(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: