Commonwealth Consolidated Acts Commonwealth Consolidated Acts1 Section 7
Omit:
In accordance with international law, the exercise of powers is limited in places outside Australia.
2 Section 8
Insert:
"destination" :
(a) in relation to a vessel or aircraft detained under subsection 69(1)--see subsections 69(2), (3) and (3A); or
(b) in relation to a person detained under subsection 72(4)--see subsections 72(4), (4A) and (4B).
Note: See also section 75C.
"Marine Safety (Domestic Commercial Vessel) National Law" has the meaning given by section 17 of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012.
3 Section 8 (paragraph (e) of the definition of monitoring law )
After "Division", insert "73 or".
4 Section 11
Before "For the purposes", insert "(1)".
5 At the end of section 11
Add:
(2) To avoid doubt, a continuous exercise of powers does not end merely because the destination to which a vessel, aircraft or person is to be taken (or caused to be taken) is changed to a different place under subsection 69(3A) or 72(4B).
6 At the end of Division 2 of Part 2
Add:
22A Failure to consider international obligations etc. does not invalidate authorisation
(1) The exercise of a power to give an authorisation under a provision of this Division is not invalid:
(a) because of a failure to consider Australia's international obligations, or the international obligations or domestic law of any other country; or
(b) because of a defective consideration of Australia's international obligations, or the international obligations or domestic law of any other country; or
(c) because the exercise of the power is inconsistent with Australia's international obligations.
(2) Subsection (1) is not to be taken to imply that the exercise of a power under any other provision of this Act is invalid for a reason of a kind specified in paragraph (1)(a), (b) or (c).
22B Rules of natural justice do not apply to authorisations
(1) The rules of natural justice do not apply to the exercise of a power to give an authorisation under a provision of this Division.
(2) Subsection (1) is not to be taken to imply that the rules of natural justice do apply in relation to the exercise of powers under any other provision of this Act.
7 Paragraph 31(a)
After "investigate", insert "or prevent".
8 Subsection 41(1) (note)
Omit "Note:", substitute "Note 1:".
9 At the end of subsection 41(1)
Add:
Note 2: This section does not apply to the exercise of powers under Divisions 7 and 8 of Part 3 in some circumstances: see section 75D.
10 At the end of subsection 69(1)
Add:
Note: For other provisions affecting powers under this section, see section 69A and Division 8A.
11 Subsections 69(2) and (3)
Repeal the subsections, substitute:
(2) The officer may:
(a) take the vessel or aircraft, or cause the vessel or aircraft to be taken, to a place (the destination ); and
(b) remain in control of the vessel or aircraft, or require the person in charge of the vessel or aircraft to remain in control of the vessel or aircraft, at the destination, until whichever of the following occurs first:
(i) the vessel or aircraft is returned to a person referred to in subsection 87(1);
(ii) action is taken as mentioned in subsection 87(3) in relation to the vessel or aircraft.
(3) The destination may be:
(a) in the migration zone; or
(b) outside the migration zone (including outside Australia).
Note: Section 75C contains additional provisions about the place that may be the destination.
(3A) A maritime officer may change the destination to a different place at any time (including a time after arrival at the place that was previously the destination). If the destination is changed to a different place:
(a) that different place is then the destination; but
(b) this does not affect the exercise of powers under this Act before the change.
Note: It is possible that the destination may change more than once.
12 After section 69
Insert:
69A Additional provisions relating to taking a vessel or aircraft to a destination under section 69
(1) For the purpose of taking a vessel or aircraft (or causing a vessel or aircraft to be taken) to a destination under paragraph 69(2)(a), the vessel or aircraft may be detained under subsection 69(1):
(a) for any period reasonably required:
(i) to decide which place should be the destination; or
(ii) to consider whether the destination should be changed to a different place under subsection 69(3A), and (if it should be changed) to decide what that different place is; and
(b) for any period reasonably required for the Minister to consider whether to make or give a determination or direction under section 75D, 75F or 75H in relation to:
(i) a matter referred to in subparagraph (a)(i) or (ii); or
(ii) any other matter relating to the exercise of powers in relation to the vessel or aircraft, or in relation to persons on (or suspected as having been on) the vessel or aircraft; and
(c) for the period it actually takes to travel to the destination.
