(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