Commonwealth Consolidated Acts Commonwealth Consolidated ActsNote: See section 433B.
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.
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, but neither section 42 nor Part 6 of the Legislative Instruments Act 2003 applies to the direction.
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.
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Corresponding provisions of the Migration Act 1958 and this Schedule |
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Column 1 |
Column 2 |
Column 3 |
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1 |
Subsection 252(4) |
Subclause 15(3) |
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2 |
Paragraph 252(6)(a) |
Paragraph 15(5)(a) |
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3 |
Subparagraph 252(6)(b)(i) |
Subparagraph 15(5)(b)(i) |
|
4 |
Subsection 252AA(1) |
Subclause 16(1) |
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5 |
Subsection 252A(1) |
Subclause 17(1) |
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6 |
Subsection 252C(1) |
Subclause 19(1) |
|
7 |
Subsection 252D(2) |
Subclause 20(2) |
|
8 |
Subsection 252G(3) |
Subclause 22(3) |
|
9 |
Section 261AA |
Clause 28 |
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10 |
Subsection 261AE(1) |
Subclause 32(1) |
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11 |
Subsection 261AE(3) |
Subclause 32(3) |
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12 |
Section 261AG |
Clause 34 |
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13 |
Section 261AJ |
Clause 37 |
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14 |
Subsection 261AK(1) (except paragraph (a)) |
Subclause 38(1) (except paragraph (a)) |
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15 |
Subsection 261AK(3) |
Subclause 38(3) |
Limits on approval
(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
(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 this Act or the regulations, 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 this Act or the regulations, 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
(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
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
(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
(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 this Act or the regulations; 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 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).
(7) An approved officer or other person who conducts a search under this clause must not use more force, or subject a detainee to greater indignity, than is reasonably necessary in order to conduct the search.
(8) To avoid doubt, a search of a detainee may be conducted under this clause irrespective of whether a screening procedure is conducted in relation to the detainee under clause 16 or a strip search of the detainee is conducted under clause 17.
Note: This clause corresponds closely to section 252 of the Migration Act 1958 .
Division 2 -- Screening of detainees
16 Power to conduct a screening procedure
(1) A screening procedure in relation to a detainee, other than a detainee to whom clause 23 applies, may be conducted by an approved officer, without warrant, to find out whether there is hidden on the detainee, in his or her clothing or in a thing in his or her possession a weapon, or other thing, capable of being used:
(a) to inflict bodily injury; or
(b) to help the detainee, or any other detainee, to escape from detention.
(2) An approved officer who conducts a screening procedure under this clause must not use greater force, or subject the detainee to greater indignity, than is reasonably necessary in order to conduct the screening procedure.
(3) This clause does not authorise an approved officer to remove any of the detainee's clothing, or to require a detainee to remove any of his or her clothing.
(4) To avoid doubt, a screening procedure may be conducted in relation to a detainee under this clause irrespective of whether a search of the detainee is conducted under clause 15 or 17.
(5) In this clause:
"conducting a screening procedure" , in relation to a detainee, means:
(a) causing the detainee to walk, or to be moved, through screening equipment; or
(b) passing hand‑held screening equipment over or around the detainee or around things in the detainee's possession; or
(c) passing things in the detainee's possession through screening equipment or examining such things by X‑ray.
"screening equipment" means a metal detector or similar device for detecting objects or particular substances.
Note: This clause corresponds closely to section 252AA of the Migration Act 1958 .
Division 3 -- Strip searches of detainees
17 Power to conduct a strip search
(1) A strip search of a detainee, other than a detainee to whom clause 23 applies, may be conducted by an approved officer, without warrant, to find out whether there is hidden on the detainee, in his or her clothing or in a thing in his or her possession a weapon, or other thing, capable of being used:
(a) to inflict bodily injury; or
(b) to help the detainee, or any other detainee, to escape from detention.
Note: Clause 18 sets out rules for conducting a strip search under this clause.