Note: The total period for which the vessel or aircraft is detained may be longer than the periods covered by this subsection: see subsection (3) and section 87.
(2) For the purpose of paragraph (1)(c):
(a) the period it actually takes to travel to the destination may include stopovers at other places on the way to the destination, and time for other logistical, operational or other contingencies relating to travelling to the destination; and
(b) there is no requirement that the most direct route to the destination must be taken.
(3) Days in periods covered by subsection (1) do not count towards the 28 day limit specified in paragraph 87(2)(a).
13 Subsection 72(1) (note)
Omit "Note:", substitute "Note 1:".
14 At the end of subsection 72(1)
Add:
Note 2: For other provisions affecting powers under this section, see section 72A and Division 8A.
15 Subsections 72(3) and (4)
Repeal the subsections, substitute:
(3) A maritime officer may require the person to remain on the vessel or aircraft until whichever of the following occurs first:
(a) the vessel or aircraft is returned to a person referred to in subsection 87(1);
(b) action is taken as mentioned in subsection 87(3) in relation to the vessel or aircraft.
Note: It is an offence to fail to comply with a requirement under this subsection: see section 103.
(4) A maritime officer may detain the person and take the person, or cause the person to be taken, to a place (the destination ).
(4A) The destination may be:
(a) in the migration zone; or
(b) outside the migration zone (including outside Australia).
Note: Section 75C contains additional provisions about the place that may be the destination.
(4B) A maritime officer may change the destination to a different place at any time (including a time after arrival at the place that was previously the destination). If the destination is changed to a different place:
(a) that different place is then the destination; but
(b) this does not affect the exercise of powers under this Act before the change.
Note: It is possible that the destination may change more than once.
16 Subsection 72(5)
Omit "another place", substitute "the destination".
17 Paragraphs 72(5)(a) and (b)
After "or aircraft", insert ", or in a particular place on a vessel or aircraft".
18 After section 72
Insert:
72A Additional provisions relating to taking a person to a destination under subsection 72(4)
(1) A person may be detained under subsection 72(4):
(a) for any period reasonably required:
(i) to decide which place should be the destination; or
(ii) to consider whether the destination should be changed to a different place under subsection 72(4B), and (if it should be changed) to decide what that different place is; and
(b) for any period reasonably required for the Minister to consider whether to make or give a determination or direction under section 75D, 75F or 75H in relation to:
(i) a matter referred to in subparagraph (a)(i) or (ii); or
(ii) any other matter relating to the exercise of powers in relation to the person; and
(c) for the period it actually takes to travel to the destination; and
(d) for any period reasonably required to make and effect arrangements relating to the release of the person.
(2) For the purpose of paragraph (1)(c):
(a) the period it actually takes to travel to the destination may include stopovers at other places on the way to the destination, and time for other logistical, operational or other contingencies relating to travelling to the destination; and
(b) there is no requirement that the most direct route to the destination must be taken.
(3) The person must not be detained under subsection 72(4) for any longer than is permitted by subsection (1) of this section.
(4) Powers may be exercised in accordance with subsection 72(5) in relation to the person at any time while the person continues to be detained under subsection 72(4).
(5) Subsection (3) does not prevent:
(a) the arrest of the person; or
(b) the detention of the person under another Australian law; or
(c) the exercise of any other power in relation to the person.
19 After Division 8 of Part 3
Insert:
Division 8A -- General provisions relating to powers under Divisions 7 and 8
75A Failure to consider international obligations etc. does not invalidate exercise of powers
(1) The exercise of a power under section 69, 69A, 71, 72, 72A, 74, 75D, 75F, 75G or 75H is not invalid:
(a) because of a failure to consider Australia's international obligations, or the international obligations or domestic law of any other country; or
(b) because of a defective consideration of Australia's international obligations, or the international obligations or domestic law of any other country; or
(c) because the exercise of the power is inconsistent with Australia's international obligations.
(2) Subsection (1) is not to be taken to imply that the exercise of a power under any other provision of this Act is invalid for a reason of a kind specified in paragraph (1)(a), (b) or (c).
75B Rules of natural justice do not apply to exercise of powers
(1) The rules of natural justice do not apply to the exercise of powers under section 69, 69A, 71, 72, 72A, 74, 75D, 75F, 75G or 75H.
