Migration Act 1958

The master, owner, agent, charterer and operator of a vessel on which a non‑citizen is brought into Australia on or after 1 November 1979 each commit an offence against this section if the non‑citizen, when entering Australia:

is not in possession of evidence of a visa that is in effect and that permits him or her to travel to and enter Australia; and

does not hold a special purpose visa; and

is not eligible for a special category visa; and

does not hold an enforcement visa; and

is a person to whom subsection 42(1) applies.

A person commits an offence if:

the person is a master, owner, agent, charterer or operator of an aircraft; and

the person brings a non‑citizen into Australia by air on the aircraft; and

the non‑citizen is the holder of a maritime crew visa that is in effect.

A person who commits an offence against this section is liable, upon conviction, to a fine not exceeding 100 penalty units.

An offence against subsection (1) or (1A) is an offence of absolute liability.

For absolute liability, see section 6.2 of the Criminal Code.

For the purposes of subsection (1), the defendant bears an evidential burden in relation to establishing that subsection 42(1) does not apply to a person because of subsection 42(2) or (2A) or regulations made under subsection 42(3).

For evidential burden, see section 13.3 of the Criminal Code.

It is a defence to a prosecution for an offence against subsection (1) in relation to the bringing of a non‑citizen into Australia on a vessel if it is established:

that the non‑citizen was, when he or she boarded or last boarded the vessel for travel to Australia, in possession of evidence of a visa that was in effect and that permitted him or her to travel to and enter Australia, being a visa that:

did not appear to have been cancelled; and

was expressed to continue in effect until, or at least until, the date of the non‑citizen’s expected entry into Australia;

that the master of the vessel had reasonable grounds for believing that, when the non‑citizen boarded or last boarded the vessel for travelling to and entering Australia, the non‑citizen:

was eligible for a special category visa; or

was the holder of a special purpose visa; or

would, when entering Australia, be the holder of a special purpose visa; or

was the holder of an enforcement visa; or

would, when entering Australia, be the holder of an enforcement visa; or

that the vessel entered Australia from overseas only because of:

the illness of a person on board the vessel;

stress of weather; or

other circumstances beyond the control of the master.

It is a defence to a prosecution for an offence against subsection (1A) in relation to the bringing of a non‑citizen into Australia on an aircraft if it is established that:

the non‑citizen was, when he or she boarded or last boarded the aircraft for travel to Australia, in possession of evidence of another class of visa that was in effect and that permitted him or her to travel to and enter Australia, being a visa that:

did not appear to have been cancelled; and

was expressed to continue in effect until, or at least until, the date of the non‑citizen’s expected entry into Australia; or

the aircraft entered Australia from overseas only because of:

the illness of a person on board the aircraft; or

stress of weather; or

other circumstances beyond the control of the master.

A defendant bears a legal burden in relation to the matters in subsection (5) or (5A).