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2002 – 2003
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
MIGRATION LEGISLATION AMENDMENT
(IDENTIFICATION AND AUTHENTICATION) BILL 2003
EXPLANATORY
MEMORANDUM
(Circulated by authority
of the
Minister for Immigration and Multicultural and Indigenous
Affairs,
The Hon. Philip Ruddock MP)
MIGRATION LEGISLATION AMENDMENT (IDENTIFICATION AND AUTHENTICATION) BILL
2003
OUTLINE
1. The Migration Act 1958
(“the Act”) provides the capacity to require the collection of some
personal identifiers in certain circumstances. For
example:
• photographs and signatures are required to be provided
in order to make a valid visa application for some classes of visa;
• prescribed identity documents are required to be provided on entry to Australia in order to obtain immigration clearance; and
• section 258 of the Act allows an authorised officer to do all such
things as are reasonably necessary for photographing or measuring a person in
immigration detention, or otherwise recording matters to facilitate identifying
that person.
1. However, the Act does not define a personal identifier,
or the circumstances in which a personal identifier may be required, or how the
personal identifier is to be provided.
2. The Migration Legislation
Amendment (Identification and Authentication) Bill 2003 (“the Bill”)
amends the Act by inserting provisions to provide a legislative framework for
the collection of personal identifiers, such as photographs and signatures, from
non-citizens.
3. Australia, like many countries, faces the challenge of
being able to quickly and accurately identify the persons who seek to enter and
remain in Australia. Events over recent years have demonstrated an increased
importance in ensuring that we can accurately identify both the persons who seek
to enter Australia through our visa processes and those who attempt entry
without identity documents. The latter have, in many cases, destroyed those
documents to avoid accurate identification. This challenge also includes the
development of processes which allow us to identify persons, whilst minimising
delays for persons entering through immigration clearance
processes.
4. The Bill enables specified personal identifiers to be
collected from visa applicants and persons entering Australia, from persons in
Australia whilst checking compliance with visa conditions, and from persons in
immigration detention.
5. This legislative framework will clarify and
enhance the Government’s ability to accurately identify, or authenticate
the identity of, non-citizens at key points in the migration process in a way
that is consistent with the current requirements in the Act for proof of
identity.
6. At the same time, it will provide protection for
non-citizens who are required to provide their personal identifiers. For
example, the Bill inserts provisions which specifically prohibit a type of
personal identifier that involves the use of an intimate forensic procedure.
This will exclude, for example, blood tests or tests by hair sample from being
prescribed.
7. The types of personal identifiers that are covered by the
amendments to the Act are:
• fingerprints and handprints;
• photographs or other images of the face and shoulders;
• weight and height measurements;
• audio or video recordings;
• signatures;
• iris scans; and
• other personal identifiers as prescribed in the regulations (provided
they are not identifiers that would involve the carrying out of an intimate
forensic procedure and provided they meet the description of an image,
measurement or recording of an external part of the body).
1. Allowing
new types of personal identifiers to be prescribed in the regulations will
permit the adoption of new technologies in a rapidly developing environment.
2. The Bill provides a flexible and effective structure to allow
expansion of requirements where future technological advances will assist in
ensuring the accurate identification of persons seeking to enter Australia and
facilitating quick and unobtrusive entry processes.
3. The accurate
identification of non-citizens is essential to ensure the integrity of migration
programs by:
• combating document and identity fraud in immigration
matters;
• accurately identifying non-citizens who have a criminal history or who are of national security concern; and
• detecting forum shopping by applicants for visas.
1. The Bill
sets out general rules an authorised officer must follow when carrying out an
identification test on a non-citizen, and contains detailed provisions
regulating the access, disclosure and destruction of identifying
information.
2. Prescribing the circumstances in which a non-citizen must
provide personal identifiers in the regulations allows the Government to adapt
its approach to identifying non-citizens to meet new risks or concerns or to
adopt new technology, as they arise.
3. The non-citizens who, in
circumstances to be prescribed in the regulations, will be required to provide
prescribed types of personal identifiers are:
• non-citizens in immigration detention;
• non-citizens who apply for visas, or who are to be granted visas;
• non-citizens who enter and depart Australia, or travel on an overseas vessel from port to port in Australia;
• non-citizens in questioning detention; and
• persons in Australia who are known or reasonably suspected to be
non-citizens.
1. It is envisaged that the regulations prescribing the
situations in which such persons must provide personal identifiers, and the
types of identifiers required, will largely mirror the current situations in
which proof of identity to determine lawful status is required in the migration
context.
2. For example, it is envisaged that photographs and signatures
will continue to be required in relation to most visa applications, including
applications for visitor visas and most permanent visas. A non-citizen will be
able to provide these personal identifiers, in relation to an offshore visa
application, to an officer of the Department by attaching their photo (verified
by a third party such as a Justice of the Peace), signing the visa application
and sending it to the Department. In the case of protection visa applications,
it is likely that fingerprints, photographs and signatures will be
required.
