261Disposal of dilapidated vessels etc.

261  Disposal of dilapidated vessels etc.  (1) If a non‑citizen who enters Australia:  (a) is required to comply with section 166 (immigration clearance); and  (i) does not comply; or  (ii) on complying, is detained under section 189; the Secretary or Australian Border Force Commissioner may, in writing, direct an officer to seize the vessel on which the non‑citizen came to Australia.  (a) a vessel is seized under subsection (1) or section 261B; and  (b) the vessel has not been forfeited and condemned under section 260 or condemned as forfeited under Division 13A; and  (c) the vessel has not been ordered by a court to be delivered to a person or otherwise dealt with; and  (d) the Secretary or Australian Border Force Commissioner is satisfied that the vessel is in such a poor condition that its custody or maintenance involves expense out of proportion to its value; and  (e) a person other than the Commonwealth does not meet, or make arrangements that the Secretary or Australian Border Force Commissioner considers are satisfactory to meet, that expense; the Secretary or Australian Border Force Commissioner may in writing, direct an officer to sell, destroy or otherwise dispose of the vessel.  (3) The officer must comply with the direction.  (4) The proceeds of a sale are to be applied firstly in payment of costs incurred by the Commonwealth in the custody or maintenance of the vessel, and in selling or disposing of the vessel, and, subject to subsection (5), the balance is to be paid to the owner and any other persons with interests in the vessel before its sale.  (a) a person owes a debt to the Commonwealth under this Act; and  (b) an amount by way of the balance of the proceeds of a sale (the balance amount) is payable to the person under subsection (4); the Commonwealth may apply the balance amount in payment of the debt, and the debt is reduced accordingly. The amount applied must not exceed the amount of the debt.  (6) Division 13A does not limit the operation of this section. Division 13AA—Identification of immigration detainees Subdivision A—Provision of personal identifiers 261AA  Immigration detainees must provide personal identifiers  (1) A non‑citizen who is in immigration detention must (other than in the prescribed circumstances) provide to an authorised officer one or more personal identifiers.  (1A) An authorised officer must not require, for the purposes of subsection (1), a person 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 person (including those taken using paper and ink or digital livescanning technologies);  (b) a measurement of the person’s height and weight;  (c) a photograph or other image of the person’s face;  (d) the person’s signature;  (e) any other personal identifier of a type prescribed for the purposes of this paragraph. Note: Division 13AB sets out further restrictions on the personal identifiers that minors and incapable persons can be required to provide.  (2) The one or more personal identifiers are to be provided by way of one or more identification tests carried out by the authorised officer in accordance with this Division. Note: Subject to certain restrictions, section 261AE allows reasonable force to be used to carry out identification tests under this Division.  (3) However, this Division does not apply to a non‑citizen who:  (a) is in immigration detention only because he or she is detained under section 192; and  (b) has provided a personal identifier in accordance with a requirement under section 257A. 261AB  Authorised officers must require and carry out identification tests  (1) The authorised officer must, other than in the circumstances prescribed for the purposes of subsection 261AA(1):  (a) require, in writing or orally, 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 authorised 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 authorised officer may carry out is specified under section 5D—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 authorised 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 13AB. 261AC  Information to be provided before carrying out identification tests  (1) Before carrying out an identification test, the authorised 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 subsection (1), the authorised officer informs the non‑citizen of a matter if the authorised 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 authorised officer may comply with this section 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. Subdivision B—How identification tests are carried out 261AD  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 Act; 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. 261AE  Use of force in carrying out identification tests When use of force is permitted  (1) Subject to subsection (2) and section 261AF, an authorised officer, or a person authorised under section 261AG to help the authorised 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 section 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 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) use of force in carrying out the identification test is authorised under subsection (4). Applications for authorisation to use force  (3) An authorised officer may apply to a senior authorising officer (who is not an officer referred to in subsection (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 subsection (4):  (b) must be recorded in writing, and signed by the person giving the authorisation, within one business day after it is given.  (6) 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.  (7) The power to give an authorisation under subsection (4) cannot be delegated to any other person.  (8) In this section: senior authorising officer means an officer whom the Secretary or Australian Border Force Commissioner has authorised, or who is included in a class of officers whom the Secretary or Australian Border Force Commissioner has authorised, to perform the functions of a senior authorising officer under this section. 261AF  Identification tests not to be carried out in cruel, inhuman or degrading manner etc.   For the purposes of this Act, 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 Act 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. 261AG  Authorised officer may get help to carry out identification tests   An authorised officer may ask another authorised officer or an officer to help him or her to carry out the identification test, and the other person may give that help. 261AH  Identification tests to be carried out by authorised officer of same sex as non‑citizen   If the non‑citizen requests that the identification test be carried out by an authorised officer of the same sex as the non‑citizen, the test must only be carried out by an authorised officer of the same sex as the non‑citizen. 261AI  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  (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. 261AJ  Recording of identification tests  (1) An authorised 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 authorised officer may decide that the identification test must be carried out in the presence of an independent person. 261AK  Retesting When retesting is permitted  (a) an authorised officer has carried out an identification test (the earlier test) on a non‑citizen in accordance with this Division (including a test authorised under subsection (4)); and  (i) a personal identifier that is provided as a result of the earlier test being carried out is unusable; or  (ii) an authorised officer or an officer is not satisfied about the integrity of that personal identifier; the officer who carried out the earlier test or another 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 subsection (4).  (2) If the non‑citizen is required under subsection (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 authorised 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 subsection (4)—a senior authorising officer (who is not an officer referred to in subsection (1)); or  (b) if the earlier test was a test authorised under subsection (4) by a senior authorising officer—the Secretary, Australian Border Force Commissioner or an SES Band 3 employee in the Department (who is not an officer referred to in subsection (1)). Authorisation to retest  (4) The senior authorising officer, Secretary, Australian Border Force Commissioner 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 subsection (4):  (b) must be recorded in writing, and signed by the person giving the authorisation, within one business day after it is given.  (6) 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.  (7) The power to give an authorisation under subsection (4) cannot be delegated to any other person. Use of force  (8) An authorisation under subsection (4) does not authorise the use of force in carrying out an identification test. Note: See section 261AE on the use of force in carrying out identification tests. Effect of refusing to authorise retesting  (9) 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 Act, to have complied with any requirement under this Act to provide the personal identifier in question. senior authorising officer means an officer (other than an SES Band 3 employee in the Department) whom the Secretary or Australian Border Force Commissioner has authorised, or who is included in a class of officers whom the Secretary or Australian Border Force Commissioner has authorised, to perform the functions of a senior authorising officer under this section. 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. Subdivision C—Obligations relating to video recordings of identification tests 261AKA  Definitions   In this Subdivision, unless the contrary intention appears: permitted provision, of a video recording, has the meaning given by subsection 261AKD(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 section 261AJ 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 section 261AJ or a copy of such a recording, and includes a related document. 261AKB  Accessing video recordings  (a) the person accesses a video recording; and  (b) the person is not authorised under section 261AKC to access the video recording for the purpose for which the person accessed it.  (2) This section does not apply if the access is through the provision of a video recording that is a permitted provision. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code). 261AKC  Authorising access to video recordings  (1) The Secretary or Australian Border Force Commissioner 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 or Australian Border Force Commissioner must specify in an authorisation under this section, 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 Act;  (f) complying with laws of the Commonwealth or the States or Territories.  (3) However, the Secretary or Australian Border Force Commissioner 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. 261AKD  Providing video recordings  (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.  (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, the ART or another 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 Act; 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 Act 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.  (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. 261AKE  Unauthorised modification of video recordings  (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. 261AKF  Unauthorised impairment of video recordings  (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. 261AKG  Meanings of unauthorised modification and unauthorised impairment etc.  (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 subsection (1), if:  (a) a person causes any modification or impairment of a kind mentioned in that subsection; 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. 261AKH  Destroying video recordings  (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. Division 13AB—Identification of minors and incapable persons 261AL  Minors Minors less than 15 years old  (1) A person who is less than 15 years old must not be required under Division 13AA of this Part to provide a personal identifier other than a personal identifier consisting of:  (a) a measurement of the person’s height and weight; or  (b) the person’s photograph or other image of the person’s face. Persons present while identification test is carried out  (5) If a person who is a minor provides a personal identifier, in accordance with a requirement under Division 13AA of this Part, by way of an identification test carried out by an authorised officer, the test must be carried out in the presence of:  (a) a parent or guardian of the minor; or  (b) an independent person.  (6) However, if the Minister is the minor’s guardian, the test must be carried out in the presence of an independent person other than the Minister. 261AM  Incapable persons Incapable persons  (1) A person who is an incapable person must not be required under Division 13AA of this Part to provide a personal identifier other than a personal identifier consisting of:  (a) a measurement of the person’s height and weight; or  (b) the person’s photograph or other image of the person’s face. Persons present while identification test is carried out  (4) If a person who is an incapable person provides a personal identifier, in accordance with a requirement under Division 13AA of this Part, by way of an identification test carried out by an authorised 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. Division 13A—Automatic forfeiture of things used in certain offences Subdivision A—Automatic forfeiture 261A  Forfeiture of things used in certain offences  (1) The following things are forfeited to the Commonwealth:  (a) a vessel used or involved in a contravention of this Act (where the contravention occurred in Australia), if the contravention involved:  (i) the bringing or coming to Australia of one or more persons who were, or upon entry into Australia became, unlawful non‑citizens; or  (ii) the entry or proposed entry into Australia of one or more such persons;  (b) a vehicle or equipment:  (i) on a vessel described in paragraph (a) at the time of the contravention mentioned in that paragraph; or  (ii) used or involved in the contravention referred to in that paragraph.  (2) Despite subsection (1), a vessel that:  (a) was used or involved in a contravention of this Act of a kind referred to in that subsection; and  (b) at the time of the contravention, was being used in the course of a regular public transport operation; is not forfeited to the Commonwealth if both the master and the owner of the vessel:  (c) did not know; and  (d) could not reasonably be expected to have known; that it was used or involved in the contravention. regular public transport operation, in relation to a vessel, means an operation of the vessel for the purpose of a service that:  (a) is provided for a fee payable by persons using the service; and  (b) is conducted in accordance with fixed schedules to or from fixed terminals over specific routes; and  (c) is available to the general public on a regular basis. Subdivision B—Seizure 261B  Seizure of things used in certain offences  (1) An authorised officer may seize a thing in Australia, or may order an officer to seize a thing in Australia, if:  (a) the thing is forfeited under section 261A; or  (b) the authorised officer reasonably suspects that the thing is forfeited under section 261A.  (2) If an officer is ordered by an authorised officer to seize a thing under subsection (1), the officer may seize the thing. Subdivision C—Dealing with things seized as automatically forfeited