Australia

Migration Act: detention of vessels

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Guidelines for the detention of vessels for search purposes, recovery of penalty, and disposal of dilapidated vessels.

Australia Immigration

Please note that the information we provide in this article about detention of vessels under the Migration Act is current as of the date of publication, and the DHA regularly updates rules and regulations. Kindly ensure that you check the official updates before making any decisions or speak with an immigration lawyer for the most up-to-date information, as laws and conditions are subject to change.

Section 259 to 261 of the Act talks about the detention of vessels and its legal implications. Specifically:

Section 259 – Detention of vessel for purpose of search
Section 260 – Detention of vessel pending recovery of penalty
Section 261 – Disposal of dilapidated vessels etc.

Detention of Vessels: For Purpose of Search

Section 259 of the Migration Act sets the guidelines as to the detention of vessels for search purposes. Under this provision, the Secretary or Australian Border Force Commissioner may:

by notice in writing to the master of a vessel which has arrived in Australia not more than one month before the date of the notice
order that the vessel remain at a port or place for a reasonable time specified in the notice
To enable a search of the vessel to ascertain whether there are on the vessel:

any unlawful non-citizens or
any persons seeking to enter Australia in circumstances in which they would become unlawful non-citizens.

READ: Immigration Status and Unlawful Non-citizens

Moreover, the master of a vessel in respect of which an order is in force under this section shall not, during the time specified in the order, move the vessel without the consent of the Secretary or Australian Border Force Commissioner. A violation of this order will impose 200 penalty units.

Note that this offence is an offence of strict liability. Meaning, a violation of an order does not require proof of intent, knowledge, or negligence on the part of the offender to become an offence under this provision.

Detention of Vessels: Pending Penalty Recovery

Section 260 of the Act lays out the rules as to the detention of vessels pending recovery of penalty. The Secretary or Australian Border Force Commissioner may:

in writing,
direct an officer to detain a vessel
where, in the Secretary's or Australian Border Force Commissioner's opinion, the master, owner, agent or charterer of the vessel has been guilty of an offence against this Act.

Section 260 Direction Rules

Detention of vessels. Enable a vessel search to determine if specific items are present on board.
Notice of detention. The Secretary or Australian Border Force Commissioner shall forthwith give notice of the detention to the master, owner, charterer or agent of the vessel.
Seizure warrant. The officer specified in the direction is entitled to obtain such seizure warrant issued under the Customs Act 1901 or other aid under a law of the Commonwealth with respect to the seizure of vessels or goods for detention and other lawful dealings with the vessel.
Giving of a bond. The detention of a vessel under this section shall cease if the master, owner, agent or charterer of the vessel will give a bond with 2 sufficient sureties to the satisfaction of the Secretary or Australian Border Force Commissioner.
Default. The Secretary or Australian Border Force Commissioner may seize the vessel if the master, owner, agent, or charterer of the vessel defaults on any penalties imposed in relation to an offense against this Act.

At that point, the same procedures will be followed for forfeiting and condemning the vessel as in the case of a vessel seized for violating the Customs Act 1901, and the vessel will be sold.

Application of payment of the penalties. The vessel's sale proceeds will first cover fines and legal fees related to the seizure and sale. The owner and others who owned the vessel before it was sold will receive the remaining money.

Disposal of Dilapidated Vessels

Aside from the detention of vessels, this article will also tackle the disposal of dilapidated vessels under section 261. There are four main rules in the disposal of dilapidated vessels.

Rule #1	If a non-citizen who enters Australia: does not comply with section 166 requirements (immigration clearance) or detained under section 189 (detention of unlawful non-citizens), the Secretary or Australian Border Force Commissioner may, in writing, direct an officer to seize the vessel on which the non-citizen came to Australia.
Rule #2	If the vessel was seized, forfeited and condemned under section 260, ordered by a court to be delivered to a person or otherwise dealt with, or in such a poor condition that its custody or maintenance is in jeopardy, the Secretary or Australian Border Force Commissioner may direct an officer to sell, destroy, or otherwise dispose of the vessel in writing.
Rule #3	The proceeds of a sale are to be applied firstly in payment of costs incurred by the Commonwealth in the custody or maintenance of the vessel. Moreover, in selling or disposing of the vessel, the owner and any other persons with interests in the vessel must pay the balance before its sale.
Rule #4	If a person owes a debt to the Commonwealth under this Act and an amount by way of the balance of the proceeds of a sale (the balance amount) is payable to the person, the Commonwealth may apply the balance amount in payment of the debt, and the debt is reduced accordingly. The amount applied must not exceed the amount of the debt.

Detention of Vessels: Other Related Articles

Here are some articles that are related to detention of vessels under the Migration Act:

Do You Need a Migration Attorney?

Immigration regulations can be confusing and it can be a lot to take in. A migration attorney from JB Solicitors has the knowledge and experience to help you through these difficulties and make sure you fulfill all the requirements for your particular case. Additionally, we can inform you of any recent changes in the law that might have an effect on your case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.