3. There will be some visa applications for which it is
unlikely that any personal identifiers will be prescribed – for example,
electronic travel authority visas.
4. Once a visa is granted and the
non-citizen is seeking to Australia, the existing proof of identity procedures
in the Act apply. These require the non-citizen to provide prescribed proof of
identity and evidence of a visa that is in force. The amendments will allow
regulations to prescribe, where appropriate, that the non-citizen must provide
specified personal identifiers. This will allow the Government to take advantage
of new technologies such as facial recognition software, which will speed up the
immigration clearance process at airports.
5. Similarly, a non-citizen
travelling between ports in Australia, or departing Australia, must comply with
existing requirements to show proof of identity and travel documents. The Bill
would introduce an additional requirement that the non-citizen must, if
prescribed by regulations, also provide a specified personal identifier. Again,
no additional personal identifiers will be required where the non-citizen
satisfies the existing requirements and there are no concerns about the
non-citizen’s identity.
6. Currently, a person in Australia, whom
an officer exercising duties under section 188 of the Act, knows or reasonably
suspects is a non-citizen, must show the officer evidence of being a lawful
non-citizen. In addition, if an officer knows or reasonably suspects that a
non-citizen in Australia holds a visa that may be subject to cancellation, then
the officer may detain the non-citizen for “questioning detention”
under section 192 of the Act. These powers are usually exercised by
Departmental compliance officers during compliance visits where there are
suspicions about the current lawful status of non-citizens in
Australia.
7. The Bill would introduce additional requirements that a
person known or reasonably suspected to be a non-citizen, and a non-citizen in
questioning detention must, where prescribed by regulations, provide specified
personal identifiers. It is envisaged that personal identifiers will only be
required where a non-citizen cannot, or is unwilling to, satisfy the officer of
their lawful status (for example, by showing their passport photo and their
valid visa). It is most likely that photographs and signatures will be the
prescribed types of personal identifiers for these circumstances. This will
allow the officer to check Departmental records and accurately authenticate the
non-citizen in question.
8. Under the current provisions in the Act, if
an officer knows or suspects that a person in the migration zone (other than an
excised offshore place) is an unlawful non-citizen, the officer must detain that
person. Existing section 258 of the Act authorises certain officers to do all
such things that are reasonably necessary for photographing or measuring a
person in immigration detention, or otherwise recording matters in order to
facilitate the person’s present or future identification.
9. The
Bill would clarify this provision, by requiring a non-citizen in immigration
detention, where prescribed by regulations, to provide specified types of
personal identifiers to an authorised officer. It is envisaged that a
non-citizen in immigration detention will be required to provide fingerprints
and photographs.
10. The collection of personal identifiers from
non-citizens in detention will allow officers to check Departmental and overseas
databases in order to identify, or confirm the claimed identity, of an
immigration detainee. This may be necessary, for example, in order to provide
information to a foreign country prior to arranging for the non-citizen’s
removal from Australia to that foreign country.
11. The provisions in
relation to immigration detainees authorise an authorised officer to use
reasonable force, if necessary, to obtain the non-citizen’s personal
identifiers. However, reasonable force can only be used as a last resort, and
only if authorised by a senior authorising officer. Further, reasonable force
cannot be used in order to collect personal identifiers from non-citizen minors
and incapable persons in immigration detention. An independent person must be
present if a test is to be carried out by use of reasonable force. If requested
by the non-citizen, the testing officer must be of the same sex as the
non-citizen.
12. The measures in the Bill protect the privacy of
non-citizens by placing limits on the access and disclosure of identifying
information provided under its provisions.
13. For example, identifying
information will not be disclosed to a foreign country if a non-citizen has made
a protection visa application in relation to that country. However, this
prohibition on disclosure will not apply if the person requests, or agrees, to
return to that foreign country. It will also not apply if the
non-citizen’s application for a protection visa is refused and is finally
determined.
14. Generally, identifying information will be destroyed once
it is no longer required to be kept under the Archives Act 1983.
However, there will be some circumstances where the an individual’s
identifying information will be retained indefinitely.
These circumstances are where:
• the non-citizen is, or has ever been, in immigration detention;
• the non-citizen has ever had an application for a visa refused, or has ever had a visa cancelled;
• the non-citizen has ever entered Australia on a temporary visa and, since its expiry, remained in Australia as an unlawful non-citizen;
• the non-citizen has ever been convicted of an offence against the Act or the regulations;
• the non-citizen has ever been subject to action taken under the Act or the regulations for the purposes of deporting or removing the non-citizen from Australia; or
• the Minister is satisfied that the non-citizen is a threat to the
security of the Commonwealth, or a State or Territory of the Commonwealth, and
the Minister issues a certificate to that effect.
1. The proposed
measures in the Bill will contribute towards whole-of-government and
international strategies to combat fraud and misrepresentation by uniquely
verifying identities of non-citizens.
