as to include a member of the ADF.

Power to board, enter and search ships without nationality on the high seas

Item 29 inserts new section 185A which makes special provision for the boarding of ships in the EEZ and on the high seas in accordance with UNCLOS. New section 185A applies if a request to board has been made under new section 184A(8) or (9).

New subsection 185A(2) empowers an officer to ask people on board a ship questions about, and to produce documents in relation to, the identity of the ship and the voyage. New subsections 185A(3)-(6) spell out what the officer is to do once he or she has discovered the nationality of the ship. The three cases in which an officer may proceed to search the ship are: when he or she is satisfied that the ship is an Australian ship (section 185 then applies), or a ship without nationality, or a ship with whose country Australia has an agreement.(45)

Moving and destroying hazardous ships

New section 185B (inserted by item 29) gives the Chief Executive Officer of Customs (CEO) power to move or destroy a ship which is unseaworthy, or which poses a serious risk to navigation, quarantine, safety or public health, or to property or the environment. A vessel may be destroyed if the costs of its custody and maintenance are likely to outweigh its value: new subsection 185B(3).

New section 185B applies to ships in Australia and Australian ships outside Australia which an officer reasonably suspects have been or are involved in an customs or other prescribed offence, or attempted offence, inside or outside Australia, and to foreign ships detained outside Australia which an officer reasonably suspects have been or are involved in a customs (or other prescribed) offence in Australia or Australia's EEZ: new subsections 185B(1) and (2).

After destroying a ship, the CEO must give the owner or controller (46)a notice stating that it has been destroyed and that compensation may be payable: new subsections 185B(4) and (5).

New subsection 185B(7) explains that new section 185B has effect in spite of Part XII Division 1 Subdivisions D and G.

Constitutional safeguard for the Customs Act

Item 8 inserts new section 4AB, providing for compensation for the acquisition of property. Section 51(xxxi) of the Constitution stipulates that the Commonwealth can only acquire property from a person on just terms. New section 4AB has been inserted into the Act to ensure its constitutional validity. It provides that the Commonwealth must pay reasonable compensation for acquisition of property by the Commonwealth pursuant to the Customs Act. The amount of compensation is to be agreed, or determined by a court.

Power to carry firearms

Item 32 inserts new section 189A which enables the commander of a Customs vessel(47) to issue approved firearms and other approved items of personal defence equipment to officers under his or her command for the purposes of (see new section 189A(1)(a)):

• compelling a ship to be brought to for boarding, where the ship is being pursued under new sections 184B or 184C;
• enabling the safe exercise of powers conferred by the Customs Act.

The Explanatory Memorandum notes that the last purpose will enable firearms and defence equipment to be used in preventing an offence under another Act, for example the Migration Act, if that other Act is prescribed for the purposes of 184A(4).(48) It further notes that(49)

New section 189A(2) provides that the CEO can make directions relating to the deployment of firearms and personal defence equipment. The directions will be disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901(50).

'Approved firearms' and 'approved items of personal defence equipment' are to be specified in regulations, although included in the latter are extendable batons, a certain capsicum spray and anti-ballistic clothing: new section 189A(5).

Power to carry out frisk searches at sea

Items 35 and 36 extend the operation of proposed sections 219L(1A) and 219L(1B)(51) to enable a detention officer who has boarded (under section 185 or 187) an Australian ship anywhere outside the territorial sea of a foreign country, or a foreign ship within the Australian territorial sea, to detain a person on board in order to search them, if the officer reasonably suspects that the person:

• is unlawfully carrying prohibited goods on his or her body; or
• has on their body a weapon capable of being used to inflict bodily injury on the officer.

Item 37 inserts new subsection 219L(1C) which provides the same power to detain a person for the purposes of uncovering possible weapons, when the person is aboard a Customs vessel or Commonwealth ship.

Forfeiture of vessels

Item 43 amends section 228 (dealing with the automatic forfeiture of vessels to the Commonwealth) so as to get rid of the 80 metre restriction on their length. The Explanatory Memorandum comments that the restriction is 'no longer seen as being relevant'.(52)

Part 2 - The coasting trade

Part 2 amends Part X of the Customs Act dealing with the coasting trade. 'Coasting trade' refers to the transfer of goods from a ship or aircraft not leaving Australia, to a ship or aircraft that has, or passes through, an international destination. Section 175 generally prohibits such transfer unless the permission of a Collector of Customs is obtained. Items 53-55 amend section 175 to make use of Australia's jurisdiction at international law: section 175 will apply to Australian ships anywhere outside the territorial sea of a foreign country.

