Commonwealth Consolidated Acts Commonwealth Consolidated Acts1 Subsection 3ZQA(1) (definition of age determination information )
Omit "a photograph (including an X - ray photograph) or any other record or information", substitute "a record, or information,".
2 Subsection 3ZQA(2)
Omit ", which may include the taking of an X - ray of a part of a person's body,".
3 Section 236A
Repeal the section, substitute:
236A No discharge without conviction for certain offences
The court may only make an order under section 19B of the Crimes Act 1914 (discharge of offenders without conviction) in respect of a charge for an offence against section 233B, 233C or 234A if the person charged was aged under 18 when the offence was alleged to have been committed.
Note: See also section 236D, which relates to age.
4 At the end of Subdivision A of Division 12 of Part 2
Add:
236C Time in immigration detention counts for sentencing etc.
(1) This section applies to the court when imposing a sentence on, or setting a non - parole period for, a person convicted of an offence against this Subdivision.
(2) The court must take into account any period that the person has spent in immigration detention during the period:
(a) starting when the offence was committed; and
(b) ending when the person is sentenced for the offence.
Note: This enables the court to take into account time spent while not in punitive detention.
(3) Neither section 236B nor this section prevents section 16E of the Crimes Act 1914 from applying to the imposition of the sentence or the setting of the non - parole period.
Note: Section 16E of the Crimes Act 1914 applies State law to aspects of sentencing for federal offences, subject to specified exceptions.
236D Burden and standard of proof in relation to age
If, in proceedings relating to an offence against this Subdivision:
(a) the defendant claims to have been aged under 18 at the time the offence was alleged to have been, or was, committed, and
(b) the prosecution disputes this claim;
the prosecution bears the burden of proving, on the balance of probabilities, that the defendant was aged 18 or over at that time.
236E Evidentiary certificates in proceedings for offences
Who may issue a certificate
(1) A written certificate may be issued under this subsection by:
(a) an officer who participates in the boarding of a ship or aircraft (the target ship or aircraft ) under Division 12A; or
(b) if a ship (the target ship ) is boarded under Division 12A--the commander of the Commonwealth ship or Commonwealth aircraft whose crew members participated in the boarding; or
(c) the commander of a Commonwealth ship or Commonwealth aircraft used under section 245C or 245D to chase a ship (the target ship ) that was not boarded under Division 12A.
Note: For definitions for this section, see subsection ( 6).
Certificate is prima facie evidence of the matters in it
(2) The certificate is to be received in proceedings for an offence against this Subdivision as prima facie evidence of the matters stated in the certificate.
Matters that can be specified in a certificate
(3) The certificate may specify one or more of the following:
(a) the location of the target ship or aircraft at the time (the boarding time ) it was boarded, or during the period it was chased but not boarded, (as applicable) under Division 12A;
(b) if an officer boarded the target ship under Division 12A from another ship or aircraft--the location of the other ship or aircraft immediately before the boarding time;
(c) if the target ship was chased, but not boarded, under Division 12A--the location of the Commonwealth ship or Commonwealth aircraft during the period the target ship was chased;
(d) if a request was made to board the target ship or aircraft--the person by whom the request was made, and the manner in which the request was made;
(e) if no request was made to board the target ship or aircraft--the reason why no such request was made;
(f) the contents of any list of passengers on board the target ship or aircraft, or passenger cards relating to passengers on board the target ship or aircraft;
(g) the number of passengers on board the target ship or aircraft;
(h) the number of crew on board the target ship or aircraft;
(i) if the target ship or aircraft was boarded:
(i) whether any officer secured any goods on board the target ship or aircraft; and
(ii) a description of the goods; and
(iii) a description of how the goods were dealt with after they were secured;
(j) any other matter prescribed under subsection ( 5).
(4) Subsection ( 2) does not apply to so much of the certificate as specifies whether a person is the master, owner, agent or charterer of the target ship or aircraft.
(5) The Minister may, by legislative instrument, prescribe other matters that may be specified in a certificate issued under subsection ( 1).
Definitions
(6) In this section:
"commander" has the same meaning as in subsection 245B(12).
"Commonwealth aircraft" has the same meaning as in Division 12A.
"Commonwealth ship" has the same meaning as in Division 12A.
"officer" has the same meaning as in subsection 245F(18).