2. Identity and document fraud facilitates the international
movement of terrorists and other persons of concern. Enhanced border security
through strengthened proof of identity requirements is therefore essential to
ensure the integrity of Australia’s visa and entry procedures and to
enhance national security. The measures in the Bill will also assist other
agencies who rely on the Department’s proof of identity procedures to
determine access for non-citizens to a range of benefits and
entitlements.
3. Other countries have already responded to the growing
incidence of fraud in the immigration context by enhancing their identification
and client registration powers. Problems with fraudulent documentation and the
need to track histories of identities in client processing has led many
countries to introduce identification testing measures similar to those proposed
in this Bill. It is crucial that Australia has the opportunity and ability to
participate internationally in combating immigration fraud by using current and
evolving technologies. In this international environment, Australia cannot
afford to be seen as a “soft target” by terrorists, people
smugglers, forum shoppers and other non-citizens of concern.
4. The
proposed measures will align Australian identification powers with similar
measures in place in Canada, the United Kingdom, the United States of America
and the European Union, thereby creating important opportunities for information
exchange in relation to counter terrorism and forum
shopping.
5. The Bill will enhance the
Government’s ability to accurately identify non-citizens of concern such
as those who:
• are in Australia unlawfully; or
• are
breaching visa conditions; or
• are of national security concern or
character concern; or
• are serial protection claimants or forum
shoppers.
1. The Bill will also complement people smuggling measures
already introduced by the Government and assist the
Government to more accurately identify non-citizens who are held in immigration
detention, and help to minimise the amount of time that immigration detainees
spend in detention.
2. The enhanced identification and authentication
measures will also assist the Government to satisfy
foreign governments of the identities of non-citizens who are to be removed or
deported from Australia.
3. In addition, the amendments will facilitate
more efficient visa application processing and legitimate access to rights and
entitlements for visa holders. They will also facilitate quick and unobtrusive
entry processes.
FINANCIAL IMPACT
STATEMENT
4. Implementation of the amendments contained in the Bill
is expected to require initial investment in establishing processing and
database equipment and an increased commitment of resources to visa processing
and entry stages of immigration clearance. The initial financial impact is
expected to be medium.
5. However, is it anticipated that the use of
personal identifiers will result in savings through reduced detention and
compliance-related activities.
6. Overall it is anticipated that after
the initial system set-up and ongoing monitoring arrangements are put in place,
the use of personal identifiers will have a positive impact on Commonwealth
resources.
MIGRATION LEGISLATION AMENDMENT (IDENTIFICATION AND AUTHENTICATION) BILL
2003
NOTES ON INDIVIDUAL CLAUSES
Clause
1 Short title
1. The short title by which this Act may be
cited is the Migration Legislation
Amendment (Identification and
Authentication) Act 2003.
Clause 2 Commencement
2.
Subclause 2(1) contains a table setting out the commencement information for
the Act. The subclause also provides that each provision of the Act specified
in column 1 of the table commences, or is taken to have commenced, on the day or
at the time specified in column 2 of the table.
3. The effect of item 1
of the table is that sections 1, 2 and 3 of the Act commence on the day on which
the Act receives the Royal Assent.
4. The effect of item 2 of the table
is that Schedule 1 to the Act commences on a single day to be fixed by
Proclamation, subject to subclause 2(3).
5. Subclause 2(3) provides
that, 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 the Act receives the Royal
Assent, it commences on the first day after the end of that period.
6.
The note in subclause 2(1) makes it clear that the table only relates to the
provisions of the Act as originally passed by the Parliament and assented to.
The table will not be expanded to deal with provisions inserted into the Act
after it receives the Royal Assent.
7. Subclause 2(2) provides that
column 3 of the table in subclause 2(1) is for additional information that may
be included in any published version of the Act but which is not part of the
Act.
Clause 3 Schedule(s)
8. This clause provides that
each Act specified in a Schedule to this Act is amended or repealed as set out
in the applicable items in the Schedule concerned. In addition, any other item
in a Schedule to this Act has effect according to its terms.
9. This item inserts a note at the end of the definition of
“authorised officer” in subsection 5(1) of the Act.
10. The
note makes it clear that new section 5D can affect the meaning of the definition
of “authorised officer” for the purposes of carrying out
identification tests.
11. New section 5D is contained in item 11 of
this Schedule. It allows the Minister or Secretary to specify, in the
instrument authorising an officer as an authorised officer for the purposes of
carrying out identification tests, the types of identification tests that an
officer appointed as an authorised officer may carry out.
Item
2 Subsection 5(1)
12. This item inserts a definition of
“character concern” in subsection 5(1) of the Act. “Character
concern” is defined to have the meaning given by new section 5C contained
in item 11 of this Schedule.
13. New section 5C contained in item 11
of this Schedule inserts a specific definition provision for the meaning of
“character concern” in the Act.