Schedule 3 - Amendments to the Fisheries Management Act 1991

Parts 1 and 3 - Customs officers to be fisheries officers and may carry arms

Item 1 alters the definition of 'officer' to give Customs officers authority to act as officers under the Fisheries Management Act. In this regard the Explanatory Memorandum states: (53)

Item 14 inserts new section 84C which allows Customs officers to carry approved firearms and approved items of personal defence equipment when exercising powers under the Fisheries Act, in accordance with the directions and procedures specified in new section 189A of the Customs Act.

Part 2 - Suspected illegal foreign fishermen

Part 2 completes the Bill's implementation of the Commonwealth Ombudsman's recommendation concerning the administrative arrangements for the detention of Indonesian fishermen. The part provides power to hold people arrested for certain fishing offences in administrative detention while the decision as to whether or not to charge them is made (in the language of the Migration Act amendments called 'fisheries detention'). Offences for which a person can be detained (in the language of the Migration Act amendments called 'fisheries detention offences') include:

• using a foreign boat for recreational fishing (section 99)
• using a foreign boat for commercial fishing in the AFZ (section 100 and proposed section 100A)
• having a boat equipped for fishing in the AFZ (section 101 and proposed section 101A)
• using a foreign boat outside the AFZ to support illegal foreign fishing operations in the AFZ (proposed section 101B)
• certain offences relating to the Fish Stocks Agreement (proposed sections 105E and 105F).

Proposed sections 100A, 101A and 101B have not yet commenced.(54) Proposed sections 105E and 105F commence when the Fish Stocks Agreement comes into force.(55)

Item 3 inserts in section 4(1) the term 'Australian resident', defined to mean in effect a New Zealand citizen or an Australian permanent resident. The definition is important because new sections 84(1)(ia)(i) and 84A(1)(a) prohibit Australian residents from being placed in fisheries detention.

Section 84 of the Fisheries Management Act sets out the powers of fisheries officers when performing surveillance and enforcement functions. Item 4 amends section 84 to include the power to hold a person in fisheries detention in Australia or a Territory when an officer reasonably believes that the person was on a boat when it was used in the commission of a fisheries detention offence, and that the person is not an Australian citizen or resident: new paragraph 84(1)(ia). The power extends to moving the person to another place in Australia for fisheries detention, and to photographing and recording information to identify the person: new paragraphs 84(1)(ib) and (id).

The provisions of the Crimes Act 1914 apply to a person in fisheries detention: new subsection 84A(2). Under new subsection 84A(1), a person must be released from fisheries detention as soon as:

• an officer reasonably believes that they are an Australian citizen or resident; or
• the person is brought before a magistrate in relation to a charge for a fisheries detention offence; or
• a decision is made not to charge the person with a fisheries detention offence; or
• 168 hours (7 days) elapses.

A fisheries officer may search without warrant a person, their clothing and personal effects if the person is in fisheries detention, in order to find out whether the person is carrying an object capable of inflicting bodily injury or helping the person to escape: new paragraph 84(1)(ic). The search must be conducted by a person of the same sex and must not involve more force or greater indignity than is necessary (clothes cannot be removed): new section 84B.

A person who escapes from fisheries detention (with intent or recklessness) is guilty of an offence. The penalty is up to 2 years' imprisonment: new section 98A (inserted by item 8).

Concluding Comments

The Bill systematically strengthens those provisions of the Customs and Migration Acts that have a role to play in intercepting and preventing people smuggling operations. The amendments fully utilise the powers available to Australia at international law, and in particular, under UNCLOS. From the earliest days of Federation, Commonwealth governments have taken great care to control who enters or remains in the country.(56) This Bill further reflects this concern.

In his Second Reading Speech, the Minister for Immigration and Multicultural Affairs commented that

This Bill may therefore be seen as a response to a problem that concerns governments worldwide. Nevertheless, it is important to keep the magnitude of Australia's problem in a global perspective. In such a perspective, Australia's border infiltration problem is not nearly as severe as some other countries.(58)

Implementation of the Ombudsman's Recommendations

The Bill implements, in the way that has been described, the Commonwealth Ombudsman's recommendations concerning the administrative arrangements for the detention of illegal Indonesian fishermen in Australia. There is however one minor aspect to the Ombudsman's recommendations which has not been embodied in the proposed legislation.

The Ombudsman referred to the need to regularise the migration status of illegal fishermen during the period they are required to remain in Australia in order to face charges or appear as witnesses.(59) While the new enforcement visa introduced by the Bill is available for the first purpose, it is not available for the second. Presumably, in order to allow an illegal fisherman to (enter and) remain in Australia to participate in a trial (other than their own), it would be necessary to obtain a Criminal Justice Entry Visa or a Criminal Justice Stay Visa for them.

Relationship between the Border Protection Bill and the Judicial Review Bill

In his Second Reading Speech, the Minister drew attention to the need for the Parliament to also pass the Migration Legislation Amendment (Judicial Review) Bill (the Judicial Review Bill), currently before the Senate.(60) For a thorough discussion of the issues pertaining to that Bill, the reader is referred to Bills Digest No 90 of 1998-1999.

