Chapter 6—Administration
Part 16—Precautionary principle and other considerations in making decisions
391 Minister must consider precautionary principle in making decisions
Taking account of precautionary principle
(1) The Minister must take account of the precautionary principle in making a decision listed in the table in subsection (3), to the extent he or she can do so consistently with the other provisions of this Act.
Precautionary principle
(2) The precautionary principle is that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage.
Decisions in which precautionary principle must be considered
(3) The decisions are:
Decisions in which precautionary principle must be considered |
Item
| Section decision is made under |
Nature of decision
|
1 | 75 | whether an action is a controlled action |
2 | 133 | whether or not to approve the taking of an action |
3 | 201 | whether or not to grant a permit |
4 | 216 | whether or not to grant a permit |
5 | 238 | whether or not to grant a permit |
6 | 258 | whether or not to grant a permit |
6A | 269AA | whether or not to have a recovery plan for a listed threatened species or a listed threatened ecological community |
7 | 269A | about making a recovery plan or adopting a plan as a recovery plan |
7A | 270A | whether or not to have a threat abatement plan for a key threatening process |
7B | 270B | about making a threat abatement plan or adopting a plan as a threat abatement plan |
8 | 280 | about approving a variation of a plan adopted as a recovery plan or threat abatement plan |
9 | 285 | about making a wildlife conservation plan or adopting a plan as a wildlife conservation plan |
10 | 295 | about approving a variation of a plan adopted as a wildlife conservation plan |
10A | 303CG | whether or not to grant a permit |
10AA | 303DC | whether or not to amend the list of exempt native specimens |
10B | 303DG | whether or not to grant a permit |
10C | 303EC | about including an item in the list referred to in section 303EB |
10D | 303EN | whether or not to grant a permit |
10E | 303FN | about declaring an operation to be an approved wildlife trade operation |
10F | 303FO | about declaring a plan to be an approved wildlife trade management plan |
10G | 303FP | about declaring a plan to be an accredited wildlife trade management plan |
10H | 303GB | whether or not to grant an exceptional circumstances permit |
11 | 316 | about making a plan for managing a property that is included in the World Heritage List and is entirely within one or more Commonwealth areas |
11A | 324S | about making a plan for managing a National Heritage place |
12 | 328 | about making a plan for managing a wetland that is designated for inclusion in the List of Wetlands of International Importance kept under the Ramsar Convention and is entirely within one or more Commonwealth areas |
13 | 338 | about making a plan for managing a Biosphere reserve entirely within one or more Commonwealth areas |
13A | 341T | about endorsing a plan for managing a Commonwealth Heritage place |
14 | 370 | about approving a management plan for a Commonwealth reserve |
Part 17—Enforcement
Division 1—Wardens, rangers and inspectors
Subdivision A—Wardens and rangers
392 Appointment of wardens and rangers
The Minister may, in writing, appoint:
(a) an officer or employee of the Department; or
(b) a person covered by an arrangement made under section 393;
to be a warden or ranger.
393 Arrangements for certain officers or employees to exercise powers etc. of wardens or rangers
(1) The Secretary may make arrangements with an Agency Head (within the meaning of the Public Service Act 1999), or with an authority of the Commonwealth, for the performance or exercise of all or any of the functions or powers of wardens and rangers under this Act or the regulations by officers or employees in that Agency or authority, as the case may be.
(1A) However, an arrangement under subsection (1) must not provide for the performance or exercise of functions or powers under this Act or the regulations in relation to a Commonwealth reserve or conservation zone.
(2) The Minister may enter into an arrangement with the appropriate Minister of a State or of the Australian Capital Territory or of the Northern Territory for:
(a) officers or employees in the Public Service of the State or Territory, or in an authority of the State or Territory (including a local government body); or
(b) members of the police force of the State or Territory;
to perform or exercise all or any of the functions or powers of wardens or rangers under this Act or the regulations.
(4) The Director may make arrangements with an Agency Head (within the meaning of the Public Service Act 1999), or with an authority of the Commonwealth, for the performance or exercise of all or any of the functions or powers of wardens and rangers under this Act or the regulations by officers or employees in that Agency or authority, as the case may be.
394 Wardens ex officio
By force of this section each of the following is a warden:
(a) each member or special member of the Australian Federal Police;
(b) each officer of Customs.
395 Identity cards
(1) The Minister must issue to each warden (except a member of a police force or an officer of Customs) and to each ranger, an identity card, in a form approved by the Minister, containing a photograph of the person to whom it is issued.
(2) If a person stops being a warden or ranger, the person must immediately return his or her identity card to the Minister.
(3) A person who contravenes subsection (2) commits an offence punishable on conviction by a fine not exceeding one penalty unit.
Subdivision B—Inspectors
396 Appointment of inspectors
(1) The Minister may, in writing, appoint a person to be an inspector.
(2) The Minister may make a written determination that a specified person, or a person included in a specified class of persons, does not have such of the powers conferred on an inspector by this Act as are specified in the determination. The determination has effect accordingly.
(3) If the Minister makes a determination under subsection (2) about a named individual, the Minister must give the individual a copy of the determination.
397 Inspectors ex officio
(1) By force of this section each of the following is an inspector:
(a) each member or special member of the Australian Federal Police;
(b) each person appointed as an inspector under subsection 43(1) of the Great Barrier Reef Marine Park Act 1975 (other than such a person whose appointment relates only to the powers of an inspector under Part VIIA of that Act);
(c) each officer of Customs.
(2) Paragraph (1)(b) does not apply for the purposes of the application of this Act to an offence against, or a matter relating to, Part 13A.
(3) By force of this section, for the purposes of the application of this Act to an offence against, or a matter relating to, Part 13A, each of the following is an inspector:
(b) each member of the police force of an external Territory;
(c) each biosecurity officer (within the meaning of the Biosecurity Act 2015).
Note: Part 13A deals with international movement of wildlife specimens.
398 Arrangements for State and Territory officers to be inspectors
(1) The Minister may enter into an arrangement with the appropriate Minister of a State or of the Australian Capital Territory or of the Northern Territory for:
(a) officers or employees of the Public Service of the State or Territory, or of an authority of the State or Territory (including a local government body); or
(b) members of the police force of the State or Territory;
to be inspectors, and that arrangement has effect accordingly.
(3) The Minister may make a written determination that a specified person, or a person included in a specified class of persons, who is an inspector because of this section does not have such of the powers conferred on an inspector by this Act as are specified in the determination. The determination has effect accordingly.
(4) If the Minister makes a determination under subsection (3) about a named individual, the Minister must give the individual a copy of the determination.
399 Identity cards
(1) The Minister must issue to an inspector an identity card in a form approved by the Minister, containing a photograph of the person to whom it is issued.
(1A) Subsection (1) does not apply in relation to an inspector who is:
(a) a member of a police force; or
(b) an inspector by force of paragraph 397(1)(b); or
(c) an officer of Customs.
(2) If a person stops being an inspector, the person must immediately return his or her identity card to the Minister.
(3) A person who contravenes subsection (2) commits an offence punishable on conviction by a fine not exceeding one penalty unit.
(4) For the purposes of this Act, a requirement for a person who is an inspector by force of paragraph 397(1)(b) to produce his or her identity card is satisfied if the person shows his or her identity card issued under section 45 of the Great Barrier Reef Marine Park Act 1975.
Subdivision BA—Exercise of powers of authorised officers outside the territorial sea
399A Powers to be exercised consistently with UNCLOS
(1) This section applies in relation to the powers of an authorised officer under this Part (including powers an authorised officer has under or because of a search warrant or a monitoring warrant), to the extent that the powers are otherwise permitted to be exercised:
(a) outside the territorial sea; and
(b) in relation to a person, aircraft or vessel, other than a person aircraft or vessel of a kind referred to in any of paragraphs 5(3)(a) to (h).
(2) The powers of an authorised officer, to the extent to which this section applies to them, must be exercised consistently with Australia’s rights and obligations under:
(a) UNCLOS; and
(b) any other international agreements specified in regulations made for the purposes of this section.
(3) In this section:
UNCLOS means the United Nations Convention on the Law of the Sea, done at Montego Bay on 10 December 1982.
Note: The text of the Convention is set out in Australian Treaty Series 1994 No. 31. In 2006, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Subdivision BB—Exercise of powers of authorised officers in relation to Great Barrier Reef Marine Park
399B Certain powers to be exercised only by certain authorised officers
(1) The powers of an authorised officer in relation to:
(a) an offence against an environmental law that is the Great Barrier Reef Marine Park Act 1975 or regulations made under that Act; or
(b) an environmental penalty provision that is a civil penalty provision of that Act; or
(c) a thing that may be done for the purposes of that Act;
may only be exercised by an authorised officer who is an inspector by force of paragraph 397(1)(a) or (b).
(2) To avoid doubt, an authorised officer who is an inspector by force of paragraph 397(1)(a) or (b) and also by force of paragraph 397(1)(c) is an authorised officer who may exercise the powers referred to in subsection (1).
Subdivision C—Miscellaneous
400 Regulations may give wardens, rangers and inspectors extra powers, functions and duties
The regulations may provide for functions and powers to be conferred, and duties to be imposed, on wardens, rangers and inspectors.
401 Impersonating authorised officers and rangers
(1) A person commits an offence if:
(a) the person:
(i) impersonates an authorised officer or a ranger on an occasion; and
(ii) does so knowing it to be an occasion when the officer or ranger would be on duty and doing an act or attending a place; or
(b) the person:
(i) falsely represents himself or herself to be an authorised officer or a ranger; and
(ii) does an act or attends a place in the assumed character of that officer or ranger; or
(c) the person:
(i) impersonates an authorised officer or a ranger or falsely represents himself or herself to be an authorised officer or a ranger; and
(ii) does so with the intention of obtaining a gain, causing a loss or influencing the exercise of a public duty.
(2) Subsection (1) does not apply to an authorised officer or a ranger.
(3) An authorised officer or a ranger commits an offence if:
(a) the officer or ranger:
(i) impersonates another authorised officer or ranger on an occasion; and
(ii) does so knowing it to be an occasion when the other officer or ranger would be on duty and doing an act or attending a place; or
(b) the officer or ranger:
(i) falsely represents himself or herself to be another authorised officer or a ranger; and
(ii) does an act or attends a place in the assumed character of the other officer or ranger; or
(c) the officer or ranger:
(i) impersonates another authorised officer or a ranger or falsely represents himself or herself to be another authorised officer or a ranger; and
(ii) does so with the intention of obtaining a gain, causing a loss or influencing the exercise of a public duty.
(4) An offence against this section is punishable, on conviction, by imprisonment for not more than 2 years or a fine not exceeding 120 penalty units, or both.
402 Offences against authorised officers and rangers
(1) A person commits an offence if the person:
(a) uses or threatens violence against another person; and
(b) does so knowing that the other person is an authorised officer or a ranger; and
(c) does so because of that other person’s status as an authorised officer or ranger.
(2) An offence against subsection (1) is punishable, on conviction, by imprisonment for not more than 7 years or a fine not exceeding 420 penalty units, or both.
(3) A person commits an offence if the person:
(a) obstructs, intimidates, resists or hinders another person who is an authorised officer or a ranger exercising or performing his or her powers, duties or functions; and
(b) does so knowing that the other person is an authorised officer or ranger.
(4) An offence against subsection (3) is punishable, on conviction, by imprisonment for not more than 2 years or a fine not exceeding 120 penalty units, or both.
(5) It is immaterial whether the defendant was aware that the authorised officer or ranger was engaged in the exercise or performance, or attempted exercise or performance of a power, duty or function of such officer or ranger.
(6) It is a defence in proceedings for an offence against subsection (3), if at the time of the conduct constituting the offence, the authorised officer or ranger was abusing his or her power.
(7) This section does not limit the power of a court to punish a contempt of that court.
(8) Subsections (1) and (3) are not intended to exclude or limit the concurrent operation of any law of the Australian Capital Territory in a case where the other person referred to in that subsection is a member or special member of the Australian Federal Police.
Division 2—Boarding of vessels etc. and access to premises
403 Boarding of vessels etc. by authorised officers
(1) This section applies to:
(a) any Australian vessel or Australian aircraft, whether or not it is in the Australian jurisdiction; or
(b) any other vessel or aircraft, or any vehicle or platform, that is in the Australian jurisdiction.
(2) If an authorised officer suspects on reasonable grounds that there is in, or on, a vehicle, vessel, aircraft or platform to which this section applies any evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both, the authorised officer may, with such assistance as he or she thinks necessary:
(a) board the vehicle, vessel, aircraft or platform at any reasonable time for the purpose of exercising, and may exercise, the powers of an authorised officer under section 406; and
(b) in the case of a vehicle, vessel or aircraft—stop and detain the vehicle, vessel or aircraft for that purpose.
(2A) An authorised officer who boards a vehicle, vessel, aircraft or platform under paragraph (2)(a) may require a person on the vehicle, vessel, aircraft or platform to:
(a) answer a question asked by the authorised officer; or
(b) give the authorised officer information requested by the authorised officer; or
(c) produce to the authorised officer records or documents kept on the vehicle, vessel, aircraft or platform.
(3) If an authorised officer or the person in command of a Commonwealth ship or of a Commonwealth aircraft suspects on reasonable grounds that a vessel to which this section applies has been used or otherwise involved in the commission of an offence against an environmental law, he or she may:
(a) bring the vessel to the nearest port in Australia or an external Territory to which it is safe and practicable to bring the vessel; or
(b) by means of an international signal code or other internationally recognised means of communication with a vessel, require the person in charge of the vessel to bring the vessel to that port.
(4) An authorised officer, or the person in command of a Commonwealth ship or of a Commonwealth aircraft, may require the person in charge of an aircraft to which this section applies to bring the aircraft to the nearest airport in Australia or an external Territory to which it is safe and practicable to bring the aircraft if:
(a) the authorised officer, or the person in command of the Commonwealth ship or Commonwealth aircraft, suspects on reasonable grounds that the aircraft has been used or otherwise involved in the commission of an offence against an environmental law; and
(b) the requirement is made by means of an international signal code or other internationally recognised means of communication with an aircraft.
(5) An authorised officer may, for the purposes of this Act or the Great Barrier Reef Marine Park Act 1975 (other than Part VIIA of that Act (compulsory pilotage)), require the person in charge of a vehicle, vessel, aircraft or platform to which this section applies to give information concerning any or all of the following:
(a) the vehicle, vessel, aircraft or platform;
(b) the crew or any other person on board the vehicle, vessel, aircraft or platform;
(c) in the case of a vessel—any dory being operated in association with the vessel;
(d) in the case of a vessel—any person operating a dory in association with the vessel.
(5A) A person commits an offence if:
(a) a requirement is made of the person under this section; and
(b) the person fails to comply with the requirement.
Penalty:
(a) if the requirement is made under subsection (2A)—imprisonment for 6 months or 30 penalty units, or both; or
(b) if the requirement is made under subsection (3), (4) or (5)—50 penalty units.
(5B) If there is a restraint on the liberty of a person on a vessel resulting from an authorised officer’s exercise of a power under this section in relation to the vessel:
(a) the restraint is not unlawful; and
(b) civil or criminal proceedings in respect of the restraint may not be instituted or continued in any court against:
(i) the authorised officer; or
(ii) any person assisting the authorised officer in the exercise of the power; or
(iii) the Commonwealth.
This subsection is not intended to affect the jurisdiction of the High Court under section 75 of the Constitution.
(5C) A reference in this section to an offence against an environmental law does not include an offence against Part VIIA of the Great Barrier Reef Marine Park Act 1975 (compulsory pilotage).
(6) In this Act:
Commonwealth aircraft means an aircraft in the service of the Commonwealth on which the prescribed ensign or prescribed insignia of the aircraft is displayed.
Commonwealth ship means a ship in the service of the Commonwealth on which the prescribed ensign of the ship is flying.
404 Authorised officers to produce identification
(1) If an authorised officer (subject to subsection (1A)) boards a vehicle, vessel, aircraft or platform under section 403, the authorised officer must:
(a) in the case of a member of a police force—produce, for inspection by the person in charge of that vehicle, vessel, aircraft or platform, written evidence of the fact that he or she is a member of that police force; or
(aa) in the case of an officer of Customs—produce, for inspection by the person in charge of that vehicle, vessel, aircraft or platform, written evidence of the fact that he or she is an officer of Customs; or
(b) in any other case—produce his or her identity card for inspection by that person.
(1A) Subsection (1) does not apply to an authorised officer if:
(a) the authorised officer is a member of a police force or an officer of Customs; and
(b) the officer is in uniform.
(2) An authorised officer who does not comply with subsection (1) is not authorised to remain, or to require any person assisting the authorised officer to remain, on board the vehicle, vessel, aircraft or platform, or to detain the vehicle, vessel or aircraft.
(3) If an authorised officer (subject to subsection (3A)) makes a requirement of a person under section 403 the authorised officer, unless it is impracticable to do so, must:
(a) in the case of a member of a police force—produce, for inspection by that person, written evidence of the fact that he or she is a member of that police force; or
(aa) in the case of an officer of Customs—produce, for inspection by that person, written evidence of the fact that he or she is an officer of Customs; or
(b) in any other case—produce his or her identity card for inspection by that person;
and, if the authorised officer fails to do so, that person is not obliged to comply with the requirement.
(3A) Subsection (3) does not apply to an authorised officer if:
(a) the authorised officer is a member of a police force or an officer of Customs; and
(b) the officer is in uniform.
405 Access to premises
(1) An authorised officer may, with the consent of the occupier of any premises, enter the premises for the purpose of exercising the powers of an authorised officer under section 406.
(2) If an authorised officer enters any premises under subsection (1), he or she may exercise the powers of an authorised officer under section 406.
(3) An authorised officer who enters premises under subsection (1) must, if the occupier of the premises revokes his or her consent, leave the premises forthwith, and is not entitled to exercise, or continue to exercise, the powers of an authorised officer under section 406 in relation to the premises.
(4) An authorised officer is not entitled to:
(a) enter premises under subsection (1); or
(b) exercise any powers as mentioned in subsection (2);
if the occupier of the premises has required the officer to produce written identification for inspection by the occupier and:
(c) if the authorised officer is a member of a police force—the officer fails to produce, for inspection by the occupier, written evidence of the fact that he or she is a member of that police force; or
(d) if the authorised officer is an officer of Customs—the officer fails to produce, for inspection by the occupier, written evidence of the fact that he or she is an officer of Customs; or
(e) in any other case—the officer fails to produce his or her identity card for inspection by the occupier.
406 Powers of authorised officers
(1) An authorised officer who boards a vehicle, vessel, aircraft or platform under section 403, or enters premises under section 405 may:
(a) inspect and search the vehicle, vessel, aircraft, platform or premises, as the case may be; and
(aa) take photographs (including a video recording), and make sketches, of the premises or of any substance or thing on the vehicle, vessel, aircraft, platform or premises; and
(b) inspect, take extracts from, and make copies of, any document that is, or that the authorised officer suspects on reasonable grounds is, evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both; and
(ba) in the case of an authorised officer who boards a vessel under section 403—subject to section 406A, search without warrant:
(i) a person on the vessel; and
(ii) the person’s clothing;
to find out whether there is hidden on the person or in the clothing:
(iii) an eligible seizable item; or
(iv) a thing that may be evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both; and
(c) inspect, and take samples of, any other evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both; and
(ca) take measurements of, and conduct tests on, the vehicle, vessel, aircraft, platform or premises or any substance or thing on the vehicle, vessel, aircraft, platform or premises; and
(d) exercise powers of seizure conferred on the authorised officer by section 444A or 445; and
(e) take onto the vehicle, vessel, aircraft, platform or premises any equipment or material reasonably necessary for the purpose of exercising a power referred to in any of the other paragraphs of this subsection.
(2) For the purposes of this Part, evidential material means:
(a) in relation to an offence against an environmental law:
(i) any thing with respect to which the offence has been committed or is suspected, on reasonable grounds, of having been committed; or
(ii) any thing as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of the offence; or
(iii) any thing as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing the offence; and
(b) in relation to a contravention of an environmental penalty provision:
(i) any thing with respect to which the environmental penalty provision has been contravened or is suspected, on reasonable grounds, of having been contravened; or
(ii) any thing as to which there are reasonable grounds for suspecting that it will afford evidence as to the contravention of the environmental penalty provision; or
(iii) any thing as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of contravening the environmental penalty provision.
(2A) A reference to a thing in subsection (2) includes a reference to any such thing in electronic form.
(3) For the purposes of exercising a power under subsection (1), an authorised officer may break open any hold or compartment, or any container or other receptacle (including any place that could be used as a receptacle), on a vehicle, vessel, aircraft or platform or on any premises.
406A Searches under paragraph 406(1)(ba)
(1) A search under paragraph 406(1)(ba) of a person (the subject) may only be conducted by an authorised officer of the same sex as the subject.
(2) However, if an authorised officer of the same sex as the subject is not available to conduct the search, it may be conducted by another person who:
(a) is of the same sex as the subject; and
(b) agrees, at the request of an authorised officer, to conduct the search.
(3) Paragraph 406(1)(ba) and this section do not authorise the authorised officer or other person:
(a) to remove any of the subject’s clothing; or
(b) to require the subject to remove any of his or her clothing; or
(c) to use more force, or subject the subject to greater indignity, than is reasonably necessary to conduct the search.
406AA Taking things into possession
(1) This section applies if, in conducting a search referred to in paragraph 406(1)(a) or (ba), an authorised officer or a person who conducts a search because of subsection 406A(2) finds:
(a) an eligible seizable item; or
(b) a thing that may be evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both.
(2) An authorised officer may:
(a) take possession of the item or thing; and
(b) keep the item or thing for so long as he or she thinks necessary for the purposes of this Act or the Great Barrier Reef Marine Park Act 1975.
(3) A person who conducts a search because of subsection 406A(2) must take possession of the item or thing and give it to an authorised officer.
(4) An authorised officer who is given an item or thing under subsection (3) may keep it for so long as he or she thinks necessary for the purposes of this Act or the Great Barrier Reef Marine Park Act 1975.
(5) If:
(a) an authorised officer is keeping an item or thing under subsection (2) or (4); and
(b) the item or thing was found in conducting a search of a person under paragraph 406(1)(ba); and
(c) the person is detained under Schedule 1;
the authorised officer may continue to keep the item or thing for so long 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.
Note: Once the person ceases to be detained under Schedule 1, the person will generally need to be detained under the Migration Act 1958 while he or she is in the migration zone (because his or her enforcement visa under that Act will cease to have effect). Subsection (5) ensures the officer can keep the item or thing while the person is detained under this Act or that Act.
406B Thing taken into possession is not a thing seized
A reference in this Act to a thing (however described) seized under this Part or this Act does not include a reference to a thing that has been taken into possession under section 406AA or Schedule 1.
Division 3—Monitoring of compliance
407 Monitoring powers
(1) For the purposes of this Division, each of the following powers is a monitoring power in relation to particular premises:
(a) the power to inspect and search the premises;
(b) the power to take photographs (including a video recording), or to make sketches, of the premises or of any substance or thing at the premises;
(c) the power to inspect, examine and take samples of, any substance or thing on or in the premises;
(ca) the power to take measurements of, and conduct tests on, the premises or any substance or thing on the premises;
(cb) the power to mark a live specimen on the premises (see subsection (2));
(d) the power to take extracts from, or make copies of, any document, book or record on the premises;
(da) the powers to operate electronic equipment, and do other things, at the premises as mentioned in section 407A;
(e) the power to take onto the premises any equipment or material reasonably necessary for the purpose of exercising a power referred to in any other paragraph of this subsection.
(2) For the purposes of paragraph (1)(cb), mark includes:
(a) in the case of a live plant:
(i) mark or label a cage or container in which the plant is kept or in which the plant is growing; and
(ii) place a label or tag on the plant; and
(b) in the case of a live animal:
(i) implant a scannable device in the animal; and
(ii) place a band on any part of the animal; and
(iii) place (whether by piercing or otherwise) a tag or ring on any part of the animal; and
(iv) mark or label a cage or container within which the animal is kept.
(3) If:
(a) damage is caused to a specimen, or a cage or container in which a specimen is kept, as a result of an authorised officer exercising the power to mark under paragraph (1)(cb); and
(b) the damage was caused as a result of insufficient care being exercised by the authorised officer;
compensation for the damage is payable to the owner of the specimen, or to the owner of the cage or container, as the case requires.
(4) Compensation is payable out of money appropriated by the Parliament for the purpose.
(5) In determining the amount of compensation payable, regard is to be had to whether the owner, if the owner was available at the time, had provided any warning or guidance relating to the marking of the specimen, cage or container.
407A Operation of electronic equipment at premises
Monitoring powers include the powers set out in this section
(1) Monitoring powers in relation to premises include the powers set out in this section. This section does not authorise these powers to be exercised otherwise than in situations in which this Division allows monitoring powers to be exercised.
Operation of equipment
(2) An authorised officer may operate electronic equipment at premises to see whether relevant material is accessible by doing so, if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
Seizure etc.
(3) If an authorised officer operates electronic equipment at premises under subsection (2), and the authorised officer finds that relevant material is accessible by doing so, he or she may:
(a) seize the equipment and any disk, tape or other associated device; or
(b) if the relevant material can, by using facilities at the premises, be put in documentary form—operate the facilities to put the material in that form and seize the documents so produced; or
(c) if the relevant material can be transferred to a disk, tape or other storage device that:
(i) is brought to the premises; or
(ii) is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises;
operate the equipment or other facilities to copy the material to the storage device and take the storage device from the premises.
Limitation on seizure
(4) An authorised officer may seize equipment under paragraph (3)(a) only if:
(a) it is not practicable to put the relevant material in documentary form as mentioned in paragraph (3)(b) or to copy the material as mentioned in paragraph (3)(c); or
(b) possession of the equipment by the occupier could constitute an offence.
How this Part applies to things seized
(5) The other provisions of this Part apply in relation to a thing seized under paragraph (3)(a) or (b) as if the thing had been seized under section 445.
Securing equipment
(6) If an authorised officer believes on reasonable grounds that:
(a) relevant material may be accessible by operating electronic equipment at the premises; and
(b) expert assistance is required to operate the equipment; and
(c) if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;
he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.
Notice about securing equipment
(7) An authorised officer who wishes to secure electronic equipment under subsection (6) must give notice to the occupier of the premises of:
(a) his or her intention to secure the equipment; and
(b) the fact that the equipment may be secured for up to 24 hours.
Period for which equipment may be secured
(8) Electronic equipment may be secured under subsection (6):
(a) for a period not exceeding 24 hours; or
(b) until the equipment has been operated by the expert;
whichever happens first.
Extension of period
(9) If an authorised officer believes on reasonable grounds that expert assistance will not be available within 24 hours, the authorised officer may apply to a magistrate for an extension of that period.
Notice to occupier
(10) An authorised officer must give notice to the occupier of the premises of his or her intention to apply for an extension under subsection (9), and the occupier is entitled to be heard in relation to the application.
Provisions relating to extensions
(11) The provisions of this Division relating to the issue of a monitoring warrant apply, with such modifications as are necessary, to the issuing of an extension.
Definition
(12) In this section:
relevant material means:
(a) evidential material; or
(b) any other material that is relevant for the purposes of finding out whether any or all of the provisions of an environmental law have been, are being or will be complied with.
407B Compensation for damage to electronic equipment
(1) If:
(a) damage is caused to electronic equipment as a result of it being operated as mentioned in section 407A; and
(b) the damage was caused as a result of:
(i) insufficient care being exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care being exercised by the person operating the equipment;
compensation for the damage is payable to the owner of the equipment.
(2) Compensation is payable out of money appropriated by the Parliament for the purpose.
(3) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises and his or her employees and agents, if they were available at the time, had provided any warning or guidance as to the operation of the equipment that was appropriate in the circumstances.
408 Monitoring searches with occupier’s consent
Entry by consent
(1) An authorised officer may, with the consent of the occupier of any premises, enter the premises for the purpose of finding out whether any or all of the provisions of an environmental law have been, are being or will be complied with.
Entry for monitoring purposes
(2) An authorised officer may only enter premises under subsection (1) to the extent that it is reasonably necessary for the purpose of finding out whether any or all of the provisions of an environmental law have been, are being or will be complied with.
Exercise of monitoring powers
(3) If an authorised officer enters premises under subsection (1), the authorised officer may exercise monitoring powers in relation to those premises.
Exercise of seizure powers
(4) If an authorised officer enters premises under subsection (1), the authorised officer may exercise powers of seizure conferred by section 444A or 445.
Right to refuse to give consent
(5) Before obtaining the consent of a person for the purposes of this section, an authorised officer must tell the person that the person may refuse to give consent.
Consent must be voluntary
(6) An entry by an authorised officer in consequence of the consent of a person is not lawful unless the person voluntarily consented to the entry.
Production of identity card etc.
(7) An authorised officer is not entitled to:
(a) enter premises under subsection (1); or
(b) exercise any powers referred to in subsection (3) or (4) in relation to premises;
if the occupier of the premises has required the officer to produce written identification for inspection by the occupier and:
(c) if the authorised officer is a member of a police force—the officer fails to produce, for inspection by the occupier, written evidence of the fact that he or she is a member of that police force; or
(ca) if the authorised officer is an officer of Customs—the officer fails to produce, for inspection by the occupier, written evidence of the fact that he or she is an officer of Customs; or
(d) in any other case—the officer fails to produce his or her identity card for inspection by the occupier.
Extension to vehicles, vessels and aircraft
(8) Subsections (1), (2), (3), (4), (5), (6) and (7) apply in relation to:
(a) a vehicle, vessel or aircraft in the same way as they apply in relation to premises; and
(b) a person apparently in charge of a vehicle, vessel or aircraft in the same way as they apply in relation to the occupier of premises.
409 Monitoring warrants
Application for monitoring warrant
(1) An authorised officer may apply to a magistrate for a warrant under this section in relation to particular premises. The warrant is to be known as a monitoring warrant.
Note: Urgent applications may be made by telephone or other electronic means under section 409A.
Issue of monitoring warrant
(2) Subject to subsection (3), the magistrate may issue the monitoring warrant if satisfied, by information on oath or affirmation, that it is reasonably necessary that the authorised officer should have access to the premises for the purpose of finding out whether any or all of the provisions of an environmental law have been, are being or will be complied with.
Information about grounds for issue of monitoring warrant
(3) The magistrate must not issue the monitoring warrant unless the authorised officer or another person has given the magistrate, either orally (on oath or affirmation) or by affidavit, such further information as the magistrate requires about the grounds on which the issue of the monitoring warrant is being sought.
Terms of warrant
(4) The monitoring warrant must:
(a) name an authorised officer who, unless he or she inserts the name of another authorised officer in the warrant, is to be responsible for executing the warrant; and
(aa) authorise the executing officer, with such assistance and by such force as is necessary and reasonable, from time to time while the monitoring warrant remains in force:
(i) to enter the premises; and
(ii) to exercise monitoring powers in relation to the premises; and
(b) state whether an entry under the monitoring warrant is authorised to be made at any time of the day or night or during specified hours of the day or night; and
(c) specify the day (not more than 6 months after the issue of the monitoring warrant) on which the monitoring warrant ceases to have effect; and
(d) state the purpose for which the monitoring warrant is issued.
Seizure powers
(5) If an authorised officer enters premises under a monitoring warrant, he or she may exercise powers of seizure conferred by section 444A or 445.
409A Monitoring warrants by telephone or other electronic means
Application
(1) An authorised officer may make an application to a magistrate for a monitoring warrant by telephone, telex, fax or other electronic means:
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the monitoring warrant.
Voice communication
(2) The magistrate:
(a) may require communication by voice to the extent that is practicable in the circumstances; and
(b) may make a recording of the whole or any part of any such communication by voice.
Information
(3) An application under this section must include all information as required to be provided in an application under section 409, but the application may, if necessary, be made before the information is sworn or affirmed.