Item 3 Subsection 5(1)
(definition of data base)
14. This item makes a minor
technical amendment to the definition of “data base” in subsection
5(1) of the Act. It is an amendment consequential to the insertion of new
section 336A contained in item 33 of this Schedule.
15. New section
336A inserts a definition of “data base” for the purposes of new
Part 4A to mean a discrete body of information stored by electronic means,
containing:
• indexes of persons who have provided personal
identifiers in accordance with the Act; and
• their identifying
information.
1. This amendment ensures that the definition of
“data base” in subsection 5(1) of the Act does not apply to new Part
4A.
Item 4 Subsection 5(1) (at the end of the definition of data
base)
2. This item inserts a note at the end of the definition
of “data base” in subsection 5(1) of the Act.
3. The note
makes it clear that new section 336A defines “data base” differently
for the purposes of Part 4A.
Item 5 Subsection 5(1)
4.
This item inserts a definition of “identification test” in
subsection 5(1) of the Act.
“Identification test” is defined to
mean a test carried out in order to obtain a personal identifier.
Item
6 Subsection 5(1)
5. This item inserts a definition of
“incapable person” in subsection 5(1) of the Act.
“Incapable person” is defined to mean a person who is incapable
of understanding the general nature and effect of, and purposes of, a
requirement to provide a personal identifier.
Item 7 Subsection
5(1)
6. This item inserts a definition of “independent
person” in subsection 5(1) of the Act. “Independent person” is
defined to mean a person (other than an officer or an authorised officer)
who:
• is capable of representing the interests of a non-citizen
who is providing, or is to provide, a personal identifier; and
• as far
as practicable, is acceptable to the non-citizen who is providing, or is to
provide, the personal identifier; and
• if the non-citizen is a minor,
is capable of representing the best interests of the minor.
1. Because
the definition of “independent person” excludes an officer, a senior
authorising officer, as defined in new subsections 192A(9), 261AE(8) and
261AK(10) cannot be an independent person. The Secretary or an SES Band 3
employee, as defined in new subsection 261AK(10), also cannot be an independent
person.
Item 8 Subsection 5(1)
2. This item inserts a
definition of “minor” in subsection 5(1) of the Act.
“Minor” is defined to mean a person who is less than 18 years
old.
Item 9 Subsection 5(1)
3. This item inserts a
definition of “personal identifier” in subsection 5(1) of the Act.
“Personal identifier” is defined to have the meaning given by new
section 5A contained in item 11 of this Schedule.
Item 10 After
subsection 5(4)
4. This item inserts new subsection 5(4A) after
subsection 5(4) of the Act.
5. New subsection 5(4A) provides that a
reference to a non-citizen in the definition of “independent person”
(contained in item 7 of this Schedule), sections 258 to 258G (contained in item
31 of this Schedule), or in new Division 13AB of Part 2 (contained in item 32 of
this Schedule), 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.
6. This item inserts new sections 5A, 5B, 5C and 5D after section 5 of
the Act.
Section 5A Meaning of personal
identifier
7. New subsection 5A(1) inserts a specific
definition provision for the meaning of personal identifier in the Act. It
provides an exhaustive list of what constitutes a “personal
identifier”.
8. “Personal identifier” means any of
the following, including any of the following in digital form:
• fingerprints and handprints, including those taken using paper
and ink and digital livescanning technologies (paragraph
(a));
• measurements of a person’s height or weight (paragraph
(b));
• a photograph or other image of a person’s face or
shoulders (paragraph (c));
• an audio or video recording of a
person, other than a video recording of the carrying out of an identification
test under section 261AJ (paragraph (d));
• an iris scan (paragraph
(e));
• a person’s signature (paragraph (f)); and
• any
other identifier prescribed by the regulations provided that it is not an
identifier that would involve the carrying out of an intimate forensic procedure
within the meaning of section 23WA of the Crimes Act 1914 (paragraph
(g)).
1. New subsection 5A(2) imposes a prerequisite on the
Governor-General making regulations for the purposes of prescribing a personal
identifier under new paragraph 5A(1)(g). It provides that before the
Governor-General makes regulations, the Minister must be satisfied
that:
• 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;
• the identifier is an image, measurement or
recording of an external part of the body; and
• obtaining the
identifier will promote one or more of the purposes of the Act referred to in
new subsection 5A(3).
1. In practice, the Minister will also consult
with the Attorney-General before the Governor-General makes regulations for the
purpose of prescribing a new personal identifier under new paragraph
5A(1)(g).
2. To make it clear, a personal identifier that requires an
intimate forensic procedure, as defined in section 23WA of the Crimes Act
1914, cannot be prescribed in any regulations made under new paragraph
5A(1)(g). Such a personal identifier can only be required if the Act itself is
amended to include it. For example, the taking of a sample of blood could not
be prescribed as a personal identifier under new paragraph 5A(1)(g).