The Minister described the Judicial Review Bill as another 'crucial' element in the Government's strategy for combating the 'heinous trade' of people smuggling. The Government's reasoning is that the Judicial Review Bill

It may be true that if the chances for judicial review applications to succeed are significantly diminished then people will be less inclined to attempt to enter Australia illegally and use the review process to prolong their stay. However, this has not been the experience of at least some people working in the migration industry (see the references to the evidence given by the Victorian Refugee and Advice Casework Service and by Mr Michael Clothier, a migration practitioner, to the Senate Legal and Constitutional Committee on the Judicial Review Bill, contained in the section entitled 'Abuse of Review Procedures to Prolong Stay' in Bills Digest No 90 of 1998-1999). As noted in Bills Digest No 90 of 1998-1999, the Government has in any case found other means to make judicial review an unattractive method to prolong stay in Australia.

In the opinion of the author, the presentation of this Bill (the Border Protection Bill) and the Judicial Review Bill as equally important parts of a strategy to combat people smuggling may be misleading. Contrary to the suggestion made in the Minister's Second Reading Speech, the Judicial Review Bill will not limit the grounds of judicial review particularly for unauthorised arrivals, but will prevent judicial review of migration decisions for all visa and cancellation review applicants, be they lawful or unlawful entrants.

Much more is at stake in the passage of the Judicial Review Bill than merely denying illegal entrants the means to prolong their stay through abuse of the review process. The Judicial Review Bill applies with few exceptions to the full range of migration decisions. While the effect of the Bill may be desirable so far as discouraging illegal entrants is concerned, its wider implications have attracted considerable criticism.(62)

Endnotes

2. L. Kennedy, 'Call to stop the people smugglers', Sydney Morning Herald, 12 April 1999, p 36.

3. Prime Ministerial Media Release, $124 million Boost for the Fight against Illegal Immigration, 27 June 1999.

4. Department of Immigration and Multicultural Affairs, Annual Report 1997-98, pp 138 and 140.

5. Prime Ministerial Media Release, $124 million Boost for the Fight against Illegal Immigration, 27 June 1999.

6. Polyukhovich v Commonwealth (1991) 172 CLR 501.

7. Explanatory Memorandum, p 5.

8. Article 110.

9. Article 92(2).

10. Sections 166, 172, 189 and 250 of the Migration Act 1958.

11. Report under s. 35A of the Ombudsman Act 1976, Administrative Arrangements for Indonesian Fishermen Detained in Australian Waters, Commonwealth Ombudsman, July 1998.

12. ibid., part 5.1(a).

13. 'Installation' is used in this Digest to refer to a resource installation or a sea installation, as those terms are defined in the Migration and Customs Acts.

14. 'Migration offence' is used in this Digest to refer to an offence under the Migration Act.

15. A request to board need not be given when the ship being pursued is a mother ship in the EEZ or on the high seas supporting a migration offence in Australia: new section 245C(3).

16. This does not mean that other Commonwealth ships and aircraft cannot be used in the chase, or that the chase cannot continue once a Commonwealth ship or aircraft loses sight of the ship being pursued: new sections 245C(2) and (4).

17. The other difference between the chasing of an Australian ship and a foreign ship is that the chase of an Australian ship may be resumed if it is interrupted.

18. Interception must be in accordance with the 'Rules of the Air' recommended in Annex 2 to the Convention on International Civil Aviation done at Chicago on 7 December 1944: new section 245E(2)(a).

19. The 'migration zone' is defined in section 5(1) to mean, in effect, the land mass of Australia.

20. The Explanatory Memorandum explains that the provisos are modelled on provisions of the Crimes Act 1914.

21. unless it is not reasonably practicable: new section 245F(11)(b)

22. In this case, an officer may exercise powers prescribed by regulation consistently with the agreement.

23. Section 251 enables a Department of Immigration and Multicultural Affairs (DIMA) officer to enter and search a vessel for the purposes of searching for any illegal entrants, or likely intending illegal entrants, who may be aboard. The Secretary for DIMA may issue a search warrant to enable an officer to search any premises or vehicle for any illegal entrants, or likely intending illegal entrants, and to seize any document. The officer may use reasonable force.

24. Section 252 allows an officer without a warrant to frisk search a person and their personal effects, if they are detained or have not been immigration cleared and an officer suspects that there are reasonable grounds for cancelling their visa.

25. 'Controller' is used in this Digest to refer to the person who had possession, custody or control of the thing immediately before it was seized: see new sections 245(4)(b) and 261D(1).

26. See note 26 below.

27. Section 260 enables the Secretary for DIMA to seize, and bring proceedings for the forfeiture of, a vessel detained under section 260, if the owner, charterer, agent or master cannot pay, or defaults in making payments towards, a penalty.

