Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day on which this Act receives the Royal Assent
2. Schedule 1	A single day to be fixed by Proclamation, subject to subsection (3)

Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.

(3) If a provision covered by item 2 of the table does not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendments

Migration Act 1958

1 Subsection 5(1) (at the end of the definition of authorised officer)

Add:

Note: Section 5D can affect the meaning of this term for the purposes of carrying out identification tests.

2 Subsection 5(1)

Insert:

character concern has the meaning given by section 5C.

3 Subsection 5(1) (definition of data base)

Before “means”, insert “(except in Part 4A)”.

4 Subsection 5(1) (at the end of the definition of data base)

Add:

Note: Section 336A defines this term differently for the purposes of Part 4A.

5 Subsection 5(1)

Insert:

identification test means a test carried out in order to obtain a personal identifier.

6 Subsection 5(1)

Insert:

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.

7 Subsection 5(1)

Insert:

independent person means a person (other than an officer or an authorised 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.

8 Subsection 5(1)

Insert:

minor means a person who is less than 18 years old.

9 Subsection 5(1)

Insert:

personal identifier has the meaning given by section 5A.

10 After subsection 5(4)

Insert:

(4A) A reference in the definition of independent person in subsection (1) of this section, in sections 258 to 258G or in Division 13AB of Part 2 to a non-citizen includes a reference to a person whom an officer, in the course of exercising or considering the exercising of his or her powers under section 188, reasonably suspects is a non-citizen.

11 After section 5

Insert:

5A Meaning of personal identifier

(1) In this Act:

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 section 261AJ);

(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 (1)(g) 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 subsection (3).

(3) The purposes are:

(a) to assist in the identification of, and to authenticate the identity of, any non-citizen who can be required under this Act to provide a personal identifier; and

(b) to assist in identifying, in the future, any such non-citizen; and

(c) to improve the integrity of entry programs, including passenger processing at Australia’s border; and

(d) to facilitate a visa-holder’s access to his or her rights under this Act or the regulations; and

(e) to improve the procedures for determining visa applications; and

(f) to improve the procedures for determining claims for protection under the Refugees Convention as amended by the Refugees Protocol; and

(g) to enhance the Department’s ability to identify non-citizens who have a criminal history, who are of character concern or who are of national security concern; and

(h) to combat document and identity fraud in immigration matters; and

(i) to detect forum shopping by applicants for visas; and

(j) to ascertain whether:

(i) an applicant for a protection visa; or

(ii) an offshore entry person who makes a claim for protection under the Refugees Convention as amended by the Refugees Protocol;

had sufficient opportunity to avail himself or herself of protection before arriving in Australia; and

(k) to complement anti-people smuggling measures; and

(l) to inform the governments of foreign countries of the identity of non-citizens who are, or are to be, removed or deported from Australia.

5B When personal identifier taken not to have been provided

A non-citizen is taken, for the purposes of sections 40, 46, 166, 170, 175, 188 and 192, not to have provided a personal identifier if:

(a) the personal identifier that is provided is unusable; or

(b) an authorised officer or an officer is not satisfied:

(i) about the integrity of the personal identifier that is provided; or

(ii) about the procedure followed to obtain the personal identifier; or

(c) in a case to which subsection 40(5), 46(2C), 166(1C), 170(5), 175(5), 188(7) or 192(2C) applies—the quality of the personal identifier that is provided does not satisfy an officer who uses the personal identifier for the purpose of making a decision under this Act or the regulations.

5C Meaning of character concern

(1) For the purposes of this Act, a non-citizen is of character concern if:

(a) the non-citizen has a substantial criminal record (as defined by subsection (2)); or

(b) the non-citizen has or has had an association with someone else, or with a group or organisation, who is reasonably suspected of having been or being involved in criminal conduct; or

(c) having regard to either or both of the following:

(i) the non-citizen’s past and present criminal conduct;

(ii) the non-citizen’s past and present general conduct;

the non-citizen is not of good character; or

(d) in the event that the non-citizen were allowed to enter or to remain in Australia, there is a significant risk that the non-citizen would:

(i) engage in criminal conduct in Australia; or

(ii) harass, molest, intimidate or stalk another person in Australia; or

(iii) vilify a segment of the Australian community; or

(iv) incite discord in the Australian community or in a segment of that community; or

(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

(2) For the purposes of subsection (1), a non-citizen has a substantial criminal record if:

(a) the non-citizen has been sentenced to death; or

(b) the non-citizen has been sentenced to imprisonment for life; or

(c) the non-citizen has been sentenced to a term of imprisonment of 12 months or more; or

(d) the non-citizen has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), and the total of those terms is 2 years or more; or

(e) the non-citizen has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.