Issue of monitoring warrant
(4) If an application is made to a magistrate under this section and the magistrate, after considering the information and having received and considered such further information (if any) as the magistrate required, is satisfied that:
(a) a monitoring warrant in the terms of the application should be issued urgently; or
(b) the delay that would occur if an application were made in person would frustrate the effective execution of the monitoring warrant;
the magistrate may complete and sign the same form of monitoring warrant that would be issued under section 409.
Notification
(5) If the magistrate decides to issue the monitoring warrant, the magistrate must inform the applicant, by telephone, telex, fax or other electronic means, of the terms of the monitoring warrant and the day on which and the time at which it was signed.
Form of monitoring warrant
(6) The applicant must then complete a form of monitoring warrant in terms substantially corresponding to those given by the magistrate, stating on the form the name of the magistrate and the day on which and the time at which the monitoring warrant was signed.
Completed form of monitoring warrant to be given to magistrate
(7) The applicant must, not later than 48 hours after making the application, give or transmit to the magistrate:
(a) the form of monitoring warrant completed by the applicant; and
(b) if the information referred to in subsection (3) was not sworn or affirmed—that information duly sworn or affirmed.
Attachment of form of warrant to subsection (7) documents
(8) The magistrate must attach to the documents provided under subsection (7) the form of monitoring warrant completed by the magistrate.
Presumption if form of warrant not produced in evidence
(9) If:
(a) it is material, in any proceeding, for a court to be satisfied that the exercise of a power under a monitoring warrant issued under this section was duly authorised; and
(b) the form of monitoring warrant signed by the magistrate is not produced in evidence;
the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.
Court may admit evidence even if subsection (7) or (8) not complied with
(10) A court may admit evidence obtained because of the issue of a warrant pursuant to this section even if either or both of subsections (7) and (8) have not been complied with if, having regard to the nature of and reasons for the non‑compliance and any other relevant matters, the court is satisfied that it was not practicable to comply with that subsection or those subsections (as the case requires).
409B Executing officer to be in possession of warrant
When executing a warrant, the executing officer must be in possession of:
(a) the original warrant issued by the magistrate under section 409, or a copy of the original warrant as so issued; or
(b) the original form of warrant completed under subsection 409A(6), or a copy of the original form as so completed.
410 Details of monitoring warrant to be given to occupier etc.
(1) If a monitoring warrant in relation to premises is being executed and the occupier of the premises, or another person who apparently represents the occupier, is present at the premises, the executing officer must make available to that person a copy of the monitoring warrant.
(2) The executing officer must identify himself or herself to that person at the premises.
(3) The copy of the monitoring warrant referred to in subsection (1) need not include the signature of the magistrate or the seal of the relevant court.
411 Occupier entitled to be present during search
(1) If a monitoring warrant in relation to premises is being executed and the occupier of the premises, or another person who apparently represents the occupier, is present at the premises, the person is, subject to Part IC of the Crimes Act 1914, entitled to observe the search being conducted.
(2) The right to observe the search being conducted ceases if the person impedes the search.
(3) This section does not prevent 2 or more areas of the premises being searched at the same time.
412 Announcement before entry
(1) Before any person enters premises under a monitoring warrant, the executing officer must:
(a) announce that he or she is authorised to enter the premises; and
(b) give any person at the premises an opportunity to allow entry to the premises.
(2) The executing officer is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure:
(a) the safety of a person (including an authorised officer); or
(b) that the effective execution of the monitoring warrant is not frustrated.
412A Other powers when on premises under monitoring warrant
(1) If the executing officer enters premises under a monitoring warrant, he or she may require a person on the premises to:
(a) answer a question asked by the executing officer; or
(b) give the executing officer information requested by the executing officer; or
(c) produce to the executing officer records or documents kept on the premises.
(2) A person commits an offence if:
(a) the executing officer has entered premises under a monitoring warrant; and
(b) the person is on the premises; and
(c) the executing officer requires the person to:
(i) answer a question asked by the executing officer; or
(ii) give the executing officer information requested by the executing officer; or
(iii) produce to the executing officer records or documents kept on the premises; and
(d) the person contravenes the requirement.
(3) The offence is punishable on conviction by imprisonment for a term not more than 6 months, a fine of not more than 30 penalty units, or both.
Division 4—Search warrants
413 When search warrants can be issued
(1) A magistrate may issue a warrant authorising an authorised officer to search premises if the magistrate is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, at the premises evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both.
(2) A magistrate may issue a warrant authorising an authorised officer to carry out an ordinary search or a frisk search of a person if the magistrate is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that the person has in his or her possession, or will within the next 72 hours have in his or her possession, any evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both.
(3) For the purposes of this Act, frisk search means:
(a) a search of a person conducted by quickly running the hands over the person’s outer garments; and
(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.
(4) If the authorised officer applying for the warrant suspects that, in executing the warrant, it will be necessary to use firearms, the authorised officer must state that suspicion, and the grounds for that suspicion, in the information.
(5) If the application for the warrant is made under section 416, this section applies as if subsections (1) and (2) referred to 48 hours rather than 72 hours.
(6) If the applicant for a warrant is a member or special member of the Australian Federal Police and has, at any time previously, applied for a warrant relating to the same person or premises, the person must state particulars of those applications and their outcome in the information.
414 Statements in warrants
(1) If a magistrate issues a warrant under section 413, the magistrate is to state in the warrant:
(a) each offence and/or environmental penalty provision to which the warrant relates; and
(b) a description of the premises to which the warrant relates or the name or description of a person to whom it relates; and
(c) the kinds of evidential material that are to be searched for under the warrant; and
(d) the name of the authorised officer who, unless he or she inserts the name of another authorised officer in the warrant, is to be responsible for executing the warrant; and
(e) the period for which the warrant remains in force, which must not be more than 7 days; and
(f) if the warrant relates to premises—whether the premises may be entered at any time of the day or night or only during particular hours of the day or night; and
(g) if the warrant relates to a person—whether the search of the person may be carried out at any time of the day or night or only during particular hours of the day or night.
(2) The magistrate is also to state, in a warrant in relation to premises:
(a) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (1)(c)) found at the premises in the course of the search that the executing officer or an officer assisting believes on reasonable grounds to be:
(i) evidential material in relation to an offence, or in relation to a contravention of an environmental penalty provision, to which the warrant relates; or
(ii) evidential material in relation to another offence against an environmental law, where the other offence is an indictable offence; or
(iii) evidential material in relation to another contravention of an environmental penalty provision;
if the executing officer or an officer assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence against an environmental law or in contravening an environmental penalty provision; and
(b) whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed if the executing officer or an officer assisting suspects on reasonable grounds that the person has in his or her possession:
(i) any evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both; or
(ii) any eligible seizable items.
(3) For the purposes of this Act, ordinary search means a search of a person or of articles in the possession of a person that may include:
(a) requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes and hat; and
(b) an examination of those items.
(4) The magistrate is also to state, in a warrant in relation to a person:
(a) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (1)(c)) found, in the course of the search, on or in the possession of the person or in an aircraft, vehicle or vessel that the person had operated or occupied at any time within 24 hours before the search began, being a thing that the executing officer or an officer assisting believes on reasonable grounds to be:
(i) evidential material in relation to an offence, or in relation to a contravention of an environmental penalty provision, to which the warrant relates; or
(ii) evidential material in relation to another offence against an environmental law, where the other offence is an indictable offence; or
(iii) evidential material in relation to another contravention of an environmental penalty provision;
if the executing officer or an officer assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence against an environmental law or in contravening an environmental penalty provision; and
(b) the kind of search of a person that the warrant authorises.
(5) Paragraph (1)(e) does not prevent the issue of successive warrants in relation to the same premises or person.
(6) If the application for the warrant is made under section 416, this section applies as if paragraph (1)(e) referred to 48 hours rather than 7 days.
415 Powers of magistrate
(1) A magistrate in a State or internal Territory may:
(a) issue a warrant in relation to premises or a person in that State or Territory; or
(b) issue a warrant in relation to premises or a person in an external Territory; or
(c) issue a warrant in relation to premises or a person in another State or internal Territory (including the Jervis Bay Territory) if he or she is satisfied that there are special circumstances that make the issue of the warrant appropriate; or
(d) issue a warrant in relation to a person wherever the person is in Australia or in an external Territory if he or she is satisfied that it is not possible to predict where the person may be.
(2) A magistrate in New South Wales or the Australian Capital Territory may issue a warrant in relation to premises or a person in the Jervis Bay Territory.
416 Warrants by telephone or other electronic means
Application
(1) An authorised officer may make an application to a magistrate for a warrant by telephone, telex, fax or other electronic means:
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.
Voice communication
(2) The magistrate may require communication by voice to the extent that is practicable in the circumstances.
Information
(3) An application under this section must include all information as required to be provided in an ordinary application for a warrant, but the application may, if necessary, be made before the information is sworn or affirmed.
Issue of warrant
(4) If an application is made to a magistrate under this section and the magistrate, after considering the information and having received and considered such further information (if any) as the magistrate required, is satisfied that:
(a) a warrant in the terms of the application should be issued urgently; or
(b) the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;
the magistrate may complete and sign the same form of warrant that would be issued under section 413.
Notification
(5) If the magistrate decides to issue the warrant, the magistrate is to inform the applicant, by telephone, telex, fax or other electronic means, of the terms of the warrant and the day on which and the time at which it was signed.
Form of warrant
(6) The applicant must then complete a form of warrant in terms substantially corresponding to those given by the magistrate, stating on the form the name of the magistrate and the day on which and the time at which the warrant was signed.
Completed form of warrant to be given to magistrate
(7) The applicant must, not later than the day after the day of expiry of the warrant or the day after the day on which the warrant was executed, whichever is the earlier, give or transmit to the magistrate:
(a) the form of warrant completed by the applicant; and
(b) if the information referred to in subsection (3) was not sworn or affirmed—that information duly sworn or affirmed.
Attachment
(8) The magistrate is to attach to the documents provided under subsection (7) the form of warrant completed by the magistrate.
Presumption
(9) If:
(a) it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a warrant issued under this section was duly authorised; and
(b) the form of warrant signed by the magistrate is not produced in evidence;
the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.
417 The things that are authorised by a search warrant
Search of premises
(1) A warrant that is in force in relation to premises authorises the executing officer or an officer assisting:
(a) to enter the premises; and
(b) to search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes; and
(c) to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found at the premises; and
(d) to seize other things found at the premises in the course of the search that the executing officer or an officer assisting believes on reasonable grounds to be:
(i) evidential material in relation to an offence, or in relation to a contravention of an environmental penalty provision, to which the warrant relates; or
(ii) evidential material in relation to another offence against an environmental law, where the other offence is an indictable offence; or
(iii) evidential material in relation to another contravention of an environmental penalty provision;
if the executing officer or an officer assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence against an environmental law or in contravening an environmental penalty provision; and
(e) to seize other things found at the premises in the course of the search that the executing officer or an officer assisting believes on reasonable grounds to be eligible seizable items; and
(f) if the warrant so allows—to conduct an ordinary search or a frisk search of a person at or near the premises if the executing officer or an officer assisting suspects on reasonable grounds that the person has in his or her possession:
(i) any evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both; or
(ii) any eligible seizable items.
Search of a person
(2) A warrant that is in force in relation to a person authorises the executing officer or an officer assisting:
(a) to search:
(i) the person as specified in the warrant and things found in the possession of the person; and
(ii) any aircraft, vehicle or vessel that the person had operated or occupied at any time within 24 hours before the search began, for things specified in the warrant; and
(b) to:
(i) seize things of that kind; or
(ii) record fingerprints from things; or
(iii) take forensic samples from things;
found in the course of the search; and
(c) to seize other things found on or in the possession of the person or in the aircraft, vehicle or vessel mentioned in subparagraph (a)(ii) in the course of the search that the executing officer or an officer assisting believes on reasonable grounds to be:
(i) evidential material in relation to an offence, or in relation to a contravention of an environmental penalty provision, to which the warrant relates; or
(ii) evidential material in relation to another offence against an environmental law, where the other offence is an indictable offence; or
(iii) evidential material in relation to another contravention of an environmental penalty provision;
if the executing officer or an officer assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence against an environmental law or in contravening an environmental penalty provision; and
(d) to seize other things found in the course of the search that the executing officer or an officer assisting believes on reasonable grounds to be eligible seizable items.
Hours when premises may be searched
(3) If a warrant in relation to premises states that the premises may be entered only during particular hours, the premises must not be entered outside those hours.
Hours when person may be searched
(3A) If a warrant in relation to a person states that the search of the person may be carried out only during particular hours, the search must not be carried out outside those hours.
Ordinary searches or frisk searches
(4) If a warrant authorises an ordinary search or a frisk search of a person, a search of the person different from that so authorised must not be done.
Seized items may be made available to other agencies
(5) If things are seized under a warrant, the warrant authorises the executing officer to make the things available to officers of other agencies if it is necessary to do so for the purpose of investigating or prosecuting an offence to which the things relate.
418 Availability of assistance, and use of force, in executing a warrant
(1) In executing a warrant:
(a) the executing officer may obtain such assistance as is necessary and reasonable in the circumstances; and
(b) the executing officer, or an authorised officer who is assisting in executing the warrant, may use such force against persons and things as is necessary and reasonable in the circumstances; and
(c) a person who is not an authorised officer, but who has been authorised to assist in executing the warrant, may use such force against things as is necessary and reasonable in the circumstances.
(2) A person who is not an authorised officer must not take part in searching or arresting a person.
418A Executing officer to be in possession of warrant
When executing a warrant, the executing officer must be in possession of:
(a) the original warrant issued by the magistrate under section 415, or a copy of the original warrant as so issued; or
(b) the original form of warrant completed under subsection 416(6), or a copy of the original form as so completed.
419 Details of warrant to be given to occupier etc.
(1) If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the executing officer or an officer assisting must make available to that person a copy of the warrant.
(2) If a warrant in relation to a person is being executed, the executing officer or an officer assisting must make available to that person a copy of the warrant.
(3) If a person is searched under a warrant in relation to premises, the executing officer or an officer assisting must show the person a copy of the warrant.
(4) The executing officer must identify himself or herself to the person at the premises or the person being searched, as the case may be.
(5) The copy of the warrant referred to in subsections (1) and (2) need not include the signature of the magistrate who issued the warrant.
420 Specific powers available to person executing warrant
(1) In executing a warrant in relation to premises, the executing officer or an officer assisting may take photographs (including video recordings) of the premises or of things at the premises:
(a) for a purpose incidental to the execution of the warrant; or
(b) if the occupier of the premises consents in writing.
(2) If a warrant in relation to premises is being executed, the executing officer and all officers assisting may, if the warrant is still in force, complete the execution of the warrant after all of them temporarily cease its execution and leave the premises:
(a) for not more than one hour; or
(b) for a longer period if the occupier of the premises consents in writing.
(3) The execution of a warrant that is stopped by an order of a court may be completed if:
(a) the order is later revoked or reversed on appeal; and
(b) the warrant is still in force.
421 Use of equipment to examine or process things
(1) The executing officer or an officer assisting may bring to the warrant premises any equipment reasonably necessary for the examination or processing of things found at the premises in order to determine whether they are things that may be seized under the warrant.
(2) If:
(a) it is not practicable to examine or process the things at the warrant premises; or
(b) the occupier of the premises consents in writing;
the things may be moved to another place so that the examination or processing can be carried out in order to determine whether they are things that may be seized under the warrant.
(3) If things are moved to another place for the purpose of examination or processing under subsection (2), the executing officer must, if it is practicable to do so:
(a) inform the occupier of the address of the place and the time at which the examination or processing will be carried out; and
(b) allow the occupier or his or her representative to be present during the examination or processing.
(4) The executing officer or an officer assisting may operate equipment already at the warrant premises to carry out the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant if the executing officer or an officer assisting believes on reasonable grounds that:
(a) the equipment is suitable for the examination or processing; and
(b) the examination or processing can be carried out without damage to the equipment or thing.
422 Use of electronic equipment at premises
Operation of equipment
(1) The executing officer or an officer assisting may operate electronic equipment at the premises to see whether evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both, is accessible by doing so if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
Seizure etc.
(2) If the executing officer or an officer assisting, after operating the equipment, finds that evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both, is accessible by doing so, he or she may:
(a) seize the equipment and any disk, tape or other associated device; or
(b) if the material can, by using facilities at the premises, be put in documentary form—operate the facilities to put the material in that form and seize the documents so produced; or
(c) if the material can be transferred to a disk, tape or other storage device that:
(i) is brought to the premises; or
(ii) is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises;
operate the equipment or other facilities to copy the material to the storage device and take the storage device from the premises.
Limitation on seizure
(3) A person may seize equipment under paragraph (2)(a) only if:
(a) it is not practicable to put the material in document form as mentioned in paragraph (2)(b) or to copy the material as mentioned in paragraph (2)(c); or
(b) possession of the equipment by the occupier could constitute an offence.
Securing equipment
(4) If the executing officer or an officer assisting believes on reasonable grounds that:
(a) evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both, may be accessible by operating electronic equipment at the premises; and
(b) expert assistance is required to operate the equipment; and
(c) if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;
he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.
Notice about securing equipment
(5) The executing officer or an officer assisting must give notice to the occupier of the premises of his or her intention to secure equipment and of the fact that the equipment may be secured for up to 24 hours.
Period for which equipment may be secured
(6) The equipment may be secured:
(a) for a period not exceeding 24 hours; or
(b) until the equipment has been operated by the expert;
whichever happens first.
Extension of period
(7) If the executing officer or an officer assisting believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to a magistrate for an extension of that period.
Notice to occupier
(8) The executing officer or an officer assisting must give notice to the occupier of the premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application.
Provisions relating to extensions
(9) The provisions of this Division relating to the issue of warrants apply, with such modifications as are necessary, to the issuing of an extension.
423 Compensation for damage to electronic equipment
(1) If:
(a) damage is caused to equipment as a result of it being operated as mentioned in section 421 or 422; and
(b) the damage was caused as a result of:
(i) insufficient care being exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care being exercised by the person operating the equipment;
compensation for the damage is payable to the owner of the equipment.
(2) Compensation is payable out of money appropriated by the Parliament for the purpose.
(3) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises and his or her employees and agents, if they were available at the time, had provided any warning or guidance as to the operation of the equipment that was appropriate in the circumstances.
424 Copies of seized things to be provided
(1) Subject to subsection (2), if an authorised officer seizes, under a warrant relating to premises:
(a) a document, film, computer file or other thing that can be readily copied; or
(b) a storage device the information in which can be readily copied;
the authorised officer must, if requested to do so by the occupier of the premises or another person who apparently represents the occupier and who is present when the warrant is executed, give a copy of the thing or the information to that person as soon as practicable after the seizure.
(2) Subsection (1) does not apply if:
(a) the thing that has been seized was seized under paragraph 422(2)(b) or (c); or
(b) possession of the document, film, computer file, thing or information by the occupier could constitute an offence.
425 Occupier entitled to be present during search
(1) If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the person is, subject to Part IC of the Crimes Act 1914, entitled to observe the search being conducted.
(2) The right to observe the search being conducted ceases if the person impedes the search.
(3) This section does not prevent 2 or more areas of the premises being searched at the same time.
426 Receipts for things seized under warrant
(1) If a thing is seized under a warrant or moved under subsection 421(2), the executing officer or an officer assisting must provide a receipt for the thing.
(2) If 2 or more things are seized or moved, they may be covered in the one receipt.
427 Restrictions on personal searches
A warrant cannot authorise a strip search or a search of a person’s body cavities.
428 When a thing is in the possession of a person
This Division applies to a person (the possessor) who has a thing under his or her control in any place (whether for the use or benefit of the possessor or of another person), even if another person has the actual possession or custody of the thing, as if the possessor has possession of the thing.
Division 6—Arrest and related matters
430 Powers of arrest
(1) An authorised officer may, without warrant, arrest any person, if the authorised officer believes on reasonable grounds that:
(a) the person is committing or has committed an offence against an environmental law; and
(b) proceedings against the person by summons would not be effective.
(2) If an authorised officer (subject to subsection (2A)) arrests a person under subsection (1), the authorised officer must:
(a) in the case of a member of a police force—produce, for inspection by that person, written evidence of the fact that he or she is a member of that police force; and
(aa) in the case of an officer of Customs—produce, for inspection by that person, written evidence of the fact that he or she is an officer of Customs; and
(b) in any other case—produce his or her identity card for inspection by that person.
(2A) Subsection (2) does not apply to an authorised officer if:
(a) the authorised officer is a member of a police force or an officer of Customs; and
(b) the officer is in uniform.
(3) If a person is arrested under subsection (1), an authorised officer must without unreasonable delay bring the person, or cause the person to be brought, before a Justice of the Peace or other proper authority to be dealt with in accordance with law.
(4) A reference in this section to an offence against an environmental law does not include an offence against Part VIIA of the Great Barrier Reef Marine Park Act 1975 (compulsory pilotage).
431 Power to conduct a frisk search of an arrested person
An authorised officer who arrests a person for an offence against an environmental law, or who is present at such an arrest, may, if the authorised officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the arrested person is carrying any eligible seizable items:
(a) conduct a frisk search of the arrested person at or soon after the time of arrest; and
(b) seize any eligible seizable items found as a result of the search.
432 Power to conduct an ordinary search of an arrested person
An authorised officer who arrests a person for an offence against an environmental law, or who is present at such an arrest, may, if the authorised officer suspects on reasonable grounds that the arrested person is carrying:
(a) evidential material in relation to that or another offence against an environmental law; or
(aa) evidential material in relation to a contravention of an environmental penalty provision; or
(b) an eligible seizable item;
conduct an ordinary search of the arrested person at or soon after the time or arrest, and seize any such thing found as a result of the search.
433 Power to conduct search of arrested person’s premises
An authorised officer who arrests a person at premises for an offence against an environmental law, or who is present at such an arrest, may seize a thing in plain view at those premises that the authorised officer believes on reasonable grounds to be:
(a) evidential material in relation to that or another offence against an environmental law; or
(aa) evidential material in relation to a contravention of an environmental penalty provision; or
(b) an eligible seizable item.
433A Interaction of this Division with Schedule 1
This Division does not limit, and is not limited by, Schedule 1. In particular, the detention of a person under Schedule 1 is not to be taken to constitute the arrest of the person for the purposes of this Division.
Division 6A—Provisions relating to detention of suspected foreign offenders
433B Provisions relating to detention of suspected foreign offenders
Schedule 1 has effect.
Division 7—Miscellaneous provisions about searches, entry to premises, warrants etc.
434 Conduct of ordinary searches and frisk searches
An ordinary search or a frisk search of a person under this Part must, if practicable, be conducted by a person of the same sex as the person being searched.
435 Announcement before entry
(1) An authorised officer must, before any person enters premises under a warrant or to arrest a person under this Act:
(a) announce that he or she is authorised to enter the premises; and
(b) give any person at the premises an opportunity to allow entry to the premises.
(2) An authorised officer is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure:
(a) the safety of a person (including an authorised officer); or
(b) that the effective execution of the warrant or the arrest is not frustrated.
436 Offence of making false statements in warrants
A person commits an offence punishable upon conviction by imprisonment for a term not exceeding 2 years if the person:
(a) makes a statement in an application for a warrant; and
(b) does so knowing the statement is false or misleading in a material particular.
437 Offences relating to telephone warrants
A person must not:
(a) state in a document that purports to be a form of warrant under section 409A or 416 the name of a magistrate unless the magistrate issued the warrant; or
(b) state on a form of warrant under section 409A or 416 a matter that, to the person’s knowledge, departs in a material particular from the form authorised by the magistrate; or
(c) purport to execute, or present to another person, a document that purports to be a form of warrant under section 409A or 416 that the person knows:
(i) has not been approved by a magistrate under that section; or
(ii) departs in a material particular from the terms authorised by a magistrate under that section; or
(d) give to a magistrate a form of warrant under section 409A or 416 that is not the form of warrant that the person purported to execute.
Penalty: Imprisonment for 2 years.
438 Retention of things seized under Division 4 or 6
(1) This section applies to a thing that is seized under Division 4 or 6.
(2) The thing may be retained until:
(a) the reason for the seizure of the thing no longer exists; or
(b) it is decided that the thing is not to be used in evidence;
whichever happens first.
(3) As soon as practicable after the end of the period during which the thing may be retained under subsection (2), the Secretary must cause reasonable steps to be taken to return the thing to the person from whom it was seized (or to the owner if that person is not entitled to possess it).
(4) Subsection (3) does not apply if:
(a) the thing is forfeited or forfeitable to the Commonwealth; or
(b) the thing has been dealt with under this Part, or as otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory), in a way that means the Secretary is not in a position to cause reasonable steps to be taken to return the thing; or
(c) the Commonwealth, the Secretary or an authorised officer is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy, dispose of or otherwise deal with the thing.
440 Law relating to legal professional privilege not affected
This Part does not affect the law relating to legal professional privilege.
441 Other laws about search, arrest etc. not affected
(1) This Part is not intended to limit or exclude the operation of another law of the Commonwealth relating to:
(a) the search of persons or premises; or
(b) arrest and related matters; or
(c) the stopping, detaining or searching of aircraft, vehicles or vessels; or
(d) the seizure of things.
(2) To avoid doubt, it is declared that even though another law of the Commonwealth provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law.
442 Persons to assist authorised officers
(1) Subject to subsection (5), the owner, or person in charge:
(a) of any vehicle, vessel, aircraft or platform boarded by an authorised officer under section 403; or
(b) of any premises entered by an authorised officer under section 405;
must, if requested by an authorised officer to do so, provide reasonable assistance to the authorised officer in the performance of the functions, or carrying out of the duties, or the exercise of the powers, conferred on the authorised officer under this Act.
(2) A person must not contravene subsection (1).
Penalty: Imprisonment for 12 months.
(3) Subject to subsection (5), the owner, or the person in charge, of:
(a) premises entered under a warrant; or
(b) an aircraft, vehicle or vessel stopped under section 403;
must, if requested by an authorised officer to do so, provide reasonable assistance to the authorised officer in the performance of the functions, or carrying out of the duties, or the exercise of the powers, conferred on the authorised officer under this Act.
(4) A person must not contravene subsection (3).
Penalty: Imprisonment for 12 months.
(5) Where an authorised officer (subject to subsection (6)) makes a request of a person under this section, the authorised officer must:
(a) in the case of a member of a police force—produce, for inspection by that person, written evidence of the fact that he or she is a member of that police force; or
(aa) in the case of an officer of Customs—produce, for inspection by that person, written evidence of the fact that he or she is an officer of Customs; or
(b) in any other case—produce his or her identity card for inspection by that person;
and, if the authorised officer fails to do so, that person is not obliged to comply with the request.
(6) Subsection (5) does not apply to an authorised officer if:
(a) the authorised officer is a member of a police force or an officer of Customs; and
(b) the officer is in uniform.
Division 8—Power to search goods, baggage etc.
443 Power to search goods, baggage etc.
(1) This section applies to any goods that are to be, are being, or have been, taken on or off a ship that voyages, or an aircraft that flies, between:
(a) a place in Australia and a place outside Australia; or
(b) a place in an external Territory and a place outside that Territory.
(2) If an authorised officer believes, on reasonable grounds that goods are goods to which this section applies, he or she may:
(a) examine the goods; or
(b) if the goods are baggage—open and search the baggage; or
(c) if the goods are in a container—open and search the container.
(3) An authorised officer may ask a person who owns, is carrying or is otherwise associated with, or appears to the authorised officer to be associated with, goods to which this section applies any question in respect of the goods.
(4) A person must not refuse or fail to answer a question put to the person under subsection (3).
Penalty: 60 penalty units.
(5) In this Act:
baggage includes any parcel or other goods that:
(a) a passenger; or
(b) the master, a mate, an engineer or any other member of the crew of a ship; or
(c) the pilot or any other member of the crew of an aircraft;
has had with him or her on the ship or aircraft.
goods includes baggage.
Division 8A—Power to ask questions about specimens
443A Authorised officer may ask questions about the nature or origin of specimens
When section applies
(1) This section applies if an authorised officer has reasonable grounds to suspect that:
(a) a specimen has been exported, or is proposed to be exported, in contravention of section 303CC or 303DD; or
(b) a specimen has been imported, or is proposed to be imported, in contravention of section 303CD or 303EK; or
(c) a person has in the person’s possession a specimen, and that possession contravenes section 303GN.
Note: Sections 303CC, 303CD, 303DD, 303EK and 303GN are included in Part 13A, which deals with international movement of wildlife specimens.
Questions
(2) If the authorised officer has reasonable grounds to suspect that a person has information about the nature or origin of the specimen, the authorised officer may ask the person one or more questions about the nature or origin of the specimen.
(2A) The authorised officer may ask the questions:
(a) in any case—by asking them in the presence of the person; or
(b) if the authorised officer is not a member of a police force and is not an officer of Customs—by sending written questions to the person.
Answers to questions
(3) Subject to subsections (6) and (7), if a person is asked a question under subsection (2), the person must not intentionally refuse or intentionally fail to answer the question to the extent that the person is capable of doing so.
(4) A person who contravenes subsection (3) commits an offence punishable on conviction by a fine not exceeding 10 penalty units.
(5) In subsection (3), strict liability applies to the circumstance that the person was asked a question under subsection (2).
Note: For strict liability, see section 6.1 of the Criminal Code.
No requirement to give incriminating answers
(6) If a person is asked a question under subsection (2), the person is not required to answer the question if the answer might tend to incriminate the person or expose the person to a penalty.
Identity cards etc.
(7) If a person is asked a question under subsection (2) by an authorised officer, the person is not required to answer the question unless:
(a) if the authorised officer is a member of a police force—the authorised officer produces, for inspection by the person, written evidence of the fact that the authorised officer is a member of that police force; or
(b) if the authorised officer is an officer of Customs—the authorised officer produces, for inspection by the person, written evidence of the fact that the authorised officer is an officer of Customs; or
(c) if the authorised officer is not a member of a police force and is not an officer of Customs:
(i) if the questions are asked in the presence of the person—the authorised officer produces the authorised officer’s identity card for inspection by the person; or
(ii) if the questions are asked by sending written questions to the person—the authorised officer sends with the questions a copy of his or her instrument of appointment.
Division 9—Power to ask for names and addresses
444 Authorised person may ask for person’s name and address
(1) An authorised officer may ask an individual to tell the authorised officer the individual’s name and address if the authorised officer has reasonable grounds to suspect that the individual has been involved in the commission of an offence against an environmental law.
(2) Subject to subsection (4), a person must not refuse or fail to comply with a request under subsection (1).
Penalty: 10 penalty units.
(3) A person commits an offence punishable upon conviction by a fine not exceeding 10 penalty units if the person:
(a) in purported compliance with a request under subsection (1), gives a name and address; and
(b) does so knowing the name or address is false or misleading.
(4) If an authorised officer makes a request of a person under subsection (1), the person is not required to comply with the request unless:
(a) if the authorised officer is a member of a police force—he or she produces, for inspection by the person, written evidence of the fact that he or she is a member of that police force; or
(aa) if the authorised officer is an officer of Customs—he or she produces, for inspection by the person, written evidence of the fact that he or she is an officer of Customs; or
(b) in any other case—the authorised officer produces his or her identity card for inspection by the person.
Division 10—Seizure and forfeiture etc.
Subdivision AA—Seizure of specimens involved in a contravention of Part 13A
444A Seizure of specimens involved in a contravention of Part 13A
(1) An authorised officer may seize a specimen if he or she has reasonable grounds to suspect that the specimen has been used or otherwise involved in the commission of an offence against Part 13A.
Note: Part 13A deals with international movement of wildlife specimens.
