Border Security Legislation Amendment Act 2002 (64 of 2002)

Schedule 6   Reporting of passengers and crew

Part 1   Main amendments

Migration Act 1958

9   After Division 12A of Part 2

Insert:

Division 12B - Reporting on passengers and crew of aircraft and ships

245I Definitions

(1) In this Division:

approved fall-back reporting system means a system approved under section 245K.

approved primary reporting system means a system approved under section 245J.

approved primary reporting system for crew , for an aircraft or ship of a kind to which this Division applies, means the system approved under section 245J for reporting on crew on an aircraft or ship of that kind.

approved primary reporting system for passengers , for an aircraft or ship of a kind to which this Division applies, means the system approved under section 245J for reporting on passengers on an aircraft or ship of that kind.

arrival means:

(a) in relation to an aircraft - the aircraft coming to a stop after landing; or

(b) in relation to a ship - the securing of the ship for the loading or unloading of passengers, cargo or ship’s stores.

kind of aircraft or ship to which this Division applies means a kind of aircraft or ship specified in the regulations as a kind of aircraft or ship to which this Division applies.

Note: Kind has a meaning affected by subsection (2).

operator of an aircraft or ship for a particular flight or voyage means:

(a) the airline or shipping line responsible for the operation of the aircraft or ship for the flight or voyage; or

(b) if there is no such airline or shipping line, or no such airline or shipping line that is represented by a person in Australia - the pilot of the aircraft or the master of the ship.

(2) For the purposes of this Division (and of regulations and approvals made for the purposes of provisions of this Division), a kind of aircraft or ship may be identified by reference to matters including all or any of the following:

(a) the type, size or capacity of the aircraft or ship;

(b) the kind of operation or service the aircraft or ship is engaged in on the flight or voyage to Australia;

(c) other circumstances related to the aircraft or ship or its use, or related to the operator of the aircraft or ship.

245J Approval of primary reporting systems

(1) The Secretary must, for each kind of aircraft or ship to which this Division applies, approve in writing a system for the purposes of reporting under this Division. The system may be an electronic system or a system requiring reports to be provided in documentary form.

Note 1: An approval under this subsection can be varied or revoked under subsection 33(3) of the Acts Interpretation Act 1901.

Note 2: It is anticipated that, ultimately, documentary systems will be phased out and all approved systems will be electronic systems.

(2) Under subsection (1), the Secretary may, for a kind of aircraft or ship, approve a single system for reporting on both passengers and crew or may approve one system for reporting on passengers, and another system for reporting on crew.

(3) The instrument of approval of a system for reporting on passengers or crew must also specify the information about passengers or crew that is to be reported by that system.

(4) An instrument of approval under this section, or a variation or revocation of such an instrument, is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

245K Approval of fall-back reporting systems

(1) The Secretary must, in writing, approve one or more systems as fall-back reporting systems. A system may be an electronic system or a system requiring reports to be provided in documentary form.

Note: An approval under this subsection can be varied or revoked under subsection 33(3) of the Acts Interpretation Act 1901.

(2) The instrument of approval of a system must also specify the information about passengers or crew that is to be reported by that system.

(3) An instrument of approval under this section, or a variation or revocation of such an instrument, is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

245L Obligation to report on passengers and crew

Aircraft and ships to which section applies

(1) This section applies to an aircraft or ship of a kind to which this Division applies that is due to arrive at an airport or port in Australia from a place outside Australia.

Obligation to report on passengers and crew

(2) The operator of the aircraft or ship must, in accordance with this section:

(a) report to the Department, using the approved primary reporting system for passengers, on the passengers who will be on board the aircraft or ship at the time of its arrival at the airport or port; and

(b) report to the Department, using the approved primary reporting system for crew, on the crew who will be on board the aircraft or ship at the time of its arrival at the airport or port.

Note 1: This obligation (and the obligation in subsection (6)) must be complied with even if the information concerned is personal information (as defined in the Privacy Act 1988).

Note 2: Section 245N contains an offence for failure to comply with this subsection.

Information to be reported

(3) A report on passengers or crew under subsection (2) must include the information relating to those passengers or crew that is specified, as mentioned in subsection 245J(3), in relation to the relevant approved primary reporting system.

Deadline for reporting - aircraft

(4) A report on passengers or crew on an aircraft must be given not later than:

(a) if the flight from the last airport outside Australia is likely to take not less than 3 hours - 3 hours before the aircraft’s likely time of arrival at the airport in Australia; or

(b) if the flight from the last airport outside Australia is likely to take less than 3 hours - one hour before the aircraft’s likely time of arrival at the airport in Australia.

Deadline for reporting - ships

(5) A report on passengers or crew on a ship must be given not later than:

(a) if the journey from the last port outside Australia is likely to take not less than 48 hours - 48 hours before the ship’s likely time of arrival at the port in Australia; or

(b) if the journey from the last port outside Australia is likely to take less than 48 hours - 24 hours before the ship’s likely time of arrival at the port in Australia.

Obligation to pass information on to Australian Customs Service

(6) As soon as practicable after information is reported under this section, the Department must provide the information to the Australian Customs Service.

Purpose for which information obtained

(7) Information obtained by the Department:

(a) under this section; or

(b) under subsection 64ACA(11) or 64ACB(8) of the Customs Act 1901;

is taken to be obtained by the Department for the purposes of the administration of this Act, the Customs Act 1901, and any other law of the Commonwealth prescribed by regulations for the purposes of this subsection.

245M Approved fall-back reporting systems may be used in certain circumstances

(1) This section applies if:

(a) the approved primary reporting system for reporting on passengers or crew on an aircraft or ship is an electronic system; and

(b) either:

(i) the operator of the aircraft or ship cannot report on some or all of the passengers or crew (the relevant passengers or crew ) using the approved primary reporting system because the system is not working; or

(ii) the Secretary permits the operator of the aircraft or ship to report on some or all of the passengers or crew (the relevant passengers or crew ) using an approved fall-back reporting system.

(2) Section 245L applies in relation to the relevant passengers or crew as if:

(a) the reference in paragraph 245L(2)(a) or (b) to the approved primary reporting system for passengers, or the approved primary reporting system for crew, were instead a reference to an approved fall-back reporting system; and

(b) the reference in subsection 245L(3) to the information that is specified, as mentioned in subsection 245J(3), in relation to the relevant approved primary reporting system were instead a reference to the information that is specified, as mentioned in subsection 245K(2), in relation to the approved fall-back reporting system that the operator uses in relation to the relevant passengers or crew.

245N Offence for failure to comply with reporting obligations

(1) An operator of an aircraft or ship who intentionally contravenes subsection 245L(2) commits an offence punishable, on conviction, by a penalty not exceeding 120 penalty units.

(2) An operator of an aircraft or ship who contravenes subsection 245L(2) commits an offence punishable, on conviction, by a penalty not exceeding 60 penalty units.

(3) An offence against subsection (2) is an offence of strict liability.

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