Commonwealth Consolidated Acts

MIGRATION ACT 1958 - SECT 232

  (1)   Where:

  (a)   a non - citizen:

  (i)   enters Australia on a vessel; and

  (ii)   because he or she is not the holder of a visa that is in effect, or because of section   173, becomes upon entry an unlawful non - citizen; and

  (iii)   is a person to whom subsection   42(1) applies; or

  (b)   a removee or deportee who has been placed on board a vessel for removal or deportation leaves the vessel in Australia otherwise than in immigration detention under this Act;

the master, owner, agent and charterer of the vessel are each taken to commit an offence against this Act punishable by a fine not exceeding 100 penalty units.

  (1A)   An offence against subsection   (1) is an offence of absolute liability.

Note:   For absolute liability , see section   6.2 of the Criminal Code .

  (1B)   For the purposes of paragraph   (1)(a), the defendant bears an evidential burden in relation to establishing that subsection   42(1) does not apply to a person because of subsection   42(2) or (2A) or regulations made under subsection   42(3).

Note:   For evidential burden , see section   13.3 of the Criminal Code .

  (2)   It is a defence to a prosecution for an offence against subsection   (1) in relation to the entry of a non - citizen to Australia on a vessel if it is established:

  (a)   that the non - citizen was, when he or she boarded or last boarded the vessel for travel to Australia, in possession of evidence of a visa that was in effect and that permitted him or her to travel to and enter Australia, being a visa that:

  (i)   did not appear to have been cancelled; and

  (ii)   was expressed to continue in effect until, or at least until, the date of the non - citizen's expected entry into Australia; or

  (b)   that the master of the vessel had reasonable grounds for believing that, when the non - citizen boarded or last boarded the vessel for travelling to and entering Australia, the non - citizen:

  (i)   was eligible for a special category visa; or

  (ii)   was the holder of a special purpose visa; or

  (iii)   would, when entering Australia, be the holder of a special purpose visa; or

  (iv)   was the holder of an enforcement visa; or

  (v)   would, when entering Australia, be the holder of an enforcement visa; or

  (c)   that the vessel entered Australia from overseas only because of:

  (i)   the illness of a person on board the vessel; or

  (ii)   stress of weather; or

  (iii)   other circumstances beyond the control of the master.

  (3)   A defendant bears a legal burden in relation to the matters in subsection   (2).