(2) If a warrant has been issued under Division 4:
(a) if the warrant relates to premises—this section does not apply:
(i) to the executing officer, or an officer assisting, while he or she is searching premises under the warrant; or
(ii) to anything found during the course of such a search; and
(b) if the warrant relates to a person—this section does not apply:
(i) to the executing officer, or an officer assisting, while he or she is searching a person, or an aircraft, vehicle or vessel, under the warrant; or
(ii) to anything found during the course of such a search.
Note: Division 4 is about search warrants. The Division contains its own seizure powers (see paragraphs 417(1)(c), (d) and (e) and (2)(b), (c) and (d)).
444B Notice about seizure
(1) Subject to subsection (2), if a specimen is seized by an authorised officer under section 444A, the authorised officer must give:
(a) the owner of the specimen; or
(b) the person who had possession, custody or control of the specimen immediately before it was seized;
a written notice:
(c) identifying the specimen; and
(d) stating that it has been seized under section 444A and giving the reason for the seizure; and
(e) setting out the terms of sections 444C and 444D.
The notice must be given as soon as practicable after the seizure.
(2) An authorised officer is not required to give a notice under subsection (1) about a specimen if, after making such inquiries as the authorised officer thinks appropriate, the authorised officer does not, within 30 days after the seizure, have sufficient information to enable the authorised officer to give the notice. In that event, the authorised officer must keep a written record of the seizure.
444C Applications for return of specimen
(1) If a specimen is seized under section 444A, the owner of the specimen may apply in writing to the Secretary for the delivery to the owner of the specimen.
(2) The application must be made:
(a) within 30 days after the seizure; or
(b) if a notice is given under subsection 444B(1) in relation to the specimen—within 30 days after the giving of the notice.
(3) The application must be made on the ground that the specimen was not used or otherwise involved in the commission of an offence against Part 13A.
(4) If the applicant satisfies the Secretary that the ground has been established, the Secretary must grant the application.
Note: Under section 444G, the Secretary may retain the specimen for up to 30 days after making a decision on the application.
444D Court action for return of specimen
(1) If a specimen is seized under section 444A, the owner of the specimen may bring an action against the Commonwealth in a court of competent jurisdiction for the delivery of the specimen to the owner on the ground that the specimen was not used or otherwise involved in the commission of an offence against Part 13A.
(2) An action under subsection (1) must be brought:
(a) within 30 days after the seizure; or
(b) if a notice is given under subsection 444B(1) in relation to the specimen—within 30 days after the giving of the notice.
(3) If:
(a) an action is brought under subsection (1); and
(b) the court finds that the specimen was used or otherwise involved in the commission of the offence concerned;
the court must order the specimen to be forfeited to the Commonwealth.
(4) If:
(a) an action is brought under subsection (1); and
(b) the action is discontinued by the owner otherwise than because of:
(i) the delivery of the specimen to the owner; or
(ii) the forfeiture of the specimen to the Commonwealth; or
(iii) the disposal of the specimen under section 449;
the specimen is forfeited to the Commonwealth.
444E Consignment of specimen with consent of owner
(1) If:
(a) a specimen is seized under section 444A; and
(b) the specimen was imported from a particular foreign country; and
(c) the export of the specimen from the foreign country was not in contravention of a law of the foreign country that corresponds to Part 13A; and
(d) if the importer had applied for a permit authorising the import of the specimen, there is no reasonable likelihood that the permit would have been granted; and
(e) the importer produces written evidence from the relevant CITES authority of the foreign country that the specimen may be returned to the foreign country without contravening such a law;
the Secretary may, with the consent of the owner of the specimen, consign the specimen to a place in the foreign country.
(2) The consignment is to be at the expense of the owner of the specimen.
444G Retention of specimen
(1) If a specimen is seized under section 444A, the specimen may be retained until the end of 30 days after whichever is the latest of the following events:
(a) the seizure;
(b) if a notice is given under subsection 444B(1) in relation to the specimen—the giving of the notice;
(c) if an application is made under subsection 444C(1) in relation to the specimen—the making of a decision on that application;
(d) if:
(i) proceedings for an offence against Part 13A are instituted during the period within which an application may be made under subsection 444C(1) in relation to the specimen; and
(ii) the specimen may have been used or otherwise involved in the commission of the offence or the specimen may afford evidence of the commission of the offence;
the termination of the proceedings (including any appeal to a court in relation to those proceedings).
(2) The rule in subsection (1) does not authorise the retention of the specimen if the owner of the specimen succeeds in an action under subsection 444D(1) for the delivery of the specimen to the owner.
(3) As soon as practicable after the end of the period during which the specimen may be retained under subsection (1), the Secretary must cause reasonable steps to be taken to return the specimen to the person from whom it was seized (or to the owner if that person is not entitled to possess it).
(4) Subsection (3) does not apply if:
(a) the specimen is forfeited or forfeitable to the Commonwealth; or
(b) the specimen has been dealt with under this Part, or as otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory), in a way that means the Secretary is not in a position to cause reasonable steps to be taken to return the specimen; or
(c) the Commonwealth, the Secretary or an authorised officer is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy, dispose of or otherwise deal with the specimen; or
(d) proceedings under subsection 444D(1) relating to the specimen are pending.
444H Forfeiture of specimen after end of retention period
(1) If:
(a) a specimen is seized under section 444A; and
(b) none of the following happens before the end of the period for which the specimen may be retained:
(i) proceedings are instituted for an offence against Part 13A, where the specimen is alleged to have been used or otherwise involved in the commission of the offence;
(ii) the specimen is released unconditionally to a person under section 449BA;
(iia) the specimen is delivered to a person under section 444C;
(iii) the owner of the specimen brings an action under subsection 444D(1) for the delivery of the specimen to the owner;
(iv) proceedings are instituted under section 450A in relation to the specimen;
(v) the specimen is disposed of under section 449;
the specimen is forfeited to the Commonwealth at the end of that period.
(2) Subsection (1) has effect only to the extent (if any) to which it gives effect to paragraph 1(b) of Article VIII of CITES.
Subdivision AB—Seizure of things (other than specimens involved in a contravention of Part 13A)
445 Seizure of things (other than specimens involved in a contravention of Part 13A)
(1) Subject to subsections (2) and (3), an authorised officer may seize a thing if he or she has reasonable grounds to suspect that it is evidential material in relation to an offence against an environmental law, in relation to a contravention of an environmental penalty provision or in relation to both.
(2) This section does not apply to a specimen that an authorised officer has reasonable grounds to suspect has been used or otherwise involved in the commission of an offence against Part 13A.
Note: Section 444A deals with the seizure of such specimens.
(3) If a warrant has been issued under Division 4:
(a) if the warrant relates to premises—this section does not apply:
(i) to the executing officer, or an officer assisting, while he or she is searching premises under the warrant; or
(ii) to anything found during the course of such a search; and
(b) if the warrant relates to a person—this section does not apply:
(i) to the executing officer, or an officer assisting, while he or she is searching a person, or an aircraft, vehicle or vessel, under the warrant; or
(ii) to anything found during the course of such a search.
Note: Division 4 is about search warrants. The Division contains its own seizure powers (see paragraphs 417(1)(c), (d) and (e) and (2)(b), (c) and (d)).
(3A) A reference in this section to an offence against an environmental law does not include an offence against Part VIIA of the Great Barrier Reef Marine Park Act 1975 (compulsory pilotage).
(4) In this section:
thing includes a vehicle, vessel, aircraft, platform, document, organism and specimen.
446 Retention of things seized under this Subdivision
(1) This section applies to a thing that is seized under section 445.
(1A) The thing may be retained until:
(a) the reason for the seizure no longer exists; or
(b) it is decided that the thing is not to be used in evidence; or
(c) the end of the period of 60 days after the seizure, or, if that period has been extended under subsection (3), the end of the extended period;
whichever happens first.
(1B) As soon as practicable after the end of the period (the retention period) during which the thing may be retained under subsection (1A), the Secretary must cause reasonable steps to be taken to return the thing to the person from whom it was seized (or to the owner if that person is not entitled to possess it).
(1C) Subsection (1B) does not apply if:
(a) the thing is forfeited or forfeitable to the Commonwealth; or
(b) a proceeding in respect of which the thing may afford evidence was commenced before the end of the retention period and has not been completed (including an appeal to a court in relation to that proceeding); or
(c) the thing has been dealt with under this Part, or as otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory), in a way that means the Secretary is not in a position to cause reasonable steps to be taken to return the thing; or
(d) the Commonwealth, the Secretary or an authorised officer is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy, dispose of or otherwise deal with the thing.
(2) An authorised officer may, before the end of the retention period, apply to a magistrate for an order permitting the retention of the thing for a further period.
(3) If, in relation to an application under subsection (2), the magistrate is satisfied, by information on oath or affirmation, that it is necessary for the thing to continue to be retained:
(a) for the purposes of an investigation as to whether an offence against an environmental law has been committed, or whether an environmental penalty provision has been contravened; or
(b) to enable evidence of an offence against an environmental law, or of a contravention of an environmental penalty provision, to be secured for the purposes of a proceeding against the person for such an offence or contravention;
the magistrate may order that the thing may continue to be retained for a period specified in the order. The maximum period of an individual extension must not be more than 30 days.
(3A) Before an authorised officer makes an application under subsection (2), he or she must:
(a) take reasonable steps to discover who has an interest in the retention of the thing; and
(b) if it is practicable to do so, give notice in writing of the proposed application to each person whom the authorised officer believes to have an interest in the proposed application.
(4) Subsection (3) does not prevent a magistrate from granting 2 or more successive extensions under that subsection of the period during which the thing may be retained.
(5) A function of making an order conferred on a magistrate by subsection (3) is conferred on the magistrate in a personal capacity and not as a court or a member of a court.
(6) Without limiting the generality of subsection (5), an order made by a magistrate under subsection (3) has effect only by virtue of this Act and is not taken, by implication, to be made by a court.
(7) A magistrate performing a function of, or connected with, making an order under subsection (3) has the same protection and immunity as if he or she were performing that function as, or as a member of, a court (being the court of which the magistrate is a member).
(8) The Governor‑General may make arrangements with the Governor of a State, the Chief Minister for the Australian Capital Territory or the Administrator of the Northern Territory for the performance, by all or any of the persons who from time to time hold office as magistrates in that State or Territory, of the function of making orders under subsection (3).
Subdivision AC—Direction to deliver seizable items
447 Direction to deliver seizable items
(1) An authorised officer may direct a person to deliver to the officer, or to another person specified in the direction, a thing that the officer is authorised to seize under a warrant issued under Division 4 or under section 445.
(2) The direction must:
(a) be in writing; and
(b) be given to the person who is directed to deliver the thing, who must be:
(i) if the thing is a vessel—the person in charge of the vessel, or the vessel’s owner; or
(ii) if the thing is an aircraft—the person in charge of the aircraft; or
(iii) otherwise—the person in possession of the thing; and
(c) specify the place at which the delivery is to occur; and
(d) specify the period within which the delivery is to occur.
(3) A person must not fail to comply with a direction under this section.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
(4) This Part applies to a thing delivered in compliance with a direction under this section as if the thing had been seized under the warrant or section that authorised the officer to seize the thing.
(5) A direction made under subsection (1) is not a legislative instrument.
Subdivision B—Disposal of seized items
449 Immediate disposal of seized items
(1) If:
(a) a thing is seized under this Part; and
(b) the Secretary considers that it is reasonably likely that the retention of the thing would:
(i) constitute a serious threat to the environment; or
(ii) constitute a serious threat to the continued existence, in the wild, of a particular species of animal or of a particular species of plant; or
(iii) result in the introduction of an alien species that represents a threat to ecosystems, habitats or other species; or
(iv) constitute a danger to public health; or
(v) in the case of a live organism or specimen—constitute a significant threat to the health of the organism or specimen; or
(vi) in the case of a live animal—result in the animal suffering;
the Secretary may cause the thing to be dealt with in such manner as the Secretary considers appropriate (including the destruction of the thing).
(1A) If the Secretary causes a live animal to be destroyed under subsection (1), the Secretary must require the destruction to be carried out in a humane manner.
(2) Subject to subsection (3), if a thing is dealt with in accordance with subsection (1), the Secretary must give to:
(a) the owner of the thing; or
(b) the person who had possession, custody or control of the thing immediately before it was seized;
a written notice:
(c) identifying the thing; and
(d) stating that the thing has been seized under this Part and giving the reason for the seizure; and
(e) stating that the thing has been dealt with under subsection (1) and specifying the manner in which it has been so dealt with and the reason for doing so; and
(f) setting out the terms of subsection (4).
The notice must be given as soon as practicable after the thing is so dealt with.
(3) The Secretary need not give a notice under subsection (2) about a thing if, after making such inquiries as the Secretary thinks appropriate, the Secretary does not, within 20 days after dealing with the thing, have sufficient information to enable the notice to be given.
(4) If a thing is dealt with in accordance with subsection (1), the owner of the thing may bring an action against the Commonwealth in a court of competent jurisdiction for the recovery of the market value of the thing at the time it was so dealt with. The action must be brought on the ground that the thing was not used or otherwise involved in the commission of an offence against this Act or the regulations.
449A Disposal of seized items if Secretary cannot locate or identify person entitled etc.
(1) This section applies to a thing that is seized under this Part if:
(a) apart from this section, the thing is required to be returned or delivered to a person (or reasonable steps are required to be taken for the return or delivery to a person of the thing); and
(b) one or more of the following applies:
(i) the Secretary is satisfied that reasonable steps have been taken to locate or identify the person, but those steps have not succeeded;
(ii) the Secretary is satisfied that reasonable steps have been taken to return or deliver the thing to the person, but those steps have not succeeded;
(iii) the Secretary is otherwise satisfied that it is not practicable to return or deliver the thing to the person.
(2) The Secretary may dispose of the thing in such manner as the Secretary considers appropriate.
Subdivision BA—Release of seized items to owner etc.
449BA Release of seized items to owner etc.
(1) If a thing is seized under this Part, the Secretary may authorise the thing, or anything in, on or attached to the thing, to be released to its owner, or to the person from whose possession it was seized, either:
(a) unconditionally; or
(b) on such conditions as the Secretary thinks fit (including conditions about the giving of security for giving payment of its value if it is forfeited).
(2) A person commits an offence if:
(a) a thing is released to the person under subsection (1) subject to a condition; and
(b) the person engages in conduct; and
(c) the conduct contravenes the condition.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
(3) Absolute liability applies to paragraph (2)(a).
Note: For absolute liability, see section 6.2 of the Criminal Code.
449BB How this Part applies in relation to things released conditionally
(1) This section applies if a thing, or anything in, on or attached to a thing, seized under this Part is released on conditions to a person under section 449BA. The provision of this Part under which the seizure was made is the seizure provision, and the thing that is released is the released thing.
(2) Subject to this section, the provisions of this Part that apply in relation to things seized under the seizure provision continue to apply to the released thing as if it had not been released.
(3) A reference in a provision of this Part to the return or delivery of the released thing to a person is, if the person is the person to whom the thing has been released, taken to be a reference to making the release of the thing to the person unconditional.
(4) The regulations may specify modifications of provisions of this Part that are to have effect in relation to things to which this section applies. However, regulations must not:
(a) increase, or have the effect of increasing, the maximum penalty for any offence; or
(b) widen, or have the effect of widening, the scope of any offence.
Subdivision C—Forfeiture of seized items
450 Court‑ordered forfeiture: order by court dealing with offence proceedings
(1) If a court convicts a person of an offence against an environmental law, the court may order the forfeiture to the Commonwealth of any thing used or otherwise involved in the commission of the offence.
(1A) If a court convicts a person of an offence against Part 13A, the court must order the forfeiture to the Commonwealth of any specimen used or otherwise involved in the commission of the offence.
Note: Part 13A deals with the international movement of wildlife specimens.
(2) A court may make an order under subsection (1) or (1A) even if the thing or specimen has been seized under this Act or taken into possession under section 406AA or Schedule 1.
(3) If:
(a) a specimen is seized under this Part; and
(b) either:
(i) a court finds a person not guilty of an offence against an environmental law in relation to the specimen; or
(ii) a proceeding in a court for such an offence in relation to the specimen is discontinued or dismissed; and
(c) the court is satisfied that there are reasonable grounds for suspecting that, if the specimen were released to the person from whom it was seized or to its owner, the possession of the specimen by that person would contravene a provision of an environmental law;
the court may order the forfeiture to the Commonwealth of the specimen.
(4) A reference in this section to an offence against an environmental law does not include an offence against Part VIIA of the Great Barrier Reef Marine Park Act 1975 (compulsory pilotage).
450A Court‑ordered forfeiture: other situations
(1) A court may, on the application of the Secretary, order the forfeiture to the Commonwealth of a thing that is seized under this Part if the court is satisfied that the thing has been used or otherwise involved in the commission of an offence against an environmental law.
(2) Without limiting subsection (1), a court may, on the application of the Secretary, order the forfeiture to the Commonwealth of a specimen if:
(a) the specimen was seized under this Part; and
(b) either:
(i) a court has found a person not guilty of an offence against an environmental law in relation to the specimen; or
(ii) a proceeding in a court for such an offence in relation to the specimen has been discontinued or dismissed; and
(c) the court to which the Secretary applies is satisfied that there are reasonable grounds for suspecting that, if the specimen were released to the person from whom it was seized or to its owner, the possession of the specimen by that person would contravene a provision of an environmental law.
(3) A reference in this section to an offence against an environmental law does not include an offence against Part VIIA of the Great Barrier Reef Marine Park Act 1975 (compulsory pilotage).
450B Forfeiture of seized items by consent etc.
(1) If:
(a) a thing is seized under this Part; and
(b) the owner of the thing agrees to transfer ownership of the thing to the Commonwealth, either:
(i) unconditionally; or
(ii) in the event that a future contingency happens; and
(c) if subparagraph (b)(ii) applies—that contingency happens;
then:
(d) the thing becomes the property of the Commonwealth; and
(e) the provisions of this Part relating to forfeiture apply as if the thing had been forfeited to the Commonwealth under this Act.
(2) If:
(a) a thing is seized under this Part; and
(b) the owner of the thing agrees to transfer ownership of the thing to the Commonwealth in the event that a future contingency happens;
the Secretary may retain the thing:
(c) until the thing becomes the property of the Commonwealth; or
(d) if the thing does not become the property of the Commonwealth—until the end of the last day on which that contingency could happen.
(3) Subsection (2) has effect despite anything in section 438, 444G, 446, 456AB or 456AC.
451 Dealings in forfeited items
(1) A thing forfeited to the Commonwealth under this Act becomes the property of the Commonwealth.
(2) A thing forfeited to the Commonwealth under this Act is to be dealt with in such manner as the Secretary considers appropriate.
(3) Without limiting subsection (2), the Secretary may sell a thing forfeited to the Commonwealth under this Act.
(4) The Secretary must not sell a specimen forfeited to the Commonwealth under this Act unless, in the opinion of the Secretary, the buyer will use the specimen for scientific or educational purposes.
452 Delivery of forfeited items to the Commonwealth
(1) If:
(a) a thing is forfeited to the Commonwealth under this Act; and
(b) the thing has not been dealt with under section 451; and
(c) the thing is in the possession, custody or control of a person other than:
(i) the Commonwealth; or
(ii) an agency of the Commonwealth; and
(d) the Secretary requests the person to deliver the thing to the Secretary;
the person must deliver the thing to the Secretary.
(2) A person must not contravene subsection (1).
Penalty: Imprisonment for 2 years.
Subdivision F—Keeping of organisms or specimens that have been seized
453 Keeping of organisms or specimens retained under this Part
If a person is authorised under this Part to retain an organism or specimen, the person may do so by causing the organism or specimen to be taken to, and kept at, a place approved by the Secretary for the purpose of keeping organisms or specimens seized under this Division.
454 Recovery of costs of storing or keeping organisms or specimens
(1) If an organism or specimen is seized under this Division, the owner is liable to pay to the Commonwealth an amount equal to the sum of the following costs:
(a) reasonable costs incurred by the Commonwealth in relation to the custody of the organism or specimen;
(b) reasonable costs incurred by the Commonwealth in transporting the organism or specimen;
(c) reasonable costs incurred by the Commonwealth in maintaining the organism or specimen.
(2) If:
(a) an organism or specimen is seized under this Division; and
(b) the organism or specimen is disposed of;
the owner is liable to pay to the Commonwealth an amount equal to the reasonable costs incurred by the Commonwealth in disposing of the organism or specimen.
(3) An amount payable by a person under this section is a debt due by the person to the Commonwealth.
(4) An amount payable by a person to the Commonwealth under this section may be recovered by action in a court of competent jurisdiction.
(5) The Secretary may remit an amount payable by a person under this section.
(6) In addition to its effect apart from this subsection, this section also has the effect it would have if a liability under this section were, by express provision, confined to the case of an organism or specimen that:
(a) is forfeited to the Commonwealth under this Act; or
(b) would have been forfeited to the Commonwealth under this Act if it had not been disposed of.
Subdivision G—Rescuing things
455 Rescuing things
A person commits an offence punishable upon conviction by imprisonment for a term not exceeding 2 years if:
(a) the person rescues any thing; and
(b) the thing has been, or is about to be, seized under this Act.
456 Breaking or destroying things or documents to prevent seizure etc.
A person must not:
(a) stave, break or destroy any thing in order to prevent the seizure of a thing, the securing of a thing, or the proof of any offence under an environmental law; or
(b) destroy any documents relating to any thing in order to prevent the seizure of a thing, the securing of a thing, or the proof of any offence under an environmental law.
Penalty: Imprisonment for 2 years.
Subdivision H—Seizure of cages or containers
456AA Power to seize cages or containers containing seizable things
(1) This section applies if:
(a) an authorised officer has power to seize a thing (a seizable thing) under another provision of this Part; and
(b) the seizable thing is in a cage or container; and
(c) the authorised officer considers that it is not reasonably practicable to seize the seizable thing without also seizing the cage or container.
(2) For the purpose of seizing the seizable thing and despite any other provision of this Part, the authorised officer may seize the cage or container containing the seizable thing (whether or not the cage or container also contains any other thing).
(3) The seizure of the seizable thing is taken to occur under the provision mentioned in paragraph (1)(a) (not under this section).
Note: The provisions governing the retention and return of the seizable thing are therefore the provisions that usually govern the seizure of a thing under the provision mentioned in paragraph (1)(a).
(4) If:
(a) an authorised officer seizes a cage or container; and
(b) the seizure of the cage or container is authorised by this section, and is also authorised by another provision of this Part;
then the seizure is taken be under this section, rather than under that other provision (subject to subsection 456AB(5)).
456AB Retention of seized cage or container
(1) This section applies to a cage or container that is seized under section 456AA because it contains a seizable thing.
(2) The cage or container may be retained for so long as an authorised officer considers that it is reasonably necessary to retain it for the purpose of housing the seizable thing.
(3) As soon as practicable after the end of the period during which the cage or container may be retained under subsection (2), the Secretary must cause reasonable steps to be taken to return the cage or container to the person from whom it was seized (or to the owner if that person is not entitled to possess it).
(4) Subsection (3) does not apply if:
(a) the seizure was also authorised by another provision of this Part (the other seizure provision), as mentioned in subsection 456AA(4)); or
(b) the cage or container is forfeited or forfeitable to the Commonwealth; or
(c) the cage or container has been dealt with under this Part, or as otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory), in a way that means the Secretary is not in a position to cause reasonable steps to be taken to return the cage or container; or
(d) the Commonwealth, the Secretary or an authorised officer is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy, dispose of or otherwise deal with the cage or container.
(5) If, because of paragraph (4)(a), the cage or container does not have to be returned at the end of the period referred to in subsection (3), this Part then applies in relation to the cage or container as if, at the end of that period, it had been seized under the other seizure provision.
456AC Retention of non‑seizable things contained in seized cages or containers
(1) This section applies if:
(a) a cage or container is seized under section 456AA because it contains a seizable thing; and
(b) the cage or container also contains a thing (a non‑seizable thing) that is not a seizable thing.
(2) The non‑seizable thing may be retained until it is reasonably practicable to return the thing to the person from whom it was seized (or to the owner if that person is not entitled to possess it).
(3) As soon as practicable after the end of the period during which the non‑seizable thing may be retained under subsection (2), the Secretary must cause reasonable steps to be taken to return the thing to the person from whom it was seized (or to the owner if that person is not entitled to possess it).
(4) Subsection (3) does not apply if:
(a) the non‑seizable thing is forfeited or forfeitable to the Commonwealth; or
(b) the non‑seizable thing has been dealt with under this Part, or as otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory), in a way that means the Secretary is not in a position to cause reasonable steps to be taken to return the thing; or
(c) the Commonwealth, the Secretary or an authorised officer is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy, dispose of or otherwise deal with the non‑seizable thing.
Division 12—Environmental audits
458 Directed environmental audits
(1) The Minister may, by written notice given to the holder of an environmental authority, require the holder to carry out an environmental audit if the Minister believes or suspects on reasonable grounds:
(a) that the holder has contravened, or is likely to contravene, a condition of the authority; or
(b) the impacts that the action authorised by the authority has, has had or is likely to have on the matter dealt with by the provision for which the authority authorises the action are significantly greater than was indicated in the information available to the Minister when the authority was granted.
(2) The notice must specify:
(a) the matters to be covered by the audit; and
(b) the form of the audit report and the kinds of particulars it is to contain; and
(c) the date on or before which the report must be given to the Minister.
(3) Without limiting the matters that may be specified under paragraph (2)(a), those matters may include all or any of the following:
(a) an evaluation of the nature of the environment that is or will be affected by the holder’s activities; and
(b) an assessment of the risks to the environment resulting from the activities; and
(c) an assessment of the holder’s existing capacity to comply with the authority and the requirements of this Act and the regulations in carrying on the activities; and
(d) an assessment of what the holder will need to do, or continue to do, so to comply.
(4) For the purposes of this Act, an environmental authority is:
(a) an approval under Part 9; or
(b) a permit issued under Chapter 5.
459 Appointment of auditor and carrying out of audit
(1) If the Minister gives the holder of an environmental authority a notice under section 458, the holder must appoint an environmental auditor and arrange for the auditor to carry out an environmental audit in accordance with the notice.
(2) The holder of an environmental authority must not contravene subsection (1).
Civil penalty: 500 penalty units.
(3) The holder must not appoint an officer or employee of the holder to be an environmental auditor.
(4) The holder must not appoint a person to be an environmental auditor unless the Minister has approved the person for such appointment before the appointment is made.
(5) An appointment of a person as an environmental auditor made otherwise than in accordance with subsections (3) and (4) has no effect.
460 Nature of directed environmental audit
(1) If:
(a) an environmental auditor carries out a directed environmental audit; and
(b) in the course of carrying out the audit, the auditor does not deal with a particular matter; and
(c) the matter is specified in the Minister’s notice under section 458 as a matter that is to be covered by the audit;
the auditor commits an offence, punishable on conviction by a fine not exceeding 30 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibilities.
(2) If:
(a) an environmental auditor carries out a directed environmental audit; and
(b) in the course of carrying out the audit, the auditor conceals, or does not take into account, any information or document; and
(c) the information or document is relevant to the audit;
the auditor commits an offence punishable on conviction by imprisonment for not more than 6 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Subsection 4B(2) of the Crimes Act 1914 lets a court that convicts an individual of an offence impose a fine instead of, or as well as, imprisonment. The maximum fine (in penalty units) the court can impose is 5 times the maximum term of imprisonment (in months).
(3) In carrying out a directed environmental audit, the environmental auditor may, if:
(a) an environmental audit (including an environmental audit carried out in accordance with a condition of the relevant authority) was completed within the last preceding 2 years; and
(b) the auditor is satisfied that the previous audit is still relevant;
have regard to the results of the previous audit.
(4) For the purposes of this Act, a directed environmental audit is an audit required by a notice under section 458.
461 Audit reports
(1) After completing a directed environmental audit, the environmental auditor must prepare, and give the holder of the relevant environmental authority, a written report setting out the results of the audit.
(2) The holder must give the report to the Minister:
(a) on or before the date specified by the Minister under paragraph 458(2)(c); or
(b) on or before such later date as the Minister, on application by the holder, determines.
(3) If the holder fails to comply with subsection (2), the holder commits an offence, punishable on conviction by a fine not exceeding 50 penalty units.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibilities.
(4) If:
(a) the environmental auditor includes a statement in the report; and
(b) the statement is false or misleading in a material particular;
the auditor commits an offence punishable on conviction by imprisonment for not more than 6 months.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Subsection 4B(2) of the Crimes Act 1914 lets a court that convicts an individual of an offence impose a fine instead of, or as well as, imprisonment. The maximum fine (in penalty units) the court can impose is 5 times the maximum term of imprisonment (in months).
462 Directed environmental audits do not affect other audit obligations
This Division does not affect any obligation of a holder of an environmental authority to carry out an environmental audit in accordance with a condition of the authority.
Division 13—Conservation orders
Subdivision A—Simplified outline
463 Simplified outline of this Division
The following is a simplified outline of this Division:
The Minister may make conservation orders controlling activities, and requiring specified people to take specified actions, in Commonwealth areas to protect listed threatened species or ecological communities.
A person who contravenes a conservation order commits an offence.
Before the Minister makes a conservation order, he or she must consult various Commonwealth agencies.
The Secretary must publicise conservation orders, and may give assistance to a person to comply with a conservation order.
Subdivision B—Making and reviewing conservation orders
464 Minister may make conservation orders
Making conservation orders
(1) The Minister may make a written order (a conservation order):
(a) prohibiting or restricting specified activities on or in:
(i) all Commonwealth areas; or
(ii) specified Commonwealth areas; or
(b) requiring specified persons to take specified action on or in:
(i) all Commonwealth areas; or
(ii) specified Commonwealth areas.
Note: Section 470 makes contravening a conservation order an offence.
Prerequisite to making conservation order
(2) The Minister may only make a conservation order if he or she reasonably believes that it is necessary to make the order to protect a listed threatened species or a listed threatened ecological community.
Minister must consider economic and social matters
(3) In considering whether to make a conservation order, the Minister must be satisfied that making the order is justified, having regard to economic and social considerations that are consistent with the principles of ecologically sustainable development.
Minister must consult before making conservation order
(4) Before making a conservation order, the Minister:
(a) must seek the Secretary’s advice on whether it should be made; and
(b) must consult each Commonwealth agency that may be affected by the order, and any other Commonwealth agency the Minister thinks appropriate, unless delay in making the order would result in significant, irreparable damage to a listed threatened species or listed threatened ecological community.
465 Duration of conservation orders
(1) A conservation order comes into force:
(a) if a commencement day is specified in the order—on that day; or
(b) otherwise—immediately after it is made.
(2) The order remains in force:
(a) for the period (if any) specified in the order; or
(b) until it is revoked by the Minister.
466 Reviews of conservation orders
(1) The Minister must:
(a) at intervals of not more than 5 years, review the conservation order; and
(b) after each review, confirm, vary or revoke the order by instrument in writing.
(2) Before reviewing the order, the Minister must seek the Secretary’s advice on the review.
(3) The Minister must not revoke the order unless he or she is satisfied that the order is no longer needed to protect the listed threatened species or listed threatened ecological community the order was made to protect.
(4) The Minister must not vary the order unless he or she is satisfied that the order as varied adequately protects the listed threatened species or listed threatened ecological community the order was first made to protect.
(5) Immediately after a variation of the order, the order continues in force as so varied.
467 Publication of conservation orders
(1) As soon as practicable after making or reviewing a conservation order, the Minister must cause the Secretary to be informed of the making of the order, or the decision on the review, as the case requires.
