John Howard’s Border Protection Bill

This is the text of the Howard government’s Border Protection Bill.

The bill was proposed in the aftermath of the arrival of the MV Tampa.

1998-1999-2000-2001 

The Parliament of the

Commonwealth of Australia 

HOUSE OF REPRESENTATIVES 
 
 
 

Presented and read a first time 
 
 
 
 
 
 
 
 

Border Protection Bill 2001 

No. , 2001 

(Immigration and Multicultural Affairs) 
 
 

A Bill for an Act to provide for the removal of ships from the territorial sea of Australia, and for related purposes

 
Contents 
 

 
A Bill for an Act to provide for the removal of ships from the territorial sea of Australia, and for related purposes

The Parliament of Australia enacts:

1 Short title

             
This Act may be cited as the Border Protection Act 2001.

2 Commencement

             
This Act is taken to have commenced on 29 August 2001 at 9.00 am by legal time in the Australian Capital Territory.

3 Definitions

             
In this Act:

Australia includes all the external Territories.

officer means any of the following persons who is authorised (whether orally or in writing) for the purposes of this Act by the Prime Minister or the Minister:

      (a) the Secretary, or an employee, of the Department;

      (b) a person who is an officer for the purposes of the Customs Act 1901;

      (c) a member of the Australian Federal Police or of the police force of a State or an internal Territory;

      (d) a member of the police force of an external Territory;

      (e) a member of the Australian Defence Force.

ship means any vessel used in navigation, other than air navigation, and includes a barge, lighter or any other floating vessel.

territorial sea, in relation to Australia, means the territorial sea area whose outer limits are from time to time specified in a Proclamation made by the
Governor-General for the purposes of section 7 of the Seas and Submerged Lands Act 1973.

4 Direction that ship be removed from Australian territorial sea

      (1) An officer may, in his or her absolute discretion, direct the master or other person in charge of a ship that is within the outer limits of the territorial sea of Australia to take the ship, and any person on board the ship, outside the territorial sea.

      (2) A direction given under subsection (1) must not be called into question, or challenged, in any proceedings in any court in Australia.

      (3) An officer may use any reasonable means to give a direction under subsection (1).

      (4) To avoid doubt, a direction is given under subsection (1) even if:

      (a) there was no master on board the ship to receive the direction; or

      (b) the master did not receive or understand the direction.

5 Enforcement of direction

             
Where a direction has been given under section 4, an officer may detain the ship, and take it, or cause it to be taken, outside the territorial sea of Australia. For this purpose, reasonable means, including reasonable force, may be used by the officer or another person.

6 Persons may be returned to ship

             
An officer, or a person assisting an officer, may return to a ship a person who:

      (a) at the time when a direction is given under section 4 in respect of the ship, is on board the ship; and

      (b) later leaves the ship.

For this purpose, reasonable means, including reasonable force, may be used by the officer or another person.

7 Liability for actions taken under this Act

      (1) Proceedings, whether civil or criminal, may not be instituted or continued against the Commonwealth in respect of action taken under section 5 or 6.

      (2) Proceedings, whether civil or criminal, may not be instituted or continued against an officer who takes action under section 5 or 6, or a person who assists in taking action under section 5 or 6, if the officer or other person acts in good faith.

8 No proceedings available to prevent removal of ship

             
Proceedings may not be instituted or continued by any person in any court to prevent a ship, or any persons on board a ship, being removed to a place outside the territorial sea of Australia pursuant to a direction
given under section 4.

9 No applications for protection visas

      (1) Any application for a protection visa under the Migration Act 1958, made by a person who is on board a ship at the time when a direction is given under section 4 in respect of the ship, is not a valid application.

      (2) Section 91F of the Migration Act 1958 applies in relation to an application covered by subsection (1) of this section as if it were an application covered by section 91E of that Act.

10 Act has effect in spite of any other law

             
This Act has effect in spite of any other law.

11 Validation of actions taken before Assent to this Act

      (1) This section applies to action taken during the period between the commencement of this Act and the time when this Act received the Royal Assent.

      (2) If, during that period, the Prime Minister or the Minister authorised a person (the authorised person) described in any of the paragraphs of the definition of officer in section 3 to give a direction of the kind described in section 4 (however that authorisation was expressed), then:

      (a) any action of the kind described in section 5 or 6 that was taken pursuant to that authorisation (including any action taken by any other person at the request or direction of the authorised person) is deemed for all purposes to have been validly taken under this Act; and

      (b) section 7 applies in respect of any such action as if the action had been taken under section 5 or 6; and

      (c) section 8 applies in respect of any removal of a ship pursuant to such an authorisation as if a direction had been given under section 4; and

      (d) section 9 applies to any application made by a person who was on board the ship at any time during that period as if a direction had been given under section 4 in respect of the ship concerned while the person was on board the ship.

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