    Section 261(2) enables the Secretary for DIMA to sell or destroy a vessel detained under section 261(1), when the vessel is not forfeited under section 260, no court orders have been made in relation to it, and the cost of maintaining the vessel outweighs its value.

28. See note 24 above.

29. Interestingly, the seizure notice need not explain that a claim must contain an address for service. Yet this is one of the requirements in order for a claim to be valid: new section 261F(1)(c). This leads to the result - probably unintended - that a claim can fail because it is technically deficient, if the person who makes it does not specify their address for service.

30. Where a court makes an order that the object is not forfeited to the Commonwealth, and the object has already been destroyed, the Commonwealth is to pay the claimant the object's sale or market price, less the costs incurred by the Commonwealth in respect of the thing: new section 261H(6).

31. Explanatory Memorandum, p 40.

32. ibid., p 41.

33. ibid., p 47.

34. ibid., p 49.

35. The pecuniary penalty is an alternative to prosecution: section 504(1)(j). The amount of the penalty will be $3 300 in respect of individuals, and $11 000 in respect of bodies corporate, rather than the current $3 000 (see section 4AA of the Crimes Act 1914).

36. See note 12 above.

37. 'Customs offence' is used in this Digest to refer to an offence under the Customs Act.

38. 'Prescribed offence' is used in this Digest to refer to an offence under an Act prescribed by regulations consistently with UNCLOS.

39. A request to board need not be given when the ship being pursued is a mother ship supporting a customs or prescribed offence in Australia or Australia's EEZ: new section 184B(3).

40. See note 15 above.

41. The other difference between the chasing of an Australian ship and a foreign ship is that the chase of an Australian ship may be resumed if it is interrupted.

42. See note 17 above.

43. See note 18 above.

44. The Explanatory Memorandum explains that the provisos are modelled on provisions of the Crimes Act 1914.

45. unless it is not reasonably practicable: new subsection 185(3C)(a).

46. In this case, an officer may exercise powers prescribed by regulation consistently with the agreement.

47. See note 24 above.

48. It is important to note that new section 189A only applies to Customs vessels, not Commonwealth ships. A 'Customs vessel' is defined in new section 189A(5) to mean a Commonwealth ship that is under the command of a Customs officer and flying a Customs flag within the meaning of section 14 of the Customs Act 1901.

49. Explanatory Memorandum, p 80.

50. ibid., p 90.

51. See section 183UC of the Customs Act 1901.

52. These sections are to be inserted into the Customs Act by the Customs Legislation Amendment Bill (No 1) 1998. For more information, the reader is referred to Bills Digest No 15 of 1998-1999.

53. Explanatory Memorandum, p 84.

54. ibid., p 90.

55. The sections commence on proclamation of the Fisheries Legislation Amendment Act (No 1) 1999, or 6 months after that Act receives the Royal Assent, whichever is the earlier.

56. See clauses 2(3) and (5) of the Fisheries Management Legislation Amendment Bill (No 1) 1999.

57. M. Crock, Immigration and Refugee Law in Australia, 1998, Federation Press, Preface, p v.

58. Border Protection Legislation Amendment Bill 1999, Second Reading Speech, The Hon Phillip Ruddock MP, Minister for Immigration and Multicultural Affairs and Minister Assisting the Prime Minister for Reconciliation, House of Representatives, Parliamentary Debates, 22 September 1999, p 7702.

59. The number of aliens who enter America illegally each year, across the Mexican border alone, is currently estimated to be in the order of 160 000 (S. Martin, 'Politics and Policy Responses to Illegal Migration in the US', an Institute for the Study of International Migration Working Paper presented at the Conference on Managing Migration in the 21st Century, Hamburg, Germany June 21-23 1998, p 7). Compare this figure to the total number of illegal entrants into Australia for 1998-99: 3 000 (Department of Immigration and Multicultural Affairs Fact Sheet 81: Unauthorised Arrivals by Air and Sea).

60. Report under the s. 35A of the Ombudsman Act 1976, Administrative Arrangements for Indonesian Fishermen Detained in Australian Waters, Commonwealth Ombudsman, July 1998, conclusion 2.2.

61. Border Protection Legislation Amendment Bill 1999, Second Reading Speech, The Hon Phillip Ruddock MP, Minister for Immigration and Multicultural Affairs and Minister Assisting the Prime Minister for Reconciliation, House of Representatives, Parliamentary Debates, 22 September 1999, p 7703.

62. ibid.

63. See Bills Digest No 90 of 1998-1999.

Contact Officer and Copyright Details

Andrew Grimm
13 October 1999
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

IRS staff are available to discuss the paper's contents with Senators and Members
and their staff but not with members of the public.

ISSN 1328-8091
© Commonwealth of Australia 1999

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1999.

Back to top

---