5D Limiting the types of identification tests that authorised officers may carry out

(1) The Minister or Secretary may, in an instrument authorising an officer as an authorised officer for the purposes of carrying out identification tests under this Act, specify the types of identification tests that the authorised officer may carry out.

(2) Such an authorised officer is not an authorised officer in relation to carrying out an identification test that is not of a type so specified.

12 Subsection 40(2)

After “may be”, insert “, or may include,”.

13 At the end of section 40

Add:

(3) Without limiting subsection (1), the circumstances may be, or may include:

(a) if prescribed circumstances exist—that the person has complied with any requirement of an officer to provide one or more personal identifiers of the type or types prescribed in relation to the application for the visa; or

(b) that the person has complied with any requirement by an officer to provide other evidence of identity in relation to the application.

(4) A person is taken not to have complied with a requirement referred to in paragraph (3)(a) unless the one or more personal identifiers are provided to an authorised officer by way of one or more identification tests carried out by an authorised officer.

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.

(5) However, subsection (4) does not apply, in circumstances prescribed for the purposes of this subsection, if the personal identifier is of a prescribed type and the person:

(a) provides a personal identifier otherwise than by way of an identification test carried out by an authorised officer; and

(b) complies with any further requirements that are prescribed relating to the provision of the personal identifier.

14 Subsection 46(1)

Omit “subsections (1A) and (2)”, substitute “subsections (1A), (2) and (2A)”.

15 Subsection 46(2)

Omit “An application”, substitute “Subject to subsection (2A), an application”.

16 After subsection 46(2)

Insert:

(2A) An application for a visa is invalid if:

(a) the applicant:

(i) if prescribed circumstances exist—has been required by an officer to provide one or more personal identifiers of the type or types prescribed in relation to the application; or

(ii) has been required by an officer to provide other evidence of identity in relation to the application; and

(b) the applicant has not complied with the requirement.

Note: An invalid application for a visa cannot give rise to an obligation under section 65 to grant a visa: see subsection 47(3).

(2B) The applicant is taken not to have complied with a requirement referred to in subparagraph (2A)(a)(i) unless the one or more personal identifiers are provided by way of one or more identification tests carried out by an authorised officer.

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.

(2C) However, subsection (2B) does not apply, in circumstances prescribed for the purposes of this subsection, if the personal identifier is of a prescribed type and the applicant:

(a) provides a personal identifier otherwise than by way of an identification test carried out by an authorised officer; and

(b) complies with any further requirements that are prescribed relating to the provision of the personal identifier.

17 After paragraph 166(1)(a)

Insert:

(aa) if the person is a non-citizen and prescribed circumstances exist—comply with any requirement of the clearance officer to provide one or more personal identifiers of the type or types prescribed; and

18 After subsection 166(1)

Insert:

(1A) Paragraph (1)(aa) does not limit a clearance officer’s power under subparagraph (1)(a)(ii) to require a non-citizen to show the officer evidence (other than a personal identifier) of the non-citizen’s identity.

(1B) A non-citizen is taken not to have complied with a requirement referred to in paragraph (1)(aa) unless the one or more personal identifiers are provided by way of one or more identification tests carried out by an authorised officer.

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.

(1C) However, subsection (1B) does not apply, in circumstances prescribed for the purposes of this subsection, if the personal identifier is of a prescribed type and the non-citizen:

(a) provides a personal identifier otherwise than by way of an identification test carried out by an authorised officer; and

(b) complies with any further requirements that are prescribed relating to the provision of the personal identifier.

19 Paragraph 167(3)(b)

Omit “paragraphs 166(1)(a) and (b)”, substitute “paragraphs 166(1)(a), (aa) and (b)”.

