Migration Act 1958

This section applies to an aircraft that has landed in Australia for boarding as a result of a request made under section 245E.

An officer may:

board and search the aircraft; and

search and examine any goods found on the aircraft; and

secure any goods found on the aircraft; and

require all persons found on the aircraft to answer questions, and produce any documents in their possession, in relation to the following:

the aircraft and its flight, cargo, stores, crew and passengers;

the identity and presence of those persons on the aircraft;

a contravention, an attempted contravention or an involvement in a contravention or attempted contravention, either in or outside Australia, of this Act; and

copy, or take extracts from, any document:

found on the aircraft; or

produced by a person found on the aircraft as required under paragraph (d); and

arrest without warrant any person found on the aircraft if the officer reasonably suspects that the person has committed, is committing or attempting to commit, or is involved in the commission of, an offence, either in or outside Australia, against this Act.

Without limiting the generality of paragraph (3)(a), an officer may use a dog to assist in searching the aircraft.

In the exercise of the power under paragraph (3)(b) to examine goods, the officer may do, or arrange for another officer or other person having the necessary experience to do, whatever is reasonably necessary to permit the examination of the goods.

Without limiting the generality of subsection (6), examples of what may be done in the examination of goods include the following:

opening any package in which goods are or may be contained;

using a device, such as an X‑ray machine or ion scanning equipment, on the goods;

if the goods are a document—reading the document either directly or with the use of an electronic device;

using a dog to assist in examining the goods.

An officer may detain the aircraft and bring it, or cause it to be brought, to a port, or to another place, that he or she considers appropriate if the officer reasonably suspects that the aircraft is or has been involved in a contravention, either in or outside Australia, of this Act.

If an officer detains an aircraft under this section, any restraint on the liberty of any person found on the aircraft that results from the detention of the aircraft is not unlawful, and proceedings, whether civil or criminal, in respect of that restraint may not be instituted or continued in any court against the Commonwealth, the officer or any person assisting the officer in detaining the aircraft.

Nothing in subsection (8A) is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.

If an officer detains an aircraft under this section, the officer may:

detain any person found on the aircraft and bring the person, or cause the person to be brought, to the migration zone; or

take the person, or cause the person to be taken, to a place outside Australia.

For the purpose of moving a person under subsection (9), an officer may, within or outside Australia:

place the person on a ship or aircraft; or

restrain the person on a ship or aircraft; or

remove the person from a ship or aircraft.

Proceedings, whether civil or criminal, may not be instituted or continued, in respect of any action taken under subsection (9A), against the Commonwealth, an officer or any person assisting an officer if the officer or person who took the action acted in good faith and used no more force than was authorised by subsection (10).

An officer may use such force as is necessary and reasonable in the exercise of a power under this section.

In boarding and searching the aircraft and searching or examining goods found on the aircraft, an officer must not damage the aircraft or goods by forcing open a part of the aircraft or goods unless:

the person (if any) apparently in charge of the aircraft has been given a reasonable opportunity to open that part or the goods; or

it is not reasonably practicable to give that person such an opportunity.

In arresting or detaining a person found on the aircraft, an officer:

must not use more force, or subject the person to greater indignity, than is necessary and reasonable to make the arrest or detention, or to prevent the person escaping after the arrest or detention; and

must not do anything likely to cause the person grievous bodily harm unless the officer believes on reasonable grounds that doing the thing is necessary to protect life or prevent serious injury of another person (including the officer).

In arresting a person found on the aircraft who is fleeing to escape arrest, an officer must not do anything likely to cause the person grievous bodily harm unless:

the person has, if practicable, been called on to surrender and the officer believes on reasonable grounds that the person cannot be apprehended in any other way; or

the officer believes on reasonable grounds that doing the thing is necessary to protect life or prevent serious injury of another person (including the officer).

A person must not refuse or fail to comply with a requirement made by an officer under this section.

Subsection (15) does not apply if the person has a reasonable excuse.

A defendant bears an evidential burden in relation to the matter in subsection (15A) (see subsection 13.3(3) of the Criminal Code).

An offence against subsection (15) is an offence of strict liability.

For strict liability, see section 6.1 of the Criminal Code.

To avoid doubt, if, when exercising powers under this section, an officer obtains evidence of the commission of an offence against a law of the Commonwealth, a State or a Territory, then that evidence may be used, or given to another body for use, in:

investigating the offence; or

proceedings for the prosecution for the offence.

This section does not limit the use by an officer of any other powers under this Act.

In this section, officer means an officer within the meaning of section 5, and includes:

any person who is in command, or a member of the crew, of the aircraft from which the relevant request under section 245E was made; and

a member of the Australian Defence Force.

In this section:

a reference to a person found on the aircraft includes a reference to a person suspected on reasonable grounds by an officer of having landed from or left the aircraft; and

a reference to goods found on the aircraft includes a reference to goods suspected on reasonable grounds by an officer of having been removed from the aircraft.