Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013 (74 of 2013)
Schedule 3 Deterring people smuggling
Part 1 Main amendments
Migration Act 1958
4 At the end of Subdivision A of Division 12 of Part 2
Add:
236C Time in immigration detention counts for sentencing etc.
(1) This section applies to the court when imposing a sentence on, or setting a non-parole period for, a person convicted of an offence against this Subdivision.
(2) The court must take into account any period that the person has spent in immigration detention during the period:
(a) starting when the offence was committed; and
(b) ending when the person is sentenced for the offence.
Note: This enables the court to take into account time spent while not in punitive detention.
(3) Neither section 236B nor this section prevents section 16E of the Crimes Act 1914 from applying to the imposition of the sentence or the setting of the non-parole period.
Note: Section 16E of the Crimes Act 1914 applies State law to aspects of sentencing for federal offences, subject to specified exceptions.
236D Burden and standard of proof in relation to age
If, in proceedings relating to an offence against this Subdivision:
(a) the defendant claims to have been aged under 18 at the time the offence was alleged to have been, or was, committed, and
(b) the prosecution disputes this claim;
the prosecution bears the burden of proving, on the balance of probabilities, that the defendant was aged 18 or over at that time.
236E Evidentiary certificates in proceedings for offences
Who may issue a certificate
(1) A written certificate may be issued under this subsection by:
(a) an officer who participates in the boarding of a ship or aircraft (the target ship or aircraft ) under Division 12A; or
(b) if a ship (the target ship ) is boarded under Division 12A - the commander of the Commonwealth ship or Commonwealth aircraft whose crew members participated in the boarding; or
(c) the commander of a Commonwealth ship or Commonwealth aircraft used under section 245C or 245D to chase a ship (the target ship ) that was not boarded under Division 12A.
Note: For definitions for this section, see subsection (6).
Certificate is prima facie evidence of the matters in it
(2) The certificate is to be received in proceedings for an offence against this Subdivision as prima facie evidence of the matters stated in the certificate.
Matters that can be specified in a certificate
(3) The certificate may specify one or more of the following:
(a) the location of the target ship or aircraft at the time (the boarding time ) it was boarded, or during the period it was chased but not boarded, (as applicable) under Division 12A;
(b) if an officer boarded the target ship under Division 12A from another ship or aircraft - the location of the other ship or aircraft immediately before the boarding time;
(c) if the target ship was chased, but not boarded, under Division 12A - the location of the Commonwealth ship or Commonwealth aircraft during the period the target ship was chased;
(d) if a request was made to board the target ship or aircraft - the person by whom the request was made, and the manner in which the request was made;
(e) if no request was made to board the target ship or aircraft - the reason why no such request was made;
(f) the contents of any list of passengers on board the target ship or aircraft, or passenger cards relating to passengers on board the target ship or aircraft;
(g) the number of passengers on board the target ship or aircraft;
(h) the number of crew on board the target ship or aircraft;
(i) if the target ship or aircraft was boarded:
(i) whether any officer secured any goods on board the target ship or aircraft; and
(ii) a description of the goods; and
(iii) a description of how the goods were dealt with after they were secured;
(j) any other matter prescribed under subsection (5).
(4) Subsection (2) does not apply to so much of the certificate as specifies whether a person is the master, owner, agent or charterer of the target ship or aircraft.
(5) The Minister may, by legislative instrument, prescribe other matters that may be specified in a certificate issued under subsection (1).
Definitions
(6) In this section:
commander has the same meaning as in subsection 245B(12).
Commonwealth aircraft has the same meaning as in Division 12A.
Commonwealth ship has the same meaning as in Division 12A.
officer has the same meaning as in subsection 245F(18).
236F Evidentiary certificates - procedural matters
(1) A certificate issued under subsection 236E(1) must not be admitted in evidence in proceedings for an offence unless:
(a) the person charged with the offence; or
(b) a lawyer who has appeared for the person in those proceedings;
has, at least 28 days before the certificate is sought to be so admitted, been given a copy of the certificate together with notice of the intention to produce the certificate as evidence in the proceedings.
(2) If, under section 236E, a certificate is admitted in evidence in proceedings for an offence, the person charged with the offence may require the person who signed the certificate to be:
(a) called as a witness for the prosecution; and
(b) cross-examined as if the person who signed the certificate had given evidence of the matters stated in the certificate.
(3) However, subsection (2) does not entitle the person charged to require the person who signed the certificate to be called as a witness for the prosecution unless:
(a) the prosecutor has been given at least 21 days' notice of the person's intention to require the person who signed the certificate to be so called; and
(b) the court, by order, allows the person charged to require the person who signed the certificate to be so called.
(4) Any evidence given in support, or in rebuttal, of a matter stated in a certificate issued under subsection 236E(1) must be considered on its merits, and the credibility and probative value of such evidence must be neither increased nor diminished by reason of this section.