What is the usage of electronic equipment under the Migration Act 1958? While the Act doesn’t explicitly list the exact electronic equipment authorised officers can use for monitoring or searching under Section 487F. However, based on the power to operate electronic equipment and the context of immigration enforcement, here are some possible types of equipment:
- Computers and Laptops: These could be used to access information stored on electronic devices found on the premises, like travel documents, digital records, or communication history.
- Data Storage Devices: Officers might bring external, or thumb drives to transfer copied evidence.
- Forensic Software: Officials could use specialised software to analyse data extracted from electronic devices for potential immigration offences.
- Mobile Device Extraction Tools: These tools extract data from phones, tablets, and other mobile devices.
Section 487F lets immigration officers use electronic devices during searches to look for evidence of immigration offences. They can:
- Examine the devices themselves.
- Copy evidence electronically.
- Transfer evidence to another device (with permission or if necessary).
- But they can only do this if they believe it won’t damage the equipment.
Read on to learn more about the usage of electronic equipment under the Migration Act 1958.
Section 268CO and 268CY: Use of Electronic Equipment in Exercising Monitoring Powers
Section 268CO of usage of electronic equipment gives immigration officials certain permissions when they’re monitoring a location. Here’s a breakdown:
- Who can do this? Authorised immigration officers or someone helping them.
- What can they do? They can use electronic equipment to monitor a place.
- When can they do this? Only if they have a reasonable belief that using the equipment won’t damage the equipment itself or the information stored on it.
This is essentially saying that immigration officials can use electronic devices for monitoring, but they have to be careful not to damage the equipment or the information they’re trying to access.
What Happens if Something Gets Damaged?
There might be compensation available if the equipment or data is broken. Section 268CY of usage of electronic equipment deals with what happens if something goes wrong when immigration officials use electronic devices while monitoring a place (as allowed under Section 268CO). Here’s a simpler explanation.
If the equipment or information stored on it gets damaged because the immigration officer wasn’t careful enough (either in choosing who to operate the device or how they operated it), then:
- The government (Commonwealth) has to pay to fix the damage. The owner of the equipment or the person who uses the information can negotiate a fair amount of compensation with the government.
- If they can’t agree on a price, the owner/user can take the government to court to get a judge to decide a fair amount.
- The court will consider whether the person living there (occupier) or their staff tried to warn the immigration officer about how to use the equipment safely.
- The government pays for these repairs using taxpayer money.
- Just to be clear, damaging information includes accidentally deleting it or adding something unintended.
Section 268CP: Use of Electronic Equipment by Experts
Section 268CP allows immigration officers to take action if they believe special equipment is needed to access important information.
1. What situation triggers this? If an immigration officer thinks:
- There’s information on-site from an educational provider.
- This information is relevant to checking someone’s visa.
- They need a specialist to operate the equipment to get the information.
- If they don’t act, someone could destroy or tamper with the information.
2. What can the officer do? They can secure the equipment for up to 24 hours.
3. What does “secure” mean? Steps can be taken to ensure the equipment isn’t used or damaged before the specialist arrives.
4. Do they need permission? Yes, the occupier must be notified before the equipment is secured, and informed it might be held for a day.
This means electronic devices can be temporarily controlled by immigration officers if they believe a specialist is needed to access crucial visa information, and that information might be at risk.
How Can Our Migration Lawyers Help?
JB Solicitors, an immigration law firm, can assist with issues related to how immigration officials use monitoring equipment in your case. Here’s how:
- Understanding Your Rights: They’ll explain the legal limits on how immigration officials can use electronic devices during monitoring (referencing Migration Act sections like 268CO & 487F).
This helps you determine if your rights have been violated. - Protecting Your Equipment & Data: They can guide you on minimising damage risks and potentially help negotiate compensation if negligence occurs (referencing Section 268CY).
- Challenging Evidence: If you believe the evidence against you came from illegal monitoring, they can help argue for its exclusion.
- Expert Assistance: For complex equipment or data retrieval (like Section 268CP), they can connect you with relevant technical specialists.
Contact us today if you need more information about laws on the usage of electronic equipment.