(2) Subsection (1) is not to be taken to imply that the rules of natural justice do apply in relation to the exercise of powers under any other provision of this Act.
75C Additional provisions about destination to which a vessel, aircraft or person may be taken
(1) To avoid doubt:
(a) the destination to which a vessel, aircraft or person is taken (or caused to be taken) under section 69 or 72:
(i) does not have to be in a country; and
(ii) without limiting subparagraph (i)--may be just outside a country; and
(iii) may be a vessel; and
(b) a vessel, aircraft or person may be taken (or caused to be taken) to a destination under section 69 or 72:
(i) whether or not Australia has an agreement or arrangement with any other country relating to the vessel or aircraft (or the persons on it), or the person; and
(ii) irrespective of the international obligations or domestic law of any other country.
Note: The definition of country in section 8 includes the territorial sea and archipelagic waters of the country, as well as various other areas.
(2) However, if the destination is in another country, section 40 (exercising powers in other countries) must be complied with.
75D Exercising powers between countries
(1) Section 41 (foreign vessels between countries) does not apply to an exercise of power under section 69, 69A, 71, 72, 72A or 74 if:
(a) the exercise of power is:
(i) covered by a determination in force under subsection (2); or
(ii) required by a direction in force under paragraph 75F(2)(a); and
(b) the exercise of power is part of a continuous exercise of powers that commenced in accordance with any applicable requirements of Division 5 of Part 2.
(2) For the purpose of subparagraph (1)(a)(i), the Minister may make a written determination that is expressed to cover the exercise, in a specified circumstance, of powers under one or more of the sections referred to in subsection (1).
(3) The Minister may, in writing, vary or revoke a determination made under subsection (2).
(4) The only condition for the exercise of the power to make a determination under subsection (2), or to vary a determination, is that the Minister thinks that it is in the national interest to make or vary the determination.
Note: There are no conditions for the exercise of the power to revoke a determination.
(5) A determination under subsection (2), or an instrument varying or revoking a determination, comes into force:
(a) unless paragraph (b) applies--when it is made; or
(b) if the determination or instrument specifies a later time as the time when it is to come into force--at that later time.
(6) A determination under subsection (2) remains in force until whichever of the following occurs first:
(a) an instrument revoking the determination comes into force;
(b) if the determination is expressed to cease to be in force at a specified time--the time so specified.
(7) A determination under subsection (2), or a variation or revocation of a determination, is not a legislative instrument.
75E Powers are not limited by the Migration Act 1958
(1) Powers under sections 69, 69A, 71, 72, 72A, 74, 75D, 75F, 75G or 75H are not in any respect subject to, or limited by, the Migration Act 1958 (including regulations and other instruments made under that Act).
(2) Subsection (1) of this section is not to be taken to imply that other powers under this Act are subject to, or limited by, the Migration Act 1958 (including regulations and other instruments made under that Act).
75F Minister may give directions about exercise of powers
(1) This section applies in relation to the powers in sections 69, 69A, 71, 72 and 72A.
(2) The Minister may, in writing, give directions:
(a) requiring the exercise of a power or powers in a specified circumstance, or in circumstances in a specified class, in a specified manner; or
(b) relating to the exercise of a power or powers in a specified circumstance, in a specified class of circumstances or more generally.
(3) Without limiting subsection (2), the Minister may give a direction under that subsection:
(a) specifying a place that is to be, or is not to be, the destination to which a vessel, aircraft or person is taken under paragraph 69(2)(a) or subsection 72(4); or
(b) specifying matters to be taken into account in deciding the destination to which a vessel, aircraft or person is to be so taken.
(4) The Minister may, in writing, vary or revoke a direction given under subsection (2).
(5) The only condition for the exercise of the power to give a direction under subsection (2), or to vary a direction, is that the Minister thinks that it is in the national interest to give or vary the direction.
Note: There are no conditions for the exercise of the power to revoke a direction.
(6) A direction under subsection (2) may specify circumstances in which the direction need not be complied with.
(7) A direction under subsection (2), or an instrument varying or revoking a direction, comes into force:
(a) unless paragraph (b) applies--when it is made; or
(b) if the direction or instrument specifies a later time as the time when it is to come into force--at that later time.
(8) A direction under subsection (2) remains in force until whichever of the following occurs first:
(a) an instrument revoking the direction comes into force;
(b) if the direction is expressed to cease to be in force at a specified time--the time so specified.