(2) The Secretary must, as soon as practicable after being so informed:
(a) cause to be published in the Gazette, in a daily newspaper circulating in each State or self‑governing Territory in which are located Commonwealth areas to which the order relates and in any other way required by the regulations, a notice containing:
(i) a copy of the order; and
(ii) a statement to the effect that contravention of the order is an offence against this Act; and
(iii) if applicable, a statement of the decision on the review; and
(iv) a statement to the effect that a person affected by the order may apply to the Minister, within 28 days of the publication (or within such further period as the Minister allows), for a reconsideration of the order by the Minister; and
(b) take all reasonable steps to ensure that each person who the Secretary knows would be affected by the order is given a notice containing:
(i) a copy of the order; and
(ii) if applicable, a statement of the decision on the review; and
(iii) unless the person is a Commonwealth agency or an agency of a State or self‑governing Territory—a statement to the effect that contravention of the order is an offence against this Act; and
(iv) a statement to the effect that the person may apply to the Minister, within 28 days of being given the notice (or within such further period as the Minister allows), for a reconsideration of the order by the Minister.
(3) Failure to comply with this section does not affect the validity of the order.
468 Application for reconsideration of conservation orders or decisions on review
(1) A person affected by a conservation order, or by the decision on a review of a conservation order, may apply to the Minister to reconsider the order or the decision, as the case requires.
(2) The application must be in writing.
(3) Subject to subsection (4), the application must be made within 28 days, or within such further period as the Minister allows, after the publication under paragraph 467(2)(a) of the notice relating to the making of the order or conduct of the review.
(4) If the person is given a copy of the order after that publication, the period of 28 days within which that person must make the application is taken to commence on the day on which the person received the notice.
469 Reconsideration of conservation orders and decisions on review
(1) Upon receiving the application, the Minister must:
(a) seek the Secretary’s advice on the application; and
(b) reconsider the conservation order or the decision on review, as the case requires; and
(c) by written instrument:
(i) confirm, vary or revoke the order; or
(ii) confirm or vary the decision on review; and
(d) cause the Secretary to be informed accordingly.
(2) As soon as practicable after being so informed, the Secretary must:
(a) notify the applicant in writing of the result of the reconsideration; and
(b) if the order is revoked or varied or the decision on review is varied—cause to be published in the Gazette, and in any other way required by the regulations, a notice:
(i) stating that fact; and
(ii) in the case of a variation—setting out a copy of the order or decision as so varied.
(3) Immediately after a variation of the order, the order continues in effect as so varied.
Subdivision C—Complying with conservation orders
470 Contravening conservation orders is an offence
(1) A person must not take an action reckless as to whether the action contravenes a conservation order.
Penalty: 500 penalty units.
(2) If a person believes that taking an action that he or she proposes to take may contravene a particular conservation order, the person may seek the Minister’s advice under subsection 471(3) on whether the order would be contravened by taking that action.
(3) The person does not contravene the order if he or she acts in accordance with advice given to him or her under subsection 471(3) to the effect that the order would not be contravened.
471 Minister to consider proposed actions etc.
(1) This section applies to a proposed action if it is referred to the Minister under section 470 for the Minister’s advice on whether it would contravene a conservation order.
(2) A person who proposes to take the action may make written submissions to the Minister about the proposed action.
(3) The Minister must:
(a) refer the proposed action, together with any submissions received by the Minister about the proposed action, to the Secretary; and
(b) after considering the Secretary’s advice on the matter, give the person who sought the Minister’s advice under section 470 a written notice of the minister’s advice on the proposed action.
472 Contents of notices of advice
(1) The notice of advice must state whether the Minister thinks that the proposed action would contravene a conservation order.
(2) If the decision to give the advice was not made personally by the Minister and the notice of advice is given to a person who is not a Commonwealth agency, the notice must include:
(a) a statement to the effect that, if the person is dissatisfied with the decision to give that advice, application may, subject to the Administrative Review Tribunal Act 2024, be made to the Administrative Review Tribunal for review of the decision; and
(b) a statement to the effect that the person may request a statement under that Act in relation to the decision.
473 Review by the Administrative Review Tribunal
(1) Subject to subsections (1A) and (2), applications may be made to the Administrative Review Tribunal for review of the decision to give the advice.
(1A) Subsection (1) does not apply to a decision made personally by the Minister (but the subsection does apply to a decision made by a delegate of the Minister).
(2) Despite sections 17 and 35 of the Administrative Review Tribunal Act 2024, applications are not to be made by or on behalf of Commonwealth agencies.
474 Assistance in complying with conservation orders
(1) On behalf of the Commonwealth, the Secretary may provide assistance to a person (other than a Commonwealth agency) to comply with prohibitions, restrictions or requirements imposed on a person by a conservation order.
(2) The assistance may take any one or more of the following forms:
(a) payment of money;
(b) provision of goods;
(c) provision of labour;
(d) provision of other services.
(3) The value of the assistance must not exceed that which the Secretary thinks are the reasonable and direct costs of complying with the prohibitions, restrictions or requirements in question.
(4) Assistance given under this section must be taken into account in determining compensation payable under section 519.
Division 14—Injunctions
475 Injunctions for contravention of the Act
Applications for injunctions
(1) If a person has engaged, engages or proposes to engage in conduct consisting of an act or omission that constitutes an offence or other contravention of this Act or the regulations:
(a) the Minister; or
(b) an interested person (other than an unincorporated organisation); or
(c) a person acting on behalf of an unincorporated organisation that is an interested person;
may apply to the Federal Court for an injunction.
Prohibitory injunctions
(2) If a person has engaged, is engaging or is proposing to engage in conduct constituting an offence or other contravention of this Act or the regulations, the Court may grant an injunction restraining the person from engaging in the conduct.
Additional orders with prohibitory injunctions
(3) If the court grants an injunction restraining a person from engaging in conduct and in the Court’s opinion it is desirable to do so, the Court may make an order requiring the person to do something (including repair or mitigate damage to the environment).
Mandatory injunctions
(4) If a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail to do an act, and the refusal or failure did, does or would constitute an offence or other contravention of this Act or the regulations, the Court may grant an injunction requiring the person to do the act.
Interim injunctions
(5) Before deciding an application for an injunction under this section, the Court may grant an interim injunction:
(a) restraining a person from engaging in conduct; or
(b) requiring a person to do an act.
Meaning of interested person—individuals
(6) For the purposes of an application for an injunction relating to conduct or proposed conduct, an individual is an interested person if the individual is an Australian citizen or ordinarily resident in Australia or an external Territory, and:
(a) the individual’s interests have been, are or would be affected by the conduct or proposed conduct; or
(b) the individual engaged in a series of activities for protection or conservation of, or research into, the environment at any time in the 2 years immediately before:
(i) the conduct; or
(ii) in the case of proposed conduct—making the application for the injunction.
Meaning of interested person—organisations
(7) For the purposes of an application for an injunction relating to conduct or proposed conduct, an organisation (whether incorporated or not) is an interested person if it is incorporated (or was otherwise established) in Australia or an external Territory and one or more of the following conditions are met:
(a) the organisation’s interests have been, are or would be affected by the conduct or proposed conduct;
(b) if the application relates to conduct—at any time during the 2 years immediately before the conduct:
(i) the organisation’s objects or purposes included the protection or conservation of, or research into, the environment; and
(ii) the organisation engaged in a series of activities related to the protection or conservation of, or research into, the environment;
(c) if the application relates to proposed conduct—at any time during the 2 years immediately before the making of the application:
(i) the organisation’s objects or purposes included the protection or conservation of, or research into, the environment; and
(ii) the organisation engaged in a series of activities related to the protection or conservation of, or research into, the environment.
476 Injunctions for contraventions of conservation agreements
Applications for injunctions
(1) If a person bound by a conservation agreement engages or proposes to engage in conduct consisting of an act or omission that constitutes a contravention of the agreement, another person bound by the agreement or the Minister may apply to the Federal Court for an injunction.
Note: Section 307 explains who is bound by a conservation agreement.
Prohibitory injunctions
(2) If a person has engaged, is engaging or is proposing to engage in conduct contravening the agreement, the Court may grant an injunction restraining the person from engaging in the conduct.
Additional orders with prohibitory injunctions
(3) If the court grants an injunction restraining a person from engaging in conduct and in the Court’s opinion it is desirable to do so, the Court may make an order requiring the person to do something (including repair or mitigate damage to the environment).
Mandatory injunctions
(4) If a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail to do an act, and the refusal or failure was, is or would be a contravention of the agreement, the Court may grant an injunction requiring the person to do the act.
Interim injunctions
(5) Before deciding an application for an injunction under this section the Court may grant an interim injunction:
(a) restraining a person from engaging in conduct; or
(b) requiring a person to do an act.
477 Discharge of injunctions
On application, the Federal Court may discharge or vary an injunction.
479 Certain considerations for granting injunctions not relevant
Prohibitory injunctions
(1) The Federal Court may grant an injunction restraining a person from engaging in conduct:
(a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and
(b) whether or not the person has previously engaged in conduct of that kind; and
(c) whether or not there is a significant risk of injury or damage to human beings or the environment if the person engages, or continues to engage, in conduct of that kind.
Mandatory injunctions
(2) The Federal Court may grant an injunction requiring a person to do a particular act or thing:
(a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do the act or thing; and
(b) whether or not the person has previously refused or failed to do the act or thing; and
(c) whether or not there is a significant risk of injury or damage to human beings or the environment if the person refuses or fails, or continues to refuse or fail, to do the act or thing.
480 Powers conferred are in addition to other powers of the Court
The powers conferred on the Federal Court by this Division are in addition to (and do not limit) any other powers of the Court.
Division 14A—Federal Court’s power to make remediation orders
480A Remediation orders
(1) If, after the commencement of this section, a person has engaged, or is engaging, in conduct constituting an offence or other contravention of this Act or the regulations, the Federal Court may make an order (a remediation order) requiring the person to take action (the remediation action) to repair or mitigate damage that may or will be, or that has been, caused to the environment by the contravention.
(2) In considering whether to grant a remediation order, the matters to which the Federal Court may have regard include (but are not limited to) the following:
(a) the nature and extent of the contravention;
(b) the nature and extent of the damage to the environment that may or will be, or that has been, caused by the contravention;
(c) the circumstances in which the contravention took place;
(d) whether the person has previously been found by a court in proceedings under this Act or the regulations to have engaged in any similar conduct;
(e) the cost to the person of taking the remediation action.
(3) The description in a remediation order of the remediation action may either be in general terms (for example, requiring the person to take whatever action is necessary to repair or mitigate the damage), or it may require the person to take particular action to repair or mitigate the damage.
(4) If the Federal Court makes a remediation order, it may also make an order requiring the person to provide security for the due taking of the remediation action.
(5) Application to the Federal Court for a remediation order may only be made by the Minister.
480B Discharge of remediation orders
On application by the Minister, the Federal Court may discharge or vary a remediation order.
480C Powers conferred are in addition to other powers of the Court
The powers conferred on the Federal Court by this Division are in addition to (and do not limit) any other powers of the Court.
Division 14B—Minister’s power to make remediation determinations
Subdivision A—Making of remediation determinations
480D Minister may make remediation determination
(1) If:
(a) the Minister considers that an action taken by a person after the commencement of this section contravened a civil penalty provision of Part 3; and
(b) the Minister considers it desirable to make an order under this section in relation to the action;
the Minister may make a written determination (a remediation determination) requiring the person to take action to repair or mitigate damage that may or will be, or that has been, caused by the contravention, to the matter protected by the provision of Part 3.
(2) The Minister cannot make a remediation determination at a time that is more than 6 years after the time when the person took the action referred to in paragraph (1)(a).
(3) A remediation determination is not a legislative instrument.
480E Contents of a remediation determination
(1) A remediation determination must specify the following:
(a) the person (the specified person) referred to in paragraph 480D(1)(a);
(b) the action (the specified action) referred to in that paragraph;
(c) the civil penalty provision (the specified civil penalty provision) of Part 3 referred to in that paragraph;
(d) the action (the remediation action) that the person is required to take.
(2) A remediation determination may do all or any of the following in relation to some or all of the remediation action:
(a) require action to be taken in a specified place;
(b) require action to be taken at, or by, a specified time;
(c) require a specified industry standard or code of practice to be complied with in taking action;
(d) require the taking of reasonable steps to obtain any Commonwealth, State or Territory approval or authority needed to carry out action;
(e) require the preparation, and submission to the Minister for approval, of a plan for taking action, and require action to be taken in accordance with the plan as approved by the Minister;
(f) require the spending of a specified amount of money on the taking of action;
(g) require the payment to a specified person of a specified amount or money, for the purpose of activities directed towards the protection and conservation of the matter protected by the specified civil penalty provision;
(h) require the payment to the Commonwealth of a specified amount of money as security for the due taking of action;
(i) provide for monitoring, auditing, or reporting to the Minister, in relation to the taking of action.
(3) A remediation determination must contain a statement to the effect that the specified person may apply for a reconsideration of the determination under section 480J.
480F Notifying owners and occupiers of land of proposed remediation determination
(1) Before the Minister makes a remediation determination that requires action to be taken on land that is not owned or occupied by the person proposed to be specified in the order, the Minister must:
(a) take all practicable steps to identify each person who is an owner or occupier of all or part of the land; and
(b) take all practicable steps to advise each person identified of the remediation determination that the Minister proposes to make; and
(c) give persons advised at least 20 business days to comment in writing to the Minister on the proposed remediation determination.
(2) The Minister must take the comments into account in deciding whether to make the proposed remediation determination.
480G Notifying that remediation determination has been made
As soon as practicable after a remediation determination is made, the Minister must:
(a) give the specified person a copy of the determination; and
(b) take all practicable steps to advise each person identified as mentioned in paragraph 480F(1)(a) of the making of the remediation determination.
480H Duration of remediation determinations
(1) A remediation determination comes into force:
(a) if a commencement day is specified in the determination (not being a day before paragraph 480G(a) is complied with)—on that day; or
(b) otherwise—when paragraph 480G(a) is complied with.
(2) The determination remains in force:
(a) for the period (if any) specified in the order; or
(b) until it is set aside by the Federal Court under Subdivision B or it is revoked by the Minister under Subdivision D.
480J Ministerial reconsideration of remediation determinations
(1) Within 20 days after receiving a copy of a remediation determination as required by paragraph 480G(a), the specified person may apply to the Minister for a reconsideration of the determination.
(2) On receipt of an application for reconsideration of a remediation determination, the Minister may affirm, vary or set aside the determination.
(3) The Minister may take account of information and comments from any source the Minister considers appropriate in deciding what action to take in relation to an application under this section.
(4) The Minister must:
(a) advise the specified person of the Minister’s decision in relation to an application under this section; and
(b) take all practicable steps to advise each person identified as mentioned in paragraph 480F(1)(a) of the Minister’s decision in relation to an application under this section.
Subdivision B—Federal Court may set aside remediation determination
480K Applying to Federal Court to have remediation determination set aside
(1) Within 28 days after any of the following:
(a) the specified person receives a copy of a remediation determination as required by paragraph 480G(a); or
(b) a remediation determination is affirmed or varied under section 480J; or
(c) a remediation determination is varied by the Minister under Subdivision D;
the specified person may apply to the Federal Court to have the remediation determination set aside.
(2) On an application under subsection (1), the Federal Court must set aside the remediation determination if the Court is satisfied that:
(a) the specified action did not occur; or
(b) the specified person did not take the specified action; or
(c) the specified action was not a contravention of the specified civil penalty provision; or
(d) the remediation action is not a reasonable measure to repair or mitigate damage that may or will be, or that has been, caused by the specified action to the matter protected by the specified civil penalty provision.
(3) In considering whether the remediation determination is a reasonable measure to repair or mitigate damage that may or will be, or that has been, caused by the specified action to the matter protected by the specified civil penalty provision, the Federal Court must have regard to the following:
(a) the nature and extent of the specified action;
(b) the nature and extent of the damage to the environment that may or will be, or that has been, caused by the specified action to the matter protected by the specified civil penalty provision;
(c) the circumstances in which the specified action took place;
(d) whether the specified person has previously been found by a court in proceedings under this Act or the regulations to have engaged in any similar conduct;
(e) the cost to the specified person of taking the remediation action.
The Federal Court may also have regard to any other matters it considers relevant.
(4) The Federal Court must not set aside the remediation determination unless it is satisfied as mentioned in subsection (2).
Subdivision C—Complying with remediation determinations
480L Federal Court may order compliance with remediation determination
(1) If the Minister considers that the specified person has contravened a remediation determination, the Minister may apply to the Federal Court for an order under subsection (2).
(2) If the Federal Court is satisfied that the specified person has contravened a remediation determination, the Court may make one or more of the following orders:
(a) an order directing the specified person to comply with the remediation determination;
(b) any other order that the Court considers appropriate.
480M Civil penalty for contravention of remediation determination
(1) The specified person must not contravene a remediation determination.
(2) Subsection (1) is a civil penalty provision. Under section 481, the Federal Court may order the specified person to pay a pecuniary penalty not more than the pecuniary penalty the Court could order the person to pay under that section for a contravention of the specified civil penalty provision.
Subdivision D—Variation or revocation of remediation determinations
480N Variation or revocation of remediation determination
(1) The Minister may, in writing, vary or revoke a remediation determination.
(2) Sections 480F and 480G apply in relation to the variation or revocation of a remediation determination in the same way as they apply in relation to the making of a remediation determination.
Division 15—Civil penalties
Subdivision A—Obtaining an order for a civil penalty
481 Federal Court may order person to pay pecuniary penalty for contravening civil penalty provision
Application for order
(1) Within 6 years of a person (the wrongdoer) contravening a civil penalty provision, the Minister may apply on behalf of the Commonwealth to the Federal Court for an order that the wrongdoer pay the Commonwealth a pecuniary penalty.
Court may order wrongdoer to pay pecuniary penalty
(2) If the Court is satisfied that the wrongdoer has contravened a civil penalty provision, the Court may order the wrongdoer to pay to the Commonwealth for each contravention the pecuniary penalty that the Court determines is appropriate (but not more than the relevant amount specified for the provision).
Determining amount of pecuniary penalty
(3) In determining the pecuniary penalty, the Court must have regard to all relevant matters, including:
(a) the nature and extent of the contravention; and
(b) the nature and extent of any loss or damage suffered as a result of the contravention; and
(c) the circumstances in which the contravention took place; and
(d) whether the person has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct.
Conduct contravening more than one civil penalty provision
(4) If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this Act against a person in relation to the contravention of any one or more of those provisions. However, the person is not liable to more than one pecuniary penalty under this section in respect of the same conduct.
482 What is a civil penalty provision?
A subsection of this Act (or a section of this Act that is not divided into subsections) is a civil penalty provision if:
(a) the words “civil penalty” and one or more amounts in penalty units are set out at the foot of the subsection (or section); or
(b) another provision of this Act specifies that the subsection (or section) is a civil penalty provision.
483 Contravening a civil penalty provision is not an offence
A contravention of a civil penalty provision is not an offence.
484 Persons involved in contravening civil penalty provision
(1) A person must not:
(a) aid, abet, counsel or procure a contravention of a civil penalty provision; or
(b) induce (by threats, promises or otherwise) a contravention of a civil penalty provision; or
(c) be in any way directly or indirectly knowingly concerned in, or party to, a contravention of a civil penalty provision; or
(d) conspire to contravene a civil penalty provision.
(2) This Division applies to a person who contravenes subsection (1) in relation to a civil penalty provision as if the person had contravened the provision.
485 Recovery of a pecuniary penalty
If the Federal Court orders a person to pay a pecuniary penalty:
(a) the penalty is payable to the Commonwealth; and
(b) the Commonwealth may enforce the order as if it were a judgment of the Court.
Subdivision B—Civil penalty proceedings and criminal proceedings
486A Civil proceedings after criminal proceedings
The Federal Court must not make a pecuniary penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention.
486B Criminal proceedings during civil proceedings
(1) Proceedings for a pecuniary penalty order against a person for a contravention of a civil penalty provision are stayed if:
(a) criminal proceedings are started or have already been started against the person for an offence; and
(b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention.
(2) The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the order are dismissed.
486C Criminal proceedings after civil proceedings
Criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether a pecuniary penalty order has been made against the person.
486D Evidence given in proceedings for penalty not admissible in criminal proceedings
Evidence of information given or evidence of production of documents by an individual is not admissible in criminal proceedings against the individual if:
(a) the individual previously gave the evidence or produced the documents in proceedings for a pecuniary penalty order against the individual for a contravention of a civil penalty provision (whether or not the order was made); and
(b) the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention.
However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the individual in the proceedings for the pecuniary penalty order.
Subdivision C—Enforceable undertakings relating to contraventions of Part 3 civil penalty provisions
486DA Acceptance of undertakings relating to contraventions of Part 3 civil penalty provisions
(1) This section applies if the Minister considers that an action taken by a person after the commencement of this section contravened a civil penalty provision of Part 3.
(2) The Minister may accept a written undertaking given by the person in relation to the action, in which the person undertakes to pay a specified amount, within a specified period:
(a) to the Commonwealth; or
(b) to some other specified person, for the purpose of activities directed towards the protection and conservation of the matter protected by the civil penalty provision referred to in subsection (1).
(3) The person may withdraw or vary the undertaking at any time, but only with the consent of the Minister.
486DB Enforcement of undertakings
(1) If the Minister considers that a person who gave an undertaking under section 486DA has breached any of its terms, the Minister may apply to the Federal Court for an order under subsection (2).
(2) If the Federal Court is satisfied that the person has breached a term of the undertaking, the Court may make one or more of the following orders:
(a) an order directing the person to comply with that term of the undertaking;
(b) any other order that the Court considers appropriate.
Division 15A—Notices to produce or attend
486E Application of Division
(1) This Division applies if the Minister believes, on reasonable grounds, that a person is capable of giving information, or producing books, records or documents, that are relevant for the purposes of investigating or preventing:
(a) an offence against an environmental law; or
(b) a contravention of an environmental penalty provision.
(2) In this Division:
official means any of the following:
(a) the Minister;
(b) an officer or employee in the Department;
(c) the Director;
(d) the Chief Executive Officer of the Great Barrier Reef Marine Park Authority;
(e) a member of the staff of the Great Barrier Reef Marine Park Authority.
486F Minister may require person to provide information etc.
(1) The Minister may, by written notice, require the person to give to an official specified in the notice, in the manner and within the period specified in the notice:
(a) such information as is specified in the notice; or
(b) any book, record or document that is specified in the notice.
The period must end not less than 14 days after the notice is given.
(2) A notice under subsection (1) must set out the effect of section 491 of this Act and of sections 137.1 and 137.2 of the Criminal Code.
(3) A person commits an offence if:
(a) the person is required to give information or a book, record or document to an official under subsection (1); and
(b) the person does not give the information, book, record or document to the official.
Penalty: Imprisonment for 6 months.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
486G Minister may require person to appear before Minister
(1) The Minister may, by written notice, require the person to appear before an official specified in the notice, at a time and place specified in the notice:
(a) to answer any questions put by the official; and
(b) to produce to the official such books, records or documents as are specified in the notice.
The time must not be earlier than 14 days after the notice is given.
(2) A notice under subsection (1) must set out the effect of section 491 of this Act and of sections 137.1 and 137.2 of the Criminal Code.
(3) A person commits an offence if:
(a) the person is required to appear before an official under subsection (1); and
(b) the person does not appear before the official.
Penalty: Imprisonment for 6 months.
(4) A person commits an offence if:
(a) the person is required to appear before an official under subsection (1); and
(b) when appearing before the official, the person does not:
(i) answer a question put by the official; or
(ii) produce a book, record or document to the official as required by the notice given under that subsection.
Penalty: Imprisonment for 6 months.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
486H Persons to whom notices may not be given
A notice under subsection 486F(1) or 486G(1) must not be given to a person if the person is, or has been, a lawyer for:
(a) if the notice relates to the investigation or prevention of an offence against an environmental law—the person suspected of having committed the offence; or
(b) if the notice relates to the investigation or prevention of a contravention of an environmental penalty provision—the person suspected of having contravened the provision.
486J Self‑incrimination
(1) An individual is not excused from giving information (including by answering a question), or from giving or producing a book, record or document, under this Division on the ground that the information, or the giving or production of the book, record or document, might tend to incriminate the individual or expose the individual to a penalty.
(2) However:
(a) the information given, or the book, record or document given or produced; or
(b) giving the information, or giving or producing the book record or document; or
(c) any information, document or thing obtained as a direct or indirect consequence of giving the information, or giving or producing the book, record or document;
is not admissible in evidence against the person:
(d) in any civil proceedings; or
(e) in any criminal proceedings other than:
(i) proceedings for an offence against subsection 486F(3) or 486G(3) or (4); or
(ii) proceedings for an offence against section 491 that relates to a requirement under this Division; or
(iii) proceedings for an offence against section 137.1 or 137.2 (false or misleading information or documents) of the Criminal Code that relates to a requirement under this Division.
Division 16—Review of administrative decisions
487 Extended standing for judicial review
(1) This section extends (and does not limit) the meaning of the term person aggrieved in the Administrative Decisions (Judicial Review) Act 1977 for the purposes of the application of that Act in relation to:
(a) a decision made under this Act or the regulations; or
(b) a failure to make a decision under this Act or the regulations; or
(c) conduct engaged in for the purpose of making a decision under this Act or the regulations.
(2) An individual is taken to be a person aggrieved by the decision, failure or conduct if:
(a) the individual is an Australian citizen or ordinarily resident in Australia or an external Territory; and
(b) at any time in the 2 years immediately before the decision, failure or conduct, the individual has engaged in a series of activities in Australia or an external Territory for protection or conservation of, or research into, the environment.
(3) An organisation or association (whether incorporated or not) is taken to be a person aggrieved by the decision, failure or conduct if:
(a) the organisation or association is incorporated, or was otherwise established, in Australia or an external Territory; and
(b) at any time in the 2 years immediately before the decision, failure or conduct, the organisation or association has engaged in a series of activities in Australia or an external Territory for protection or conservation of, or research into, the environment; and
(c) at the time of the decision, failure or conduct, the objects or purposes of the organisation or association included protection or conservation of, or research into, the environment.
(4) A term (except person aggrieved) used in this section and in the Administrative Decisions (Judicial Review) Act 1977 has the same meaning in this section as it has in that Act.
488 Applications on behalf of unincorporated organisations
(1) A person acting on behalf of an unincorporated organisation that is a person aggrieved (for the purposes of the Administrative Decisions (Judicial Review) Act 1977) by:
(a) a decision made under this Act or the regulations; or
(b) a failure to make a decision under this Act or the regulations; or
(c) conduct engaged in for the purpose of making a decision under this Act or the regulations;
may apply under that Act for a review of the decision, failure or conduct.
(2) The Administrative Decisions (Judicial Review) Act 1977 applies in relation to the person as if he or she were a person aggrieved.
Division 17—Duty to provide accurate information
489 Providing false or misleading information to obtain approval or permit
(1) A person commits an offence if:
(a) the person provides information in response to a requirement or request under Part 7, 8, 9, 13 or 13A; and
(b) the person is reckless as to whether the information is false or misleading in a material particular.
Note: The fault element in paragraph (1)(b) can be demonstrated by proof of knowledge. See subsection 5.4(4) of the Criminal Code.
(2) An offence against subsection (1) is punishable on conviction by:
(a) imprisonment for a term not more than 2 years, a fine not more than 120 penalty units, or both, if it is proved the person knew the information was false or misleading; or
(b) imprisonment for a term not more than 1 year, a fine not more than 60 penalty units, or both, if it is proved the person was reckless as to whether the information was false or misleading.
Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
(2A) A person commits an offence if:
(a) the person provides information in response to a requirement or request under Part 7, 8, 9, 13 or 13A; and
(b) the person is negligent as to whether the information is false or misleading in a material particular.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2B) An offence against subsection (2A) is punishable on conviction by a fine not more than 30 penalty units.
Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
(3) Subsections (1) and (2A) do not apply to a requirement to provide information that is imposed by a condition attached to an environmental authority.
Note: The defendant bears an evidential burden in relation to the matter in subsection (3). See subsection 13.3(3) of the Criminal Code.
490 Providing false or misleading information in response to a condition on an approval or permit
(1) A person commits an offence if:
(a) the person is the holder of an environmental authority; and
(b) a condition attached to the environmental authority requires the person to provide information; and
(c) the person provides information in response (or purportedly in response) to the requirement; and
(d) the person is reckless as to whether the information is false or misleading in a material particular.
Note: The fault element in paragraph (1)(d) can be demonstrated by proof of knowledge. See subsection 5.4(4) of the Criminal Code.
(2) The offence is punishable on conviction by:
(a) imprisonment for a term not more than 2 years, a fine not more than 120 penalty units, or both, if it is proved the person knew the information was false or misleading; or
(b) imprisonment for a term not more than 1 year, a fine not more than 60 penalty units, or both, if it is proved the person was reckless as to whether the information was false or misleading.
Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
491 Providing false or misleading information to authorised officer etc.
(1) A person commits an offence if the person:
(a) provides information or a document to another person (the recipient); and
(b) knows the recipient is:
(i) an authorised officer; or
(ii) the Minister; or
(iii) an employee or officer in the Department; or
(iv) a commissioner;
performing a duty or carrying out a function under this Act or the regulations; and
(c) knows the information or document is false or misleading in a material particular.
(2) The offence is punishable on conviction by imprisonment for a term not more than 1 year, a fine not more than 60 penalty units, or both.
Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.
Division 18—Liability of executive officers for corporations
493 Who is an executive officer of a body corporate?
In this Act:
executive officer of a body corporate means a person, by whatever name called and whether or not a director of the body, who is concerned in, or takes part in, the management of the body.
494 Civil penalties for executive officers of bodies corporate
(1) If:
(a) a body corporate contravenes:
(i) a civil penalty provision of Part 3 (requirements for approval); or
(ii) section 142 (condition of approval); or
(iii) section 390SA (declared commercial fishing activity); and
(b) an executive officer of the body knew that, or was reckless or negligent as to whether, the contravention would occur; and
(c) the officer was in a position to influence the conduct of the body in relation to the contravention; and
(d) the officer failed to take all reasonable steps to prevent the contravention;
the officer contravenes this subsection.
(2) Subsection (1) is a civil penalty provision. Under section 481, the Federal Court may order a person contravening subsection (1) to pay a pecuniary penalty not more than the pecuniary penalty the Court could order an individual to pay for contravening the civil penalty provision contravened by the body corporate.
495 Criminal liability of executive officers of bodies corporate
(1) If:
(a) a body corporate contravenes:
(i) section 489 (Providing false or misleading information to obtain approval or permit); or
(ii) section 490 (Providing false or misleading information in response to a condition on an approval or permit); or
(iii) section 491 (Providing false or misleading information to authorised officer etc.); and
(b) an executive officer of the body knew that, or was reckless or negligent as to whether, the contravention would occur; and
(c) the officer was in a position to influence the conduct of the body in relation to the contravention; and
(d) the officer failed to take all reasonable steps to prevent the contravention;
the officer commits an offence punishable on conviction by imprisonment for a term not exceeding 2 years.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Subsection 4B(2) of the Crimes Act 1914 lets a court that convicts an individual of an offence impose a fine instead of, or as well as, imprisonment. The maximum fine (in penalty units) the court can impose is 5 times the maximum term of imprisonment (in months).
(2) If:
(a) a body corporate contravenes:
(i) section 15A (Offences relating to declared World Heritage properties); or
(ia) section 15C (Offences relating to National Heritage places); or
(ii) section 17B (Offences relating to declared Ramsar wetlands); or
(iii) section 18A (Offences relating to threatened species etc.); or
(iv) section 20A (Offences relating to listed migratory species); or
(v) section 22A (Offences relating to nuclear actions); or
(vi) section 24A (Offences relating to marine areas); or
(via) section 24E (Offences relating to water resources); or
(vii) section 27A (Offences relating to Commonwealth land); or
(viia) section 27C (Offences relating to Commonwealth heritage places overseas); or
(viii) section 142A (Offence of breaching conditions on approval); or
(ix) section 390SB (Offence relating to declared commercial fishing activity); and
(b) an executive officer of the body was reckless as to whether the contravention would occur; and
(c) the officer was in a position to influence the conduct of the body in relation to the contravention; and
(d) the officer failed to take all reasonable steps to prevent the contravention;
the officer commits an offence.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(3) An offence against subsection (2) is punishable on conviction by imprisonment for a term not exceeding the term specified in the provision contravened by the body corporate.
