6.3.8 Departure authorisation certificates

Introduction

Where a DPO is in force, a debtor can apply for the issue of a DAC. A DAC allows a debtor to depart Australia, for a defined period, despite a DPO being in force.

Issuing a DAC

The Secretary must issue a DAC in situations where:

• a debtor is likely to depart and return to Australia within a specified period, revocation of the DPO is likely within a time period that the Secretary considers appropriate, and security for the debtor's return to Australia is not necessary, or
• a DAC is to be issued as the debtor has provided appropriate security for their return to Australia by a specified date, or
• the debtor is unable to provide appropriate security for their return to Australia, however a DAC is to be issued on humanitarian grounds or in Australia's interests.

There is no discretion to issue a DAC in other situations.

DAC issued where security provided

The Secretary must also issue a DAC when the debtor has given appropriate security for their return to Australia. The debtor can provide the security by deposit or other means. If they do not return to Australia by the agreed date, the security will be forfeited to the Commonwealth. It cannot be applied against the outstanding debts.

The Secretary will only accept a security that:

• is in a form that is readily convertible to cash, such as a bank cheque, or
• is offered by the debtor rather than third parties on the debtor's behalf, or
• is generally not significantly less in value than the amount of the debts owing.

Note: Security arising from a loan is not accepted.

Where a debtor is able to give appropriate security, it is preferable to use these funds to reduce these debts than to use these funds as security, as this will usually justify revoking the DPO. Offering security may be an appropriate alternative to reducing the debts when the debts are in dispute and the debtor is taking steps to resolve this dispute.

DAC issued on humanitarian grounds or in Australia's interests

The Secretary must also issue a DAC where satisfied that:

• the certificate should be issued on humanitarian grounds, or
• refusing to issue the certificate would be detrimental to Australia's interests, and
• the debtor is unable (not unwilling) to provide security satisfactory to the Secretary for their return to Australia.

Humanitarian grounds include compassionate grounds.

The onus is on the debtor to provide evidence satisfactory to the Secretary that shows their situation meets the above requirements.

Secretary may substitute a later return date on the DAC

The Secretary may substitute a later return date on a DAC, either in response to an application by the debtor or by their own initiative. The debtor may apply in person or in writing.

The Secretary may refuse to substitute a later date for the person's return if they believe an extension would be inappropriate.

The Secretary has the discretion to ask for an additional amount of security, even where a security was not previously required.

Departure dates for a DAC

A DAC authorises a debtor's departure from Australia within an 8 day period beginning on the date specified on the certificate. The date specified on the certificate can only be within 1 and 7 days after the date the certificate is issued.

A DAC can only be issued between 1 and 14 days before the debtor's intended date of departure.

Usually, the Secretary will specify the date on the certificate to be the debtor's intended date of departure. However, the Secretary can specify a date other than the debtor's intended date of departure - within the period outlined above - where it is appropriate to do so.

Notification requirements to make, vary or refuse a DAC

Where the Secretary makes or decides to substitute a later day in a DAC, the Secretary must notify:

• the debtor to whom the DAC applies, and
• any other person who was notified of the DPO.

If the Secretary rejects an application to issue a DAC or substitute a later day, they must notify the debtor as soon as practicable.

Review by AAT

A person may apply to seek a review of a Secretary's decision by the AAT in regard to:

• revocation or variation of a DPO
• issuing of a DAC, or
• the provision of security, and the substitution of later days on a DAC.

The AAT will undertake an independent merits review of the decision. The AAT can exercise the discretions granted to the Secretary when reviewing decisions.

Enforcement

Australian Border Force officers and members of the Australian Federal Police are authorised to prevent the overseas departure of a person subject to a DPO.

If an officer believes that a person is about to depart from Australia when a DPO is in force and without a departure authorisation certificate, they can require the person to answer questions or produce documents.

A person is required to answer these questions, even if the answers may incriminate them or expose them to a penalty. However, their answers are not admissible in evidence against them except in relation to a prosecution for providing false or misleading information or documents.

Offences

It is an offence for a person to depart from Australia for a foreign country:

• knowing, or reckless as to whether, a DPO is in force, and
• the person's departure is not authorised by a DAC, and the person knows the departure is not authorised by such a certificate, or is reckless as to whether the departure is authorised by such a certificate.

Penalty: Imprisonment for 12 months.

A person commits an offence if they fail to answer a question or produce the document and they are capable of doing so.
Penalty: 30 penalty units.

It is also an offence of strict liability if a person who has a valid DAC fails to produce the certificate at the request of an authorised officer.
Penalty: 5 penalty units.

A person who provides false or misleading answers to questions commits an offence and can be prosecuted.
Penalty: Imprisonment for 12 months.

An attempt to commit any of these offences is punishable as though the actual offence had been committed.