3.
New subsection 5A(3) sets out an extensive list of the purposes referred to in
new paragraph 5A(2)(c). Before prescribing an identifier for the purposes of new
paragraph 5A(1)(g), the Minister must be satisfied that obtaining the identifier
promotes one or more of the following purposes:
• assists 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;
• assists
in identifying in the future any non-citizen who may be required under this Act
to provide a personal identifier;
• improves the integrity of entry
programs, including passenger processing at Australia’s
border;
• facilitates a visa-holder’s access to his or her rights
under the Act or the regulations;
• improves the procedures for
determining visa applications;
• improves the procedures for
determining claims for protection under the Refugees Convention as amended by
the Refugees Protocol;
• enhances the Department’s ability to
identify non-citizens who have a criminal history or who are of national
security or character concern;
• combats document and identity fraud
in immigration matters;
• detects forum shopping by applicants for
visas;
• ascertains whether an applicant for a protection visa, or 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;
• complements anti-people smuggling measures; and
• informs
the governments of foreign countries of the identity of non-citizens who are, or
are to be, removed or deported from Australia.
1. New section 5B sets out the circumstances in which a non-citizen is
taken not to have provided a personal identifier for the purposes of sections
40, 46, 166, 170, 175, 188 and 192 of the Act. These circumstances are
where:
• the personal identifier that is provided is unusable;
• an authorised officer or an officer is not satisfied about the
integrity of the personal identifier that is provided or about the procedure
followed to obtain the personal identifier; or
• in the case of a
personal identifier provided under new subsections 40(5), 46(2C), 166(1C),
170(5), 175(5), 188(7) or 192(2C) – an officer who uses the personal
identifier for the purpose of making a decision under the Act or the regulations
is not satisfied about the quality of the personal identifier.
1. For
example, a fingerprint that is provided might be unusable if it is smudged or a
photograph that is provided might be unusable if it is too dark. As another
example, a technical failure of equipment may mean that the attempt to provide a
personal identifier is unsuccessful. As a further example, an officer who
processes a visa application may not be satisfied that the photograph attached
to the visa application is actually a photograph of the applicant.
2.
In these circumstances, the requirement to provide one or more personal
identifiers remains in effect – that is, the non-citizen has not complied
with the requirement to provide the identifier. The non-citizen must still
provide the one or more personal identifiers.
Section 5C Meaning of
character concern
3. New section 5C inserts a specific
definition provision for the meaning of “character concern” in the
Act. It provides an exhaustive list of what constitutes “character
concern”. One of the purposes listed in new subsection 5A(3) is to
enhance the Department’s ability to identify non-citizens who are of
character concern.
4. A non-citizen is of “character
concern” if the non-citizen:
• has a substantial criminal
record (as defined by new subsection 5C(2)); or
• has or has had an
association with someone else, or with a group or association, who is reasonably
suspected of having been or being involved in criminal conduct; or
• is
not of good character, having regard to either the non-citizen’s past and
present criminal conduct or past and present general conduct (or both);
or
• if allowed to enter or remain Australia, there is a significant
risk that the non-citizen would:
• engage in criminal conduct;
or
• harass, molest, intimidate or stalk another person in Australia;
or
• vilify a segment of the Australian community; or
• incite
discord in the Australian community or in a segment of the community;
or
• represent a danger to the Australian community or a segment of the
community.
1. New subsection 5C(2) inserts a specific definition
provision for the meaning of “substantial criminal record” for the
purposes of new subsection 5C(1).
2. A non-citizen has a
“substantial criminal record” if the non-citizen:
• has
been sentenced to death, imprisonment for life or imprisonment for 12 months or
more; or
• has been sentenced to two or more terms of imprisonment
(whether on one or more occasions) and the total of those terms is two years or
more; or
• 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.
1. The definitions of “character
concern” and “substantial criminal record” largely mirror the
existing definitions of “character test” and “substantial
criminal record” in subsections 501(6) and (7) of the Act. However, they
are not identical. The reason for the insertion of the separate definitions of
“character concern” and “substantial criminal record” in
new section 5C is that section 501 only relates to the refusal or cancellation
of a visa on character grounds. The definitions in new section 5C will have
broader application.
Section 5D Limiting the types of identification
tests that authorised officers may carry out
2. New
subsection 5D(1) allows the Minister or Secretary to specify, in the instrument
authorising an officer as an authorised officer for the purposes of carrying out
identification tests under the Act, the types of identification tests that the
officer appointed as an authorised officer may carry out.
3. This
allows the Minister to authorise officers to conduct tests in relation to one or
more types of personal identifiers that can be provided by non-citizens under
the Act. For example, one class of officers may be authorised to conduct tests
in relation to measurements, photographs and signatures only, whereas another
class of officers may be authorised to conduct tests in relation to
fingerprints.
4. “Officer” is already defined in subsection
5(1) of the Act. The definition of officer encompasses Departmental employees.