(2) A strip search of a detainee means a search of the detainee, of his or her clothing or of a thing in his or her possession. It may include:
(a) requiring the detainee to remove some or all of his or her clothing; and
(b) an examination of that clothing and of the detainee's body (but not of the detainee's body cavities).
(3) A strip search of a detainee may be conducted by an approved officer only if:
(a) an authorised officer or detention officer suspects on reasonable grounds that there is hidden on the detainee, in his or her clothing or in a thing in his or her possession a weapon or other thing described in subclause (1); and
(b) the authorised officer, or detention officer, referred to in paragraph (a) suspects on reasonable grounds that it is necessary to conduct a strip search of the detainee to recover that weapon or other thing; and
(c) the strip search is authorised as follows:
(i) if the detainee is at least 18--the Secretary, the Director, or an SES Band 3 employee in the Department (who is not the authorised officer referred to in paragraphs (a) and (b) nor the approved officer conducting the strip search), authorises the strip search because he or she is satisfied that there are reasonable grounds for those suspicions;
(ii) if the detainee is at least 10 but under 18--a magistrate orders the strip search because he or she is satisfied that there are reasonable grounds for those suspicions.
(4) An authorised officer or detention officer may form a suspicion on reasonable grounds for the purposes of paragraph (3)(a) on the basis of:
(a) a search conducted under clause 15 (whether by that authorised officer or detention officer or by another authorised officer or detention officer); or
(b) a screening procedure conducted under clause 16 (whether by that authorised officer or detention officer or by another authorised officer or detention officer); or
(c) any other information that is available to the authorised officer or detention officer.
(5) An authorisation of a strip search given for the purposes of subparagraph (3)(c)(i):
(a) may be given by telephone, fax or other electronic means; and
(b) must be recorded in writing, and signed by the person giving the authorisation, within one business day after it is given.
(6) A record made under paragraph (5)(b) is not a legislative instrument.
(7) A failure to comply with paragraph (5)(b) does not affect the validity of a strip search conducted on the basis of that authorisation.
(8) The power to authorise a strip search under subparagraph (3)(c)(i) cannot be delegated to any other person.
(9) A power conferred on a magistrate by this clause is conferred on the magistrate in a personal capacity and not as a court or a member of a court.
(10) The magistrate need not accept the power conferred.
(11) A magistrate exercising a power under this clause has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the magistrate is a member.
(12) To avoid doubt, a strip search of a detainee may be conducted under this clause irrespective of whether a search of the detainee is conducted under clause 15 or a screening procedure is conducted in relation to the detainee under clause 16.
(13) In this clause:
SES Band 3 employee means an SES employee with a classification of Senior Executive Band 3, and includes an SES employee who has been temporarily assigned duties that have been allocated a classification of Senior Executive Band 3.
Note: This clause corresponds closely to section 252A of the Migration Act 1958 .
18 Rules for conducting a strip search
(1) A strip search of a detainee under clause 17:
(a) must not subject the detainee to greater indignity than is reasonably necessary to conduct the strip search; and
(b) must be conducted in a private area; and
(c) must be conducted by an approved officer of the same sex as the detainee; and
(d) subject to subclauses (2), (3) and (5), must not be conducted in the presence or view of a person who is of the opposite sex to the detainee; and
(e) subject to subclauses (2), (3) and (5), must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the strip search; and
(f) must not be conducted on a detainee who is under 10; and
(g) if the detainee is at least 10 but under 18, or is incapable of managing his or her affairs--must be conducted in the presence of:
(i) the detainee's parent or guardian if that person is in detention with the detainee and is readily available at the same place; or
(ii) if that is not acceptable to the detainee or subparagraph (i) does not apply--another person (other than an approved officer) who is capable of representing the detainee's interests and who, as far as is practicable in the circumstances, is acceptable to the detainee; and
(h) subject to subclause (4), if the detainee is at least 18, and is not incapable of managing his or her affairs--must be conducted in the presence of another person (if any) nominated by the detainee, if that other person is readily available at the same place as the detainee, and willing to attend the strip search within a reasonable time; and
(i) must not involve a search of the detainee's body cavities; and
(j) must not involve the removal of more items of clothing, or more visual inspection, than the approved officer conducting the search believes on reasonable grounds to be necessary to determine whether there is hidden on the detainee, in his or her clothing or in a thing in his or her possession a weapon or other thing described in subclause 17(1); and
(k) must not be conducted with greater force than is reasonably necessary to conduct the strip search.
