(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):
(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 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.
Definition
(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.
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.
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
(1) If:
(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
(b) either:
(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):
(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 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.
Definitions
(10) In this section:
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
(1) A person commits an offence if:
(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.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
(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
(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, or 120 penalty units, or both.
(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 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, or 120 penalty units, or both.
261AKF 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, or 120 penalty units, or both.
261AKG 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 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 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, or 120 penalty units, or both.
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.
(3) In this section:
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: