(3) Where subsection (2) is applicable in relation to a question put to a person, that person is not excused from answering the question on the ground that the answer might tend to incriminate him or her, but the answer to the question shall not be used as evidence against that person in any proceedings other than proceedings under that subsection.
257A Person may be required to provide personal identifiers
(1) Subject to subsection (3), the Minister or an officer may, in writing or orally, require a person to provide one or more personal identifiers for the purposes of this Act or the regulations.
(2) Without limiting subsection (1), the purposes referred to in that subsection include any of the purposes referred to in subsection 5A(3).
Only citizens entering Australia etc. may be required to provide personal identifiers
(3) If the Minister or officer knows or reasonably believes that a person is a citizen, the person must not be required to provide one or more personal identifiers under subsection (1) unless section 166, 170 or 175 applies in relation to the person.
When requirement under subsection (1) must be made
(4) The Minister or an officer must require a person to provide one or more personal identifiers under subsection (1) if prescribed circumstances exist.
How personal identifiers must be provided
(5) If a person is required to provide one or more personal identifiers under subsection (1), those personal identifiers must be:
(a) provided by way of one or more identification tests carried out by an authorised officer or an authorised system; or
(b) if another way is specified by the Minister or officer—provided in that specified way.
Note: If the types of identification tests that the authorised officer may carry out are specified under section 5D, then each identification test must be of a type so specified.
(6) If paragraph (5)(b) applies, the person must comply with any requirements specified by the Minister or officer in providing one or more personal identifiers in the way specified under that paragraph.
Multiple requirements for personal identifiers may be made
(7) A person may be required to provide one or more personal identifiers under subsection (1):
(a) more than once; and
(b) whether or not the person has previously complied with a requirement under this Act or the regulations to provide one or more personal identifiers.
Other provisions not limited or otherwise affected
(8) This section does not limit, or otherwise affect, any other provision of this Act under which a personal identifier may be required, provided or presented.
258 Minister may determine that specified persons are not to be required to provide personal identifiers etc.
The Minister may determine, by legislative instrument, that:
(a) a specified person, or a person included in a specified class of persons, must not be required to provide under section 257A:
(i) any personal identifiers; or
(ii) one or more specified kinds of personal identifiers; or
(b) a specified person, or a person included in a specified class of persons, must not be required in specified circumstances to provide under section 257A:
(i) any personal identifiers; or
(ii) one or more specified kinds of personal identifiers.
258A When detainees must not be required to provide personal identifiers under section 257A
A person must not be required to provide a personal identifier under section 257A if:
(a) the person is in immigration detention (but not only because he or she is detained for questioning detention (see section 192)); and
(b) the person has, during that detention, provided a personal identifier of that type under Division 13AA.
258B Information to be provided—authorised officers carrying out identification tests
(1) Before an authorised officer carries out an identification test on a person for the purposes of section 257A, the authorised officer must inform the person of such matters as are prescribed.
(2) For the purposes of subsection (1), the authorised officer informs the person of a matter if the authorised officer informs the person of the matter, through an interpreter if necessary, in a language (including sign language or braille) in which the person is able to communicate with reasonable fluency.
(3) The authorised officer may comply with this section by giving to the person, 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 person is able to communicate with reasonable fluency.
258D Regulations may prescribe manner for carrying out identification tests
(1) The regulations may prescribe the manner in which an identification test is to be carried out on a person under section 257A.
(2) The regulations may prescribe the procedure and requirements that apply if a personal identifier is provided under section 257A by the person otherwise than by way of an identification test.
258E General rules for carrying out identification tests
An identification test that an authorised officer carries out under section 257A:
(a) must be carried out in circumstances affording reasonable privacy to the person; and
(b) 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 required or permitted by another provision of this Act; and
(c) must not involve the removal of more clothing than is necessary for carrying out the test; and
(d) must not involve more visual inspection than is necessary for carrying out the test.
258F Person must not be required to provide personal identifiers in a cruel, inhuman or degrading way etc.
For the purposes of this Act, a requirement to provide a personal identifier, or the provision of a personal identifier, in a particular way under section 257A 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 Minister or an officer to require a person to provide a personal identifier under section 257A in a cruel, inhuman or degrading way, or in a way that fails to treat the person with humanity and with respect for human dignity.
258G 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.
259 Detention of vessel for purpose of search
(1) The Secretary or Australian Border Force Commissioner may, by notice in writing to the master of a vessel which has arrived in Australia not more than one month before the date of the notice, order that the vessel remain at a port or place for a reasonable time specified in the notice for the purpose of enabling a search of the vessel to be made in order to ascertain whether there are on the vessel any unlawful non‑citizens or any persons seeking to enter Australia in circumstances in which they would become unlawful non‑citizens.
(2) The master of a vessel in respect of which an order is in force under this section shall not, during the time specified in the order, move the vessel without the consent of the Secretary or Australian Border Force Commissioner.
Penalty: 200 penalty units.
(3) An offence against subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
260 Detention of vessel pending recovery of penalty
(1) The Secretary or Australian Border Force Commissioner may, in writing, direct an officer to detain a vessel where, in the Secretary’s or Australian Border Force Commissioner’s opinion, the master, owner, agent or charterer of the vessel has been guilty of an offence against this Act.
(2) Where a direction is given under subsection (1):
(a) the officer specified in the direction may detain the vessel at the place where it is found or cause it to be brought to another place specified by the Secretary or Australian Border Force Commissioner and detain it at that place; and
(b) the Secretary or Australian Border Force Commissioner shall forthwith give notice of the detention to the master, owner, charterer or agent of the vessel.
(3) For the purposes of the detention and other lawful dealings with the vessel, the officer specified in the direction is entitled to obtain such seizure warrant issued under Division 1 of Part XII of the Customs Act 1901 or other aid as may be obtained under a law of the Commonwealth with respect to the seizure of vessels or goods.
(4) The detention of a vessel under this section shall cease if a bond with 2 sufficient sureties to the satisfaction of the Secretary or Australian Border Force Commissioner is given by the master, owner, agent or charterer of the vessel for the payment of any penalties that may be imposed in respect of the alleged offence.
(5) If, while the vessel is detained under this section, default is made in payment of any penalties imposed in respect of an offence against this Act by the master, owner, agent or charterer of the vessel, the Secretary or Australian Border Force Commissioner may seize the vessel, and the like proceedings shall thereupon be taken for forfeiting and condemning the vessel as in the case of a vessel seized for breach of the Customs Act 1901, and the vessel shall be sold.
(6) The proceeds of the sale shall be applied firstly in payment of the penalties referred to in subsection (5) and of all costs awarded in connexion with the proceedings in which the penalties were imposed or incurred in and about the sale and the proceedings leading to the sale, and the balance shall be payable to the owner and other persons having interests in the vessel before the condemnation and sale.
(7) Division 13A does not limit the operation of this section.
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
(b) either:
(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.
(2) If:
(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.
(5) If:
(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).