20 At the end of section 170

Add:

(2) If prescribed circumstances exist, a non-citizen who travels, or appears to intend to travel, on an overseas vessel from a port to another port must be required by a clearance officer at either port or by officers at both ports to provide one or more personal identifiers of the type or types prescribed.

(3) Subsection (2) does not limit a clearance officer’s power under paragraph (1)(a) to require a non-citizen to show the officer evidence (other than a personal identifier) of the non-citizen’s identity.

(4) A non-citizen is taken not to have complied with a requirement referred to in subsection (2) unless the one or more personal identifiers are provided by way of one or more identification tests carried out by an authorised officer.

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.

(5) However, subsection (4) does not apply, in circumstances prescribed for the purposes of this subsection, if the personal identifier is of a prescribed type and the non-citizen:

(a) provides a personal identifier otherwise than by way of an identification test carried out by an authorised officer; and

(b) complies with any further requirements that are prescribed relating to the provision of the personal identifier.

21 Subparagraph 172(3)(b)(ii)

Repeal the subparagraph, substitute:

(ii) refuses, or is unable, to show a clearance officer evidence required under paragraph 166(1)(a); or

(iii) refuses, or is unable, to comply with any requirement of a clearance officer under paragraph 166(1)(aa) to provide one or more personal identifiers; or

(iv) refuses, or is unable, to give a clearance officer information required under paragraph 166(1)(b).

22 At the end of section 175

Add:

(2) If prescribed circumstances exist, a non-citizen who is on board, or about to board, a vessel that is to leave Australia (whether or not after calling at places in Australia) must be required by a clearance officer to provide one or more personal identifiers of the type or types prescribed.

(3) Subsection (2) does not limit a clearance officer’s power under subparagraph (1)(a)(ii) to require a non-citizen to show the officer evidence (other than a personal identifier) of the non-citizen’s identity.

(4) A non-citizen is taken not to have complied with a requirement referred to in subsection (2) unless the one or more personal identifiers are provided by way of one or more identification tests carried out by an authorised officer.

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.

(5) However, subsection (4) does not apply, in circumstances prescribed for the purposes of this subsection, if the personal identifier is of a prescribed type and the non-citizen:

(a) provides a personal identifier otherwise than by way of an identification test carried out by an authorised officer; and

(b) complies with any further requirements that are prescribed relating to the provision of the personal identifier.

23 Subsection 188(1)

Repeal the subsection, substitute:

(1) An officer may require a person whom the officer knows or reasonably suspects is a non-citizen to:

(a) show the officer evidence of being a lawful non-citizen; or

(b) show the officer evidence of the person’s identity.

24 At the end of section 188

Add:

(4) If prescribed circumstances exist, the officer must require the person to provide one or more personal identifiers of the type or types prescribed.

(5) Subsection (4) does not limit the officer’s power under subsection (1) to require the person to show the officer evidence (other than a personal identifier) of the person’s identity or evidence of the person being a lawful non-citizen.

(6) A person is taken not to have complied with a requirement referred to in subsection (4) unless the one or more personal identifiers are provided by way of one or more identification tests carried out by an authorised officer.

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.

(7) However, subsection (6) does not apply, in circumstances prescribed for the purposes of this subsection, if the personal identifier is of a prescribed type and the person:

(a) provides a personal identifier otherwise than by way of an identification test carried out by an authorised officer; and

(b) complies with any further requirements that are prescribed relating to the provision of the personal identifier.

25 After subparagraph 190(b)(ii)

Insert:

(iia) if a non-citizen, went to a clearance officer but was not able to comply with, or did not otherwise comply with, any requirement of the officer under section 166 to provide one or more personal identifiers;

26 At the end of section 190

Add:

(2) For the purposes of section 189, an officer suspects on reasonable grounds that a person in Australia is an unlawful non-citizen if, but not only if, that person fails to provide a personal identifier, under subsection 192(2A), of a type or types prescribed.

Note: The heading to section 190 is altered by inserting “or section 192” after “clearance”.