These employees could include compliance officers, regional office counter
officers and officers at overseas posts. The definition of officer can also
encompass persons other than Departmental employees. For example, a Customs
officer is an officer for the purposes of subsection 5(1). In addition, the
Minister may authorise persons other than Departmental employees to be officers.
These persons may include employees of detention centre contracted providers.
5. New subsection 5D(2) makes it clear that an authorised officer is
not authorised to carry out an identification test that is not a type of test
specified in the instrument appointing the officer as an authorised
officer.
Item 12 Subsection 40(2)
6. This item makes a
minor technical amendment to subsection 40(2) of the Act. It is an amendment
consequential to the insertion of new subsection 40(3) by item 13 of this
Schedule.
7. Subsection 40(1) provides that the regulations may
prescribe that visas or visas of a specified class may only be granted in
specified circumstances.
8. Currently, subsection 40(2) provides
that, without limiting subsection 40(1), these circumstances may be that a
person is in a certain place or has a particular immigration clearance status
when the person is granted the visa.
9. This amendment ensures that,
without limiting subsection 40(1), these circumstances may be, or may include,
that a person is in a certain place, or has a particular immigration clearance
status.
10. This item inserts new subsections 40(3), (4) and (5) at the end of
section 40 of the Act.
11. Subsection 40(1) provides that the
regulations may prescribe that visas or visas of a specified class may only be
granted in specified circumstances.
12. New subsection 40(3)
specifies additional circumstances that may be prescribed in the regulations as
required before a visa, or a visa of a specified class, may be granted. It
provides that, without limiting subsection 40(1), the circumstances may be, or
may include, that the person has complied with:
• if prescribed
circumstances exist - 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 (paragraph 40(3)(a)); or
• any requirement by
an officer to provide other evidence of identity in relation to the application
(paragraph 40(3)(b)).
1. The effect of regulations made under this new
provision will be that a non-citizen who fails to comply with a requirement to
provide one or more personal identifiers or other evidence of identity in
relation to a visa application will not satisfy the circumstances relevant to
the grant of the visa.
2. This amendment may supplement the amendment
made by item 16 of this Schedule, which allows for the provision of prescribed
personal identifiers in order to make a valid visa application. For example, it
enables an officer to confirm that the person to be granted the visa is in fact
the same person who applied for the visa, as long as the person provided the
same type of personal identifier at the time of application.
3. Note that
if the Minister considers that it is not necessary or practical to require all
non-citizens to be granted a visa to provide prescribed personal identifiers,
then the Minister is able to make a determination under new section
258.
4. The general rule under new subsection 40(4) is that the
non-citizen must comply with a requirement to provide a personal identifier in
paragraph 40(3)(a) by way of one or more identification tests carried out by an
authorised officer.
5. This applies irrespective of whether an
authorised officer or an officer actually requires the non-citizen to provide
one or more personal identifies. For example, it may be a regional counter
officer, who is not appointed as an authorised officer, who actually requires
the non-citizen to provide one or more personal identifiers under new paragraph
40(3)(a). However, the identification test itself must be carried out by an
authorised officer.
6. This item also inserts a new note at the end of
new subsection 40(4). The note reflects new section 5D, and makes it clear that
if the instrument of authorisation appointing an authorised officer specifies
which type(s) of identification tests that authorised officer can carry out,
then that authorised officer can only carry out those specified types of
identification tests.
7. New subsection 40(5) details an exception to
the general rule set out in new subsection 40(4). It provides that, in
prescribed circumstances, the non-citizen is to provide a prescribed personal
identifier otherwise than by way of an identification test carried out by an
authorised officer.
8. For example, for certain offshore visa
applications, the regulations may prescribe, as a circumstance required for
grant, that the applicant has provided a signature and a photograph to a third
party (such as a Justice of the Peace) for verification.
9. New
subsection 40(5) provides that such a non-citizen must also comply with
any
further requirements prescribed in the Regulations in relation to the provision
of the personal identifier. For example, these may include requirements as to
when, where and how such non-citizens must provide their personal identifiers.
Item 14 Subsection 46(1)
10. This item makes a minor
technical amendment to subsection 46(1) consequential to the insertion of new
subsection 46(2A) by item 16 of this Schedule.
Item 15 Subsection
46(2)
11. This item also makes a minor technical amendment to
subsection 46(2) consequential to the insertion of new subsection 46(2A) by item
16 of this Schedule.
Item 16 After subsection 46(2)
12.
This item inserts new subsections 46(2A), 46(2B) and 46(2C) after section 46(2)
of the Act.
13. Subsection 46(1) sets out the requirements for an
application to be a valid visa application. Item 14 of this Schedule makes
subsection 46(1) subject to new subsection 46(2A), as well as subsections (1A)
and (2).