Note: Subsection 4B(2) of the Crimes Act 1914 lets a court that convicts an individual of an offence impose a fine instead of, or as well as, imprisonment. The maximum fine (in penalty units) the court can impose is 5 times the maximum term of imprisonment (in months).
496 Did an executive officer take reasonable steps to prevent contravention?
(1) For the purposes of sections 494 and 495, in determining whether an executive officer of a body corporate failed to take all reasonable steps to prevent the contravention, a court is to have regard to:
(a) what action (if any) the officer took directed towards ensuring the following (to the extent that the action is relevant to the contravention):
(i) that the body arranges regular professional assessments of the body’s compliance with this Act and the regulations;
(ii) that the body implements any appropriate recommendations arising from such an assessment;
(iii) that the body has an appropriate system established for managing the effects of the body’s activities on the environment;
(iv) that the body’s employees, agents and contractors have a reasonable knowledge and understanding of the requirements to comply with this Act and the regulations, in so far as those requirements affect the employees, agents or contractors concerned; and
(b) what action (if any) the officer took when he or she became aware that the body was contravening:
(i) this Act; or
(ii) the regulations; or
(iii) if the body contravened Part 3 or section 142 or 142A—any action management plan that was prepared by the body, and approved by the Minister, as required by a condition attached to an approval under Part 9 for the purposes of a provision of Part 3 of the body’s taking of an action.
(2) This section does not, by implication, limit the generality of sections 494 and 495.
Division 18A—Liability of landholders for other people’s actions
496A Who is a landholder?
For the purposes of this Division, a landholder, in relation to an area of land, is a person who is an owner, lessee or occupier of the area of land.
496B Civil penalties for landholders
(1) If:
(a) a person (the actor) takes an action on an area of land that is a contravention of:
(i) a provision of Part 3 that is a civil penalty provision; or
(ii) section 142; and
(b) a landholder in relation to the area of land knew that, or was reckless or negligent as to whether, the contravention would occur; and
(c) the landholder was in a position to influence the conduct of the actor in relation to the contravention; and
(d) the landholder failed to take all reasonable steps to prevent the contravention;
the landholder contravenes this subsection.
(2) Subsection (1) is a civil penalty provision. Under section 481, the Federal Court may order a landholder contravening subsection (1) to pay a pecuniary penalty not more than the pecuniary penalty the Court could order the landholder to pay, if the landholder had contravened the civil penalty provision contravened by the actor.
496C Criminal liability of landholders
(1) If:
(a) a person (the actor) takes an action on an area of land that contravenes:
(i) section 15A (Offences relating to declared World Heritage properties); or
(ii) section 15C (Offences relating to National Heritage places); or
(iii) section 17B (Offences relating to declared Ramsar wetlands); or
(iv) section 18A (Offences relating to threatened species etc.); or
(v) section 20A (Offences relating to listed migratory species); or
(vi) section 22A (Offences relating to nuclear actions); or
(vii) section 24A (Offences relating to marine areas); or
(viia) section 24E (Offences relating to water resources); or
(viii) section 27A (Offences relating to Commonwealth land); or
(ix) section 142A (Offence of breaching conditions on approval); and
(b) a landholder in relation to the area of land was reckless as to whether the contravention would occur; and
(c) the landholder was in a position to influence the conduct of the actor in relation to the contravention at the time when the contravention occurred; and
(d) the landholder failed to take all reasonable steps to prevent the contravention;
the landholder commits an offence.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2) An offence against subsection (1) is punishable on conviction by imprisonment for the term specified in the provision contravened by the actor, a fine of the amount specified in that provision, or both.
Note: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under the provision.
496D Did a landholder take reasonable steps to prevent a contravention?
(1) For the purposes of sections 496B and 496C, in determining whether a landholder failed to take all reasonable steps to prevent the contravention, a court is to have regard to:
(a) what action (if any) the landholder took directed towards ensuring that the actor had an appropriate system established for managing the effects of the actor’s activities on the environment; and
(b) what action (if any) the landholder took upon becoming aware that there was a substantial risk that the actor was contravening provisions of this Act referred to in subsection 496B(1) or 496C(1), as the case requires.
(2) This section does not, by implication, limit the generality of sections 496B and 496C.
Division 19—Infringement notices
497 Infringement notices
(1) The regulations may make provision enabling a person who is alleged to have committed an offence against section 142B or the regulations to pay a penalty to the Commonwealth as an alternative to prosecution.
(2) The penalty must not exceed one‑fifth of the maximum fine that a court could impose on the person as a penalty for that offence.
Division 20—Publicising contraventions
498 Minister may publicise contraventions of this Act or the regulations
(1) The Minister may publicise, in any way he or she thinks appropriate, a contravention of this Act or the regulations for which a person has been convicted or ordered to pay a pecuniary penalty.
(2) This Division does not:
(a) limit the Minister’s powers to publicise a contravention of this Act or the regulations; or
(b) prevent anyone else from publicising a contravention of this Act or the regulations; or
(c) affect any obligation (however imposed) on anyone to publicise a contravention of this Act or the regulations.
Division 21—Immunity of officers
498A Immunity of officers and assistants
(1) An authorised officer or ranger is not liable to any proceedings relating to an act done, or omitted to be done, in good faith in the exercise or purported exercise of any power conferred on the officer or ranger by this Part, Schedule 1 (in the case of an authorised officer) or regulations made for the purposes of this Part or Division 5 of Part 15.
(2) A person requested by an authorised officer or ranger to assist the officer or ranger in the exercise or purported exercise of any power conferred on the officer or ranger by this Part, by Schedule 1 (in the case of an authorised officer), or by regulations made for the purposes of this Part or Division 5 of Part 15, is not liable to any proceedings relating to an act done, or omitted to be done, in good faith for the purpose of assisting the officer or ranger.
Division 22—Conduct of directors, employees and agents
498B Conduct of directors, employees and agents
Bodies corporate—conduct
(1) Any conduct engaged in on behalf of a body corporate:
(a) by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent;
is to be taken, for the purposes of this Act, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.
Bodies corporate—state of mind
(2) If, for the purposes of this Act, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by a person as mentioned in paragraph (1)(a) or (b); and
(b) that the person had that state of mind.
Persons other than bodies corporate—conduct
(3) Any conduct engaged in on behalf of a person other than a body corporate:
(a) by an employee or agent of the person within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an employee or agent of the first‑mentioned person, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the employee or agent;
is to be taken, for the purposes of this Act, to have been engaged in also by the first‑mentioned person unless the first‑mentioned person establishes that the first‑mentioned person took reasonable precautions and exercised due diligence to avoid the conduct.
Persons other than bodies corporate—state of mind
(4) If, for the purposes of this Act, it is necessary to establish the state of mind of a person other than a body corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by a person as mentioned in paragraph (3)(a) or (b); and
(b) that the person had that state of mind.
Reasonable precautions
(5) For the purposes of subsection (1) or (3), in determining whether a body corporate or other person took reasonable precautions and exercised due diligence to avoid particular conduct, a court must have regard to what steps (if any) the body or person took directed towards ensuring the following (to the extent that the steps are relevant to the conduct):
(a) that the body or person arranges regular professional assessments of the body’s or person’s compliance with this Act and the regulations;
(b) that the body or person implements any appropriate recommendations arising from such an assessment;
(c) that the body or person has an appropriate system established for managing the effects of the body’s or person’s activities on the environment;
(d) that the directors of the body, or the employees or agents of the body or person, have a reasonable knowledge and understanding of the requirements to comply with this Act and the regulations, in so far as those requirements affect the directors, employees or agents concerned.
Meaning of state of mind
(6) A reference in subsection (2) or (4) to the state of mind of a person includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
Meaning of director
(7) A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory.
Meaning of engage in conduct
(8) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.
Disapplying Part 2.5 of Criminal Code
(9) Part 2.5 of the Criminal Code does not apply to an offence against this Act.
Note: Part 2.5 of the Criminal Code deals with corporate criminal responsibility.
Part 18—Remedying environmental damage
499 Commonwealth powers to remedy environmental damage
(1) This section applies if the Minister suspects that an act or omission constitutes a contravention of this Act or the regulations (whether or not the act or omission is an offence against this Act or the regulations).
(2) On behalf of the Commonwealth, the Minister may cause to be taken such steps as he or she thinks proper:
(a) to repair or remove any condition that arises from the act or omission and relates to:
(i) the environment; or
(ii) if the contravention was of a provision of Part 3—the matter protected by the provision; or
(b) to mitigate any damage that arises from the act or omission and relates to:
(i) the environment; or
(ii) if the contravention was of a provision of Part 3—the matter protected by the provision; or
(c) to prevent any damage that is likely to arise from the act or omission and relates to:
(i) the environment; or
(ii) if the contravention was of a provision of Part 3—the matter protected by the provision.
(3) If:
(a) a person provided false or misleading information in contravention of section 489; and
(b) as a result of the contravention the Minister granted an environmental authority to a person, or set conditions relating to the environmental authority, unaware of the certainty or likelihood of the action covered by the authority:
(i) resulting in damage to the environment or to a matter protected by a provision of Part 3; or
(ii) giving rise to a condition relating to the environment or to a matter protected by a provision of Part 3; and
(c) the action results in damage to the environment or gives rise to a condition relating to the environment;
then, for the purposes of this section and section 500, the damage or condition is taken to arise from the provision of false or misleading information in contravention of section 489.
(4) This section does not affect the exercise by the Commonwealth or the Minister of powers under another provision of this Act or under any other law.
500 Liability for loss or damage caused by contravention
(1) A person (the wrongdoer) who contravenes this Act or the regulations is liable to pay to another person (the affected party) who suffers loss or damage arising from the contravention an amount equal to the other person’s loss or damage.
(2) Without limiting the amount payable under subsection (1), the loss or damage a person suffers from a contravention of this Act or the regulations includes the expenses and liabilities (if any) reasonably incurred by the affected party to:
(a) repair or remove any condition that arises from the act or omission constituting the contravention and relates to:
(i) the environment; or
(ii) if the contravention was of a provision of Part 3—the matter protected by the provision; or
(b) mitigate any damage that arises from the act or omission constituting the contravention and relates to:
(i) the environment; or
(ii) if the contravention was of a provision of Part 3—the matter protected by the provision; or
(c) prevent any damage likely to arise from the act or omission constituting the contravention and relates to:
(i) the environment; or
(ii) if the contravention was of a provision of Part 3—the matter protected by the provision.
Note: This makes the person who contravenes the Act liable to pay the Commonwealth the expenses reasonably incurred in taking steps under section 499 in relation to the contravention.
(3) An amount payable under subsection (1) is a debt due to the affected party, recoverable in a court of competent jurisdiction.
(4) If 2 or more persons are liable under subsection (1) to pay an amount in respect of the same loss or damage, those persons are jointly and severally liable to pay the sum.
(5) A finding by a court in criminal proceedings or civil proceedings that the wrongdoer contravened this Act or the regulations is admissible as evidence of that fact in proceedings to recover an amount payable under subsection (1).
(6) This section applies:
(a) whether or not the contravention was an offence; and
(b) whether or not the provision contravened is a civil penalty provision.
(7) This section does not apply to a decision (or a failure to make a decision or conduct for the purposes of making a decision) purportedly under this Act or the regulations that contravenes this Act or the regulations.
501 Other powers not affected
This Division does not affect any other powers or rights under this Act, the regulations or any other law.
Part 19—Organisations
Division 1—Establishment and functions of the Threatened Species Scientific Committee
502 Establishment
(1) The Threatened Species Scientific Committee is established.
(2) The Minister is to determine in writing the composition of the Committee, including the qualifications of its members.
(3) The Minister is to appoint the members of the Committee on a part‑time basis, and must appoint one of the members to chair the Committee.
503 Functions of the Committee
The functions of the Committee are:
(a) to advise the Minister in accordance with Division 5 of Part 13 in relation to recovery plans, threat abatement plans and approved conservation advice; and
(b) to advise the Minister (on the Minister’s request or on the Committee’s initiative) on the amendment and updating of the lists established under Part 13; and
(c) to advise the Minister, at his or her request, on matters relating to the administration of this Act; and
(d) to give the Minister such other advice as is provided for in this Act; and
(e) to perform such other functions as are conferred on the Committee by this Act, the regulations or another law of the Commonwealth.
Division 2A—Indigenous Advisory Committee
505A Establishment
(1) The Indigenous Advisory Committee is established.
(2) The Minister is to determine in writing the composition of the Committee, including the qualifications of its members.
(3) A person may only be appointed as a member of the Committee if the person is an Indigenous person.
(4) The Minister is to appoint the members of the Committee on a part‑time basis.
(5) The Minister is to appoint 2 of the members, one male and one female, as co‑chairs of the Committee.
505B Functions of the Committee
(1) The Committee has the following functions:
(a) to advise the Minister on matters relating to the following:
(i) the operation of this Act or an instrument made under this Act;
(ii) the objects of this Act;
(iii) the environment;
(iv) policies, plans or programs (however described) that are made, prepared, varied or endorsed under this Act;
(b) at the request of the CEO—to provide advice to the CEO in relation to matters specified in the request relating to the CEO’s functions under this Act;
(c) at the request of the Director—to provide advice to the Director in relation to matters specified in the request relating to the Director’s functions under this Act;
(d) to provide any other advice or information required or permitted to be obtained from the Committee under this Act or the regulations;
(e) to perform any other functions that are conferred on the Committee by this Act or the regulations.
(2) The Minister may give the Committee written guidelines about its function.
(3) In performing its functions, the Committee must take into account the significance of Indigenous peoples’ knowledge of the management of land, sea and seabed, airspace and water, and the conservation and sustainable use of biodiversity.
Advice beyond Committee’s expertise
(4) Subsection (5) applies if:
(a) the Committee is requested, required or permitted to provide advice under subsection (1); and
(b) the Committee is satisfied that it does not have the appropriate expertise to provide the advice.
(5) The Committee:
(a) is not required to provide the advice; and
(b) must advise the Minister, and any other person to whom the advice was to be provided, that the Committee is unable to provide the advice.
Division 2B—Establishment and functions of the Independent Expert Scientific Committee on Unconventional Gas Development and Large Coal Mining Development
505C Establishment
(1) The committee established by this section as previously in force is continued in existence with the new name of the Independent Expert Scientific Committee on Unconventional Gas Development and Large Coal Mining Development.
Note: See also section 25B of the Acts Interpretation Act 1901.
(2) The Committee is to consist of at least 5, but not more than 8, members.
(3) A member of the Committee is to be appointed by the Minister by written instrument, on a part‑time basis.
(4) The Minister must appoint one member of the Committee to be the Chair.
(5) When appointing members of the Committee, the Minister must ensure that:
(a) each member (other than the Chair) possesses appropriate scientific qualifications or expertise that the Minister considers relevant to the performance of the Committee’s functions; and
(b) each member’s appointment is not being made to represent any particular body, group or community.
(6) The Minister must also ensure that a majority of the members possess scientific qualifications and expertise in one or more of the following areas:
(a) geology;
(b) hydrology;
(c) hydrogeology;
(d) ecology.
Note: Other provisions relating to members are set out in Division 3.
505D Functions of the Committee
(1) The Committee has the following functions:
(a) within 2 months of a request by the Minister (the Environment Minister)—to provide scientific advice to the Environment Minister in relation to proposed unconventional gas developments or large coal mining developments that are likely to have a significant impact on water resources, including any impacts of associated salt production and/or salinity;
(b) at the request of an appropriate Minister of a declared State or Territory—to provide scientific advice to the Minister in relation to proposed unconventional gas developments or large coal mining developments in the relevant State or Territory that are likely to have a significant impact on water resources, including any impacts of associated salt production and/or salinity;
Note: Subsections (3) and (4) set out the timeframe that applies to this function.
(d) at the request of the Environment Minister—to provide advice to the Environment Minister about:
(i) priorities for research projects to improve scientific understanding of the impacts of unconventional gas developments and large coal mining developments on water resources, including any impacts of associated salt production and/or salinity; and
(ii) research projects commissioned by the Minister in relation to the impacts of unconventional gas developments and large coal mining developments on water resources, including any impacts of associated salt production and/or salinity;
(da) at the request of the Environment Minister—to provide advice to the Environment Minister about matters relating to policies, plans or programs (however described) that are made, prepared, varied or endorsed under this Act;
(e) to publish information about improving the consistency and comparability of research in relation to the impacts of unconventional gas developments and large coal mining developments on water resources, including any impacts of associated salt production and/or salinity;
(f) to publish information relating to the development of standards for protecting water resources from the impacts of unconventional gas development and large coal mining development, including from any impacts of associated salt production and/or salinity;
(g) to collect, analyse, interpret and disseminate scientific information in relation to the impacts of unconventional gas development and large coal mining development on water resources, including any impacts of associated salt production and/or salinity;
(h) any other functions that are conferred on the Committee by this Act or the regulations;
(i) to do anything incidental to, or conducive to, the performance of the above functions.
(2) The Committee also has the following functions:
(a) at the request of the Environment Minister—to provide scientific advice to the Environment Minister in relation to a matter that is protected by a provision of Part 3;
(b) at the request of the appropriate Minister of a declared State or Territory and with the written agreement of the Environment Minister—to provide scientific advice to the Minister of the State or Territory in relation to the matters specified in the request.
Timeframes to provide advice to State or Territory Minister
(3) The Committee must provide advice under paragraph (1)(b) to an appropriate Minister of a declared State or Territory within 2 months of the Minister’s request.
(4) However, if the Committee considers that it cannot do so within 2 months, the Committee must, in writing given to the Minister:
(a) advise the Minister of that fact; and
(b) substitute a longer period within which to provide the advice; and
(c) give reasons for that period.
Advice beyond Committee’s expertise
(5) Subsection (6) applies if:
(a) the Committee is requested, required or permitted to provide advice under subsection (1) or (2); and
(b) the Committee is satisfied that it does not have sufficient expertise to provide the advice.
(6) The Committee:
(a) is not required to provide the advice; and
(b) must advise the Minister, and any other person to whom the advice was to be provided, that the Committee is unable to provide the advice.
505E Declared States and Territories
The Minister may, by legislative instrument, declare a specified State or self‑governing Territory to be a declared State or Territory.
Division 3—Members and procedures of Committees
506 Application
This Division applies to the following Committees:
(a) the Threatened Species Scientific Committee;
(c) the Indigenous Advisory Committee;
(d) the Independent Expert Scientific Committee on Unconventional Gas Development and Large Coal Mining Development.
507 Terms and conditions
Term of office
(1) A member of a Committee holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
Note: Section 509 sets out the circumstances in which a member’s appointment may be (or must be) terminated.
Resignation
(2) A member of a Committee may resign his or her appointment by giving the Minister a written resignation.
Other terms and conditions
(3) A member of a Committee holds office on the terms and conditions (if any) that are determined by the Minister in relation to matters not covered by this Act or the regulations.
508 Remuneration
(1) A member of a Committee is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed.
(2) A member of a Committee is to be paid the allowances that are prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
509 Termination of appointments of Committee members
Termination when person stops being qualified for appointment
(1) The appointment of a person to a position of member of a Committee is terminated when the person ceases to be qualified for appointment to the position.
Termination for misbehaviour or incapacity
(2) The Minister may terminate the appointment of a member of a Committee for misbehaviour or physical or mental incapacity.
Termination for failure to attend Committee meetings
(3) The Minister may terminate the appointment of a member of a Committee if the member is absent, except on leave of absence, from 3 consecutive meetings of the Committee of which the member has had notice.
Termination for engaging in conflicting work
(4) The Minister may terminate the appointment of a member of a Committee if the member engages in paid employment that, in the Minister’s opinion, conflicts or could conflict with the proper performance of the duties of the member.
Termination for failure to disclose interests
(5) The Minister must terminate the appointment of a member of a Committee if:
(a) the member does not comply with any requirements prescribed by the regulations to disclose an interest the member has in a matter being considered or about to be considered by the Committee; and
(b) the member does not have a reasonable excuse for not complying.
Termination for bankruptcy or insolvency
(6) The Minister may terminate the appointment of a member of a Committee if the member:
(a) becomes bankrupt; or
(b) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(c) compounds with his or her creditors; or
(d) makes an assignment of his or her remuneration for the benefit of his or her creditors.
510 Procedure of a Committee
(1) The regulations may provide for:
(a) matters relating to the operation of a Committee, including:
(i) procedures for convening meetings of the Committee; and
(ii) procedures for determining who is to preside at a meeting of the Committee; and
(iii) determining who may attend a meeting of the Committee; and
(iv) the constitution of a quorum for a meeting of the Committee; and
(v) procedures relating to a member’s interest in matters being dealt with by the Committee; and
(vi) the way in which matters are to be resolved by the Committee; and
(vii) for a Committee that has co‑chairs—procedures relating to co‑chairs; and
(b) the appointment and rights of a deputy of a member of a Committee.
(2) The regulations may allow a Committee to determine a matter relating to the operation of the Committee for which the regulations may provide.
(3) If there are no regulations in force, a Committee may operate in the way it determines.
Division 3A—Statement of expectations and statement of intent for bodies
510A Application
This Division applies to the following (each an advisory body):
(a) the Australian Heritage Council;
(b) the Threatened Species Scientific Committee;
(c) the Indigenous Advisory Committee;
(d) the Independent Expert Scientific Committee on Unconventional Gas Development and Large Coal Mining Development;
(e) the Restoration Contributions Advisory Committee;
(f) an advisory committee established under section 511;
(g) any other committee established under this Act.
510B Minister’s statement of expectations
(1) The Minister may, at any time, prepare and give a written statement (a statement of expectations) to an advisory body that sets out the Minister’s expectations for the advisory body.
(2) In preparing a statement of expectations for an advisory body, the Minister must request advice from the following:
(a) the Secretary;
(b) the advisory body.
(3) A statement of expectations cannot direct an advisory body in the performance or exercise of the advisory body’s functions or powers.
(4) In preparing a statement of expectations for an advisory body, the Minister:
(a) must have regard to any advice requested from the Secretary or the advisory body; and
(b) must have regard to any matters prescribed by the regulations; and
(c) may have regard to any other matter the Minister considers relevant; and
(d) must prepare the statement in accordance with any requirements prescribed by the regulations.
(5) As soon as practicable after giving a statement of expectations to an advisory body, the Minister must arrange for it to be published on the Department’s website.
(6) A statement of expectations for an advisory body replaces any previous statement of expectations for the advisory body.
(7) A statement of expectations is not a legislative instrument.
510C Statement of intent
(1) If the Minister gives a statement of expectations to an advisory body under section 510B, the advisory body must prepare and give the Minister a written response (a statement of intent).
(2) In preparing a statement of intent, an advisory body:
(a) must have regard to any matters prescribed by the regulations; and
(b) may have regard to any other matter the advisory body considers relevant; and
(c) must prepare the statement in accordance with any requirements prescribed by the regulations.
(3) An advisory body must publish a statement of intent on the Department’s website as soon as practicable after it is given to the Minister.
(4) A statement of intent is not a legislative instrument.
Division 4—Advisory committees
511 Minister may establish advisory committees
(1) The Minister may by written instrument establish an advisory committee to advise the Minister on specified matters relating to the administration of this Act.
(2) However, the Minister must not specify that an advisory committee is to advise the Minister on the management of a jointly managed reserve.
(3) The Minister is to determine in writing the composition of an advisory committee, including qualifications of its members.
512 Appointments
(1) The Minister may appoint a person on a part‑time basis to be a member of an advisory committee.
(2) The Minister must appoint one of the members to chair the committee.
513 Members of advisory committees
The regulations may provide for the terms and conditions applicable to members of an advisory committee, including terms and conditions relating to:
(a) term of office; and
(b) remuneration; and
(c) allowances; and
(d) leave of absence; and
(e) disclosure of interests; and
(f) termination of membership.
514 Committee procedure
(1) An advisory committee may operate in the way it determines, subject to any regulations.
(2) The regulations may provide for the operation and procedures of an advisory committee. The regulations may allow a committee to determine its own procedure on any matter.
Division 5—Director of National Parks
Subdivision A—Establishment, functions and powers
514A Continuation
The corporation sole that existed under section 15 of the National Parks and Wildlife Conservation Act 1975 immediately before the commencement of this Act continues in existence as the Director of National Parks.
Note: Subject to section 514U, the Public Governance, Performance and Accountability Act 2013 applies to the Director. That Act deals with matters relating to corporate Commonwealth entities, including reporting and the use and management of public resources.
514B Functions
(1) The functions of the Director are:
(a) to administer, manage and control Commonwealth reserves and conservation zones; and
(b) to protect, conserve and manage biodiversity and heritage in Commonwealth reserves and conservation zones; and
(ba) to contribute to the protection, conservation and management of biodiversity and heritage in areas outside Commonwealth reserves and conservation zones; and
(c) to co‑operate with any country in matters relating to the establishment and management of national parks and nature reserves in that country; and
(d) to provide, and assist in the provision of, training in the knowledge and skills relevant to the establishment and management of national parks and nature reserves; and
(e) to carry out alone or in co‑operation with other institutions and persons, and to arrange for any other institution or person to carry out, research and investigations relevant to the establishment and management of Commonwealth reserves; and
(f) to make recommendations to the Minister in relation to the establishment and management of Commonwealth reserves; and
(g) to administer the Australian National Parks Fund; and
(h) any other functions conferred on the Director under this or any other Act; and
(i) to do anything incidental or conducive to the performance of any of the functions mentioned in paragraphs (a) to (h) (inclusive).
Note 1: Section 514D sets out requirements relating to the performance of the Director’s functions.
Note 2: The Minister may delegate additional functions to the Director under subsection 515(1).
(2) The Director may perform any of the Director’s functions in co‑operation with a State, a self‑governing Territory, an agency of a State or self‑governing Territory or a Commonwealth agency.
514C Powers
(1) The Director has power to do all things necessary or convenient to be done for or in connection with the performance of the Director’s functions.
(2) The Director’s powers include, but are not limited to, the following powers:
(a) to enter into contracts; and
(b) to erect buildings and structures and carry on works; and
(c) to occupy, use and control any land or building owned or held under lease by the Commonwealth and made available for the purposes of the Director; and
(d) to acquire, hold and dispose of real or personal property; and
(e) despite section 514D, obtain goods or services on credit from any person by the use of a credit card; and
(f) to accept gifts, devises and bequests made to the Director whether on trust or otherwise, and to act as trustee of moneys or other property vested in the Director upon trust.
Note: Section 514D sets out limits on the Director’s powers.
514D Requirements relating to functions and powers
Ministerial directions
(1) The Director must perform the Director’s functions and exercise the Director’s powers in accordance with any directions given by the Minister, unless this Act provides otherwise.
Consultation
(2) The Director must consult and have regard to the views of the following persons in relation to the performance of the Director’s functions and the exercise of the Director’s powers in relation to a Commonwealth reserve or conservation zone:
(a) if the reserve or zone is wholly or partly in a State or self‑governing Territory—the agency (if any) of the State or Territory responsible for managing national parks established under the law of the State or Territory;
(b) if the reserve or zone is wholly or partly in an area for which an Aboriginal Land Council has been established under the Aboriginal Land Rights (Northern Territory) Act 1976—the Chairperson of the Council;
(c) if the reserve is Booderee National Park—the Chairperson of the Wreck Bay Aboriginal Community Council.
Trust property
(4) The Director must deal with any money or property vested in the Director on trust in accordance with the powers and duties of the Director as trustee, despite the other provisions of this Act.
Limits on contracts and leases
(5) The Director must not:
(a) enter into a contract involving the payment or receipt of an amount more than:
(i) $1,000,000; or
(ii) if the regulations prescribe a greater amount—that greater amount; or
(b) take land (except indigenous people’s land) on lease for more than 10 years;
without the Minister’s approval.
No borrowing
(6) The Director must not borrow money in the performance of the Director’s functions.
Subdivision B—Constitution of Director of National Parks
514E Constitution
(1) The Director:
(a) is a body corporate with perpetual succession; and
(b) must have a seal; and
(c) may sue and be sued in its corporate name.
(2) All courts, judges and persons acting judicially must:
(a) take judicial notice of the imprint of the seal of the Director appearing on a document; and
(b) presume that the document was duly sealed.
514F Appointment
(1) A person is to be appointed as the Director by the Governor‑General by written instrument.
(2) Before the Governor‑General appoints a person as the Director, the Minister must be satisfied that the person has qualifications and experience in connection with national parks or the conservation and management of biodiversity that make the person suitable for the appointment.
(3) The appointment is on a full‑time basis. However, a person appointed as the Director may also hold an office or be employed in the Australian Public Service on a part‑time basis, subject to this Division.
514G Acting appointments
(1) The Minister may appoint a person to act as the Director:
(a) during a vacancy in the office of Director; or
(b) during any period, or during all periods, when the person appointed as the Director is absent from duty or from Australia, or is, for any reason, temporarily unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
(2) A person acting as the Director is taken to constitute the corporation mentioned in section 514A while the person is acting.
Subdivision C—Terms and conditions of appointment
514H Term of office
The person appointed as the Director holds office for the period specified in the instrument of appointment. The period must not exceed 7 years.
514J Remuneration
(1) The person appointed as the Director is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the person is to be paid the remuneration that is prescribed.
(2) The person is to be paid the allowances that are prescribed by the regulations.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
514K Outside employment
The person appointed as the Director must not engage in paid employment outside the duties of the Director’s office without the Minister’s approval.
514M Leave of absence
(1) The person appointed as the Director has the recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant the person appointed as the Director leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.
514N Resignation
The person appointed as the Director may resign his or her appointment by giving the Governor‑General a written resignation.
514P Termination
(1) The Governor‑General may terminate the appointment of a person as the Director for misbehaviour or physical or mental incapacity.
(2) The Governor‑General may terminate the appointment of a person as the Director if:
(a) the person:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(b) the person is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c) the person engages, except with the Minister’s approval, in paid employment outside the duties of the office of Director.
Note: The appointment of a person as the Director may also be terminated under section 30 of the Public Governance, Performance and Accountability Act 2013 (which deals with terminating the appointment of an accountable authority, or a member of an accountable authority, for contravening general duties of officials).
514Q Other terms and conditions
The person appointed as the Director holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor‑General.
Subdivision D—Australian National Parks Fund
514R Australian National Parks Fund
The fund established by section 45 of the National Parks and Wildlife Conservation Act 1975 continues in existence as the Australian National Parks Fund, vested in the Director.
514S Payments to Australian National Parks Fund
The following amounts are to be paid into the Australian National Parks Fund:
(a) any money appropriated by the Parliament for the purposes of the Department and allocated by the Secretary for the management of Commonwealth reserves or conservation zones;
(b) the proceeds of the sale of any property acquired out of money standing to the credit of the Fund;
(c) any amounts paid to the Director in respect of leases, licences, permits and other authorities granted by the Director in relation to Commonwealth reserves or conservation zones;
(d) any other amount paid by a person to the Director if:
(i) payment of the amount into the Fund would be consistent with the purposes for which the amount was paid; and
(ii) the Minister administering the Public Governance, Performance and Accountability Act 2013 considers it appropriate that the amount should be paid into the Fund;
(e) any charges paid under section 356A or section 390F;
(f) any other money received by the Director in the performance of his or her functions.
514T Application of money
(1) The money of the Australian National Parks Fund may be applied only:
(a) in payment or discharge of the costs, expenses and other obligations incurred by the Director in the performance of the Director’s functions; and
(b) in payment of any remuneration, allowances and compensation payable under this Division or Division 4 of Part 15.