(2) Paragraphs (1)(d) and (e) do not apply to a parent or guardian, or person present because of subparagraph (1)(g)(ii), if the detainee has no objection to that person being present.
(3) Paragraphs (1)(d) and (e) do not apply to a person nominated by the detainee under paragraph (1)(h) to attend the strip search.
(4) Neither:
(a) a detainee's refusal or failure to nominate a person under paragraph (1)(h) within a reasonable time; nor
(b) a detainee's inability to nominate a person under that paragraph who is readily available at the same place as the detainee and willing to attend the strip search within a reasonable time;
prevents a strip search being conducted.
(5) A strip search of a detainee may be conducted with the assistance of another person if the approved officer conducting the strip search considers that to be necessary for the purposes of conducting it. That person must not be of the opposite sex to the detainee unless:
(a) the person is a medical practitioner; and
(b) a medical practitioner of the same sex as the detainee is not available within a reasonable time.
(6) An action or proceeding, whether civil or criminal, does not lie against a person who, at the request of an approved officer, assists in conducting a strip search if the person acts in good faith and does not contravene this clause.
(7) A detainee must be provided with adequate clothing if during or as a result of a strip search any of his or her clothing is:
(a) damaged or destroyed; or
(b) retained under clause 19.
Note: This clause corresponds closely to section 252B of the Migration Act 1958 .
Division 4 -- Keeping of things found by screening or strip search of detainees
19 Possession and retention of certain things obtained during a screening procedure or strip search
(1) An approved officer may take possession of and retain a thing found in the course of conducting a screening procedure under clause 16 or conducting a strip search under clause 17 if the thing:
(a) might provide evidence of the commission of an offence against this Act or the regulations, or an offence against section 6 of the Crimes Act 1914 relating to such an offence; or
(b) is forfeited or forfeitable to the Commonwealth.
(2) A weapon or other thing described in subclause 16(1) or 17(1) that is found in the course of conducting a screening procedure under clause 16 or a strip search under clause 17 is forfeited to the Commonwealth.
(3) An approved officer must not return a thing that is forfeited or forfeitable to the Commonwealth. Instead, the approved officer must, as soon as practicable, give a thing that is forfeited under subclause (2) to a constable (within the meaning of the Crimes Act 1914 ).
Note: See sections 450 and 451 of this Act, which deal with court‑ordered forfeiture and how forfeited items are to be dealt with.
(4) An approved officer must take reasonable steps to return anything that is not forfeited or forfeitable but is retained under subclause (1) to the person from whom it was taken, or to the owner if that person is not entitled to possess it, if one of the following happens:
(a) it is decided that the thing is not to be used in evidence;
(b) the period of 60 days after the approved officer takes possession of the thing ends.
(5) However, the approved officer does not have to take those steps if:
(a) in a paragraph (4)(b) case:
(i) proceedings in respect of which the thing might provide evidence have been instituted before the end of the 60 day period and have not been completed (including an appeal to a court in relation to those proceedings); or
(ii) the approved officer may retain the thing because of an order under clause 21; or
(b) in any case--the approved officer is otherwise authorised (by a law, or an order of a court or a tribunal, of the Commonwealth or a State or Territory) to retain, destroy or dispose of the thing.
Note: This clause corresponds closely to section 252C of the Migration Act 1958 .