27 At the end of section 191

Add:

(2) A person detained because of subsection 190(2) must be released from immigration detention if:

(a) the person provides to an authorised officer one or more personal identifiers of the type or types prescribed, and the officer is satisfied that the person is not an unlawful non-citizen; or

(b) the person gives evidence of his or her identity and Australian citizenship; or

(c) an officer knows or reasonably believes that the person is an Australian citizen; or

(d) the officer becomes aware that the non-citizen’s visa is not one that may be cancelled under Subdivision C, D or G of Division 3 or section 501 or 501A.

28 After subsection 192(2)

Insert:

(2A) If a non-citizen is detained under subsection (1) and prescribed circumstances exist, the non-citizen must be required by an officer to provide one or more personal identifiers of the type or types prescribed.

(2B) A non-citizen is taken not to have complied with a requirement referred to in subsection (2A) unless the one or more personal identifiers are provided by way of one or more identification tests carried out by an authorised officer.

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.

(2C) However, subsection (2B) does not apply, in circumstances prescribed for the purposes of this subsection, if the personal identifier is of a prescribed type and the non-citizen:

(a) provides a personal identifier otherwise than by way of an identification test carried out by an authorised officer; and

(b) complies with any further requirements that are prescribed relating to the provision of the personal identifier.

29 At the end of subsection 192(5)

Add “, unless the non-citizen is detained under section 189 because of subsection 190(2)”.

30 After section 192

Insert:

192A Authorisation of identification tests in certain cases

Requests that authorisation be obtained

(1) If a person is required, under section 188 or 192, to provide one or more personal identifiers, he or she may request that an authorisation be obtained under this section. If the person makes such a request, he or she cannot be taken not to have complied with the requirement unless the authorisation is obtained.

(2) If a minor or an incapable person is required, under section 188 or 192, to provide one or more personal identifiers:

(a) a parent or guardian of the minor or incapable person; or

(b) if no parent or guardian of the minor or incapable person is readily available—an independent person;

may request that an authorisation be obtained under this section. If the parent, guardian or independent person makes such a request, the minor or incapable person cannot be taken not to have complied with the requirement unless the authorisation is obtained.

Applications for authorisation

(3) If, under subsection (1) or (2), a request has been made that an authorisation be obtained under this section, an authorised officer or officer must apply to a senior authorising officer for an authorisation relating to the person required to provide one or more personal identifiers.

(4) The senior authorising officer to whom the application is made must not be the authorised officer or officer who is requiring the person to provide one or more personal identifiers.

Authorisation

(5) The senior authorising officer must give the authorisation if he or she is reasonably satisfied that the person is:

(a) a person whom an officer, in the course of exercising or considering the exercising of his or her powers under section 188, knows or reasonably suspects is a non-citizen; or

(b) detained for questioning detention under section 192.

(6) An authorisation under subsection (5):

(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.

(7) A failure to comply with paragraph (6)(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 subsection (5) cannot be delegated to any other person.

Definition

(9) In this section:

senior authorising officer means an officer whom the Secretary has authorised, or who is included in a class of officers whom the Secretary has authorised, to perform the functions of a senior authorising officer under this section.

31 Section 258

Repeal the section, substitute:

258 Minister may determine that personal identifiers are not required

(1) The Minister may, for the purposes of section 40, 46, 166, 170, 175, 188 or 192 or for the purposes of more than one of those sections, determine, in writing, any one or more of the following:

(a) one or more specified classes of non-citizens referred to in that section or those sections who cannot be required to provide personal identifiers for the purposes of that section or those sections;

(b) one or more specified types of personal identifiers that one or more specified classes of non-citizens referred to in that section or those sections cannot be required to provide under that section, or those sections;

(c) one or more specified circumstances in which non-citizens referred to in that section or those sections cannot be required to provide personal identifiers under that section or those sections;

(d) one or more specified types of personal identifiers that, in one or more specified circumstances, non-citizens referred to in that section or those sections cannot be required to provide under that section or those sections.

(2) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

258A When non-citizen cannot be required to provide personal identifier

A person cannot be required under section 40, 46, 166, 170, 175, 188 or 192 to provide a personal identifier 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 carrying out an identification test on a non-citizen for the purposes of section 40, 46, 166, 170, 175, 188 or 192, the authorised officer must:

(a) if the non-citizen:

(i) is a person whom an officer, in the course of exercising or considering the exercising of his or her powers under section 188, knows or reasonably suspects is a non-citizen; or

(ii) is detained for questioning detention (see section 192);

inform the non-citizen that the non-citizen may request that an authorisation be obtained under section 192A; and

(b) in any case—inform the non-citizen of such other matters as are prescribed.

