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Legislative powers |
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Internal waters waters on the landward side of the territorial baseline* |
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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:
Australia can only arrest persons or investigate crimes, on board a foreign ship passing through the territorial sea when:
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Contiguous zone waters extending from 12 nm to 24 nm from the territorial baseline* |
Australia may exercise control necessary to:
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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. |
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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).
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:
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:
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:
The officer 'may use such force as necessary' (new subsection 245F(10)), subject to the following provisos: (19)
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
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:
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:
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:
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:
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:
The officer 'may use such force as necessary' (new subsection 185(3B)), subject to the following provisos: (43)
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)):
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)
(t)he arming of Customs marine crews reflects the increased risks faced when operating far from shore and away from the support of armed Defence or police personnel.
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:
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)
It is expected that Customs officers will regularly be exercising their responsibilities under the Fisheries Act. Between 24 and 200 nautical miles, it is largely under fisheries legislation that Customs officers will have powers for enforcement action.
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:
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:
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).
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
(t)he United States of America, for example, has announced its intention to broaden the scope of its border enforcement powers beyond its territorial waters. Canada is also reviewing its laws to combat this activity.(57)
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
will limit the grounds for judicial review of migration matters, particularly for unauthorised arrivals, and provide a clear message that people will not be able to use the judicial review system simply to prolong their stay in Australia.(61)
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)
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.
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.
ISSN 1328-8091
© Commonwealth of Australia 1999
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Published by the Department of the Parliamentary Library, 1999.