20 Approved officer may apply for a thing to be retained for a further period
(1) This clause applies if an approved officer has taken possession of a thing referred to in subclause 19(4) and proceedings in respect of which the thing might provide evidence have not commenced before the end of:
(a) 60 days after the approved officer takes possession of the thing; or
(b) a period previously specified in an order of a magistrate under clause 21.
(2) The approved officer may apply to a magistrate for an order that the approved officer may retain the thing for a further period.
(3) Before making the application, the approved officer must:
(a) take reasonable steps to discover which persons' interests would be affected by the retention of the thing; and
(b) if it is practicable to do so, notify each person who the approved officer believes to be such a person of the proposed application.
(4) A notice under paragraph (3)(b) is not a legislative instrument.
Note: This clause corresponds closely to section 252D of the Migration Act 1958 .
21 Magistrate may order that thing be retained
(1) The magistrate may order that the approved officer who made an application under clause 20 may retain the thing if the magistrate is satisfied that it is necessary for the approved officer to do so:
(a) for the purposes of an investigation as to whether an offence has been committed; or
(b) to enable evidence of an offence to be secured for the purposes of a prosecution.
(2) The order must specify the period for which the approved officer may retain the thing.
(3) A power conferred on a magistrate by this clause is conferred on the magistrate in a personal capacity and not as a court or a member of a court.
(4) The magistrate need not accept the power conferred.
(5) A magistrate exercising a power under this clause has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the magistrate is a member.
Note: This clause corresponds closely to section 252E of the Migration Act 1958 .
Division 5 -- Screening detainees' visitors
22 Powers concerning entry to premises where detainee is detained
(1) An authorised officer or detention officer may request that a person about to enter premises where a detainee is in detention do one or more of the following:
(a) walk through screening equipment;
(b) allow an authorised officer or detention officer to pass hand‑held screening equipment over or around the person or around things in the person's possession;
(c) allow things in the person's possession to pass through screening equipment or to be examined by X‑ray.
(2) Screening equipment means a metal detector or similar device for detecting objects or particular substances.
(3) If an approved officer suspects on reasonable grounds that a person about to enter premises where a detainee is in detention has in the person's possession a thing that might:
(a) endanger the safety of the detainees, staff or other persons on the premises; or
(b) disrupt the order or security arrangements on the premises;
the approved officer may request that the person do some or all of the things in subclause (4) for the purpose of finding out whether the person has such a thing. A request may be made whether or not a request is also made to the person under subclause (1).
(4) An approved officer may request that the person do one or more of the following:
(a) allow the approved officer to inspect the things in the person's possession;
(b) remove some or all of the person's outer clothing such as a coat, jacket or similar item;
(c) remove items from the pockets of the person's clothing;
(d) open a thing in the person's possession, or remove the thing's contents, to allow the approved officer to inspect the thing or its contents;
(e) leave a thing in the person's possession, or some or all of its contents, in a place specified by the approved officer if he or she suspects on reasonable grounds that the thing or its contents are capable of concealing something that might:
(i) endanger the safety of the detainees, staff or other persons on the premises; or
(ii) disrupt the order or security arrangements on the premises.
(5) A person who leaves a thing (including any of its contents) in a place specified by an approved officer is entitled to its return when the person leaves the premises.
(6) However, if possession of the thing, or any of those contents, by the person is unlawful under a Commonwealth, State or Territory law applying to the premises:
(a) the thing or the contents must not be returned to the person; and
(b) an approved officer must, as soon as practicable, give the thing or the contents to a constable (within the meaning of the Crimes Act 1914 ).
(7) A person who is about to enter premises where a detainee is detained may be refused entry if the person does not comply with a request under this clause.
Note: This clause corresponds closely to section 252G of the Migration Act 1958 .
Division 6 -- Law applying to detainee in State or Territory prison etc.
23 Detainees held in State or Territory prisons or remand centres
(1) This clause applies to a detainee if:
(a) the detainee is held in detention in a prison or remand centre of a State or Territory; and
(b) a law of that State or Territory confers a power to search persons, or things in the possession of persons, serving sentences or being held in the prison or remand centre.
