This article will outline chasing and boarding under the Migration Act 1958. The exercise of search powers is a critical aspect of migration law enforcement, ensuring the safety and security of borders while upholding the integrity of immigration processes.
In Australia, specific provisions within the legislation empower officers to conduct searches in certain circumstances, particularly on detained ships or aircrafts. Read on to know more about the provisions for chasing and boarding.
Section 245A: Definitions
Section 245A about chasing and boarding outlines important definitions to take note of in this article. Here are the definitions:
| “aircraft” | This includes various types of flying vehicles such as aeroplanes, seaplanes, airships, balloons, or any other means of aerial locomotion. |
| “Australian aircraft” | This refers to an aircraft that meets one of the following criteria: (a) It is defined as an Australian aircraft under the Civil Aviation Act 1988. (b) It is not registered under the law of a foreign country and is either: – Wholly owned by one or more residents of Australia. – Solely operated by one or more Australian nationals. – Operated by one or more residents of Australia and one or more Australian nationals. The terms “Australian national” and “resident of Australia” have the same meanings as defined in the Shipping Registration Act 1981. |
| “Commonwealth aircraft” | This refers to an aircraft that is in the service of the Commonwealth (referring to the government) and displaying the prescribed ensign or insignia mentioned in subsection 4(1) of the Customs Act 1901. |
| “goods” | This is defined broadly to include not only physical items but also documents. |
| “This Act” | This encompasses the regulations made under the specific Act being referred to. |
Section 245E: Identifying an Aircraft and Requesting it to Land for Boarding
Section 245E about chasing and boarding outlines the application and procedures related to the commander of a Commonwealth aircraft. The commander makes requests to the pilot of another aircraft. Here’s an explanation of each subsection:
Subsection 1: Application of Section
This section allows the commander of a Commonwealth aircraft to make requests to the pilot of another aircraft under specific conditions:
- If the other aircraft is an Australian aircraft, the commander can make the request when the aircraft is over anywhere except a foreign country.
- If the other aircraft is not an Australian aircraft, the commander can make the request when the aircraft is over Australia.
Subsection 2: Requesting Information to Identify an Aircraft
Section 245E about chasing and boarding also states that the commander has the authority to conduct the following if the commander cannot identify the other aircraft:
- Intercept the other aircraft using their own aircraft, following the recommended practices in Annex 2 (Rules of the Air) to the Convention on International Civil Aviation.
- Request the pilot of the other aircraft to disclose specific information to the commander. This may include the identity of the aircraft, the identity of all persons on board, the flight path, and the flight plan of the other aircraft.
Subsection 3: Requesting Aircraft to Land for Boarding
Section 245E about chasing and boarding also states that the commander has certain powers. The commander can request the pilot of the other aircraft to land at the nearest proclaimed airport or suitable landing field in Australia for boarding purposes under two circumstances:
- If the pilot does not comply with the request made under Subsection 2
- If the commander reasonably suspects that the other aircraft is or has been involved in a contravention or attempted contravention of the relevant Act.
Means of Making Request
Section 245E about chasing and boarding also states that:
- Any reasonable means can be used to make a request under this section. The request can still be made even if the pilot did not receive the request.
- The pilot must comply with the request, even if the pilot did not receive or understand the request.
- The pilot of the other aircraft must comply with a request made under this section. Failure to comply with the request can result in imprisonment for 2 years. This does not apply if the pilot has a reasonable excuse for non-compliance.
Note: The defendant bears the burden of providing evidence for a reasonable excuse, as per subsection 13.3(3) of the Criminal Code.
Section 245F: Power To Board and Search Etc. Aircraft
Section 245F about chasing and boarding outlines the powers and procedures. These powers and procedures are related to the boarding, searching, and detention of an aircraft in the context of migration matters. Here is a breakdown of the key points:
1. Application of section to aircraft: This section applies to an aircraft that has landed in Australia for boarding as a result of a request made under section 245E.
2. Officer’s powers: An officer has the authority to board and search the aircraft, search and examine goods found on the aircraft, secure goods, question persons on the aircraft, and request the production of documents related to the aircraft, its flight, cargo, crew, passengers, and potential contraventions of the Act.
3. Use of force and assistance: Officers may use necessary and reasonable force in exercising their powers. They may also use dogs to assist in searching the aircraft and may arrange for experienced individuals to examine goods.
4. Detention and moving of the aircraft: If an officer reasonably suspects that the aircraft has been involved in a contravention of the Act, they may detain the aircraft and bring it to an appropriate location. Similarly, they may detain persons found on the aircraft and bring them to the migration zone or outside Australia.
Section 245F: Additional Provisions
1. Limits on the use of force: Officers must use no more force than necessary and reasonable when boarding, searching, arresting, or detaining individuals. There are restrictions on causing grievous bodily harm, and officers must provide an opportunity to open aircraft or goods before using force.
2. Compliance and penalties: Persons on the aircraft must comply with the requirements made by officers under this section. Failure to comply may result in a penalty of 100 penalty units.
3. Use of obtained evidence: Evidence obtained by officers during the exercise of their powers may be used for investigating and prosecuting offences under Commonwealth, State, or Territory laws, subject to any relevant state laws regarding the admissibility of evidence.
4. Definition of officer: An officer refers to individuals defined in section 5 of the Act, including crew members, persons in command of the aircraft, and members of the Australian Defence Force.
Section 25FA: Searches of People on Certain Ships or Aircraft
Section 245FA about chasing and boarding outlines the powers and procedures for searching individuals on certain detained ships or aircraft in the context of migration matters. Here is an explanation of the key points:
1. Scope of searches: Without a warrant, an officer may search a person, along with their clothing and any property immediately under their control if they are on an aircraft that authorities have detained under subsection 245F(8) or if they have been placed on a ship or aircraft under subsection 245F(9A).
2. Purpose of searches: The purpose of these searches is to determine whether the person is carrying a weapon or any other item that could cause bodily harm or aid in their escape.
3. Seizure and retention of items: If a search conducted under this section reveals a weapon or other relevant item, an officer has the authority to take possession of it and retain it for as long as necessary under the provisions of the Act.
4. Limitations on clothing removal: This section does not authorise officers or other searchers to remove a person’s clothing, except for outer garments. This may include overcoats, coats, jackets, gloves, shoes, and head coverings. They cannot remove inner clothing.
Section 25FA: Additional Provisions
1. Gender-specific searches: Searches under this section must be conducted by an officer of the same sex as the person being searched. If an officer of the same sex is not available, another person of the same sex may conduct the search if requested by an officer and the person agrees.
2. Immunity for searchers: A person who conducts a search under this section at the request of an officer has protection from civil or criminal action if they act in good faith and do not contravene Section 25FA, subsection (7).
3. Use of necessary force: Officers or other individuals conducting a search under this section must not use more force or subject a person to greater indignity than is reasonably necessary to conduct the search.
Importance of Seeking Legal Advice
JB Solicitors is an outstanding law firm that can provide guidance and expertise about chasing and boarding. Our lawyers can offer personalised advice based on their deep understanding of Australian legislation.
Remember, legal professionals can provide the necessary expertise and support to their clients. They can help you make informed decisions and navigate the complexities of the law.
Contact us today if you need more information about provisions for chasing and boarding under the Migration Act.