14. Subsection 46(2) sets out further requirements for an
application to be a valid visa application. Item 15 of this Schedule makes
subsection 46(2) subject to new subsection 26(2A).
15. New subsection
46(2A) sets out circumstances in which an application for a visa is invalid. It
provides that an application for a visa is invalid if the applicant has not
complied with a requirement by an officer to provide:
• if the
prescribed circumstances exist - one or more personal identifiers that are
prescribed in relation to the application; or
• other evidence of
identity in relation to the application.
1. For example, an applicant
for a certain class of visa may be required when making an application to
provide his or her signature, photograph and fingerprints in order to make a
valid visa application.
2. This item also inserts a new note at the end
of new subsection 46(2A). The note explains that an invalid application for a
visa cannot give rise to an obligation under section 65 to grant a visa because,
under subsection 47(3) of the Act, the Minister is not to consider an
application that is not a valid application.
3. Note that if the
Minister considers that it is not necessary or practical to require all
non-citizens for a particular class of visa to provide one or more personal
identifiers, then the Minister is able to make a determination under new section
258.
4. The general rule under new subsection 46(2B) is that the
non-citizen is taken to have complied with a requirement to provide a personal
identifier in subsection 46(2A) if he or she provides one or more personal
identifiers by way of one or more identification tests carried out by an
authorised officer.
5. This applies irrespective of whether an
authorised officer or an officer actually requires the non-citizen to provide
one or more personal identifies. For example, it may be an officer, who is not
appointed as an authorised officer for the purposes of carrying out
identification tests, who actually requires the non-citizen to provide one or
more personal identifiers under new subsection 46(2A). However, the
identification test itself must be carried out by an authorised
officer.
6. This item also inserts a new note at the end of new
subsection 46(2B). The note reflects new section 5D, and makes it clear that if
the instrument of authorisation appointing an authorised officer specifies which
type(s) of identification tests that authorised officer can carry out, then that
authorised officer can only carry out those specified types of identification
tests.
7. New subsection 46(2C) details an exception to the general
rule set out in new subsection 46(2B). It effectively provides that, in the
prescribed circumstances, the non-citizen can comply with the requirement to
provide a prescribed personal identifier other than by way of an identification
test carried out by an authorised officer.
8. New subsection 46(2C)
provides that such a non-citizen must also comply with
any further
requirements prescribed in the Regulations in relation to the provision of the
personal identifier. For example, these may include requirements as to when,
where and how such non-citizens must provide their personal identifiers.
9. For the purposes of new subsection 46(2C), prescribed types of
personal identifiers
might include photographs and signatures. This would
mean that, instead of providing a photograph and signature by way of an
identification test carried out by an authorised officer, an applicant for
certain classes of visa would be able to provide his or her photograph with
their application for a visa, sign the form and send it to the Department for
processing.
10. It is expected that the Regulations would set out
certain integrity requirements for these circumstances. For example, a Justice
of the Peace may be required to verify the signature and photograph of the visa
applicant on the visa application form.
Item 17 After paragraph
166(1)(a)
11. This item inserts new paragraph 166(1)(aa) after
paragraph 166(1)(a) of the Act.
12. In broad terms, section 166
requires a person who enters Australia to, without unreasonable delay, show a
clearance officer certain identity and travel authority documents. This section
applies to both non-citizens and Australian citizens.
13. New paragraph
166(1)(aa) introduces an additional requirement, in relation to non-citizens
only. Where prescribed circumstances exist, a non-citizen entering Australia
must comply with any requirement of the clearance officer to provide one or more
types of personal identifiers.
14. This amendment complements new
subparagraph 172(3)(b)(iii) (contained in item 21 of this Schedule). New
subparagraph 172(3)(b)(iii) provides that a person who refuses, or is unable, to
comply with a requirement of a clearance officer under new paragraph 166(1)(aa)
to provide a personal identifier is refused immigration clearance.
15.
In effect, this amendment, combined with others, enables a clearance officer to
require non-citizens entering Australia to provide prescribed types of personal
identifiers, by way of an identification test carried out by an authorised
officer or otherwise, and for the clearance officer to refuse immigration
clearance to a non-citizen who refuses to do so.
Item 18 After
subsection 166(1)
16. This item inserts new subsections 166(1A),
166(1B) and 166(1C) after subsection 166(1) of the Act.
17. New
subsection 166(1A) makes it clear that new paragraph 166(1)(aa) does not limit a
clearance officer’s existing power under subparagraph 166(1)(a)(ii) to
require a non-citizen to show the officer evidence (other than a personal
identifier) of the non-citizen’s identity.
18. This amendment
means that the current requirement to provide identity information remains in
effect and operates concurrently with the new requirement to provide a personal
identifier.
19. Note that if the Minister considers that it is not
necessary or practical to require all non-citizens entering Australia to provide
one or more personal identifiers, then the Minister is able to make a
determination under new section 258.