(2) To the extent that the State or Territory law confers that power, or affects the exercise of that power, it applies to the detainee as though it were a law of the Commonwealth.
(3) Clauses 16 and 17 do not apply to a detainee to whom this clause applies.
Note: This clause corresponds closely to section 252F of the Migration Act 1958 .
Part 4 -- Detainees' rights to facilities for obtaining legal advice etc.
24 Detainee may have access to certain advice, facilities etc.
The person responsible for detention of a detainee must afford to him or her all reasonable facilities for obtaining legal advice or taking legal proceedings in relation to his or her detention.
Note: This clause corresponds to section 256 of the Migration Act 1958 .
Part 5 -- Identifying detainees
In this Part, unless the contrary intention appears:
"identification test" means a test carried out in order to obtain a personal identifier.
"incapable person" means a person who is incapable of understanding the general nature and effect of, and purposes of, a requirement to provide a personal identifier.
"independent person" means a person (other than an authorised officer, detention officer or approved officer) who:
(a) is capable of representing the interests of a non‑citizen who is providing, or is to provide, a personal identifier; and
(b) as far as practicable, is acceptable to the non‑citizen who is providing, or is to provide, the personal identifier; and
(c) if the non‑citizen is a minor--is capable of representing the minor's best interests.
"minor" means a person who is less than 18 years old.
"non-citizen" means a person who is not an Australian citizen.
"personal identifier" has the meaning given by clause 26.
Note: The definitions of expressions in this clause correspond closely to definitions of those expressions in section 5 of the Migration Act 1958 .
26 Meaning of personal identifier
(1) In this Part:
"personal identifier" means any of the following (including any of the following in digital form):
(a) fingerprints or handprints of a person (including those taken using paper and ink or digital livescanning technologies);
(b) a measurement of a person's height and weight;
(c) a photograph or other image of a person's face and shoulders;
(d) an audio or a video recording of a person (other than a video recording under clause 37);
(e) an iris scan;
(f) a person's signature;
(g) any other identifier prescribed by the regulations, other than an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914 .
(2) Before the Governor‑General makes regulations for the purposes of paragraph (g) of the definition of personal identifier in subclause (1) prescribing an identifier, the Minister must be satisfied that:
(a) obtaining the identifier would not involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914 ; and
(b) the identifier is an image of, or a measurement or recording of, an external part of the body; and
(c) obtaining the identifier will promote one or more of the purposes referred to in subclause (3).
(3) The purposes are:
(a) to assist in the identification of, and to authenticate the identity of, any person who can be required under this Schedule to provide a personal identifier; and
(b) to assist in identifying, in the future, any such person; and
(c) to enhance the ability to identify non‑citizens who have a criminal history in matters relating to the environment; and
(d) to combat document and identity fraud in matters relating to the environment; and
(e) to complement anti‑people smuggling measures; and
(f) to inform the governments of foreign countries of the identity of non‑citizens who have been detained under, or charged with offences against, this Act or the regulations; and
(g) to facilitate international cooperation to combat activities that involve a breach of the laws of Australia or of a foreign country.
Note: This clause corresponds closely to section 5A of the Migration Act 1958 .
27 Limiting the types of identification tests that approved officers may carry out
(1) The Secretary may, in an instrument authorising an authorised officer or detention officer as an approved officer for the purposes of carrying out identification tests under this Part, specify the types of identification tests that the approved officer may carry out.
(2) Such an approved officer is not an approved officer in relation to carrying out an identification test that is not of a type so specified.
Note: This clause corresponds closely to section 5D of the Migration Act 1958 .
Division 2 -- Identification of detainees
Subdivision A -- Provision of personal identifiers
28 Detainees must provide personal identifiers
(1) A non‑citizen in detention must (other than in the prescribed circumstances) provide to an approved officer one or more personal identifiers.
Note: A person who is an Australian citizen, or is a non‑citizen but an Australian resident, may be in detention but must be released as soon as an authorised officer or detention officer knows or reasonably believes the person is an Australian citizen or resident. See clause 13.