(2) Subsection (1) does not prevent investment, under section 59 of the Public Governance, Performance and Accountability Act 2013, of money that is not immediately required for the purposes of the Fund.
Subdivision E—Accountability
514U Application of Public Governance, Performance and Accountability Act 2013
(1) Sections 514A and 514E provide that the Director is a corporation. The Public Governance, Performance and Accountability Act 2013 applies (subject to subsection (2) of this section) in relation to the corporation as if the person holding, or performing the duties of, the office of Director were an accountable authority of the corporation for the purposes of that Act.
(2) To avoid doubt, the Public Governance, Performance and Accountability Act 2013 applies to the Australian National Parks Fund as though the Fund were money held by the Director.
514V Extra matters to be included in annual report
The annual report prepared by the Director under and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must also include particulars of any directions given by the Minister under subsection 514D(1) of this Act during the period.
Subdivision F—Miscellaneous
514W Exemption from taxation
The income of the Australian National Parks Fund and the property and transactions of the Director are not subject to taxation under a law of the Commonwealth or of a State or Territory.
514X Changes in office of Director
An authority given, or a delegation or appointment made, by a person for the time being holding or acting in the office of Director continues in force despite the person ceasing to hold or act in that office, but may be revoked by a person later holding or acting in that office.
Part 19A—Reconsideration of fees
514Y Applications for reconsideration of fee
(1) This section applies if a fee is worked out by a person to whom a function or power is delegated under section 515.
(2) If:
(a) a method prescribed by the regulations under subsection 520(4C) has been used to work out a fee; and
(b) the person required to pay the fee is dissatisfied with the way the method was used to work out the fee;
the person may apply to the Secretary for the Secretary to reconsider the way the method was used to work out the fee.
(3) The application must:
(a) be in a form prescribed by the regulations; and
(b) set out the reasons for the application.
(4) The application must be made within 30 business days after the applicant is informed of the fee.
(5) A person may apply only once in relation to a fee.
514YA Reconsideration of fee
(1) Upon receiving an application for reconsideration of a fee, the Secretary must:
(a) reconsider the way the method was used to work out the fee; and
(b) either:
(i) confirm the fee; or
(ii) work out a new fee by using the method again.
(2) The person who undertakes the reconsideration must be:
(a) the Secretary; or
(b) an employee in the Department who:
(i) was not involved in working out the fee; and
(ii) occupies a position that is senior to that occupied by any person involved in working out the fee.
(3) The Secretary must give to the applicant a written notice that:
(a) states the outcome of the reconsideration; and
(b) gives reasons for that outcome.
514YB Deadline for reconsideration
The Secretary must undertake a reconsideration of a fee within 30 business days after receiving an application for reconsideration.
Part 19B—National environmental standards
514YC Simplified outline of this Part
National environmental standards are legislative instruments made by the Minister.
Before making a national environmental standard, the Minister must be satisfied that it promotes the objects of this Act and is not inconsistent with relevant international agreements.
A national environmental standard must specify outcomes or objectives. It may also specify parameters, principles, processes or actions for achieving the outcomes or objectives.
When varying or revoking a national environmental standard, the Minister must comply with the no regression principle.
National environmental standards must be applied in making certain decisions under this Act. Those decisions are indicated either by the provision of this Act under which a decision is made or by the regulations. The regulations will prescribe which standards must be applied in making such decisions.
For other decisions, where national environmental standards do not need to be applied, a decision maker can still choose to apply them.
514YD Making national environmental standards
(1) The Minister may, by legislative instrument, make national environmental standards for the purposes of this Act.
(2) Before making a national environmental standard, the Minister must be satisfied that:
(a) the standard would promote the objects of this Act; and
(b) the standard would not be inconsistent with Australia’s obligations under the international agreements specified in subsection 520(3).
(3) The Minister may have regard to any other matter the Minister considers relevant when deciding whether to make a national environmental standard.
(4) A national environmental standard:
(a) must prescribe one or more outcomes or objectives; and
(b) may prescribe any of the following:
(i) parameters within, or principles by which, an outcome or objective is to be achieved;
(ii) processes or actions to be followed or taken in achieving an outcome or objective.
(5) A national environmental standard, or an instrument varying or revoking a national environmental standard, may also prescribe:
(a) any matters required or permitted by this Act to be dealt with by national environmental standards; or
(b) other matters (including matters of an application, saving or transitional nature) incidental to matters prescribed as mentioned in subsection (4) or prescribed as mentioned in paragraph (a) of this subsection.
(6) In prescribing matters of an application, saving or transitional nature, a national environmental standard, or an instrument varying or revoking a national environmental standard, may provide that the standard, variation or revocation applies in relation to a decision made on or after the day the standard, variation or revocation commences, regardless of whether the decision relates to an application, referral or other matter made before that day.
514YE Incorporation by reference
(1) Despite subsection 14(2) of the Legislation Act 2003, a national environmental standard may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing:
(a) as in force or existing at a particular time; or
(b) as in force or existing from time to time.
(2) The Minister must arrange for a copy of any matter applied, adopted or incorporated to be published on the Department’s website, as soon as practicable after it is applied, adopted or incorporated.
(3) Subsection (2) does not apply in relation to matter that is, or is included in, an Act, a legislative instrument or a notifiable instrument.
514YF Varying and revoking national environmental standard
(1) The Minister may, by legislative instrument, vary or revoke a national environmental standard.
(2) Before varying or revoking a national environmental standard, the Minister must be satisfied that:
(a) the standard as varied, or the revocation, promotes the objects of this Act; and
(b) the standard as varied, or the revocation, is not inconsistent with Australia’s obligations under the international agreements specified in subsection 520(3).
(3) The Minister may have regard to any other matter the Minister considers relevant in deciding whether to vary or revoke a national environmental standard.
514YG No regression principle
(1) Before varying or revoking a national environmental standard, the Minister must be satisfied that the variation or revocation:
(a) does not reduce protections of the environment; and
(b) does not reduce the likelihood that environmental data or information provided to the Minister, Secretary, Department or a Commonwealth agency under this Act or the regulations is appropriate, including as to quality, for the purposes for which it is provided; and
(c) does not reduce the likelihood that appropriate consultation or engagement (including with Indigenous persons) will occur under the Act;
(d) does not reduce the likelihood that outcomes or objectives specified in the standard will be achieved;
(e) meets the prescribed requirements (if any).
(2) In deciding whether the Minister is satisfied for the purposes of subsection (1), the Minister is not required to have regard to the content of any instrument or other writing applied, adopted or incorporated for the purposes of making provision in the national environmental standard in relation to a matter.
(3) In deciding whether the Minister is satisfied for the purposes of subsection (1), the Minister may take into account protections or requirements under any of the following:
(a) this Act or another law of the Commonwealth;
(b) a law of a State or a self‑governing Territory;
(c) another national environmental standard in force or proposed to be made.
(4) Subsection (1) does not apply in relation to a variation or revocation of a national environmental standard within 18 months of the standard being made.
514YH Consultation
(1) Before making, varying, or revoking a national environmental standard, the Minister must:
(a) publish a draft of the proposed standard, variation, or revocation on the Department’s website; and
(b) invite public comment on the draft within the period specified in the invitation (which must be at least 20 business days); and
(c) consider any relevant comments made within the specified period.
(2) Subsection (1) does not apply in relation to a variation of a standard if the Minister is satisfied that the variation is of a minor or machinery nature.
514YI Consultation in relation to engagement with Indigenous persons
(1) Before making, varying, or revoking a national environmental standard that relates to engagement with Indigenous persons, the Minister must:
(a) invite the Indigenous Advisory Committee to provide any comments on the proposed standard, variation or revocation, within the period specified in the invitation (which must be a reasonable period); and
(b) consider any comments made by the Committee within the specified period.
(2) To avoid doubt, the Minister is not prevented from making, varying or revoking the standard if no comments are made by the Committee within the specified period.
514YJ Review of national environmental standards
(1) The Minister must arrange for a review of a national environmental standard to be started:
(a) within 18 months of the standard commencing; and
(b) at least every 5 years after that.
(2) A standard must be reviewed in accordance with paragraph (1)(a) even if it is varied before the end of the 18 months.
(3) If a standard is varied (other than a variation of a minor or machinery nature) more than 18 months after it commenced, the next review of the standard is to be started within 5 years of the variation commencing.
(4) A review of a standard must consider the extent to which the standard is achieving its outcomes and objectives and what changes, if any, should be made to the standard.
(5) The persons undertaking a review must give the Minister a written report of the review by the end of:
(a) the period of 12 months starting on the day the review commenced; or
(b) if the Minister, in writing, extends that period—the extended period.
(6) The Minister must arrange for the report to be published on the Department’s website as soon as practicable after the report is given to the Minister.
514YK Using national environmental standards
Mandatory use
(1) In making a decision prescribed by the regulations for the purposes of this subsection, a person must:
(a) apply any national environmental standard prescribed for the decision; and
(b) apply it in the way prescribed.
Note: Other provisions of this Act may also require a person to apply a standard in a specified way in making a decision (see for example section 136A).
(2) For the purposes of paragraph (1)(b), the regulations may prescribe the following ways that a national environmental standard is to be applied by a person making a decision:
(a) by the person being satisfied that the decision is not inconsistent with the standard;
(ab) by the person being satisfied that the decision is consistent with the standard;
(b) by the person having regard to the standard;
(c) any other way.
Prescribing all or part of a national environmental standard
(3) Regulations prescribing a national environmental standard for the purposes of a provision of this Act that refers to a national environmental standard prescribed for the purposes of the provision may prescribe the whole or a specified part of a standard. If a specified part is prescribed, the provision is taken to refer to the part of the standard that is prescribed.
Discretionary use
(4) A person may, in making a decision under this Act, have regard to any national environmental standard the person considers relevant to the decision.
(5) However, a person is only required to apply a national environmental standard in making a decision under this Act if subsection (1) of this section, or another provision of this Act, requires it.
Effect on validity of decisions
(6) Unless this Act requires a person to apply a national environmental standard in making a decision under this Act, a failure by a person to have regard to or apply a national environmental standard does not affect the validity of the decision.
Part 20—Delegation
515 Delegation
(1) The Minister may, by signed instrument, delegate all or any of his or her powers or functions under this Act to an officer or employee in the Department or to the Director. The delegate is, in the exercise or performance of a delegated power or function, subject to the directions of the Minister.
(1A) Despite subsection (1), the Minister must not delegate powers or functions to do the following:
(a) make a declaration under section 33 or suspend, vary or revoke such a declaration;
(b) revoke, under section 35D or 35E, an instrument suspending, varying or revoking a declaration under section 33;
(c) accredit a management or authorisation framework under section 33;
(d) make a declaration under section 36H or suspend, vary or revoke such a declaration;
(e) revoke, under section 36L, an instrument suspending a declaration under section 36H;
(f) enter into a bilateral agreement, or suspend or cancel the effect of a bilateral agreement (whether generally or otherwise), under Division 2 of Part 5;
(g) accredit a management or authorisation framework under section 46;
(h) approve, under section 133, the taking of an action that is a national interest proposal;
(i) make a determination under section 146N or 146P or revoke such a determination;
(j) determine that the taking of an action is a national interest proposal under section 157A;
(k) revoke, under section 157E, a determination that the taking of an action is a national interest proposal;
(l) grant, vary, revoke, or accept the surrender of, a national interest exemption under Division 3 of Part 11;
(m) make, vary, suspend or revoke a bioregional plan under Part 12A;
(n) make a determination under section 177CE or revoke such a determination;
(o) make a determination under section 177CF or revoke such a determination;
(p) grant, vary, revoke, or accept the surrender of, a Part 13 exemption under Division 7A of Part 13;
(q) give a statement of expectations under section 510B;
(r) make, vary or revoke a national environmental standard under Part 19B;
(s) make, vary or revoke a ruling under Part 19C.
(2) The Secretary may, by signed instrument, delegate all or any of his or her powers or functions under this Act to an officer or employee in the Department or to the Director. The delegate is, in the exercise or performance of a delegated power or function, subject to the directions of the Secretary.
(3) The Director may, by sealed instrument, delegate all or any of the Director’s powers or functions under this Act to a person. The delegate is, in the exercise of a delegated power or function, subject to the directions of the Director.
(4) A reference in this section to powers or functions under this Act or a provision of this Act includes powers or functions under the regulations or regulations made for the purposes of the provision.
515AA Delegation by Minister in relation to Great Barrier Reef Marine Park
(1) The Minister may, by signed instrument, delegate any or all of his or her powers or functions to which subsection (2) applies to:
(a) the Great Barrier Reef Marine Park Authority; or
(b) the Chief Executive Officer of the Great Barrier Reef Marine Park Authority; or
(c) a member of the staff of the Great Barrier Reef Marine Park Authority.
(2) For the purposes of subsection (1), this subsection applies to a power or function if:
(a) the exercise of the power or performance of the function relates (including in a way described in subsection 7(1A) of the Great Barrier Reef Marine Park Act 1975) to the Great Barrier Reef Marine Park; or
(b) the exercise of the power or performance of the function is incidental to a matter that relates (including in a way described in subsection 7(1A) of the Great Barrier Reef Marine Park Act 1975) to the Great Barrier Reef Marine Park.
Note: If a power or function is delegated to the Great Barrier Reef Marine Park Authority under this section, the Authority may sub‑delegate the power or function under section 47 of the Great Barrier Reef Marine Park Act 1975.
(3) Despite subsection (1), the Minister must not delegate under that subsection a power or function under Part 17 (Enforcement) to a person mentioned in paragraph (1)(c) unless the person:
(a) is an SES employee or an acting SES employee; or
(b) holds, or is acting in, an Executive Level 1 or 2, or equivalent, position.
(4) In exercising a power or performing a function under a delegation, the delegate must comply with any directions of the Minister.
(5) This section does not limit the Minister’s power of delegation under section 515.
515AB Delegation by Secretary in relation to Great Barrier Reef Marine Park
(1) The Secretary may, by signed instrument, delegate any or all of his or her powers or functions to which subsection (2) applies to:
(a) the Great Barrier Reef Marine Park Authority; or
(b) the Chief Executive Officer of the Great Barrier Reef Marine Park Authority; or
(c) a member of the staff of the Great Barrier Reef Marine Park Authority.
(2) For the purposes of subsection (1), this subsection applies to a power or function if:
(a) the exercise of the power or performance of the function relates (including in a way described in subsection 7(1A) of the Great Barrier Reef Marine Park Act 1975) to the Great Barrier Reef Marine Park; or
(b) the exercise of the power or performance of the function is incidental to a matter that relates (including in a way described in subsection 7(1A) of the Great Barrier Reef Marine Park Act 1975) to the Great Barrier Reef Marine Park.
Note: If a power or function is delegated to the Great Barrier Reef Marine Park Authority under this section, the Authority may sub‑delegate the power or function under section 47 of the Great Barrier Reef Marine Park Act 1975.
(3) Despite subsection (1), the Secretary must not delegate under that subsection a power or function under Part 17 (Enforcement) to a person mentioned in paragraph (1)(c) unless the person:
(a) is an SES employee or an acting SES employee; or
(b) holds, or is acting in, an Executive Level 1 or 2, or equivalent, position.
(4) In exercising a power or performing a function under a delegation, the delegate must comply with any directions of the Secretary.
(5) This section does not limit the Secretary’s power of delegation under section 515.
Part 20A—Publication of information on the internet
515A Publication of information on the internet
Without limiting the operation of section 170A, the Secretary must publish on the internet each week a list of:
(a) all permits issued or granted under this Act in the immediately preceding week; and
(b) all matters required by this Act to be made available to the public in the immediately preceding week.
Part 20B—Authorised uses and disclosures of relevant information
Division 1—Preliminary
515B Meaning of certain terms used in this Part
Relevant information
(1) Information is relevant information if it is:
(a) obtained or generated by an entrusted person under, or in accordance with, this Act or an instrument made under this Act; or
(b) obtained or generated by an entrusted person in the course of or for the purposes of:
(i) administering this Act or an instrument made under this Act, or monitoring compliance with this Act or an instrument made under this Act; or
(ii) assisting another person to administer this Act or an instrument made under this Act, or monitor compliance with this Act or an instrument made under this Act.
Protected information
(2) Relevant information obtained by an entrusted person is protected information if disclosure of the information could reasonably be expected to:
(a) if the disclosure is by the entrusted person—found an action by a person (other than the Commonwealth) for breach of a duty of confidence; or
(b) prejudice the effective working of government; or
(c) prejudice the prevention, detection, investigation, prosecution or punishment of one or more offences; or
(d) endanger a person’s life or physical safety; or
(e) prejudice the protection of public safety or the environment.
Entrusted persons
(3) A person is an entrusted person if the person is:
(a) the Minister; or
(b) the Secretary; or
(c) an APS employee in the Department; or
(d) any other person employed in, or engaged by, the Department; or
(e) any other person prescribed by the regulations.
Division 2—Authorised uses and disclosures by Minister
515C Disclosure of relevant information to Commonwealth entities
The Minister may disclose relevant information to a Commonwealth entity if the Minister is satisfied the disclosure is for the purposes of assisting the entity to perform its functions or exercise its powers.
Note: If protected information is disclosed under this section to a Commonwealth entity (other than the Department or NEPA) for a purpose, an official of the entity must not use or disclose the information other than for that purpose (see section 515V).
515D Disclosure of relevant information to State or Territory government body
The Minister may disclose relevant information to a State or Territory government body if:
(a) the Minister reasonably believes that the disclosure of the information is necessary for the purposes of:
(i) the Minister performing functions, or exercising powers, under this Act or an instrument made under this Act; or
(ii) the administration of a State or Territory law; and
(b) the State or Territory government body has undertaken not to use or further disclose the information except in accordance with an agreement that:
(i) is in force between the Commonwealth and the State or Territory; and
(ii) applies in relation to the information; and
(c) the Minister is satisfied that the information will be used and further disclosed only in accordance with the agreement.
Note: See also section 515E for disclosure for the purposes of law enforcement (including to a State or Territory government body).
515E Disclosure for the purposes of law enforcement
(1) The Minister may disclose relevant information to a body listed in subsection (2) if:
(a) the Minister reasonably believes that the disclosure of the information is necessary for:
(i) the enforcement of the criminal law; or
(ii) the enforcement of a law imposing a pecuniary penalty; or
(iii) the protection of public revenue; and
(b) the functions of that body include that enforcement or protection.
(2) For the purposes of subsection (1), the following bodies are listed:
(a) a Commonwealth entity;
(b) a State or Territory government body;
(c) the Australian Federal Police;
(d) the police force or police service of a State or Territory.
515F Use or disclosure to reduce serious risk to human health
The Minister may use or disclose relevant information if the Minister reasonably believes that the use or disclosure is necessary to prevent or lessen a serious risk to human health.
515G Use or disclosure to reduce serious risk to the environment
The Minister may use or disclose relevant information if the Minister reasonably believes that the use or disclosure is necessary to prevent or lessen a serious risk to the environment.
Division 3—Authorised uses and disclosures by entrusted person
515H Use or disclosure for the purposes of an Act
An entrusted person may use or disclose relevant information if the use or disclosure is for the purposes of this Act or another Act administered by the Minister, or for the purposes of an instrument made under those Acts.
515J Disclosure for the purposes of the functions etc. of the CEO
An entrusted person may disclose relevant information to NEPA if the disclosure is for the purposes of assisting in the performance of the CEO’s functions or the exercise of the CEO’s powers under a law of the Commonwealth.
515K Disclosure for the purposes of the functions etc. of the Head of Environment Information Australia
An entrusted person may disclose relevant information to Environment Information Australia if the disclosure is for the purposes of assisting in the performance of the Head of Environment Information Australia’s functions or the exercise of the Head’s powers under a law of the Commonwealth.
515L Use or disclosure for the purposes of international obligations
An entrusted person may use or disclose relevant information if the use or disclosure is for the purposes of Australia meeting its international obligations.
515M Use or disclosure of publicly available information
An entrusted person may use or disclose relevant information if the information has already been lawfully made available to the public.
515N Disclosure to person to whom information relates
An entrusted person may disclose relevant information to the person to whom the information relates.
515P Use or disclosure with consent
An entrusted person may use or disclose relevant information that relates to a person if:
(a) the person has consented to the use or disclosure; and
(b) the use or disclosure is in accordance with that consent.
515Q Disclosure to person who provided information
An entrusted person may disclose relevant information to the person who provided the information.
515R Use or disclosure of summaries or statistics
An entrusted person may use or disclose:
(a) summaries of relevant information; or
(b) statistics derived from relevant information;
if those summaries or statistics do not enable the identification of a person.
515S Disclosure to a court, tribunal etc.
(1) An entrusted person may disclose relevant information to a court exercising federal jurisdiction.
(2) An entrusted person may disclose relevant information to:
(a) a court; or
(b) a tribunal, authority or person that has the power to require the answering of questions or the production of documents;
for the purposes of the enforcement of a law of the Commonwealth or to assist the court, tribunal, authority or person to make or review an administrative decision that is required or authorised to be made or reviewed under a law of the Commonwealth.
515T Use for the purposes of disclosure
An entrusted person may use relevant information for the purpose of disclosing the relevant information under this Division.
Division 4—Civil penalty provisions
515U Unauthorised use or disclosure of protected information—entrusted person
Unauthorised use or disclosure
(1) A person contravenes this subsection if:
(a) the person is, or has been, an entrusted person; and
(b) the person has obtained relevant information in the person’s capacity as an entrusted person; and
(c) the information is protected information; and
(d) the person uses or discloses the information.
Civil penalty: 200 penalty units.
Exceptions
(2) However, subsection (1) does not apply if the use or disclosure is authorised or required by:
(a) this Act; or
(b) any other law of the Commonwealth; or
(c) a prescribed law of a State or a Territory.
(3) A person who wishes to rely on subsection (2) in proceedings for a contravention of a civil penalty provision bears an evidential burden in relation to the matters in that subsection.
515V Unauthorised use or disclosure of protected information—official of Commonwealth entity
A person contravenes this section if:
(a) the person is, or has been, an official of a Commonwealth entity that is not the Department or NEPA; and
(b) the person has obtained relevant information in the person’s capacity as an official of the entity; and
(c) the information is protected information that was disclosed to the entity under section 515C; and
(d) the person uses or discloses the information other than for the purpose for which it was disclosed to the entity.
Civil penalty: 200 penalty units.
Part 21—Reporting
Division 1—Annual reports
516 Annual report on operation of Act
(1) The Secretary must, as soon as practicable after 30 June in each year, prepare and give to the Minister a report on the operation of this Act (except Divisions 4 and 5 of Part 15 and Division 5 of Part 19) for the 12 months ending on that 30 June.
Note 1: Other provisions of this Act require the report to include certain matters.
Note 2: Section 34C of the Acts Interpretation Act 1901 sets out rules about the time within which annual reports must be given to the Minister.
(2) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the day on which he or she receives the report.
516A Annual reports to deal with environmental matters
Annual reports for Commonwealth entities
(1) The accountable authority of a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013) must ensure that an annual report prepared under section 46 of that Act complies with subsection (6) of this section.
Annual reports of Commonwealth companies
(4) The directors of a Commonwealth company (within the meaning of the Public Governance, Performance and Accountability Act 2013) that is a Commonwealth agency must ensure that the documents given to the responsible Minister (within the meaning of that Act) under section 97 of that Act include a report complying with subsection (6) of this section.
Annual reports of other Commonwealth agencies
(5) A Commonwealth agency that is:
(a) established by or under a law of the Commonwealth; and
(b) required by law to give the Minister responsible for it an annual report; and
(c) not described in subsection (1) or (4);
must ensure that the annual report complies with subsection (6).
Content of report
(6) A report described in subsection (1), (4) or (5) relating to a body or person (the reporter) for a period must:
(a) include a report on how the activities of, and the administration (if any) of legislation by, the reporter during the period accorded with the principles of ecologically sustainable development; and
(b) identify how the outcomes (if any) specified for the reporter in an Appropriations Act relating to the period contribute to ecologically sustainable development; and
(c) document the effect of the reporter’s activities on the environment; and
(d) identify any measures the reporter is taking to minimise the impact of activities by the reporter on the environment; and
(e) identify the mechanisms (if any) for reviewing and increasing the effectiveness of those measures.
Note: The Auditor‑General Act 1997 lets the Auditor‑General audit a reporter’s compliance with these requirements.
(7) In subsection (6):
activities includes:
(a) developing and implementing policies, plans, programs and legislation; and
(b) the operations of a department, authority, company or agency referred to in this section.
Division 2—State of the environment reports
516B State of the environment reports
(1) The Minister must cause a report on the environment in the Australian jurisdiction to be prepared in accordance with the regulations (if any) every 5 years. The first report must be prepared by 31 December 2001.
(2) The report must deal with the matters prescribed by the regulations.
(3) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the day on which he or she receives the report.
Part 21A—Programs relating to protection and conservation etc. of the environment
516C Protection, conservation, restoration and recovery programs
(1) The Minister may, by legislative instrument, prescribe one or more programs in relation to the protection, conservation, restoration or recovery of the environment, including in relation to the expenditure of Commonwealth money under such programs.
(2) A program may only be prescribed under subsection (1) to the extent that it is with respect to one or more legislative powers of the Parliament.
(3) The legislative instrument must:
(a) specify the legislative power or powers of the Parliament in respect of which the instrument is made; and
(b) make provision in relation to:
(i) a description of the program; and
(ii) the purpose of the program.
(4) The legislative instrument may make provision in relation to:
(a) eligibility criteria relating to the program; or
(b) a process for making applications in relation to the program; or
(c) whether application fees are payable in relation to the program.
(5) Subsections (3) and (4) do not limit subsection (1).
516D Arrangements relating to protection, conservation, restoration and recovery programs
(1) The Commonwealth may make, vary or administer an arrangement:
(a) in relation to the carrying out by a constitutional corporation of its activities under a program prescribed by a legislative instrument made under subsection 516C(1); and
(b) for money to be payable by the Commonwealth to the constitutional corporation for that purpose.
Note: Such a legislative instrument would specify the legislative power of the Parliament under paragraph 51(xx) of the Constitution.
(2) The Commonwealth may make, vary or administer an arrangement:
(a) in relation to the carrying out of activities by a person other than a constitutional corporation under a program prescribed by a legislative instrument made under subsection 516C(1); and
(b) for money to be payable by the Commonwealth to the person for that purpose.
(3) The powers conferred on the Commonwealth by subsections (1) and (2) may be exercised on behalf of the Commonwealth by a Minister or an accountable authority of a non‑corporate Commonwealth entity.
Reimbursement of costs or expenses
(4) An arrangement under subsection (1) or (2) may provide for the Commonwealth to reimburse, or partly reimburse, costs or expenses.
(5) Subsection (4) does not limit subsection (1) or (2).
Definitions
(6) In this section:
administer an arrangement includes give effect to.
arrangement includes contract, agreement, deed or understanding.
make, in relation to an arrangement, includes enter into.
vary an arrangement means:
(a) vary in accordance with the terms or conditions of the arrangement; or
(b) vary with the consent of the non‑Commonwealth party or parties to the arrangement.
516E Terms and conditions relating to protection, conservation, restoration and recovery program arrangements
Arrangements with constitutional corporations
(1) The terms and conditions on which money may be payable by the Commonwealth to a constitutional corporation under an arrangement under subsection 516D(1) must be set out in a written agreement between the Commonwealth and the constitutional corporation.
(2) The constitutional corporation must comply with the terms and conditions.
(3) Without limiting subsection (1), the terms and conditions must provide for the circumstances in which the constitutional corporation must repay amounts to the Commonwealth.
Arrangements with States and Territories
(4) The terms and conditions on which money may be payable by the Commonwealth to a State or Territory under an arrangement under subsection 516D(2) must be set out in a written agreement between the Commonwealth and the State or Territory.
(5) The State or Territory must comply with the terms and conditions.
Who may enter into agreements
(6) An agreement under subsection (1) or (4) may be entered into on behalf of the Commonwealth by a Minister or an accountable authority of a non‑corporate Commonwealth entity.
Arrangements with other persons
(7) This section does not, by implication, prevent an arrangement under section 516D between the Commonwealth and a person other than a constitutional corporation or a State or Territory from being made subject to terms and conditions.
516F Executive power of the Commonwealth
This Part does not, by implication, limit the executive power of the Commonwealth.
516G Relationship of this Part with the Public Governance, Performance and Accountability Act 2013
Section 23 of the Public Governance, Performance and Accountability Act 2013 (which deals with the power of accountable authorities in relation to arrangements and commitments) does not authorise the accountable authority of a non‑corporate Commonwealth entity to exercise, on behalf of the Commonwealth, a power conferred on the Commonwealth by section 516D of this Act.
Chapter 7—Miscellaneous
Part 22—Miscellaneous
517 Determinations of species
(1) The Minister may, by legislative instrument, determine that a distinct population of biological entities is a species for the purposes of this Act.
(3) A determination does not apply for the purposes of Part 13A.
(4) Subsection (3) does not affect the meaning of the expression listed threatened species when used in Part 13A.
517A Exemption for activities that might harm particular species introduced into particular areas
Provisions for which this section applies
(1) This section applies for the purposes of the provisions of the following sections:
(a) sections 18 and 18A;
(b) sections 20 and 20A;
(c) sections 196 to 196E;
(d) section 207B;
(e) sections 211 to 211E;
(f) sections 254 to 254E.
Minister may exempt carrying on of activities
(2) The Minister may, in writing, exempt from the provisions mentioned in subsection (1) the carrying on of particular activities by particular persons (or a particular class of persons), in a particular area, that will or may have an impact on a particular species or its habitat. The species must be a listed threatened species, a listed migratory species or a listed marine species.
Matters Minister must be satisfied of
(3) An exemption under subsection (2) may only be given if the Minister is satisfied that:
(a) members of the species have been, or are proposed to be, introduced into the area by or on behalf of a person (whether the person is a Commonwealth agency or otherwise); and
(b) the purpose of the introduction, or proposed introduction, of the members of the species into the area was or is to make a contribution to the conservation of the species; and
(c) carrying on the activities in the area will or may have an impact on members of the species, or their habitat, but any such impact would be incidental to, and not the purpose of, the activities; and
(d) if the person referred to in paragraph (a) is not the person who is or will be primarily responsible for carrying out the activities—the person who is or will be so responsible has agreed to the introduction of the members of the species into the area.
(4) For the purpose of deciding whether to give an exemption under subsection (2), the Minister may (subject to subsection (3)):
(a) have regard to any matters the Minister considers appropriate; and
(b) seek, and have regard to, information or advice from any source.
What must be specified in an exemption
(5) An exemption under subsection (2) must:
(a) specify the species to which it applies; and
(b) specify the area to which it applies; and
(c) specify the activities to which it applies; and
(d) specify the persons (or classes of persons) who, if they engage in actions that are within the activities, are covered by the exemption.
When an exemption comes into force
(6) An exemption under subsection (2) comes into force on the day the Minister gives the exemption, or on a later day specified in the exemption.
Actions covered by exemption do not contravene provisions for which this section applies
(7) While an exemption under subsection (2) is in force, an action of a person does not contravene any of the provisions mentioned in subsection (1), in so far as the provisions apply in relation to a member of the species specified as mentioned in paragraph (5)(a), if:
(a) the action occurs in the area specified as mentioned in paragraph (5)(b); and
(b) the action is within the activities specified as mentioned in paragraph (5)(c); and
(c) the person is a person, or is a member of a class of persons, specified as mentioned in paragraph (5)(d).
Note 1: If the action also has an impact on a member of another species that is not covered by an exemption under subsection (2), subsection (7) does not affect the question whether the action may contravene a provision mentioned in subsection (1), in so far as the provision applies to the other species.
Note 2: In a prosecution for an offence against a provision mentioned in subsection (1), the defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.
Exemption is not a legislative instrument
(8) An exemption under subsection (2) is not a legislative instrument.
