Uluru‑Kata Tjuta National Park has the meaning given by subsection 344(3).
Uluru region has the meaning given by subsection 386(2).
unconventional gas development means any activity involving unconventional gas production that has, or is likely to have, a significant impact on water resources (including any impacts of associated salt production and/or salinity):
(a) in its own right; or
(b) when considered with other developments, whether past, present or reasonably foreseeable developments.
unconventional gas production means extraction, recovery, or intentional release, (whether by drilling, hydraulic fracturing or other means) of gas from:
(a) coal seams or beds; or
(b) layers of shale rock; or
(c) tight gas reservoirs; or
(d) any other sources prescribed by the regulations.
usage right has the meaning given by subsection 350(7).
vehicle includes a hovercraft.
vessel means a ship, boat, raft or pontoon or any other thing capable of carrying persons or goods through or on water and includes a floating structure and hovercraft.
vulnerable:
(a) a native species may be included in the vulnerable category of the list of threatened native species in accordance with Subdivision A of Division 1 of Part 13; and
(b) an ecological community may be included in the vulnerable category of the list of threatened ecological communities in accordance with Subdivision A of Division 1 of Part 13.
warden means a person holding an appointment as a warden under Part 17.
warrant premises means premises in relation to which a warrant is in force.
water resource has the same meaning as in the Water Act 2007.
wetland has the same meaning as in the Ramsar Convention.
whale watching has the meaning given by section 238.
wildlife means:
(a) an animal; or
(b) a specimen derived from an animal; or
(c) a plant; or
(d) a specimen derived from a plant.
wildlife conservation plan means a plan of a kind referred to in section 285 that has been made or adopted under that section.
World Heritage Convention means the Convention for the Protection of the World Cultural and Natural Heritage done at Paris on 23 November 1972, as amended and in force for Australia from time to time.
Note: The English text of the Convention is set out in Australian Treaty Series 1975 No. 47.
World Heritage List means the list kept under that title under Article 11 of the World Heritage Convention.
world heritage values of a property has the meaning given by subsection 12(3).
Schedule 1—Provisions relating to detention of suspected foreign offenders
Note: See section 433B.
Part 1—Preliminary
Division 1—Objects of this Schedule
1 Main objects of this Schedule
(1) This Schedule has 3 main objects.
(2) The first main object is to provide for the detention (environment detention) in Australia or a Territory of persons who:
(a) are reasonably suspected by an authorised officer of having committed an offence:
(i) involving the use of a foreign vessel; or
(ii) in the Australian jurisdiction but outside the migration zone; and
(b) are not Australian citizens or Australian residents;
for a limited period for the purposes of determining whether to charge them with the offence.
(3) The second main object is to provide for persons in environment detention to be searched, screened, given access to facilities for obtaining legal advice, and identified.
(4) The third main object is to facilitate the transition of persons from environment detention to immigration detention under the Migration Act 1958:
(a) by providing for the things mentioned in subclause (3) to be done in a way corresponding to the way that Act provides for those things to be done to persons in immigration detention; and
(b) by authorising the disclosure of personal information about individuals who are or have been in environment detention to persons, agencies and organisations responsible for holding the individuals in immigration detention, for the purpose of the immigration detention and welfare of the individuals.
Note: The enforcement visa of a person who is neither an Australian citizen nor an Australian resident ceases to have effect under the Migration Act 1958 when the person ceases to be in environment detention, so that Act requires the person to be taken into immigration detention.
Division 2—Definitions
2 Definitions
In this Schedule, unless the contrary intention appears:
approved officer means:
(a) an authorised officer (other than a person who is an authorised officer because of subsection 397(3)); or
(b) a detention officer;
who is approved under Division 4 for the purposes of the provision in which the expression occurs.
Australian resident means:
(a) a person who holds a permanent visa (as defined in the Migration Act 1958) that is in effect; or
(b) a New Zealand citizen who is usually resident in Australia or a Territory and who holds a special category visa (as defined in the Migration Act 1958) that is in effect; or
(c) any other person who is usually resident in Australia or a Territory and whose continued presence in Australia or a Territory is not subject to a limitation as to time imposed by law.
authorised Migration Act officer means an authorised officer, within the meaning of the Migration Act 1958.
detainee means a person detained under Part 2.
detention means detention under Part 2.
detention officer means a person appointed under clause 3 to be a detention officer.
foreign vessel means a vessel that is not an Australian vessel.
Division 3—Appointment etc. of detention officers
3 Minister may appoint persons to be detention officers
(1) The Minister may, by instrument, appoint one or more persons (except persons who are authorised officers) to be detention officers.