(9) If the Minister gives a direction as mentioned in paragraph (2)(a):
(a) the direction is taken to constitute an authorisation of the exercise of the power or powers in accordance with the direction; and
(b) that authorisation is taken (despite section 23) to remain in force while the direction is in force.
(10) A direction under subsection (2), or an instrument varying or revoking a direction, is not a legislative instrument.
75G Compliance with directions
(1) Subject to subsections (2) and (3) of this section, and subsection 75F(6), a maritime officer must comply with any applicable directions in force under section 75F. However, a failure to comply does not invalidate any exercise of power by a maritime officer.
(2) A maritime officer who is a member of the Australian Defence Force is not required to comply with a direction under section 75F to the extent that the direction is inconsistent with an order or other exercise of command under sections 8 and 9 of the Defence Act 1903 .
(3) A maritime officer is not required to comply with a direction under section 75F to the extent that he or she reasonably believes that it would be unsafe to do so.
75H Certain maritime laws do not apply to certain vessels detained or used in exercise of powers
Vessels detained under section 69
(1) The laws specified in subsection (3) (including regulations and other instruments made under those laws) do not apply in relation to a vessel at any time when the vessel is detained in exercise (or purported exercise) of powers under section 69.
Vessels used in exercise of powers under subsections 72(4) or (5)
(2) The laws specified in subsection (3) (including regulations and other instruments made under those laws) do not apply in relation to a vessel at any time when the following paragraphs are satisfied:
(a) the vessel is being used in the exercise (or purported exercise) of powers under subsection 72(4) or (5), or the Commonwealth intends that the vessel is for use in the exercise of such powers;
(b) the vessel is specified in, or is included in a class of vessels specified in, a determination under subsection (4) that is in force;
(c) if the determination states that it has effect, in relation to the vessel or class of vessels, only in specified circumstances--those circumstances exist;
(d) if the determination states that it has effect, in relation to the vessel or the class of vessels, only in one or more specified periods--the time is in that period, or one of those periods.
Note: Paragraph (c) and (d) do not have to be satisfied unless the determination states as mentioned in those paragraphs.
The laws that are disapplied
(3) The laws that, because of subsection (1) or (2), do not apply in relation to a vessel are:
(a) the Navigation Act 2012 ; and
(b) the Shipping Registration Act 1981 ; and
(c) the Marine Safety (Domestic Commercial Vessel) National Law.
Determinations of vessels and classes of vessels
(4) For the purpose of paragraph (2)(b), the Minister may make a written determination specifying a vessel, or a class of vessels. The determination may also state either or both of the following:
(a) that it has effect, in relation to the vessel or class of vessels, only in specified circumstances;
(b) that it has effect, in relation to the vessel or the class of vessels, only in one or more specified periods.
(5) The Minister may, in writing, vary or revoke a determination made under subsection (4).
(6) The only condition for the exercise of the power to make a determination under subsection (4), or to vary a determination, is that the Minister thinks that it is in the national interest to make or vary the determination.
Note: There are no conditions for the exercise of the power to revoke a determination.
(7) A determination under subsection (4), or an instrument varying or revoking a determination, comes into force:
(a) unless paragraph (b) applies--when it is made; or
(b) if the determination or instrument specifies a later time as the time when it is to come into force--at that later time.
(8) A determination under subsection (4) remains in force until whichever of the following occurs first:
(a) an instrument revoking the determination comes into force;
(b) if the determination is expressed to cease to be in force at a specified time--the time so specified.
(9) A determination under subsection (4), or a variation or revocation of a determination, is not a legislative instrument.
20 Section 79
Omit:
Written notice must be given to the owner or person who was in possession or control of a seized, retained or detained thing.
substitute:
Written notice must be given to the owner of a seized, retained or detained thing, or to a person who had possession or control of the thing.
21 Paragraph 80(1)(b)
Omit "the person", substitute "a person".
22 At the end of section 81
Add:
(3) If a detained vessel or aircraft is to be taken to a destination under paragraph 69(2)(a), the information must also explain the effect of subsection 69A(3).
23 Paragraphs 86(1)(b) and 87(1)(b)
Omit "the person", substitute "a person".
