Commonwealth Consolidated Acts

MIGRATION ACT 1958 - SECT 192

             (1)  Subject to subsection (2), if an officer knows or reasonably suspects that a non-citizen holds a visa that may be cancelled under Subdivision C, D or G of Division 3 or section 501 or 501A, the officer may detain the non-citizen.

             (2)  An officer must not detain an immigration cleared non-citizen under subsection (1) unless the officer reasonably suspects that if the non-citizen is not detained, the non-citizen would:

                     (a)  attempt to evade the officer and other officers; or

                     (b)  otherwise not co-operate with officers in their inquiries about the non-citizen's visa and matters relating to the visa.

          (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.

       (2AA)  An officer must not require, for the purposes of subsection (2A), a person to provide a personal identifier other than any of the following (including any of the following in digital form):

                     (a)  a photograph or other image of the person's face and shoulders;

                     (b)  the person's signature;

                     (c)  any other personal identifier contained in the person's passport or other travel document;

                     (d)  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.

          (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.

             (3)  An officer may question a non-citizen detained because of this section about the visa and matters relevant to the visa.

             (4)  A non-citizen detained under subsection (1) must be released from questioning detention if 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.

             (5)  A non-citizen detained under subsection (1) must be released from detention within 4 hours after being detained, unless the non-citizen is detained under section 189 because of subsection 190(2).

             (6)  If the non-citizen has been detained because of subsection (1) more than once in any period of 48 hours, the 4 hours provided for by subsection (5) is reduced by so much of the earlier period of detention as occurred within that 48 hours.

             (7)  In finding out whether 4 hours have passed since a non-citizen was detained, the following times are to be disregarded:

                     (a)  if the detainee is detained at a place that is inappropriate for questioning the detainee, the time that is reasonably required to take the detainee from that place to the nearest place that is appropriate;

                     (b)  any time during which the questioning is suspended or delayed to allow the detainee, or someone else on the detainee's behalf, to communicate with a legal practitioner, friend, relative, guardian, interpreter or consular representative of the country of which the detainee is a citizen;

                     (c)  any time during which the questioning is suspended or delayed to allow a person so communicated with or an interpreter required by an officer to arrive at the place where the questioning is to take place;

                     (d)  any time during which the questioning is suspended or delayed to allow the detainee to receive medical attention;

                     (e)  any time during which the questioning is suspended or delayed because of the detainee's intoxication;

                      (f)  any reasonable time during which the questioning is suspended or delayed to allow the detainee to rest or recuperate.

Note:          Section 5G may be relevant for determining relationships for the purposes of paragraph (7)(b).

             (8)  In paragraph (7)(b), guardian includes a person who is responsible, under a parenting order (within the meaning of the Family Law Act 1975 ), for the detainee's long-term care, welfare and development.