Note: Authorised officers have the same powers as detention officers, as well as other powers, so there is no reason for authorised officers to be appointed as detention officers.
(2) An instrument appointing persons to be detention officers:
(a) may identify the persons by reference to a class; and
(b) may provide for persons to be appointed when they become members of the class at or after a time specified in the instrument.
4 Detention officers subject to directions
(1) A detention officer is, in the exercise of his or her powers, and the performance of his or her duties, under this Schedule, subject to the directions given by the Minister.
(2) A direction given by the Minister under subclause (1) is a legislative instrument.
Note 1: Section 42 (disallowance) of the Legislation Act 2003 does not apply to the direction. See regulations made for the purposes of paragraph 44(2)(b) of that Act.
Note 2: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the direction. See regulations made for the purposes of paragraph 54(2)(b) of that Act.
5 Detention officer etc. not liable to certain actions
(1) A detention officer, or a person assisting a detention officer in the exercise of powers under this Schedule or the regulations, is not liable to an action, suit or proceeding for or in respect of anything done in good faith or omitted to be done in good faith in the exercise or purported exercise of any power conferred by this Schedule or by regulations made for the purposes of this Schedule.
Note: Section 498A makes similar provision for authorised officers and their assistants.
(2) However, subclause (1) does not affect a contractual liability of a detention officer or person assisting a detention officer.
Division 4—Approval of authorised officers and detention officers
6 The Secretary may approve authorised officers and detention officers
(1) The Secretary may, by instrument, approve one or more authorised officers and/or detention officers for the purposes of a specified provision of this Schedule, from among authorised officers and/or detention officers who have successfully completed minimum training prescribed by the regulations.
(2) An instrument approving authorised officers and/or detention officers:
(a) may identify them by reference to a class; and
(b) may provide for them to be approved when they become members of the class at or after a time specified in the instrument.
7 Persons who are authorised officers for purposes of the Migration Act 1958 are taken to be approved for this Schedule
(1) A person who:
(a) is an authorised officer or a detention officer; and
(b) is an authorised Migration Act officer for a provision of the Migration Act 1958 listed in column 2 of an item of the table;
is, while he or she meets the conditions in paragraphs (a) and (b), taken to be approved under clause 6 for the purposes of the provision of this Schedule listed in column 3 of the item.
Corresponding provisions of the Migration Act 1958 and this Schedule
Column 1 Item Column 2 Provision of the Migration Act 1958 Column 3 Provision of this Schedule
(2) However, the person is not taken to be approved to carry out an identification test in relation to which section 5D of the Migration Act 1958 provides that the person is not an authorised officer (for the purposes of that Act).
Note: This is relevant to items 9 to 15 of the table in subclause (1).
Persons specified by Secretary not approved
(3) The Secretary may, by instrument, specify that the person is not taken to be approved:
(a) for the purposes of the provision of this Schedule; or
(b) for the purposes of carrying out under this Schedule identification tests of a type specified under section 5D of the Migration Act 1958 in relation to the person.
The instrument has effect according to its terms, despite subclause (1).
(4) An instrument under subclause (3) may specify one or more persons by reference to their being members of a specified class at or after a time specified in the instrument.
(5) An instrument made under subclause (3) is not a legislative instrument.
Part 2—Detaining suspected foreign offenders
Division 1—Initial detention by an authorised officer
8 Power to detain
(1) An authorised officer may detain a person in Australia or a Territory for the purposes of determining during the period of detention whether or not to charge the person with an offence against an environmental law, or an offence against section 6 of the Crimes Act 1914 relating to such an offence, if the authorised officer has reasonable grounds to believe that the person:
(a) is not an Australian citizen or an Australian resident; and
(b) either or both of the following:
(i) was on a foreign vessel when it was used or otherwise involved in the commission of the offence;
(ii) committed the offence in the Australian jurisdiction but outside the migration zone.
(2) Subclause (1) does not authorise an authorised officer to use more force in detaining a person than is reasonably necessary.
9 Relationship with Part IC of the Crimes Act 1914
(1) Part IC of the Crimes Act 1914 applies in relation to the detainee while detained under this Part as if:
(a) he or she were a protected suspect for a Commonwealth offence for the purposes of that Part; and
(b) an authorised officer were an investigating official for the purposes of that Part.
(2) Subclause (1) does not affect the operation of Division 2 of Part IC of the Crimes Act 1914 as it applies of its own force in relation to a person who is lawfully arrested.
