Please note that the information we provide in this article about the powers of authorised officers is current as of the date of publication. The DHA regularly updates rules and regulations. Kindly ensure that you check the official updates before making any decisions. Importantly, speak with an immigration lawyer for the most up-to-date information, as laws and conditions are subject to change.
This article will discuss the powers of authorised officers under sections 268CI to 268CN of the Migration Act 1958. These sections pertain to some offences that a non-citizen may commit in relation to the following powers:
- Monitoring powers of authorised officers (section 268CI)
- Powers of authorised officers to ask questions (section 268J and 268K)
The offences under these sections are:
- Failure to answer question (section 268CL)
- Giving false or misleading information (section 268CM)
- Giving or showing documents that are false or misleading in material particulars (section 268CN)
Monitoring Powers of Authorised Officers
Section 268CI enumerates the monitoring powers of authorised officers in relation to premises under section 268CA. (Authorised officer may enter premises for a visa monitoring purpose):
- to search the premises, and any receptacle on the premises, for any thing on the premises belonging to or possessed by the education provider that might be relevant to a visa monitoring purpose;
- to examine any such thing;
- to examine any activity that is conducted on the premises by, or with the consent of, the education provider that might be relevant to a visa monitoring purpose;
- to take photographs or make video or audio recordings or sketches on the premises of any such activity or thing;
- to inspect any document on the premises belonging to or possessed by the education provider that might be relevant to a visa monitoring purpose;
- to take extracts from or make copies of any such document;
- to take onto the premises any equipment and materials that the authorised officer requires for the purpose of exercising powers in relation to the premises;
Power to Operate Equipment
Additionally, the monitoring powers also include the power to operate equipment that is on the premises to see whether the following contains information belonging to the education provider relating to a visa monitoring purpose:
- the equipment; or
- a disk, tape or other storage device that is on the premises and can be used with the equipment or is associated with it;
Information Belonging to the Education Provider
The monitoring powers of authorised officers include the following powers:
- to operate facilities that are on the premises to put the information in documentary form and remove the documents so produced;
- to operate such facilities to transfer the information to a disk, tape or other storage device that:
- is brought to the premises for the exercise of the power; or
- is on the premises and the use of which for that purpose has been agreed to in writing by the education provider or occupier (as appropriate);
- to remove from the premises a disk, tape or other storage device to which the information has been transferred in exercise of the power under paragraph (b).
Also, during a search of the premises, if an authorised officer has a reasonable suspicion that they could find something that could provide proof of an offence against:
- this Act and its regulations,
- the Crimes Act 1914, or
- the Criminal Code,
they can use their monitoring powers to secure the item while they wait to obtain a warrant to seize it.
Powers of Authorised Officers: Asking Questions with Consent
Section 268CJ states that an authorised officer who is only authorised to enter premises because the occupier of the premises consented to the entry may:
- ask the occupier to:
- answer any questions that are relevant to a visa monitoring purpose; and
- give or show the officer any document requested by the officer that is relevant to the matter; or
- ask any person on the premises to answer any questions that may facilitate the exercise of monitoring powers in relation to the premises.
IMPORTANT: A person could commit an offence if, under this section, the person gives false or misleading information or shows a document that is false or misleading in a material particular.
Powers of Authorised Officers: Asking Questions under Warrant
Section 268CK pertains to the power of an authorised officer who can enter premises by a monitoring warrant may:
- require the occupier of the premises to:
- answer any questions that are relevant to a visa monitoring purpose; and
- give or show the officer any document requested by the officer that is relevant to a visa monitoring purpose; or
- require any person on the premises to answer any questions that may facilitate the exercise of monitoring powers in relation to the premises.
Again, under this clause, it is also illegal for someone to provide false or misleading information or to display a document that is incorrect or misleading in a material way.
Offence: Failure to Answer Officer’s Question
Section 268CL provides that a person commits an offence if the person refuses or fails to comply with a requirement under section 268CK (officer on premises under warrant may ask questions).
Penalty: Imprisonment for 6 months.
However, there’s an exception. If providing information or displaying a document has the potential to implicate someone or put them in danger of punishment, then that person does not commit a violation under this provision.
Offence: Giving False or Misleading Information
Section 268CM states that person who gives false or misleading information in the course of complying or purporting to comply with a request under section 268CJ or a requirement under section 268CK commits an offence.
Penalty: Imprisonment for 12 months.
Offence: False or Misleading Documents
Section 268CN considers the act of giving or showing documents that are false or misleading in material particulars an offence.
Under this provision, a person commits an offence if:
- while complying or ostensibly complying with a request under section 268CJ or a requirement under section 268CK,
- they provide or display a document that is false or misleading in a substantial particular.
Penalty: Imprisonment for 12 months.
However, the person does not commit an offence if the document is accompanied by a written statement signed by the person:
- stating that the document is, to the person’s knowledge, false or misleading in the material particular concerned; and
- setting out or referring to the material particular.
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