(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.

258C Information to be provided—authorised officers not carrying out identification tests

(1) Before requiring a non-citizen to provide a personal identifier in circumstances to which subsection 40(5), 46(2C), 166(1C), 170(5), 175(5), 188(7) or 192(2C) applies, the non-citizen must be informed, in the prescribed manner, of such matters as are prescribed.

(2) The manner in which the non-citizen is informed of the matters need not involve an officer or authorised officer informing the non-citizen of the matters.

258D Regulations may prescribe manner for carrying out identification tests

(1) The regulations may prescribe the manner in which the authorised officer is to carry out identification tests on the non-citizen under section 40, 46, 166, 170, 175, 188 or 192.

(2) The regulations may prescribe the procedure and requirements that apply if a personal identifier is provided under those sections by the non-citizen otherwise than by way of an identification test carried out by an authorised officer.

258E General rules for carrying out identification tests

An identification test that an authorised officer carries out under section 40, 46, 166, 170, 175, 188 or 192:

(a) must be carried out in circumstances affording reasonable privacy to the non-citizen; 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; and

(e) unless the authorised officer has reasonable grounds to believe that the non-citizen is not a minor or an incapable person—must be carried out in accordance with the additional requirements of Division 13AB.

258F Identification tests not to be carried out in cruel, inhuman or degrading manner etc.

For the purposes of this Act, the carrying out of an identification test (by an authorised officer or otherwise) under section 40, 46, 166, 170, 175, 188 or 192 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.

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.

32 After Division 13 of Part 2

Insert:

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 of the type or types prescribed.

(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 that section.

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 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):

(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 has authorised, or who is included in a class of officers whom the Secretary 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

(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 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 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 has authorised, or who is included in a class of officers whom the Secretary 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.

SES employee has the meaning given by the Public Service Act 1999.

Division 13AB—Identification of minors and incapable persons

261AL Minors

Minors less than 15 years old

(1) A non-citizen who is less than 15 years old must not be required under this Act 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.

Consent

(2) A non-citizen who is a minor must not be required under section 40, 46, 188 or 192 to provide a personal identifier by way of an identification test carried out by an authorised officer unless:

(a) subject to subsection (3), a parent or guardian of the minor consents to the minor providing the personal identifier; or

(b) if no parent or guardian of the minor is readily available, or the Minister is the minor’s guardian—an independent person consents to the minor providing the personal identifier.

(3) If the Minister is the minor’s guardian, the Minister cannot consent to the minor providing the personal identifier.

(4) Before obtaining the consent of a parent or guardian, or the independent person, an officer or authorised officer must inform the parent, guardian or independent person of the matters of which the minor must be informed under section 258B.

Persons present while identification test is carried out

(5) If a non-citizen who is a minor provides a personal identifier, in accordance with a requirement under this Act, 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 non-citizen who is an incapable person must not be required under this Act 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.

Consent

(2) A non-citizen (other than a minor) who is an incapable person must not be required under section 40, 46, 188 or 192 to provide a personal identifier by way of an identification test carried out by an authorised officer unless:

(a) a parent or guardian of the incapable person consents to the incapable person providing the personal identifier; or

(b) if no parent or guardian of the incapable person is readily available—an independent person consents to the incapable person providing the personal identifier.

(3) Before obtaining the consent of a parent or guardian, or the independent person, an officer or authorised officer must inform the parent, guardian or independent person of the matters of which the incapable person must be informed under section 258B.

Persons present while identification test is carried out

(4) If a non-citizen who is an incapable person provides a personal identifier, in accordance with a requirement under this Act, 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.