(2) An approved officer must not require, for the purposes of subclause (1), a detainee to provide a personal identifier other than any of the following (including any of the following in digital form):
(a) fingerprints or handprints of the detainee (including those taken using paper and ink or digital livescanning technologies);
(b) a measurement of the detainee's height and weight;
(c) a photograph or other image of the detainee's face and shoulders;
(d) the detainee's signature;
(e) any other personal identifier of a type prescribed for the purposes of this paragraph.
Note: Division 3 sets out further restrictions on the personal identifiers that minors and incapable persons can be required to provide.
(3) The one or more personal identifiers are to be provided by way of one or more identification tests carried out by the approved officer in accordance with this Division.
Note 1: Subject to certain restrictions, clause 32 allows reasonable force to be used to carry out identification tests under this Division.
Note 2: This clause corresponds closely to section 261AA of the Migration Act 1958 .
29 Approved officers must require and carry out identification tests
(1) The approved officer must, other than in the circumstances prescribed for the purposes of subclause 28(1):
(a) require the non‑citizen to provide one or more personal identifiers, of the type or types prescribed, by way of one or more identification tests carried out by the approved officer; and
(b) carry out the one or more identification tests on the non‑citizen.
(2) However:
(a) if the types of identification tests that the approved officer may carry out are specified under clause 27--each identification test must be of a type so specified; and
(b) each identification test must be carried out in accordance with Subdivision B; and
(c) unless the approved officer has reasonable grounds to believe that the non‑citizen is not a minor or an incapable person--each identification test must be carried out in accordance with the additional requirements of Division 3.
Note: Subclauses (1) and (2) correspond closely to section 261AB of the Migration Act 1958 .
(3) If:
(a) the approved officer is authorised because of clause 7 (which effectively treats as approved officers for the purposes of certain provisions of this Schedule certain persons who are authorised Migration Act officers for the purposes of certain provisions of the Migration Act 1958 ); and
(b) an instrument under section 5D of that Act specifies the types of identification test the authorised Migration Act officer may carry out;
paragraph (2)(a) of this clause has effect as if the specified types (except any specified under subclause 7(3) in relation to the authorised Migration Act officer) had been specified under clause 27.
30 Information to be provided before carrying out identification tests
(1) Before carrying out an identification test, the approved officer must:
(a) inform the non‑citizen that the non‑citizen may ask that an independent person be present while the identification test is carried out and that the test be carried out by a person of the same sex as the non‑citizen; and
(b) inform the non‑citizen of such other matters as are specified in the regulations.
(2) For the purposes of subclause (1), the approved officer informs the non‑citizen of a matter if the approved officer informs the non‑citizen of the matter, through an interpreter if necessary, in a language (including sign language or braille) in which the non‑citizen is able to communicate with reasonable fluency.
(3) The approved officer may comply with this clause by giving to the non‑citizen, in accordance with the regulations, a form setting out the information specified in the regulations. However, the information must be in a language (including braille) in which the non‑citizen is able to communicate with reasonable fluency.
(4) A form mentioned in subclause (3) is not a legislative instrument.
Note: This clause corresponds closely to section 261AC of the Migration Act 1958 .
Subdivision B -- How identification tests are carried out
31 General rules for carrying out identification tests
An identification test under this Division:
(a) must be carried out in circumstances affording reasonable privacy to the non‑citizen; and
(b) if the non‑citizen so requests and it is practicable to comply with the request--must not be carried out in the presence or view of a person who is of the opposite sex to the non‑citizen; and
(c) must not be carried out in the presence or view of a person whose presence is not necessary for the purposes of the identification test or is not required or permitted by another provision of this Schedule; and
(d) must not involve the removal of more clothing than is necessary for carrying out the test; and
(e) must not involve more visual inspection than is necessary for carrying out the test; and
(f) if the test is one of 2 or more identification tests to be carried out on the non‑citizen--must be carried out at the same time as the other identification tests, if it is practicable to do so.