Division 2—Continued detention by a detention officer
10 Detention officer may detain person already detained by authorised officer
(1) For the purposes of facilitating an authorised officer determining whether or not to charge a person with an offence against an environmental law, or an offence against section 6 of the Crimes Act 1914 relating to such an offence, a detention officer may detain the person in Australia or a Territory if the detention officer has reasonable grounds to believe that the person:
(a) has been detained by an authorised officer under Division 1; and
(b) has been presented, while detained by that authorised officer, to a detention officer for detention by a detention officer.
(2) However, the detention officer may not detain the person if the detention officer has reasonable grounds to believe that the person has ceased to be in detention since the last time the person was detained by an authorised officer under Division 1.
(3) Subclause (1) does not authorise a detention officer to use more force in detaining a person than is reasonably necessary.
Division 3—Detention on behalf of an authorised officer or detention officer
11 Detention on behalf of an authorised officer or detention officer
(1) A person is taken to be detained by an authorised officer or detention officer under this Part while the person is held, on behalf of the authorised officer or detention officer, in any of the following:
(a) a prison or remand centre;
(b) a police station or watch house;
(c) a hospital or other place where the person is receiving medical treatment;
(d) another place approved by the Minister in writing;
(e) a vessel.
(2) This clause has effect even while the authorised officer or detention officer is not present where the person is held on behalf of the authorised officer or detention officer.
(3) An approval of a place by the Minister is not a legislative instrument.
Division 4—Moving detainees
12 Power to move detainees
(1) An authorised officer or detention officer may:
(a) take a detainee in Australia to another place in Australia or to a place in an external Territory; and
(b) take a detainee in an external Territory to another place in the Territory or to a place in Australia or another Territory.
(2) Subclause (1) does not authorise an authorised officer or detention officer to use more force than is reasonably necessary to take the detainee to the place.
(3) In exercising the power under subclause (1), the authorised officer or detention officer must have regard to all matters that he or she considers relevant, including:
(a) the administration of justice; and
(b) the welfare of the detainee.
Division 5—End of detention
13 End of detention
A detainee must be released from detention:
(a) as soon as an authorised officer or detention officer knows or reasonably believes that the detainee is an Australian citizen or an Australian resident; or
(b) at the time the detainee is brought before a magistrate following a decision to charge the detainee with an offence referred to in subclause 8(1); or
(c) at the time a decision is made not to charge the detainee with an offence referred to in that subclause; or
(d) at the end of 168 hours after the detention began;
whichever occurs first.
Division 6—Offence of escaping from detention
14 Escape from detention
(1) A person commits an offence if:
(a) the person is in detention; and
(b) the person escapes from that detention.
(2) The offence is punishable on conviction by imprisonment for up to 2 years.
Part 3—Searching and screening detainees and screening their visitors
Division 1—Searches of detainees
15 Searches of detainees
(1) For the purposes set out in subclause (2), a detainee, and the detainee’s clothing and any property under the immediate control of the detainee, may, without warrant, be searched.
(2) The purposes for which a detainee, and the detainee’s clothing and any property under the immediate control of the detainee, may be searched under this clause are as follows:
(a) to find out whether there is hidden on the detainee’s person, in the clothing or in the property, a weapon or other thing capable of being used to inflict bodily injury or to help the detainee to escape from detention;
(b) to find out whether there is hidden on the detainee’s person, in the clothing or in the property, a document or other thing that is, or may be, evidence of:
(i) an offence against an environmental law; or
(ii) an offence against section 6 of the Crimes Act 1914 relating to an offence described in subparagraph (i).
(3) If, in the course of a search under this clause, a weapon or other thing referred to in paragraph (2)(a), or a document or other thing referred to in paragraph (2)(b), is found, an approved officer:
(a) may take possession of the weapon, document or other thing; and
(b) may retain the weapon, document or other thing for such time as he or she thinks necessary for the purposes of this Act, the Great Barrier Reef Marine Park Act 1975 or the Migration Act 1958.
(4) This clause does not authorise an approved officer, or another person conducting a search pursuant to subclause (5), to remove any of the detainee’s clothing, or to require a detainee to remove any of his or her clothing.
(5) A search under this clause of a detainee, and the detainee’s clothing, must be conducted by:
(a) an approved officer of the same sex as the detainee; or
(b) in a case where an approved officer of the same sex as the detainee is not available to conduct the search—any other person who is of the same sex and:
(i) is requested by an approved officer; and
(ii) agrees;
to conduct the search.
(6) An action or proceeding, whether civil or criminal, does not lie against a person who, at the request of an approved officer, conducts a search under this clause if the person acts in good faith and does not contravene subclause (7).