Border Protection (Validation and Enforcement Powers) Act 2001
No. 126, 2001
Border Protection (Validation and Enforcement Powers) Act 2001
No. 126, 2001
An Act to validate the actions of the Commonwealth and others in relation to the MV Tampa and other vessels, and to provide increased powers to protect Australia’s borders, and for related purposes
Contents
Part 1—Preliminary
1 Short title...................................
2 Commencement...............................
3 Schedule(s)..................................
Part 2—Validation of certain actions
4 Definitions..................................
5 Action to which this Part applies.....................
6 Action to which this Part applies taken to be lawful..........
7 No proceedings in respect of action to which this Part applies....
8 Compensation for acquisition of property................
9 Jurisdiction of High Court.........................
Schedule 1—Amendment of the Customs Act 1901
Schedule 2—Amendment of the Migration Act 1958
Border Protection (Validation and Enforcement Powers) Act 2001
No. 126, 2001
An Act to validate the actions of the Commonwealth and others in relation to the MV Tampa and other vessels, and to provide increased powers to protect Australia’s borders, and for related purposes
[Assented to 27 September 2001]
The Parliament of Australia enacts:
Part 1—Preliminary
1 Short title
This Act may be cited as the Border Protection (Validation and Enforcement Powers) Act 2001.
2 Commencement
This Act commences on the day on which it receives the Royal Assent.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Part 2—Validation of certain actions
4 Definitions
In this Part:
Commonwealth officer includes a person who:
(a) is in the service or employment of the Commonwealth or an authority of the Commonwealth; or
(b) holds or performs the duties of any office or position under a law of the Commonwealth; or
(c) is a member of the Australian Defence Force.
validation period means the period starting on 27 August 2001 and ending at the beginning of the day on which this Act commences.
vessel has the same meaning as in the Migration Act 1958.
5 Action to which this Part applies
This Part applies to any action taken during the validation period by the Commonwealth, or by a Commonwealth officer, or any other person, acting on behalf of the Commonwealth, in relation to:
(a) the MV Tampa; or
(b) the Aceng; or
(c) any other vessel carrying persons in respect of whom there were reasonable grounds for believing that their intention was to enter Australia unlawfully; or
(d) any person who was on board a vessel mentioned in paragraph (a), (b) or (c) at any time during the validation period (whether or not the action was taken while the person was on board the vessel).
6 Action to which this Part applies taken to be lawful
All action to which this Part applies is taken…
Overview
The Border Protection (Validation and Enforcement Powers) Act 2001 was enacted by the Parliament of Australia to address the pressing need for legal validation and enhanced enforcement powers concerning border protection, particularly in light of incidents such as the MV Tampa affair. This Act aims to validate actions taken by the Commonwealth, Commonwealth officers, and others in relation to vessels carrying individuals believed to be attempting to enter Australia unlawfully. Additionally, it seeks to provide increased powers to safeguard Australia's borders effectively. The overarching policy objective of this legislation is to ensure that actions taken in the enforcement of border protection measures are lawful, while also preventing legal proceedings against the Commonwealth, its officers, or any persons acting on its behalf in relation to these actions.
Scope and Application
The Border Protection (Validation and Enforcement Powers) Act 2001 applies to any action taken by the Commonwealth, Commonwealth officers, or any other person acting on behalf of the Commonwealth, during the validation period specified in the Act. The validation period commenced on 27 August 2001 and ended at the beginning of the day on which this Act received Royal Assent. The Act provides that any action taken in relation to the MV Tampa, the Aceng, or any other vessel carrying individuals who were believed to have the intention to enter Australia unlawfully, or any person on board such vessels, is deemed to have been lawful. The Act also stipulates that no civil or criminal proceedings can be instituted or continued against the Commonwealth, a Commonwealth officer, or any other person acting on behalf of the Commonwealth in relation to such actions. This prohibition applies to proceedings instituted or continued after the Act received Royal Assent. Additionally, the Act amends the Customs Act 1901 and the Migration Act 1958 to expand the powers of officers in relation to the detention of ships and aircraft, searches of persons on detained ships or aircraft, and the movement of people. The Act extends to actions taken within or outside Australia, including in Australia's territorial sea or contiguous zone. The Act also provides for compensation if an acquisition of property results from its provisions and does not affect the jurisdiction of the High Court.
Key Provisions
- The Border Protection (Validation and Enforcement Powers) Act 2001 (sections 4-9) applies to any actions taken during the validation period by the Commonwealth, Commonwealth officers, or any other person acting on behalf of the Commonwealth in relation to specific vessels carrying individuals with reasonable grounds to believe their intention was to enter Australia unlawfully. This includes the MV Tampa, the Aceng, and any other vessels carrying such individuals. Section 6 of the Act validates these actions, declaring them lawful for all purposes. Section 7 prohibits any civil or criminal proceedings against the Commonwealth, Commonwealth officers, or any person acting on behalf of the Commonwealth in relation to these validated actions. If the Act results in the acquisition of property without compensation, section 8 requires the Commonwealth to pay a reasonable amount of compensation.
- The Act imposes several obligations and requirements on the parties it governs. Section 185AA of the Customs Act 1901, as amended by Schedule 1, mandates that any person on a detained ship or aircraft may be searched without a warrant to find weapons or items that could cause harm or aid in escape. Section 185AB allows officers to return individuals to a detained ship if they were originally on the ship and subsequently left it, provided it is safe to do so. Similarly, Section 245FA of the Migration Act 1958, as amended by Schedule 2, provides for searches of individuals on detained ships or aircraft for weapons or escape aids, with the same search protocols.
- The Act also sets out penalties and consequences for breaches. Section 233C of the Migration Act 1958 stipulates mandatory minimum sentences for certain offences, including 8 years imprisonment for repeat offenders and 5 years for other cases, with corresponding non-parole periods. Section 233B further mandates that offenders cannot be discharged without proceeding to conviction for these offences unless the court is satisfied that the person was under 18 at the time of the offence. These stringent measures reflect the seriousness with which the Act treats violations related to border protection and enforcement.
- Area of Law
- Immigration & Refugee Law
- National Security Law
- Instrument
- Act
- Concepts
- Definitions & Interpretation
- Offence Provisions
- Enforcement Powers
- Prohibited Conduct