Note: This clause corresponds closely to section 261AD of the Migration Act 1958 .
32 Use of force in carrying out identification tests
When use of force is permitted
(1) Subject to subclause (2) and clause 33, an approved officer, or a person authorised under clause 34 to help the approved officer, may use reasonable force:
(a) to enable the identification test to be carried out; or
(b) to prevent the loss, destruction or contamination of any personal identifier or any meaningful identifier derived from the personal identifier.
However, this clause does not authorise the use of force against a minor or an incapable person, or if the personal identifier in question is a person's signature.
(2) The approved officer or person must not use force unless:
(a) the non‑citizen required to provide the personal identifier in question has refused to allow the identification test to be carried out; and
(b) all reasonable measures to carry out the identification test without the use of force have been exhausted; and
(c) the use of force in carrying out the identification test is authorised under subclause (4).
Applications for authorisation to use force
(3) An approved officer may apply to a senior authorising officer (who is not an approved officer referred to in subclause (1)) for an authorisation to use force in carrying out the identification test.
Authorisation to use force
(4) The senior authorising officer may authorise the use of force in carrying out the identification test if he or she is reasonably satisfied that:
(a) the non‑citizen required to provide the personal identifier in question has refused to allow the identification test to be carried out; and
(b) all reasonable measures to carry out the identification test without the use of force have been exhausted.
(5) An authorisation under subclause (4):
(a) may be given by telephone, fax or other electronic means; and
(b) must be recorded in writing, and signed by the person giving the authorisation, within one business day after it is given.
(6) A record made under paragraph (5)(b) is not a legislative instrument.
(7) A failure to comply with paragraph (5)(b) does not affect the validity of an identification test carried out on the basis of that authorisation.
(8) The power to give an authorisation under subclause (4) cannot be delegated to any other person.
Definition
(9) In this clause:
"senior authorising officer" means an authorised officer, or detention officer, whom the Secretary has authorised, or who is included in a class of authorised officers or detention officers whom the Secretary has authorised, to perform the functions of a senior authorising officer under this clause.
Note: This clause corresponds closely to section 261AE of the Migration Act 1958 .
33 Identification tests not to be carried out in cruel, inhuman or degrading manner etc.
For the purposes of this Schedule, the carrying out of the identification test is not of itself taken:
(a) to be cruel, inhuman or degrading; or
(b) to be a failure to treat a person with humanity and with respect for human dignity.
However, nothing in this Schedule authorises the carrying out of the identification test in a cruel, inhuman or degrading manner, or in a manner that fails to treat a person with humanity and with respect for human dignity.
Note: This clause corresponds closely to section 261AF of the Migration Act 1958 .
34 Approved officer may get help to carry out identification tests
An approved officer may ask another approved officer or an authorised officer or detention officer to help him or her to carry out the identification test, and the other person may give that help.
Note: This clause corresponds closely to section 261AG of the Migration Act 1958 .
35 Identification tests to be carried out by approved officer of same sex as non‑citizen
If the non‑citizen requests that the identification test be carried out by an approved officer of the same sex as the non‑citizen, the test must only be carried out by an approved officer of the same sex as the non‑citizen.
Note: This clause corresponds closely to section 261AH of the Migration Act 1958 .
36 Independent person to be present
The identification test must be carried out in the presence of an independent person if:
(a) force is used in carrying out the identification test; or
(b) both of the following apply:
(i) the non‑citizen requests that an independent person be present while the identification test is being carried out;
(ii) an independent person is readily available at the same place as the non‑citizen and is willing to attend the test within a reasonable time.
Note: This clause corresponds closely to section 261AI of the Migration Act 1958 .
37 Recording of identification tests
(1) An approved officer may video record the carrying out of the identification test.
(2) If the carrying out of the identification test is not video recorded, the approved officer may decide that the identification test must be carried out in the presence of an independent person.