236F Evidentiary certificates--procedural matters
(1) A certificate issued under subsection 236E(1) must not be admitted in evidence in proceedings for an offence unless:
(a) the person charged with the offence; or
(b) a lawyer who has appeared for the person in those proceedings;
has, at least 28 days before the certificate is sought to be so admitted, been given a copy of the certificate together with notice of the intention to produce the certificate as evidence in the proceedings.
(2) If, under section 236E, a certificate is admitted in evidence in proceedings for an offence, the person charged with the offence may require the person who signed the certificate to be:
(a) called as a witness for the prosecution; and
(b) cross - examined as if the person who signed the certificate had given evidence of the matters stated in the certificate.
(3) However, subsection ( 2) does not entitle the person charged to require the person who signed the certificate to be called as a witness for the prosecution unless:
(a) the prosecutor has been given at least 21 days' notice of the person's intention to require the person who signed the certificate to be so called; and
(b) the court, by order, allows the person charged to require the person who signed the certificate to be so called.
(4) Any evidence given in support, or in rebuttal, of a matter stated in a certificate issued under subsection 236E(1) must be considered on its merits, and the credibility and probative value of such evidence must be neither increased nor diminished by reason of this section.
5 Application of amendments
(1) The amendment made by item 3 applies in relation to offences committed (or alleged to have been committed) at or after the commencement of this Part .
(2) Section 236C (about time in immigration detention) of the Migration Act 1958 (as inserted by this Part ) applies in relation to sentences imposed, or non - parole periods set, at or after the commencement of this Part (whether the relevant offence was committed before, at or after that commencement).
(3) Section 236D (about burden and standard of proof in relation to age) of the Migration Act 1958 (as inserted by this Part ) applies in relation to claims made, at or after the commencement of this Part , by defendants in proceedings (whether the proceedings began before, at or after that commencement).
(4) Sections 236E and 236F (about evidentiary certificates) of the Migration Act 1958 (as inserted by this Part ) apply in relation to the boarding of ships or aircraft, or the chasing of ships not boarded, at or after the commencement of this Part .
6 Subsection 236E(1)
Repeal the subsection, substitute:
Issuing a certificate
(1) A written certificate may be issued under this subsection if an authorisation authorises the exercise of maritime powers in relation to a vessel or aircraft (the target vessel or aircraft ). The certificate may be issued by:
(a) the authorising officer who gave the authorisation; or
(b) a maritime officer who boards the target vessel or aircraft in accordance with the authorisation.
Note: For definitions for this section, see subsection ( 6).
7 Paragraphs 236E(3)(a) to (i )
Repeal the paragraphs, substitute:
(a) the location of the target vessel or aircraft during the exercise of those maritime powers ;
(b) the location , during the exercise of those maritime powers, of a Commonwealth ship or Commonwealth aircraft from which the exercise of those maritime powers was directed or coordinated;
( c ) the contents of any list of passengers on board the target vessel or aircraft, or passenger cards relating to passengers on board the target vessel or aircraft;
( d ) the number of passengers on board the target vessel or aircraft;
( e ) the number of crew on board the target vessel or aircraft;
( f ) details about anything a maritime officer did under subsection 64(1), or section 66, of the Maritime Powers Act 2013 (about securing things) in the exercise of those maritime powers ;
8 Subsection 236E(4)
Omit "ship", substitute "vessel".
9 Subsection 236E(6)
Repeal the subsection, substitute:
Definitions
(6) In this section:
"authorisation" has the same meaning as in the Maritime Powers Act 2013 .
"authorising officer" has the same meaning as in the Maritime Powers Act 2013 .
"Commonwealth aircraft" has the same meaning as in the Maritime Powers Act 2013 .
"Commonwealth ship" has the same meaning as in the Maritime Powers Act 2013 .
"maritime powers" has the same meaning as in the Maritime Powers Act 2013 .
10 Application and transitional provisions
(1) The amendments made by this Part apply in relation to authorisations made at or after the commencement of this Part .
(2) The amendments made by this Part do not apply in relation to the continuous exercise of powers (within the meaning of the Maritime Powers Act 2013 ) begun under the Migration Act 1958 before the commencement of this Part.
Note: A fter that commencement, a n evidentiary certificate may be issued under section 236E of the Migration Act 1958 (as in force before that commencement) in relation to a boarding, or chase, begun under Division 12A of Part 2 of that Act before that commencement.