518 Non‑compliance with time limits
(1) Anything done by the Commonwealth, the Minister or the Secretary under this Act or the regulations is not invalid merely because it was not done within the period required by this Act or the regulations.
(2) If, during a financial year, one or more things required to be done under this Act or the regulations were not done within the period required by this Act or the regulations, the Minister must:
(a) cause to be prepared a statement setting out the reasons why each of those things was not done within the period required by this Act or the regulations; and
(b) cause a copy of the statement to be laid before each House of the Parliament as soon as practicable after the end of the financial year.
(3) Subsection (1) does not reduce or remove an obligation under this Act or the regulations to do a thing within a particular period.
519 Compensation for acquisition of property
When compensation is necessary
(1) If, apart from this section, the operation of this Act would result in an acquisition of property from a person that would be invalid because of paragraph 51(xxxi) of the Constitution (which deals with acquisition of property on just terms) the Commonwealth must pay the person a reasonable amount of compensation.
Definition
(2) In this Act:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
Court can decide amount of compensation
(3) If the Commonwealth and the person do not agree on the amount of compensation to be paid, the person may apply to the Federal Court for the recovery from the Commonwealth of a reasonable amount of compensation fixed by the Court.
Other compensation to be taken into account
(4) In assessing compensation payable by the Commonwealth, the Court must take into account any other compensation or remedy arising out of the same event or situation.
520 Regulations
(1) The Governor‑General may make regulations prescribing all matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) The regulations may prescribe penalties for offences against the regulations. A penalty must not be more than 50 penalty units.
(3) Regulations may be made for and in relation to giving effect to any of the following agreements:
(a) the Apia Convention;
(b) the Convention for the Protection of the Natural Resources and Environment of the South Pacific (the SPREP Convention) signed at Noumea on 24 November 1986;
(c) the Bonn Convention;
(d) CAMBA;
(e) JAMBA;
(f) an agreement between the Commonwealth and one or more other countries relating to whales;
(g) the World Heritage Convention;
(h) the Ramsar Convention;
(i) the Biodiversity Convention;
(j) CITES;
(k) the Framework Convention on Climate Change done at New York on 9 May 1992.
(4) Regulations made in relation to an agreement that has not entered into force for Australia are not to come into operation on a day earlier than the day on which the agreement enters into force for Australia.
(4A) The regulations may prescribe fees that are payable for services the Minister or Secretary provides in performing functions, or exercising powers, under this Act or the regulations.
(4B) A fee prescribed by the regulations is payable to the Commonwealth.
(4C) Regulations prescribing fees may also:
(a) prescribe fees in respect of:
(i) a particular class of decision; or
(ii) a particular class of action; or
(iii) a particular class of person; and
(b) prescribe 2 or more fees for the same matter; and
(c) prescribe a method for working out a fee; and
(d) prescribe a method for working out the refund of part of a fee; and
(e) deal with other matters, including the following:
(i) specifying the way in which, and times at which, a fee is to be paid;
(ii) specifying the fees that must be paid, and by whom, in the event of a transfer under section 145B or a change of person proposing to take an action under section 156F;
(iii) the consequences of failure to pay a specified fee;
(iv) the circumstances in which the Minister may waive a fee;
(v) the circumstances in which a person is exempt from paying a specified fee;
(vi) the circumstances in which a fee may be refunded, in whole or in part.
(5) Subsections (3), (4A) and (4C) do not limit subsection (1).
(6) The regulations may prohibit or regulate the export from an external Territory to Australia or another external Territory of:
(a) CITES specimens; and
(b) regulated native specimens.
(7) The regulations may prohibit or regulate the import into an external Territory from Australia or another external Territory of:
(a) CITES specimens; and
(b) regulated live specimens.
(8) The regulations may prohibit or regulate the possession in an external Territory of:
(a) specimens that have been imported into that Territory in contravention of regulations made for the purposes of subsection (7); or
(b) the progeny of such specimens.
520A Statements about the application of the Act
(1) The Minister may issue, in writing, statements about the way in which the Minister considers that provisions of the Act or the regulations apply or would apply to:
(a) persons generally or a class of persons; or
(b) persons generally or a class of persons in relation to particular circumstances.
(2) A statement made under subsection (1) is not a legislative instrument.
521 Fees and charges must not be taxes
A fee or charge provided for by or under this Act, and whether prescribed by the regulations or not, must be reasonably related to the expenses incurred or to be incurred by the Commonwealth in relation to the matters to which the fee or charge relates and must not be such as to amount to taxation.
521A Time does not run if all or part of fee remains unpaid
(1) If:
(a) one or more fees are payable in respect of a service the Minister or Secretary provides in performing functions, or exercising powers, under this Act or the regulations; and
(b) a provision of this Act or the regulations:
(i) requires or allows the Minister or Secretary to do a thing relating to the service; or
(ii) requires or allows the Minister or Secretary to do a thing relating to the service within a particular period; and
(c) all of part of a fee relating to the service remains unpaid;
then:
(d) if subparagraph (b)(i) applies—the Minister or Secretary need not do the thing until all of the required fee is paid; and
(e) if subparagraph (b)(ii) applies and the period has not begun—the period does not begin until all of the required fee is paid; and
(f) if subparagraph (b)(ii) applies and the period has begun—the period stops until all of the required fee is paid and, when paid, begins again for the balance of the period.
(2) For the purposes of paragraphs (1)(e) and (f), the day that all of the required fee is paid is not to be counted in the relevant period.
522 Financial assistance etc. to be paid out of appropriated money
Payment of amounts of financial assistance under this Act, and of any amounts that the Commonwealth is required to pay to a person under this Act or an agreement made under this Act, are to be made out of money appropriated by the Parliament for the purpose.
522A Review of operation of Act
(1) The Minister must cause independent reviews to be undertaken by a person or body of:
(a) the operation of this Act; and
(b) the extent to which the objects of this Act have been achieved.
(2) The first review must be undertaken within 10 years of the commencement of this Act. Later reviews must be undertaken at intervals of not more than 10 years.
(3) The person or body undertaking a review must give a report of the review to the Minister.
(4) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it.
Chapter 8—Definitions
Part 23—Definitions
Division 1—Some definitions relating to particular topics
Subdivision A—Actions
523 Actions
(1) Subject to this Subdivision, action includes:
(a) a project; and
(b) a development; and
(c) an undertaking; and
(d) an activity or series of activities; and
(e) an alteration of any of the things mentioned in paragraph (a), (b), (c) or (d).
524 Things that are not actions
(1) This section applies to a decision by each of the following kinds of person (government body):
(a) the Commonwealth;
(b) a Commonwealth agency;
(c) a State;
(d) a self‑governing Territory;
(e) an agency of a State or self‑governing Territory;
(f) an authority established by a law applying in a Territory that is not a self‑governing Territory.
(2) A decision by a government body to grant a governmental authorisation (however described) for another person to take an action is not an action.
(3) To avoid doubt, a decision by the Commonwealth or a Commonwealth agency to grant a governmental authorisation under one of the following Acts is not an action:
(a) the Customs Act 1901;
(b) the Export Control Act 2020;
(c) the Export Finance and Insurance Corporation Act 1991;
(d) the Fisheries Management Act 1991;
(e) the Foreign Acquisitions and Takeovers Act 1975;
(f) the Offshore Petroleum and Greenhouse Gas Storage Act 2006;
(g) the Biosecurity Act 2015;
(h) the Competition and Consumer Act 2010;
(i) the Offshore Electricity Infrastructure Act 2021.
This subsection does not limit this section.
524A Provision of grant funding is not an action
Provision of funding by way of a grant by one of the following is not an action:
(a) the Commonwealth;
(b) a Commonwealth agency;
(c) a State;
(d) a self‑governing Territory;
(e) an agency of a State or self‑governing Territory;
(f) an authority established by a law applying in a Territory that is not a self‑governing Territory.
Subdivision B—Areas
525 Commonwealth areas
What is a Commonwealth area?
(1) Each of the following, and any part of it, is a Commonwealth area:
(a) land owned by the Commonwealth or a Commonwealth agency and airspace over the land;
(b) an area of land held under lease by the Commonwealth or a Commonwealth agency and airspace over the land;
(c) land in:
(i) an external Territory; or
(ii) the Jervis Bay Territory;
and airspace over the land;
(d) the coastal sea of Australia or an external Territory;
(e) the continental shelf, and the waters and airspace over the continental shelf;
(f) the waters of the exclusive economic zone, the seabed under those waters and the airspace above those waters;
(g) any other area of land, sea or seabed that is included in a Commonwealth reserve.
Territory Land in ACT is not a Commonwealth area
(2) Despite paragraph (1)(a), an area of land that is Territory Land, within the meaning of the Australian Capital Territory (Planning and Land Management) Act 1988 is not a Commonwealth area merely because of that paragraph, unless it is held under lease by the Commonwealth or a Commonwealth agency.
Freehold land in Christmas Island Territory is not a Commonwealth area
(2A) Despite subparagraph (1)(c)(i), an area of land in the Territory of Christmas Island is not a Commonwealth area merely because of that subparagraph if a person holds a freehold interest in the land.
Coastal waters of States and NT are not Commonwealth areas
(3) Despite paragraphs (1)(d), (e) and (f), none of the following areas (or parts of them) are Commonwealth areas:
(a) the seabed vested in a State under section 4 of the Coastal Waters (State Title) Act 1980; and
(b) the seabed vested in the Northern Territory under section 4 of the Coastal Waters (Northern Territory Title) Act 1980; and
(c) the subsoil under the seabed described in paragraph (a) or (b); and
(d) any water and airspace over seabed described in paragraph (a) or (b).
Subdivision C—Entities
526 Subsidiaries of bodies corporate
The question whether a body corporate is a subsidiary of a body or company is to be determined in the same way as the question whether a body corporate is a subsidiary of another body corporate is determined for the purposes of the Corporations Act 2001.
Subdivision D—Criminal law
527 Convictions
A reference in this Act to a conviction of a person of an offence includes a reference to making an order under section 19B of the Crimes Act 1914 in relation to the person in respect of the offence.
Subdivision E—Specimens
527A Specimens
(1) For the purposes of this Act, a specimen is:
(a) an animal; or
(b) animal reproductive material; or
(c) the skin, feathers, horns, shell or any other part of an animal; or
(d) any article wholly produced by or from, or otherwise wholly derived from, a single animal; or
(e) a plant; or
(f) plant reproductive material; or
(g) any part of a plant; or
(h) any article wholly produced by or from, or otherwise wholly derived from, a single plant.
(2) However, a fossil, or a mineralised deposit, is not a specimen for the purposes of this Act.
(3) In any provision of this Act, references to a specimen are to be read as including references to an article that consists of, or is derived from:
(a) a specimen and material other than a specimen; or
(b) 2 or more specimens; or
(c) 2 or more specimens and material other than a specimen.
(4) If an article consists of, or is derived from, 2 or more specimens, either with or without any material other than a specimen, then this Act applies to and in relation to that article separately in so far as it consists of, or is derived from, each of those specimens.
(5) For the purposes of this Act:
(a) if a live animal (other than animal reproductive material) that was bred in captivity dies, the dead animal and specimens derived from the dead animal are taken to be specimens derived from that live animal; and
(b) if a live plant (other than plant reproductive material) that was artificially propagated dies, the dead plant and specimens derived from the dead plant are taken to be specimens derived from that live plant; and
(c) a specimen covered by paragraph (1)(b), (c) or (d) is taken to be derived from the animal concerned; and
(d) a specimen covered by paragraph (1)(f), (g) or (h) is taken to be derived from the plant concerned; and
(e) if a specimen is derived from an animal that belongs to a particular species or taxon, the specimen is taken to belong to that species or taxon; and
(f) if a specimen is derived from a plant that belongs to a particular species or taxon, the specimen is taken to belong to that species or taxon.
(6) In this section:
this Act does not include sections 356 and 390E.
527B Breeding in captivity
For the purposes of this Act, a live animal of a particular kind is taken to have been bred in captivity if, and only if, it was bred in circumstances declared by the regulations to be circumstances the breeding in which of:
(a) any live animal; or
(b) any live animal of that kind; or
(c) any live animal included in a class of live animals that includes live animals of that kind;
would constitute breeding in captivity.
527C Artificial propagation
For the purposes of this Act, a live plant of a particular kind is taken to have been artificially propagated if, and only if, it was propagated in circumstances declared by the regulations to be circumstances the propagation in which of:
(a) any live plant; or
(b) any live plant of that kind; or
(c) any live plant included in a class of live plants that includes live plants of that kind;
would constitute artificial propagation.
527D Things represented to be CITES specimens
(1) For the purposes of this Act, if a thing is represented by an accompanying document, the package or a mark or label, or from any other circumstances, to be:
(a) the skin, feathers, horns, shell or any other part of a CITES listed animal; or
(b) part of a CITES listed plant; or
(c) reproductive material from a CITES listed animal or a CITES listed plant; or
(d) an article produced by or from, or derived from, one or more CITES listed animals or one or more CITES listed plants, whether with or without any other material;
then the thing is taken to be a CITES specimen.
Note: This subsection has the effect (among other things) of widening the scope of sections 303CC, 303CD and 303GN, which are offence provisions relating to the export, import and possession of specimens.
(2) The Minister must not issue a permit under section 303CG authorising the export or import of a thing that is taken under subsection (1) to be a CITES specimen unless the thing is a CITES specimen apart from subsection (1).
(3) In this section:
CITES listed animal means an animal of a species included in Appendix I, II or III to CITES.
CITES listed plant means a plant of a species included in Appendix I, II or III to CITES.
export has the same meaning as in Part 13A.
import has the same meaning as in Part 13A.
Subdivision F—Impacts
527E Meaning of impact
(1) For the purposes of this Act, an event or circumstance is an impact of an action taken by a person if:
(a) the event or circumstance is a direct consequence of the action; or
(b) for an event or circumstance that is an indirect consequence of the action—subject to subsection (2), the action is a substantial cause of that event or circumstance.
(2) For the purposes of paragraph (1)(b), if:
(a) a person (the primary person) takes an action (the primary action); and
(b) as a consequence of the primary action, another person (the secondary person) takes another action (the secondary action); and
(c) the secondary action is not taken at the direction or request of the primary person; and
(d) an event or circumstance is a consequence of the secondary action;
then that event or circumstance is an impact of the primary action only if:
(e) the primary action facilitates, to a major extent, the secondary action; and
(f) the secondary action is:
(i) within the contemplation of the primary person; or
(ii) a reasonably foreseeable consequence of the primary action; and
(g) the event or circumstance is:
(i) within the contemplation of the primary person; or
(ii) a reasonably foreseeable consequence of the secondary action.
Division 2—General list of definitions
528 Definitions
In this Act, unless the contrary intention appears:
accredited authorisation process has the meaning given by subsection 33(2A).
accredited management arrangement has the meaning given by subsection 33(2).
acquisition of property has the meaning given by subsection 519(2).
action has the meaning given by Subdivision A of Division 1 of Part 23.
action management plan, in relation to an action, means a plan for managing the impacts of the action on a matter protected by a provision of Part 3, such as a plan for conserving habitat of a species.
advisory body has the meaning given by section 510A.
agency of a State or self‑governing Territory means:
(a) a Minister of the State or Territory; or
(b) a body corporate established for a public purpose by a law of the State or Territory; or
(c) a body corporate established by:
(i) the Governor of the State; or
(ii) if the Territory is the Australian Capital Territory—the Governor‑General acting in relation to the Australian Capital Territory; or
(iii) if the Territory is the Northern Territory—the Administrator of the Territory; or
(iv) a Minister of the State or Territory;
otherwise than by or under a law of the State or Territory; or
(d) a company in which the whole of the shares or stock, or shares or stock carrying more than one‑half of the voting power, is or are owned by or on behalf of the State or Territory; or
(e) a body corporate that is a subsidiary of:
(i) a body or company referred to in paragraph (b), (c) or (d); or
(ii) a body corporate that, because of a previous application or previous applications of this paragraph, is taken to be an agency of the State or Territory for the purposes of this definition; or
(f) a person holding, or performing the duties of:
(i) an office established by or under a law of the State or Territory (except a judicial office or an office of member of a tribunal); or
(ii) an appointment made under a law of the State or Territory (except appointment to a judicial office or an office of member of a tribunal); or
(g) a person holding, or performing the duties of, an appointment made by:
(i) the Governor of the State; or
(ii) if the Territory is the Australian Capital Territory—the Governor‑General acting in relation to the Australian Capital Territory; or
(iii) if the Territory is the Northern Territory—the Administrator of the Territory; or
(iv) a Minister of the State or Territory;
otherwise than by or under a law of the State or Territory.
aggravated offence:
(a) in Subdivision B of Division 1 of Part 13—has the meaning given by section 196F; and
(b) in Subdivision B of Division 2 of Part 13—has the meaning given by section 211F; and
(c) in Subdivision B of Division 4 of Part 13—has the meaning given by section 254F.
aircraft means an apparatus that can derive support in the atmosphere from the reactions of the air.
animal means any member, alive or dead, of the animal kingdom (other than a human being).
animal reproductive material means:
(a) an embryo, an egg or sperm of an animal; or
(b) any other part, or product, of an animal from which another animal could be produced.
Antarctic has the same meaning as in the Antarctic Treaty (Environment Protection) Act 1980.
Apia Convention means the Convention on Conservation of Nature in the South Pacific, done at Apia, Western Samoa, on 12 June 1976, 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 1990 No. 41.
approval means:
(a) in relation to an action:
(i) an approval of the taking of the action under subsection 133(1); or
(ii) an approval of the taking of the action under subsection 146B(1) in accordance with an endorsed policy, plan or program; or
(b) in relation to a class of actions—an approval of the taking of the class of actions under subsection 146B(1) in accordance with an endorsed policy, plan or program.
approved conservation advice has the meaning given by subsection 266B(2).
article includes a substance or a mixture of substances.
artificially propagated, in relation to a plant or plant reproductive material, has the meaning given by section 527C.
assess an action includes assess the impacts that the action:
(a) has or will have; or
(b) is likely to have.
assessment report has the meaning given by subsection 130(2).
Australian aircraft has the meaning given by subsection 5(5).
Australian Biosphere reserve management principles has the meaning given by section 340.
Australian Heritage Council means the body established by the Australian Heritage Council Act 2003.
Australian IUCN reserve management principles has the meaning given by subsection 348(1).
Australian jurisdiction has the meaning given by subsection 5(5).
Australian national has the meaning given by subsection 5(5).
Australian permanent resident has the meaning given by subsection 5(5).
Australian Ramsar management principles has the meaning given by section 335.
Australian vessel has the meaning given by subsection 5(5).
Australian Whale Sanctuary has the meaning given by subsection 225(2).
Australian World Heritage management principles has the meaning given by section 323.
authorisation process means a process set out in a law of the Commonwealth or a State or Territory under which actions are authorised.
authorised officer means:
(a) a warden; or
(b) an inspector.
baggage has the meaning given by section 443.
bilateral agreement has the meaning given by subsection 45(2).
bilaterally accredited authorisation process has the meaning given by subsection 46(2A).
bilaterally accredited management arrangement has the meaning given by subsection 46(2).
biodiversity means the variability among living organisms from all sources (including terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part) and includes:
(a) diversity within species and between species; and
(b) diversity of ecosystems.
Biodiversity Convention means the Convention on Biological Diversity done at Rio de Janeiro on 5 June 1992, as amended and in force for Australia from time to time.
Note: The English text of this Convention is set out in Australian Treaty Series 1993 No. 32.
biological resources includes genetic resources, organisms, parts of organisms, populations and any other biotic component of an ecosystem with actual or potential use or value for humanity.
bioregional assessment, in relation to an area, means the scientific analysis of the ecology, hydrology and geology of the area for the purpose of assessing the potential direct and indirect impacts of unconventional gas development or large coal mining development on water resources in the area, including any impacts of associated salt production and/or salinity.
bioregional plan means a bioregional plan for a bioregion as mentioned in section 176.
Biosphere reserve has the meaning given by section 337.
Board means a Board established under section 377.
Bonn Convention means the Convention on the Conservation of Migratory Species of Wild Animals done at Bonn on 23 June 1979, 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 1991 No. 32.
bred in captivity, in relation to an animal or animal reproductive material, has the meaning given by section 527B.
CAMBA means the Agreement between the Government of Australia and the Government of the People’s Republic of China for the protection of Migratory Birds and their Environment done at Canberra on 20 October 1986, as amended and in force for Australia from time to time.
Note: The English text of the Agreement is set out in Australian Treaty Series 1988 No. 22.
cetacean means a member of the sub‑order Mysticeti or Odontoceti of the Order Cetacea, and includes:
(a) a part of such a member; and
(b) any animal reproductive material of such a member, or any part of such reproductive material; and
(c) any product derived from such a member; and
(d) the whole or part of the dead body of such a member; and
(e) any product derived from the dead body, or part of the dead body, of such a member.
CITES means the Convention on International Trade in Endangered Species of Wild Fauna and Flora done at Washington on 3 March 1973, 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 1976 No. 29.
CITES I specimen has the meaning given by subsection 303CA(2).
CITES II specimen has the meaning given by subsection 303CA(3).
CITES III specimen has the meaning given by subsection 303CA(4).
CITES specimen has the meaning given by subsection 303CA(1).
civil penalty provision has the meaning given by section 482.
coastal sea of Australia or an external Territory has the same meaning as in subsection 15B(4) of the Acts Interpretation Act 1901.
coastal waters of a State or the Northern Territory has the meaning given by section 227.
commercial fishing activity has the meaning given by subsection 390SC(1A).
commissioner means a person holding an appointment under paragraph 107(1)(a).
Commonwealth agency means:
(a) a Minister; or
(b) a body corporate established for a public purpose by a law of the Commonwealth; or
(c) a body corporate established by a Minister otherwise than under a law of the Commonwealth; or
(d) a company in which the whole of the shares or stock, or shares or stock carrying more than one‑half of the voting power, is or are owned by or on behalf of the Commonwealth; or
(e) a body corporate that is a subsidiary of:
(i) a body or company referred to in paragraph (b), (c) or (d); or
(ii) a body corporate that, because of a previous application or previous applications of this paragraph, is taken to be a Commonwealth agency for the purposes of this definition; or
(f) a person holding, or performing the duties of:
(i) an office established by or under a law of the Commonwealth (except a judicial office or office of member of a tribunal); or
(ii) an appointment made under a law of the Commonwealth (except an appointment to a judicial office or office of member of a tribunal); or
(g) a person holding, or performing the duties of, an appointment made by the Governor‑General, or by a Minister, otherwise than under a law of the Commonwealth;
but does not include:
(h) a person holding an office established by or under any of the following Acts, or holding an appointment made under any of them:
(i) the Northern Territory (Self‑Government) Act 1978;
(ii) the Norfolk Island Act 1979;
(iii) the Australian Capital Territory (Self‑Government) Act 1988; or
(i) any of the following:
(i) an Aboriginal Land Trust, or an Aboriginal Land Council, established under the Aboriginal Land Rights (Northern Territory) Act 1976;
(ii) a corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006;
(iii) the Wreck Bay Aboriginal Community Council established by the Aboriginal Land and Waters (Jervis Bay Territory) Act 1986; or
(j) a company prescribed by the regulations for the purposes of this paragraph.
Commonwealth aircraft has the meaning given by section 403.
Commonwealth area has the meaning given by section 525.
Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013.
Commonwealth Heritage criteria has the meaning given by subsection 341D(1).
Commonwealth Heritage List means the list referred to in section 341C.
Commonwealth Heritage management principles has the meaning given by section 341Y.
Commonwealth Heritage place has the meaning given by subsection 341C(3).
Commonwealth Heritage value has the meaning given by section 341D.
Commonwealth land has the meaning given by section 27.
Commonwealth marine area has the meaning given by section 24.
Commonwealth reserve means a reserve declared under Division 4 of Part 15.
Commonwealth ship has the meaning given by section 403.
components of biodiversity has the meaning given by subsection 171(3).
conservation agreement means an agreement made under section 305.
conservation dependent: a native species may be included in the conservation dependent category of the list of threatened native species in accordance with Subdivision A of Division 1 of Part 13.
conservation dependent species means a listed threatened species that is included in the conservation dependent category of the list referred to in section 178.
conservation order means an order made under section 464 (with variations (if any) under section 466 or 469).
conservation zone means a Commonwealth area that is declared to be a conservation zone under Division 5 of Part 15.
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
continental shelf means:
(a) the continental shelf (as defined in the Seas and Submerged Lands Act 1973) of Australia (including its external Territories); or
(b) the Greater Sunrise special regime area.
continuation of a use of land, sea or seabed has the meaning given by section 43B.
control: a Commonwealth agency controls a place only if the agency has rights (whether arising under a law, lease, licence or otherwise) to:
(a) occupy or use the place; and
(b) take actions in relation to the place that could potentially have an impact on heritage values that the place may have.
controlled action has the meaning given by section 67.
controlling provision has the meaning given by section 67.
convict a person of an offence has a meaning affected by section 527.
copy, when used in relation to a warrant issued under section 409 or 416 (or a form of warrant completed under subsection 409A(6) or 416(6)), includes:
(a) a copy sent by fax or other electronic means; or
(b) a copy of a copy so sent.
country includes a place that is a territory, dependency or colony (however described) of a foreign country.
critical habitat for a listed threatened species or a listed threatened ecological community has the meaning given by subsection 207A(4).
critically endangered:
(a) a native species may be included in the critically endangered 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 critically endangered category of the list of threatened ecological communities in accordance with Subdivision A of Division 1 of Part 13.
daily newspaper means a newspaper that is ordinarily published on each day that is a business day in the place where the newspaper is published, whether or not the newspaper is ordinarily published on other days.
declaration affected person has the meaning given by subsection 390SE(3).
declared commercial fishing activity has the meaning given by subsection 390SC(1).
declared Ramsar wetland has the meaning given by section 17.
declared State or Territory means a State or self‑governing Territory that is declared by the Minister under section 505E.
declared World Heritage property has the meaning given by section 13.
designated proponent of an action means the person designated under Division 2 of Part 7 as the proponent of the action.
directed environmental audit has the meaning given by subsection 460(4).
Director means the Director of National Parks referred to in section 514A.
Director of Biosecurity has the same meaning as in the Biosecurity Act 2015.
dory means:
(a) a vessel in relation to which a licence or other permission (however described and whether or not in force) has been granted under a law of the Commonwealth, a State or a Territory authorising the vessel to be used in association with a primary commercial fishing vessel; or
(b) a vessel that is used in association with a primary commercial fishing vessel.
Note: A dory might also be known as a tender commercial fishing vessel.
ecological character has the meaning given by subsection 16(3).
ecological community means the extent in nature in the Australian jurisdiction of an assemblage of native species that:
(a) inhabits a particular area in nature; and
(b) meets the additional criteria specified in the regulations (if any) made for the purposes of this definition.
ecologically sustainable use of natural resources means use of the natural resources within their capacity to sustain natural processes while maintaining the life‑support systems of nature and ensuring that the benefit of the use to the present generation does not diminish the potential to meet the needs and aspirations of future generations.
ecosystem means a dynamic complex of plant, animal and micro‑organism communities and their non‑living environment interacting as a functional unit.
eligible seizable item means anything that would present a danger to a person or that could be used to assist a person to escape from lawful custody.
endangered:
(a) a native species may be included in the endangered 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 endangered category of the list of threatened ecological communities in accordance with Subdivision A of Division 1 of Part 13.
environment includes:
(a) ecosystems and their constituent parts, including people and communities; and
(b) natural and physical resources; and
(c) the qualities and characteristics of locations, places and areas; and
(d) heritage values of places; and
(e) the social, economic and cultural aspects of a thing mentioned in paragraph (a), (b), (c) or (d).
environmental authorisation has the meaning given by section 43A.
environmental authority has the meaning given by subsection 458(4).
environmental law means:
(a) this Act; or
(b) the regulations; or
(c) the Great Barrier Reef Marine Park Act 1975; or
(d) regulations made under the Great Barrier Reef Marine Park Act 1975.
environmental penalty provision means:
(a) a civil penalty provision under this Act; or
(b) a civil penalty provision under the Great Barrier Reef Marine Park Act 1975.
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
evidential material has the meaning given by subsection 406(2).
exclusive economic zone means the exclusive economic zone (as defined in the Seas and Submerged Lands Act 1973) of Australia (including its external Territories).
executing officer, in relation to a warrant, means:
(a) the authorised officer named in the warrant as being responsible for executing the warrant; or
(b) if that authorised officer does not intend to be present at the execution of the warrant—another authorised officer whose name has been written in the warrant by the authorised officer so named; or
(c) another authorised officer whose name has been written in the warrant by the authorised officer last named in the warrant.
executive officer of a body corporate has the meaning given by section 493.
extinct: a native species may be included in the extinct category of the list of threatened native species in accordance with Subdivision A of Division 1 of Part 13.
extinct in the wild: a native species may be included in the extinct in the wild category of the list of threatened native species in accordance with Subdivision A of Division 1 of Part 13.
Federal Court means the Federal Court of Australia.
Federal Register of Legislation means the Federal Register of Legislation established under the Legislation Act 2003.
fish has the same meaning as in the Fisheries Management Act 1991.
Fisheries Minister means the Minister administering the Fisheries Management Act 1991.
fishing has the same meaning as in the Fisheries Management Act 1991.
fishing activity has the meaning given by subsection 390SC(2).
fishing concession has the same meaning as in the Fisheries Management Act 1991.
foreign whaling vessel has the meaning given by subsection 236(5).
frisk search has the meaning given by subsection 413(3).
genetic resources means any material of plant, animal, microbial or other origin that contains functional units of heredity and that has actual or potential value for humanity.
goods has the meaning given by section 443.
Great Barrier Reef Marine Park means the Great Barrier Reef Marine Park established under the Great Barrier Reef Marine Park Act 1975.
Great Barrier Reef Marine Park Authority means the Great Barrier Reef Marine Park Authority established by the Great Barrier Reef Marine Park Act 1975.
Greater Sunrise special regime area has the meaning given by subsection 5(5).
habitat means the biophysical medium or media:
(a) occupied (continuously, periodically or occasionally) by an organism or group of organisms; or
(b) once occupied (continuously, periodically or occasionally) by an organism, or group of organisms, and into which organisms of that kind have the potential to be reintroduced.
heritage value of a place includes the place’s natural and cultural environment having aesthetic, historic, scientific or social significance, or other significance, for current and future generations of Australians.
holder means:
(a) in the case of a permit issued under Chapter 5—the person to whom the permit was issued or transferred, as the case may be; or
(b) in the case of an approval under Part 9:
(i) the person named in the approval under paragraph 133(2)(c); or
(ii) if the approval is transferred under section 145B—the person to whom the approval is transferred; or
(c) in the case of an approval under section 146B:
(i) the person named in the approval under paragraph 146B(2)(ba); or
(ii) if the approval is transferred under section 145B (as applied by section 146DD)—the person to whom the approval is transferred; or
(d) in the case of a marine park permission—the person who is the holder of the permission under regulations made under the Great Barrier Reef Marine Park Act 1975.
impact has the meaning given by section 527E.
important cetacean habitat area means an area declared, by a declaration in force under subsection 228A(1), to be an important cetacean habitat area.
Independent Expert Scientific Committee on Unconventional Gas Development and Large Coal Mining Development means the Committee established by section 505C.
Indigenous Advisory Committee means the Committee established by section 505A.
indigenous heritage value of a place means a heritage value of the place that is of significance to indigenous persons in accordance with their practices, observances, customs, traditions, beliefs or history.
indigenous people’s land has the meaning given by subsection 363(3).
indigenous person has the meaning given by subsection 363(4).
indigenous tradition has the meaning given by section 201.
inspector means:
(a) a person appointed as an inspector under section 396;
(b) a person who is an inspector because of section 397; or
(c) a person who is an inspector because of an arrangement entered into under section 398.
interested person has the meaning given by section 475.
interfere with a cetacean has the meaning given by subsection 229B(4).