24 At the end of subsection 87(2)
Add:
Note: In the case of a detained vessel or aircraft that is taken to a destination under paragraph 69(2)(a), days in periods covered by subsection 69A(1) (such as the period it takes to travel to the destination) do not count towards the 28 day limit: see subsection 69A(3).
25 Subsection 93(1)
Repeal the subsection, substitute:
(1) If the thing is disposed of under paragraph 91(1)(a), (b) or (c) (reasons for disposal), the Minister must give written notice, as soon as practicable after the disposal, to:
(a) the person who owned the thing; or
(b) a person who had possession or control of the thing immediately before it was seized, retained or detained.
26 Subsection 93(3)
Omit "the person", substitute "any person to whom the notice may be given under that subsection".
27 Section 94
Omit:
Persons from detained vessels and aircraft may be required to remain on the vessel or aircraft, or may be taken to another place.
28 Section 97
Repeal the section.
29 Section 107
After "proceeding", insert ", whether civil or criminal,".
30 Subsection 121(1)
After "this Act", insert ", other than the powers under section 75D, 75F or 75H,".
Administrative Decisions (Judicial Review) Act 1977
31 After paragraph (p) of Schedule 1
Insert:
(pa) decisions under section 75D, 75F or 75H of the Maritime Powers Act 2013 ;
Immigration (Guardianship of Children) Act 1946
32 At the end of paragraph 6(2)(d)
Add ", or under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013 " .
33 Paragraph 8(2)(b)
After "migration law", insert "or the Maritime Powers Act 2013 ".
34 Paragraph 8(2)(c)
Repeal the paragraph, substitute:
(c) imposes any obligation on the Minister or another Minister to exercise, or to consider exercising, any power conferred by or under the migration law or the Maritime Powers Act 2013 .
35 At the end of paragraph 8(3)(d)
Add ", or under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013 ".
36 Subsection 5(1) (paragraph (b) of the definition of transitory person )
Omit "or paragraph 72(4)(b) of the Maritime Powers Act 2013 ", substitute "or under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013 ".
37 Paragraph 5AA(2)(ba)
Repeal the paragraph, substitute:
(ba) the person entered the migration zone as a result of the exercise of powers under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013 ; or
38 Subparagraph 42(2A)(c)(i)
Omit "or 72(4) of the Maritime Powers Act 2013 ", substitute "or under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013 ".
39 Application of amendments of the Maritime Powers Act 2013
(1) Subject to this item, the amendments of the Maritime Powers Act 2013 made by Part 1 of this Schedule (the amending Part ) apply in relation to the exercise (or continued exercise) of powers under that Act after the commencement of the amending Part, even if:
(a) an authorisation for the exercise of the powers was given under Division 2 of Part 2 of that Act before the commencement of the amending Part; or
(b) the powers are exercised:
(i) in the course of a continuous exercise of powers that started before the commencement of the amending Part; or
(ii) without limiting subparagraph (i)--in relation to a person, vessel or aircraft who or that started to be detained, or otherwise held, under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013 before that commencement; or
(iii) in any other situation in relation to which powers were (or could have been) exercised under that Act before that commencement.
(2) The amendments of the Maritime Powers Act 2013 made by item 3 (so far as it affects the giving of authorisations), and item 6, of the amending Part apply in relation to authorisations given under Division 2 of Part 2 of that Act after the commencement of the amending Part.
(3) Section 75H of the Maritime Powers Act 2013 , as inserted by item 19 of the amending Part, applies to:
(a) vessels that, after the commencement of the amending Part, are detained as mentioned in subsection 75H(1), even if the vessels started to be so detained before that commencement; and
(b) vessels that, after the commencement of the amending Part, are being used, or that are intended for use, as mentioned in paragraph 75H(2)(a), even if the vessels started to be so used, or intended for use, before that commencement.
(4) The amendments of the Maritime Powers Act 2013 made by items 21, 23, 25 and 26 of the amending Part apply after the commencement of the amending Part in relation to a seized, retained or detained thing (including a vessel or aircraft), even if the exercise of power by which the thing was first seized, retained or detained occurred before that commencement.
(5) The amendments of the Maritime Powers Act 2013 made by the amending Part do not, by implication, affect the interpretation of that Act, as in force before the commencement of the amending Part, in relation to the exercise of powers, or the giving of authorisations, under that Act before that commencement.