This article will outline general provisions relating to seizure under the Migration Act 1958. Australian Border Force (ABF) officers and private security guards have the power to seize items from immigration detainees. This is because these items may pose a risk to detainees, immigration staff, visitors, or to order in the facility.
Read on to know more about general provisions relating to seizure.
Section 487W and 487X: Copies and Receipts of Seized Things
Section 487W of general provisions relating to seizure allows the occupier of premises or their representative to request a copy of:
- Any document;
- Computer file or other thing that is readily copiable; or
- The information on a storage device that is readily copiable.
which an authorised officer has seized under a search warrant.
The authorised officer must comply with this request as soon as practicable. This is the case unless possession of the item by the occupier or their representative could constitute an offence against a Commonwealth law.
Section 487X requires an authorised officer to provide a receipt for any item seized under this Division. One receipt may cover two or more items that are seized.
Section 487Y: Return of Seized Things
Section 487Y of general provisions relating to seizure upholds a requirement for the:
- Secretary of the Department of Home Affairs (DHA); or
- ABF Commissioner
The requirement involves DHA Secretary and the ABF Commissioner to take reasonable steps to return a thing seized under this Division when the earliest of the following happens:
- The reason for the thing’s seizure no longer exists.
- They decide that they are not going to use the thing in evidence.
- The period of 60 days after the thing’s seizure ends.
However, this requirement does not apply if the police does not have to return a seized item if:
- A court has ordered them to keep it.
- It is forfeitable to the Commonwealth.
- It is the subject of a dispute as to ownership.
- The police do not have to return a seized item after 60 days if:
- Criminal proceedings have started and authorities may use that item as evidence in those proceedings.
- The item can be kept under an order under Section 487Z.
- The Commonwealth, the Secretary of the Department of Home Affairs, the Australian Border Force Commissioner, or an authorised officer is otherwise authorised to keep, destroy, dispose of, or otherwise deal with the item (under a law or an order of a court).
Moreover, a thing that needs to be returned under Section 487Y of general provisions relating to seizure must be returned:
- To the person from whom they seized it; or
- To the owner if that person does not have entitlement to possess it.
Section 487Z: Issuing Officer May Permit a Seized Thing to Be Retained
Section 487Z of general provisions relating to seizure outlines the following:
(1) The DHA Secretary or the Australian Border Force Commissioner can apply to an issuing officer for a certain order. This order will keep a thing that authorities have seized under this Division for longer if criminal proceedings have not started before the end of:
- 60 days after they seized it; or
- A period that was previously specified in an order of an issuing officer under this section.
(2) According to Section 487Z of general provisions relating to seizure, the DHA Secretary or ABF Commissioner, before making the application:
- Take reasonable steps to find out who has an interest in keeping the thing; and
- Notify each person who the Secretary or Australian Border Force Commissioner believes has such an interest of the proposed application (if possible)
(3) The issuing officer can order that the thing can continue to be kept for a period specified in the order if the issuing officer believes that it is necessary for the thing to continue to be kept:
- for the purposes of investigating whether:
- A sponsorship-related offence has been committed; or
- A sponsorship-related provision has been contravened; or
- A work-related offence has been committed; or
- A work-related provision has been contravened; or
- to enable evidence of such an offence or contravention to be secured for the purposes of a prosecution or action.
(4) The period specified must not exceed 3 years.
Section 487ZA: Disposal of Seized Things
The Section 487ZA states that the DHA Secretary or the ABF Commissioner can dispose of a thing that authorities have seized under the Migration Act if:
- The Secretary or Australian Border Force Commissioner has taken reasonable steps to return the thing to a person, and.
- The Secretary or Australian Border Force Commissioner has not been able to find the person, or
- The person has refused to take the thing back.
- The Secretary or Australian Border Force Commissioner can dispose of the thing in any way they think is appropriate.
Section 487ZB: Compensation for Acquisition of Property
The Section 487ZB of general provisions relating to seizure sets out the following provisions
- If the operation of section 487ZA would result in the Commonwealth taking property from a person without paying them a fair price, the Commonwealth is liable to pay the person a reasonable amount of compensation.
- If the Commonwealth and the person do not agree on the amount of compensation, the person may go to court to get the court to decide how much compensation they should receive.
- In this section of Section 487B of general provisions relating to seizure:
- “acquisition of property” has the same meaning as in paragraph 51(xxxi) of the Constitution.
- “just terms” has the same meaning as in paragraph 51(xxxi) of the Constitution.
Our Expert Migration Lawyers
JB Solicitors understands that migration matters can be complex and stressful. This is true especially when it comes to communicating with the ABF and the DHA. That’s why we recommend seeking legal advice from our qualified migration lawyers.
Our migration lawyers can help you communicate with the ABF and DHA in a clear and concise manner. This ensures that they conduct your matters relating to seizure completely and accurately. They can also represent you in any negotiations or appeals, and help you understand your rights and options.
Here are some specific examples of how our team can help you with matters relating to seizure:
- Advising you on your rights if you have an item seized from you
- Assisting you to request a copy of a seized item or a receipt for a seized item
- Negotiating with the ABF or other government agencies to have a seized item returned to you
- Representing you in any court proceedings if you are challenging a seizure or seeking compensation for the seizure of an item.
Contact us if you have other migration law matters at hand.