IUCN category has the meaning given by subsection 346(1).
JAMBA means the Agreement between the Government of Japan and the Government of Australia for the Protection of Migratory Birds and Birds in Danger of Extinction and their Environment done at Tokyo on 6 February 1974, as amended and in force for Australia from time to time.
Note: The English text of the Agreement is set out in Australian Treaty Series 1981 No. 6.
jointly managed reserve has the meaning given by subsection 363(5).
Kakadu National Park has the meaning given by subsection 387(3).
Kakadu region has the meaning given by subsection 386(1).
keep a cetacean or member of a listed threatened species, listed migratory species, listed marine species or listed threatened ecological community means:
(a) in the case of a cetacean, or a species of animal or community of animals—have charge or possession of the cetacean or member, either in captivity or in a domesticated state; and
(b) in the case of a species of plant or community of plants—have possession of the member.
key threatening process means a threatening process included in the list referred to in section 183.
land has the meaning given by subsection 345(2).
land council for indigenous people’s land has the meaning given by subsection 363(2).
large coal mining development means any coal mining activity 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.
large‑scale disposal facility for radioactive waste has a meaning affected by subsection 22(2).
list includes a list containing no items.
listed marine species means a marine species included in the list referred to in section 248.
listed migratory species means a migratory species included in the list referred to in section 209.
listed threatened ecological community means an ecological community included in the list referred to in section 181.
listed threatened species means a native species included in the list referred to in section 178.
List of Overseas Places of Historic Significance to Australia means the record referred to in section 390K.
live animal includes animal reproductive material.
live plant includes plant reproductive material.
longfin mako shark means the listed migratory species with the common name longfin mako shark and the scientific name Isurus paucus.
magistrate means a magistrate who is remunerated by salary or otherwise, and includes a Judge, or acting Judge, of the Local Court of the Northern Territory.
management arrangement includes:
(a) a management plan; and
(b) a regime; and
(c) a policy.
master of a foreign whaling vessel has the meaning given by subsection 236(5).
matter protected by a provision of Part 3 has the meaning given by section 34.
member includes:
(a) in relation to a species of animal (other than a species of cetacean):
(i) any part of an animal of the species; and
(ii) any animal reproductive material of an animal of the species, or any part of such reproductive material; and
(iii) the whole or any part of the dead body of an animal of the species; and
(b) in relation to a species of plant:
(i) any part of a plant of the species; and
(ii) any plant reproductive material of a plant of the species, or any part of such reproductive material; and
(iii) the whole or any part of a plant of the species that has died; and
(c) in relation to an ecological community:
(i) any part of an animal or plant of the community; and
(ii) any animal reproductive material of an animal, or plant reproductive material of a plant, of the community, or any part of such animal reproductive material or plant reproductive material; and
(iii) the whole or any part of an animal or plant of the community that has died.
migration zone has the same meaning as in the Migration Act 1958.
migratory species has the meaning given by subsection 209(8).
mineral has the meaning given by subsection 355(3).
mining operations has the meaning given by subsection 355(2).
monitoring power relating to premises has the meaning given by section 407.
monitoring warrant has the meaning given by section 409.
national of a foreign country has the meaning given by subsection 5(5).
national environmental standard means a national environmental standard made under subsection 514YD(1).
National Heritage criteria has the meaning given by subsection 324D(1).
National Heritage List means the list referred to in section 324C.
National Heritage management principles has the meaning given by section 324Y.
National Heritage place has the meaning given by subsection 324C(3).
National Heritage value has the meaning given by section 324D.
national interest exemption has the meaning given by subsection 157H(1).
native amphibian means an amphibian of a native species.
native animal means an animal of a native species.
native bird means a bird of a native species.
native mammal means a mammal of a native species.
native plant means a plant of a native species.
native reptile means a reptile of a native species.
native species means a species:
(a) that is indigenous to Australia or an external Territory; or
(b) that is indigenous to the seabed of the coastal sea of Australia or an external Territory; or
(c) that is indigenous to the continental shelf; or
(d) that is indigenous to the exclusive economic zone; or
(e) members of which periodically or occasionally visit:
(i) Australia or an external Territory; or
(ii) the exclusive economic zone; or
(f) that was present in Australia or an external Territory before 1400.
Note: A reference to Australia or an external Territory includes a reference to the coastal sea of Australia or the Territory. See section 15B of the Acts Interpretation Act 1901.
nuclear action has the meaning given by subsection 22(1).
nuclear installation has the meaning given by subsection 22(1).
occupier of premises means the person apparently in charge of the premises.
officer assisting, in relation to a warrant, means:
(a) an authorised officer who is assisting in executing the warrant; or
(b) a person who is not an authorised officer, but who has been authorised by the relevant executing officer to assist in executing the warrant.
officer of Customs has the same meaning as it has in the Customs Act 1901.
ordinary search has the meaning given in subsection 414(3).
organism includes:
(a) a virus; and
(b) the reproductive material of an organism; and
(c) an organism that has died.
Part 13 exemption has the meaning given by subsection 302A(1).
place includes:
(a) a location, area or region or a number of locations, areas or regions; and
(b) a building or other structure, or group of buildings or other structures (which may include equipment, furniture, fittings and articles associated or connected with the building or structure, or group of buildings or structures); and
(c) in relation to the protection, maintenance, preservation or improvement of a place—the immediate surroundings of a thing in paragraph (a) or (b).
plant means a member, alive or dead, of the plant kingdom or of the fungus kingdom, and includes a part of a plant and plant reproductive material.
plant reproductive material means:
(a) a seed or spore of a plant; or
(b) a cutting from a plant; or
(c) any other part, or product, of a plant from which another plant can be produced.
population of a species or ecological community means an occurrence of the species or community in a particular area.
porbeagle shark means the listed migratory species with the common name porbeagle shark and the scientific name Lamna nasus.
precautionary principle has the meaning given by subsection 391(2).
premises includes a place, vehicle, vessel and aircraft.
prescribed waters means waters in respect of which regulations made for the purposes of section 226 are in force.
primary commercial fishing vessel means:
(a) a vessel in relation to which a licence or other permission (however described and whether or not in force) has been granted under a law of the Commonwealth, a State or a Territory authorising the vessel to be used to take fish for commercial purposes; or
(b) a vessel that is used to take fish for commercial purposes.
principles of ecologically sustainable development has a meaning affected by section 3A.
progeny includes:
(a) in relation to an animal—any animal reproductive material of that animal or of any progeny of that animal; and
(b) in relation to a plant—any plant reproductive material of that plant or of any progeny of that plant; and
(c) in relation to a live animal that is animal reproductive material—any animal resulting from that material or any progeny of such animal; and
(d) in relation to a live plant that is plant reproductive material—any plant resulting from that material or any progeny of such plant.
To avoid doubt, a reference in this Act to progeny of an animal or a plant includes a reference to any descendant of that animal or plant.
protected information has the meaning given by subsection 515B(2).
radioactive waste has the meaning given by subsection 22(1).
Ramsar Convention means the Convention on Wetlands of International Importance especially as Waterfowl Habitat done at Ramsar, Iran, on 2 February 1971, 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. 48.
range of a species means the area where members of the species live, feed, breed or visit periodically or regularly.
ranger means a person holding an appointment as a ranger under Part 17.
recovery plan means a plan made or adopted under section 269A.
regulated live specimen has the meaning given by section 303EA.
regulated native specimen has the meaning given by section 303DA.
relevant impacts of an action has the meaning given by section 82.
relevant information has the meaning given by subsection 515B(1).
remediation determination means a determination, as in force from time to time, made under section 480D.
remediation order means an order, as in force from time to time, made under section 480A.
reprocessing has the meaning given by subsection 22(1).
responsible person for a policy, plan or program means the person responsible from time to time for the adoption or implementation of the policy, plan or program.
Scientific Committee means the Threatened Species Scientific Committee established by section 502.
seabed has the meaning given by subsection 345(2).
Secretary means the Secretary of the Department that:
(a) deals with the matter to which the provision containing the reference relates; and
(b) is administered by the Minister administering the provision.
seized has a meaning affected by section 406B.
self‑governing Territory means:
(a) the Australian Capital Territory; or
(b) the Northern Territory.
shortfin mako shark means the listed migratory species with the common name shortfin mako shark and the scientific name Isurus oxyrinchus.
species means a group of biological entities that:
(a) interbreed to produce fertile offspring; or
(b) possess common characteristics derived from a common gene pool;
and includes:
(c) a sub‑species; and
(ca) for the purposes of Part 13A—a distinct population of such biological entities; and
(d) except for the purposes of Part 13A—a distinct population of such biological entities that the Minister has determined, under section 517, to be a species for the purposes of this Act.
In this definition, the purposes of Part 13A:
(a) include the purposes of the definitions of CITES I species, CITES II species and CITES III species; and
(b) do not include determining the meaning of the expression listed threatened species when used in Part 13A.
specific environmental authorisation has the meaning given by section 43A.
specimen has the meaning given by section 527A.
spent nuclear fuel has the meaning given by subsection 22(1).
statement of expectations: see subsection 510B(1).
statement of intent: see subsection 510C(1).
State or Territory government body means:
(a) a Department of State of a State or Territory; or
(b) an agency of a State or Territory; or
(c) an authority of a State or Territory.
subsidiary of a body corporate has a meaning affected by section 526.
sub‑species means a geographically separate population of a species, being a population that is characterised by morphological or biological differences from other populations of that species.
take, except in Part 13A, includes:
(a) in relation to an animal—harvest, catch, capture and trap; and
(b) in relation to a plant—harvest, pick, gather and cut.
Note: For the meaning of take in Part 13A, see section 303BC.
taxon means any taxonomic category (for example, a species or a genus), and includes a particular population.
terms of reference:
(a) in relation to an inquiry under Division 7 of Part 8—has the meaning given by paragraph 107(1)(b); and
(b) in relation to an assessment under Division 3 of Part 15B—has the meaning given by paragraph 390SH(1)(b).
territorial sea means the territorial sea (as defined in the Seas and Submerged Lands Act 1973) of Australia (including its external Territories).
threat abatement plan means a plan made or adopted under section 270B.
threatening process has the meaning given by subsection 188(3).
trade:
(a) when used in the context of a reference to a member of a listed threatened species, listed migratory species, listed marine species or listed threatened ecological community—includes:
(i) buy the member, agree to receive it under an agreement to buy, agree to accept it under such an agreement or acquire it by barter; or
(ii) sell the member, offer it for sale, agree to sell it, have it in possession for the purpose of sale, deliver it for the purpose of sale, receive it for the purpose of sale or dispose of it by barter for the purpose of gain or advancement; or
(iii) export the member from Australia or an external Territory or import it into Australia or an external Territory; or
(iv) cause or allow any of the acts referred to in subparagraph (i), (ii) or (iii) to be done; or
(b) when used in the context of a reference to a cetacean (not being a reference that covers a cetacean because a cetacean is a member referred to in paragraph (a))—has the meaning given by subsection 229B(4).
traditional owners of indigenous people’s land has the meaning given by subsection 368(4).
treat a cetacean has the meaning given by subsection 229D(3).
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 |
1 | Subsection 252(4) | Subclause 15(3) |
2 | Paragraph 252(6)(a) | Paragraph 15(5)(a) |
3 | Subparagraph 252(6)(b)(i) | Subparagraph 15(5)(b)(i) |
4 | Subsection 252AA(1) | Subclause 16(1) |
5 | Subsection 252A(1) | Subclause 17(1) |
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 |
10 | Subsection 261AE(1) | Subclause 32(1) |
11 | Subsection 261AE(3) | Subclause 32(3) |
12 | Section 261AG | Clause 34 |
13 | Section 261AJ | Clause 37 |
14 | Subsection 261AK(1) (except paragraph (a)) | Subclause 38(1) (except paragraph (a)) |
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
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).
(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, the Chief Executive Officer of the Great Barrier Reef Marine Park Authority 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 an environmental law, 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
Division 1—Preliminary
25 Definitions
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, an environmental law; 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.
Note: This clause corresponds closely to section 261AJ of the Migration Act 1958.
38 Retesting
When retesting is permitted
(1) If:
(a) an approved officer has carried out an identification test (the earlier test) on a non‑citizen in accordance with this Division (including a test authorised under subclause (4)); and
(b) either:
(i) a personal identifier that is provided as a result of the earlier test being carried out is unusable; or
(ii) an approved officer, authorised officer or detention officer is not satisfied about the integrity of that personal identifier;
the approved officer who carried out the earlier test or another approved officer may require the non‑citizen to provide the personal identifier again, and may carry out the test again in accordance with this Division, if:
(c) the requirement is made while the earlier test is being carried out or immediately after it was carried out; or
(d) carrying out the test again is authorised under subclause (4).
(2) If the non‑citizen is required under subclause (1) to provide the personal identifier again, the non‑citizen is taken, for the purposes of this Division, not to have provided the personal identifier as a result of the earlier test being carried out.
Applications for authorisation to retest
(3) An approved officer may apply for an authorisation to carry out the test again. The application is to be made to:
(a) if the earlier test was not a test authorised under subclause (4)—a senior authorising officer (who is not an approved officer, authorised officer or detention officer referred to in subclause (1)); or
(b) if the earlier test was a test authorised under subclause (4) by a senior authorising officer—the Secretary, the Director, the Chief Executive Officer of the Great Barrier Reef Marine Park Authority or an SES Band 3 employee in the Department (who is not an approved officer, authorised officer or detention officer referred to in subclause (1)).
Authorisation to retest
(4) The senior authorising officer, Secretary, Director, Chief Executive Officer or SES Band 3 employee (as the case requires) may authorise the test to be carried out again if:
(a) he or she is reasonably satisfied that the personal identifier that is provided as a result of the earlier test being carried out is unusable; or
(b) he or she is not reasonably satisfied about the integrity of that personal identifier.
(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.
Use of force
(9) An authorisation under subclause (4) does not authorise the use of force in carrying out an identification test.
Note: See clause 32 on the use of force in carrying out identification tests.
Effect of refusing to authorise retesting
(10) If an application for an authorisation to carry out an identification test again on a non‑citizen is refused, the non‑citizen is taken, for the purposes of this Schedule, to have complied with any requirement under this Schedule to provide the personal identifier in question.
Definitions
(11) In this clause:
senior authorising officer means an authorised officer, or detention officer, who:
(a) has been authorised, or is included in a class of authorised officers or detention officers who have been authorised, by the Secretary to perform the functions of a senior authorising officer under this clause; and
(b) is not the Secretary or an SES Band 3 employee in the Department.
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 261AK of the Migration Act 1958.
Subdivision C—Obligations relating to video recordings of identification tests
39 Definitions
In this Subdivision, unless the contrary intention appears:
permitted provision, of a video recording, has the meaning given by subclause 42(2).
provide, in relation to a video recording, includes provide access to the recording.
related document means a document that contains information, derived from a video recording made under clause 37 or from a copy of such a recording, from which the identity of the individual on whom the identification test in question was carried out is apparent or can reasonably be ascertained.
video recording means a video recording made under clause 37 or a copy of such a recording, and includes a related document.
Note: This clause corresponds closely to section 261AKA of the Migration Act 1958.
40 Accessing video recordings
(1) A person commits an offence if:
(a) the person accesses a video recording; and
(b) the person is not authorised under clause 41 to access the video recording for the purpose for which the person accessed it.
Penalty: Imprisonment for 2 years.
(2) This clause does not apply if the access is through the provision of a video recording that is a permitted provision.
Note 1: A defendant bears an evidential burden in relation to the matter in subclause (2) (see subsection 13.3(3) of the Criminal Code).
Note 2: This clause corresponds closely to section 261AKB of the Migration Act 1958.
41 Authorising access to video recordings
(1) The Secretary may, in writing, authorise a specified person, or any person included in a specified class of persons, to access:
(a) all video recordings; or
(b) a specified video recording, or video recordings of a specified kind.
(2) The Secretary must specify in an authorisation under this clause, as the purpose or purposes for which access is authorised, one or more of the following purposes:
(a) providing a video recording to another person in accordance with this Subdivision;
(b) administering or managing the storage of video recordings;
(c) making a video recording available to the person to whom it relates;
(d) modifying related documents in order to correct errors or ensure compliance with appropriate standards;
(e) any purpose connected with determining whether a civil or criminal liability has arisen from a person carrying out or helping to carry out an identification test under this Schedule;
(f) complying with laws of the Commonwealth or the States or Territories;
(g) disclosing personal information under clause 59 (about disclosure of information about a person who has been in detention, for the purposes of the immigration detention or removal of the person).
(3) However, the Secretary must not specify as a purpose for which access is authorised a purpose that will include or involve the purpose of:
(a) investigating an offence against a law of the Commonwealth or a State or Territory (other than an offence involving whether an identification test was carried out lawfully); or
(b) prosecuting a person for such an offence;
if the identifying information in question relates to a personal identifier of a prescribed type.
Note: This clause corresponds closely to section 261AKC of the Migration Act 1958.
42 Providing video recordings
(1) A person commits an offence if:
(a) the person’s conduct causes a video recording to be provided to another person; and
(b) the provision of the recording is not a permitted provision of the recording.
Penalty: Imprisonment for 2 years.
(2) A permitted provision of a video recording is a provision of the recording that:
(a) is for the purpose of administering or managing the storage of video recordings; or
(b) is for the purpose of making the video recording in question available to the non‑citizen to whom it relates; or
(c) is for the purpose of a proceeding, before a court or tribunal, relating to the non‑citizen to whom the video recording in question relates; or
(d) is for any purpose connected with determining whether a civil or criminal liability has arisen from a person carrying out or helping to carry out an identification test under this Schedule; or
(e) is for the purpose of an investigation by the Information Commissioner under the Privacy Act 1988 or the Ombudsman relating to carrying out an identification test; or
(f) is made to a prescribed body or agency for the purpose of the body or agency inquiring into the operation of provisions of this Schedule relating to carrying out an identification test; or
(g) takes place with the written consent of the non‑citizen to whom the video recording in question relates; or
(h) is a disclosure authorised by clause 59 (about disclosure of information about a person who has been in detention, for the purposes of the immigration detention or removal of the person).
(3) However, a provision of a video recording is not a permitted provision of the recording if:
(a) it constitutes a disclosure of identifying information relating to a personal identifier of a prescribed type; and
(b) it is for the purpose of:
(i) investigating an offence against a law of the Commonwealth or a State or Territory (other than an offence involving whether an identification test was carried out lawfully); or
(ii) prosecuting a person for such an offence.
Note: This clause corresponds closely to section 261AKD of the Migration Act 1958.
43 Unauthorised modification of video recordings
A person commits an offence if:
(a) the person causes any unauthorised modification of a video recording; and
(b) the person intends to cause the modification; and
(c) the person knows that the modification is unauthorised.
Penalty: Imprisonment for 2 years.
44 Unauthorised impairment of video recordings
A person commits an offence if:
(a) the person causes any unauthorised impairment of:
(i) the reliability of a video recording; or
(ii) the security of the storage of a video recording; or
(iii) the operation of a system by which a video recording is stored; and
(b) the person intends to cause the impairment; and
(c) the person knows that the impairment is unauthorised.
Penalty: Imprisonment for 2 years.
45 Meanings of unauthorised modification and unauthorised impairment etc.
(1) In this Subdivision:
(a) modification of a video recording; or
(b) impairment of the reliability of a video recording; or
(c) impairment of the security of the storage of a video recording; or
(d) impairment of the operation of a system by which a video recording is stored;
by a person is unauthorised if the person is not entitled to cause that modification or impairment.
(2) Any such modification or impairment caused by the person is not unauthorised merely because he or she has an ulterior purpose for causing it.
(3) For the purposes of an offence under this Subdivision, a person causes any such unauthorised modification or impairment if the person’s conduct substantially contributes to it.
(4) For the purposes of subclause (1), if:
(a) a person causes any modification or impairment of a kind mentioned in that subclause; and
(b) the person does so under a warrant issued under the law of the Commonwealth, a State or a Territory;
the person is entitled to cause that modification or impairment.
Note: This clause corresponds closely to section 261AKG of the Migration Act 1958.
46 Destroying video recordings
A person commits an offence if:
(a) the person is the person who has day‑to‑day responsibility for the system under which a video recording is stored; and
(b) the person fails physically to destroy the recording, and all copies of the recording, within 10 years after it was made.
Penalty: Imprisonment for 2 years.
Division 3—Identification of minors and incapable persons
47 Minors
Minors less than 15 years old
(1) A non‑citizen who is less than 15 years old must not be required under this Schedule to provide a personal identifier other than a personal identifier consisting of:
(a) a measurement of the non‑citizen’s height and weight; or
(b) the non‑citizen’s photograph or other image of the non‑citizen’s face and shoulders.
Persons present while identification test is carried out
(2) If a non‑citizen who is a minor provides a personal identifier, in accordance with a requirement under this Schedule, by way of an identification test carried out by an approved officer, the test must be carried out in the presence of:
(a) a parent or guardian of the minor; or
(b) an independent person.
(3) However, if the Minister administering the Immigration (Guardianship of Children) Act 1946 is the guardian of the minor, the test must be carried out in the presence of an independent person other than that Minister.
Note: This clause corresponds closely to subsections 261AL(1), (5) and (6) of the Migration Act 1958.
48 Incapable persons
Incapable persons
(1) A non‑citizen who is an incapable person must not be required under this Schedule to provide a personal identifier other than a personal identifier consisting of:
(a) a measurement of the non‑citizen’s height and weight; or
(b) the non‑citizen’s photograph or other image of the non‑citizen’s face and shoulders.
Persons present while identification test is carried out
(2) If a non‑citizen who is an incapable person provides a personal identifier, in accordance with a requirement under this Schedule, by way of an identification test carried out by an approved officer, the test must be carried out in the presence of:
(a) a parent or guardian of the incapable person; or
(b) an independent person.
Note: This clause corresponds closely to subsections 261AM(1) and (4) of the Migration Act 1958.
Division 4—Obligations relating to detainees’ identifying information
Subdivision A—Preliminary
49 Definitions
In this Division:
disclose, in relation to identifying information that is a personal identifier provided under clause 28, includes provide unauthorised access to the personal identifier.
Note: Clause 52 deals with authorised access to identifying information.
identifying information means the following:
(a) any personal identifier provided under clause 28;
(b) any meaningful identifier derived from any such personal identifier;
(c) any record of a result of analysing any such personal identifier or any meaningful identifier derived from any such personal identifier;
(d) any other information, derived from any such personal identifier, from any meaningful identifier derived from any such personal identifier or from any record of a kind referred to in paragraph (c), that could be used to discover a particular person’s identity or to get information about a particular person.
permitted disclosure has the meaning given by subclauses 53(2) and (3).
unauthorised impairment has the meaning given by clause 57.
unauthorised modification has the meaning given by clause 57.
Note: The definitions of expressions in this clause correspond closely to definitions of those expressions in section 336A of the Migration Act 1958.
50 Application
Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to all offences against this Division.
Note: This clause corresponds closely to section 336B of the Migration Act 1958.
Subdivision B—Accessing identifying information
51 Accessing identifying information
(1) A person commits an offence if:
(a) the person accesses identifying information; and
(b) the person is not authorised under clause 52 to access the identifying information for the purpose for which the person accessed it.
Penalty: Imprisonment for 2 years.
(1A) This clause does not apply if the person believes on reasonable grounds that the access is necessary to prevent or lessen a serious and imminent threat to the life or health of the person or of any other person.
Note: A defendant bears an evidential burden in relation to the matter in subclause (1A) (see subsection 13.3(3) of the Criminal Code).
(2) This clause does not apply if the access is through a disclosure that is a permitted disclosure.
Note 1: A defendant bears an evidential burden in relation to the matter in subclause (2) (see subsection 13.3(3) of the Criminal Code).
Note 2: This clause corresponds closely to section 336C of the Migration Act 1958.
52 Authorising access to identifying information
(1) The Secretary may, in writing, authorise a specified person, or any person included in a specified class of persons, to access identifying information of the kind specified in the authorisation.
(2) The Secretary must specify in an authorisation under this clause, as the purpose or purposes for which access is authorised, one or more of the following purposes:
(a) one or more of the purposes set out in subclause 26(3);
(b) disclosing identifying information in accordance with this Division;
(c) administering or managing the storage of identifying information;
(d) making identifying information available to the person to whom it relates;
(e) modifying identifying information to enable it to be matched with other identifying information;
(f) modifying identifying information in order to correct errors or ensure compliance with appropriate standards;
(g) the purposes of this Act;
(h) complying with laws of the Commonwealth or the States or Territories;
(i) disclosing personal information under clause 59 (about disclosure of information about a person who has been in detention, for the purposes of the immigration detention or removal of the person).
(3) However, the Secretary must not specify as a purpose for which access is authorised a purpose that will include or involve the purpose of:
(a) investigating an offence against a law of the Commonwealth or a State or Territory; or
(b) prosecuting a person for such an offence;
if the identifying information in question relates to a personal identifier of a prescribed type.
Note: This clause corresponds closely to section 336D of the Migration Act 1958.
Subdivision C—Disclosing identifying information
53 Disclosing identifying information
(1) A person commits an offence if:
(a) the person’s conduct causes disclosure of identifying information; and
(b) the disclosure is not a permitted disclosure.
Penalty: Imprisonment for 2 years.
(1A) This clause does not apply if the person believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the person or of any other person.
Note: A defendant bears an evidential burden in relation to the matter in subclause (1A) (see subsection 13.3(3) of the Criminal Code).
(2) A permitted disclosure is a disclosure that:
(a) is for the purpose of data‑matching in order to:
(i) identify, or authenticate the identity of, a person; or
(ii) facilitate the processing of persons entering or departing from Australia; or
(iii) identify non‑citizens who have a criminal history, who are of character concern (as defined in the Migration Act 1958) or who are of national security concern; or
(iv) combat document and identity fraud in immigration matters; or
(v) ascertain whether an applicant for a protection visa had sufficient opportunity to avail himself or herself of protection before arriving in Australia; or
(vi) inform the governments of foreign countries of the identity of non‑citizens who are, or are to be, removed from Australia; or
(b) is for the purpose of administering or managing the storage of identifying information; or
(c) is authorised under clause 54 and is for the purpose, or one or more of the purposes, for which the disclosure is authorised; or
(d) is for the purpose of making the identifying information in question available to the person to whom it relates; or
(da) is to an agency of the Commonwealth or of a State or Territory in order to verify that a person is an Australian citizen or holds a visa of a particular class; or
(e) takes place under an arrangement entered into with an agency of the Commonwealth, or with a State or Territory or an agency of a State or Territory, for the exchange of identifying information; or
(ea) is reasonably necessary for the enforcement of the criminal law of the Commonwealth or of a State or Territory; or
(eb) is required by or under a law of the Commonwealth or of a State or Territory; or
(f) is for the purpose of a proceeding, before a court or tribunal, relating to the person to whom the identifying information in question relates; or
(g) is for the purpose of an investigation by the Information Commissioner or the Ombudsman relating to action taken by the Department; or
(h) is made to a prescribed body or agency for the purpose of the body or agency inquiring into the operation of provisions of this Schedule relating to:
(i) carrying out an identification test; or
(ii) requiring the provision of a personal identifier; or
(ha) is a disclosure of an audio or a video recording for the purposes of:
(i) this Act or the regulations; and
(ii) transcribing or translating the recording, or conducting language analysis or accent analysis of the recording; or
(i) takes place with the written consent of the person to whom the identifying information in question relates; or
(j) is a disclosure authorised by clause 59 (about disclosure of information about a person who has been in detention, for the purposes of the immigration detention or removal of the person).
(3) However, a disclosure is not a permitted disclosure if:
(a) it is a disclosure of identifying information relating to a personal identifier of a prescribed type; and
(b) it is for the purpose of:
(i) investigating an offence against a law of the Commonwealth or a State or Territory; or
(ii) prosecuting a person for such an offence.
Note: This clause corresponds closely to section 336E of the Migration Act 1958.
54 Authorising disclosure of identifying information to foreign countries etc.
(1) The Secretary may, in writing, authorise a specified authorised officer or detention officer, any authorised officer or detention officer included in a specified class of authorised officers or detention officers, or an Agency (as defined in the Public Service Act 1999) prescribed by the regulations, to disclose identifying information of the kind specified in the authorisation to one or more of the following:
(a) one or more specified foreign countries;
(b) one or more specified bodies each of which is:
(i) a police force or police service of a foreign country; or
(ii) a law enforcement body of a foreign country; or
(iii) a border control body of a foreign country;
(c) one or more specified international organisations, or specified organisations of foreign countries, that are responsible for matters relating to the environment;
(d) one or more prescribed bodies of a foreign country, of the Commonwealth or of a State or Territory;
(e) one or more prescribed international organisations.
(2) The Secretary must specify in the authorisation, as the purpose or purposes for which disclosure is authorised, one or more of the purposes set out in subclause 26(3).
Note: This clause corresponds closely to subsections 336F(1) and (2) of the Migration Act 1958.
Subdivision D—Modifying and impairing identifying information
55 Unauthorised modification of identifying information
A person commits an offence if:
(a) the person causes any unauthorised modification of identifying information; and
(b) the person intends to cause the modification; and
(c) the person knows that the modification is unauthorised.
Penalty: Imprisonment for 2 years.
Note: This clause corresponds closely to section 336G of the Migration Act 1958.
56 Unauthorised impairment of identifying information
A person commits an offence if:
(a) the person causes any unauthorised impairment of:
(i) the reliability of identifying information; or
(ii) the security of the storage of identifying information; or
(iii) the operation of a system by which identifying information is stored; and
(b) the person intends to cause the impairment; and
(c) the person knows that the impairment is unauthorised.
Penalty: Imprisonment for 2 years.
Note: This clause corresponds closely to section 336H of the Migration Act 1958.
57 Meanings of unauthorised modification and unauthorised impairment etc.
(1) In this Division:
(a) modification of identifying information; or
(b) impairment of the reliability of identifying information; or
(c) impairment of the security of the storage of identifying information; or
(d) impairment of the operation of a system by which identifying information is stored;
by a person is unauthorised if the person is not entitled to cause that modification or impairment.
(2) Any such modification or impairment caused by the person is not unauthorised merely because he or she has an ulterior purpose for causing it.
(3) For the purposes of an offence under this Division, a person causes any such unauthorised modification or impairment if the person’s conduct substantially contributes to it.
(4) For the purposes of subclause (1), if:
(a) a person causes any modification or impairment of a kind mentioned in that subclause; and
(b) the person does so under a warrant issued under the law of the Commonwealth, a State or a Territory;
the person is entitled to cause that modification or impairment.
Note: This clause corresponds closely to section 336J of the Migration Act 1958.
Subdivision E—Retaining identifying information
58 Identifying information may be indefinitely retained
Identifying information may be indefinitely retained.
Note: This clause corresponds closely to paragraph 336L(1)(a) of the Migration Act 1958, because under this Schedule identifying information will always be about someone who is or has been in detention.
Part 6—Disclosure of detainees’ personal information
59 Disclosure of detainees’ personal information
(1) For the purposes described in subclause (2), an agency or organisation that is or has been responsible for the detention of an individual may disclose personal information about the individual to an agency, or organisation, that is or will be responsible for:
(a) taking the individual into immigration detention; or
(b) keeping the individual in immigration detention; or
(c) causing the individual to be kept in immigration detention; or
(d) the removal of the individual.
(2) The purposes are:
(a) the immigration detention of the individual; and
(b) the removal of the individual; and
(c) the welfare of the individual while in immigration detention or being removed.
(3) In this clause:
agency has the same meaning as in the Privacy Act 1988.
immigration detention has the same meaning as in the Migration Act 1958.
organisation has the same meaning as in the Privacy Act 1988.
personal information has the same meaning as in the Privacy Act 1988.
removal has the same meaning as in the Migration Act 1958.