33 After Part 4

Insert:

Part 4A—Obligations relating to identifying information

Division 1—Preliminary

336A Definitions

In this Part:

data base means a discrete body of information stored by electronic means, containing:

(a) indexes of persons who have provided personal identifiers in accordance with a requirement under this Act; and

(b) their identifying information.

destroy, in relation to identifying information, has the meaning given by subsection 336K(4).

disclose, in relation to identifying information that is a personal identifier, includes provide access to the personal identifier.

identifying information means the following:

(a) any personal identifier;

(b) any meaningful identifier derived from any personal identifier;

(c) any record of a result of analysing any personal identifier or any meaningful identifier derived from any personal identifier;

(d) any other information, derived from any personal identifier, from any meaningful identifier derived from any 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 subsections 336E(2) and (3).

unauthorised impairment has the meaning given by section 336J.

unauthorised modification has the meaning given by section 336J.

336B Application

Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to all offences against this Part.

Division 2—Accessing identifying information

336C Accessing identifying information

(1) A person commits an offence if:

(a) the person accesses identifying information; and

(b) the person is not authorised under section 336D to access the identifying information 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 a disclosure that is a permitted disclosure.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

336D 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 section, 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 subsection 5A(3);

(b) disclosing identifying information in accordance with this Part;

(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) making decisions under this Act or the regulations, or under the Australian Citizenship Act 1948 or the regulations made under that Act;

(h) complying with laws of the Commonwealth or the States or Territories.

(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.

Division 3—Disclosing identifying information

336E 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, or 120 penalty units, or both.

(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 non-citizen; or

(ii) facilitate the processing of non-citizens entering or departing from Australia; or

(iii) identify non-citizens who have a criminal history, who are of character concern 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 or deported from Australia; or

(b) is for the purpose of administering or managing the storage of identifying information; or

(c) is authorised under section 336F 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 non-citizen to whom it relates; or

(e) takes place under an arrangement entered into with an agency of the Commonwealth, or with a State or Territory or an agency of a State or Territory, for the exchange of identifying information; or

(f) is for the purpose of a proceeding, before a court or tribunal, relating to the non-citizen to whom the identifying information in question relates; or

(g) is for the purpose of an investigation by the Privacy Commissioner or the Ombudsman relating to:

(i) carrying out an identification test; or

(ii) requiring the provision of a personal identifier; or

(h) 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:

(i) carrying out an identification test; or

(ii) requiring the provision of a personal identifier; or

(i) takes place with the written consent of the non-citizen to whom the identifying information in question relates.

(3) However, a disclosure is not a permitted disclosure if:

(a) it is 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; or

(ii) prosecuting a person for such an offence.

336F Authorising disclosure of identifying information to foreign countries etc.

(1) The Secretary may, in writing, authorise a specified officer, or any officer included in a specified class of officers, to disclose identifying information of the kind specified in the authorisation to one or more of the following:

(a) one or more specified foreign countries;

(b) one or more specified bodies each of which is:

(i) a police force or police service of a foreign country; or

(ii) a law enforcement body of a foreign country (including a war crimes tribunal); or

(iii) a border control body of a foreign country;

(c) one or more specified international organisations, or specified organisations of foreign countries, that are responsible for the registration of people as part of refugee or humanitarian programs;

(d) one or more prescribed bodies of a foreign country, of the Commonwealth or of a State or Territory;

(e) one or more prescribed international organisations.

(2) The Secretary must specify in the authorisation, as the purpose or purposes for which disclosure is authorised, one or more of the purposes set out in subsection 5A(3).

(3) A disclosure is taken not to be authorised under this section if:

(a) the person to whom the identifying information relates is:

(i) an applicant for a protection visa; or

(ii) an offshore entry person who makes a claim for protection under the Refugees Convention as amended by the Refugees Protocol; and

(b) the disclosure is to a foreign country in respect of which the application or claim is made, or a body of such a country.

(4) A disclosure is taken not to be authorised under this section if:

(a) the person to whom the identifying information relates is:

(i) an applicant for a protection visa; or

(ii) an offshore entry person who makes a claim for protection under the Refugees Convention as amended by the Refugees Protocol; and

(b) the officer making the disclosure is not reasonably satisfied that the country or body to which the disclosure is made will not disclose the identifying information to a foreign country in respect of which the application or claim is made, or a body of such a country.

(5) However, if:

(a) the person to whom the identifying information relates has requested or agreed to return to the foreign country in respect of which the application or claim is made; or

(b) the person is an applicant for a protection visa, and the application has been refused and finally determined; or

(c) the person is an offshore entry person:

(i) who makes a claim for protection under the Refugees Convention as amended by the Refugees Protocol; and

(ii) who, following assessment of his or her claim, is found not to be a person to whom Australia owes obligations under the Refugees Convention as amended by the Refugees Protocol;

then:

(d) subsection (3) does not apply to a disclosure to that country or to a body of that country; and

(e) subsection (4) does not apply to a disclosure to a body or country that may disclose the identifying information to that foreign country or to a body of that country.

Note: See subsection 5(9) for when an application is finally determined.

Division 4—Modifying and impairing identifying information

336G Unauthorised modification of identifying information

A person commits an offence if:

(a) the person causes any unauthorised modification of identifying information; 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.

336H Unauthorised impairment of identifying information

A person commits an offence if:

(a) the person causes any unauthorised impairment of:

(i) the reliability of identifying information; or

(ii) the security of the storage of identifying information; or

(iii) the operation of a system by which identifying information 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.

336J Meanings of unauthorised modification and unauthorised impairment etc.

(1) In this Part:

(a) modification of identifying information; or

(b) impairment of the reliability of identifying information; or

(c) impairment of the security of the storage of identifying information; or

(d) impairment of the operation of a system by which identifying information 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 Part, 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.

Division 5—Destroying identifying information

336K Destroying identifying information

(1) A person commits an offence if:

(a) the person is the responsible person for identifying information; and

(b) the identifying information is not of a kind that may, under section 336L, be indefinitely retained; and

(c) the person fails to destroy the identifying information as soon as practicable after the person is no longer required under the Archives Act 1983 to keep the identifying information.

Penalty: Imprisonment for 2 years, or 120 penalty units, or both.

Note: See section 24 of the Archives Act 1983 (particularly paragraphs 24(2)(b) and (c)) on the obligation to keep the identifying information.

(2) This section does not apply if the identifying information is:

(a) a personal identifier that is any of the following:

(i) a measurement of a person’s height and weight;

(ii) a photograph or other image of a person’s face and shoulders;

(iii) a person’s signature; or

(b) identifying information derived from or relating to such a personal identifier.

Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).

(3) For the purposes of this section, the responsible person for identifying information is:

(a) if the identifying information is stored on a database—the person who has day-to-day control of the database; or

(b) otherwise—the person who has day-to-day responsibility for the system under which the identifying information is stored.

(4) Identifying information is destroyed if any means of identifying it with the person from whom it was taken or to whom it relates is destroyed.

336L Identifying information that may be indefinitely retained

(1) Identifying information may be indefinitely retained if the non-citizen to whom it relates:

(a) is, or has ever been, in immigration detention; or

(b) has ever had an application for a visa refused, or has ever had a visa cancelled; or

(c) has ever:

(i) entered Australia on a temporary visa; and

(ii) since its expiry, remained in Australia as an unlawful non-citizen; or

(d) has ever been convicted of an offence against this Act or the regulations; or

(e) has ever been subject to action taken under this Act or the regulations for the purpose of:

(i) deporting the non-citizen; or

(ii) removing the non-citizen from Australia; or

(f) is a person in respect of whom the Minister has issued a conclusive certificate under subsection (4).

(2) Paragraph (1)(a) does not apply in relation to detention that occurs only because the non-citizen is, or was, detained for questioning detention (see section 192). However, this subsection does not apply if the detention leads to detention under section 189 because of the application of subsection 190(2).

(3) Paragraph (1)(b) does not apply if the decision to refuse the application for the visa, or to cancel the visa, was set aside on a review.

(4) The Minister may issue a conclusive certificate in respect of a non-citizen if the Minister is satisfied that:

(a) the non-citizen is a threat to the security of the Commonwealth or of a State or Territory; or

(b) it is in the public interest to do so.

(5) The power under subsection (4) may only be exercised by the Minister personally.

34 Before section 488

Insert in Part 9:

487 Liability for identification tests

No civil or criminal liability is incurred, by a person who carries out or helps to carry out an identification test under this Act, in respect of a thing done by the person if:

(a) it was properly and necessarily done in good faith in carrying out or helping to carry out the identification test; and

(b) the person believed on reasonable grounds that the identification test was carried out in accordance with this Act.

Note: This section does not provide any protection in respect of action taken maliciously.

 

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