20. New subsection 166(1B)
effectively provides a general rule for how non-citizens are to comply with a
requirement to provide a personal identifier. The general rule is that the
non-citizen must comply with a requirement to provide a personal identifier in
paragraph 166(1)(aa) by way of one or more identification tests carried out by
an authorised officer.
21. This applies irrespective of whether an
authorised officer or a clearance officer actually requires the non-citizen to
provide one or more personal identifies. For example, it may be a clearance
officer, who is not appointed as an authorised officer for the purposes of
carrying out identification tests, who actually requires the non-citizen to
provide one or more personal identifiers under new paragraph 166(1)(aa).
However, the identification test itself must be carried out by an authorised
officer.
22. This item also inserts a new note at the end of new
subsection 166(1B). The note reflects new section 5D, and makes it clear that
if the instrument of authorisation appointing an authorised officer specifies
which type(s) of identification tests that authorised officer can carry out,
then that authorised officer can only carry out those specified types of
identification tests.
23. New subsection 166(1C) details an exception
to the general rule set out in new subsection 166(1B). It effectively provides
that, in the prescribed circumstances, the non-citizen can comply with the
requirement to provide a prescribed personal identifier other than by way of an
identification test carried out by an authorised officer.
24. New
subsection 166(1C) provides that such a non-citizen must also comply with
any
further requirements prescribed in the Regulations in relation to the provision
of the personal identifier. For example, these may include requirements as to
when, where and how such non-citizens must provide their personal identifiers.
25. For the purposes of new subsection 166(1C), prescribed types of
personal identifiers
might include digital photographs. The prescribed
circumstances might be that non-citizens seeking to enter Australia through
major international airports must scan their photographic identity documents at
an automated kiosk. This will allow the Government to take advantage of new
technologies such as facial recognition software, which will speed up
immigration clearance processes at Australia’s international airports.
Item 19 Paragraph 167(3)(b)
26. This item makes a
minor technical amendment to paragraph 167(3)(b) as a consequence of the
insertion of new paragraph 166(1)(aa) by item 17 of this
Schedule.
Item 20 At the end of section 170
27. This
item inserts new subsections 170(2), (3), (4) and (5) at the end of section 170
of the Act.
28. Broadly, section 170 allows a clearance officer to
require a person who travels, or appears to intend to travel, on an overseas
vessel from a port to another port to give evidence of identity or other
required information. This section applies to both non-citizens and
citizens.
29. New subsection 170(2) introduces an additional
requirement, in relation to non-citizens only. A clearance officer must, if the
prescribed circumstances exist, require a non-citizen travelling, or appearing
to intend to travel, between ports to provide one or more personal identifiers.
30. In effect, this amendment allows a clearance officer to require a
non-citizen who travels, or appears to intend to travel, on an overseas vessel
from a port to another port to do one or more things set out in subsections
170(1) or (2). This includes, in prescribed circumstances, requiring
non-citizens to provide their personal identifier(s), either by way of an
identification test carried out by an authorised officer or
otherwise.
31. New subsection 170(3) makes it clear that new subsection
170(2) does not limit a clearance officer’s power under paragraph
170(1)(a) to require a non-citizen to show the officer evidence (other than a
personal identifier) of the non-citizen’s identity.
32. This
amendment means that the current requirement to provide identity information
remains in effect and operates concurrently with the new requirement to provide
a personal identifier.
33. Note that if the Minister considers that it is
not necessary or practical to require all non-citizens travelling, or intending
to travel, between ports in Australia to provide one or more personal
identifiers, then the Minister is able to make a determination under new section
258.
34. New subsection 170(4) effectively provides a general rule about
how the non-citizen is to comply with a requirement to provide a personal
identifier in new paragraph 170(2). A non-citizen must provides the personal
identifier by way of one or more identification tests carried out by an
authorised officer.
35. This applies irrespective of whether an
authorised officer or a clearance officer actually requires the non-citizen to
provide one or more personal identifiers. For example, it may be a clearance
officer, who is not appointed as an authorised officer for the purposes of
carrying out identification tests, who actually requires the non-citizen to
provide one or more personal identifiers under new paragraph 170(2). However,
the identification test itself must be carried out by an authorised
officer.
36. This item also inserts a new note at the end of new
subsection 170(4). The note reflects new section 5D, and makes it clear that if
the instrument of authorisation appointing an authorised officer specifies which
type(s) of identification tests that authorised officer can carry out, then that
authorised officer can only carry out those specified types of identification
tests.
37. New subsection 170(5) details an exception to the general
rule set out in new subsection 170(4). It effectively provides that, in the
prescribed circumstances, the non-citizen can comply with the requirement to
provide a prescribed personal identifier other than by way of an identification
test carried out by an authorised officer.
38. New subsection 170(5)
provides that such a non-citizen must also comply with
any further
requirements prescribed in the Regulations in relation to the provision of the
personal identifier. For example, these may include requirements as to when,
where and how such non-citizens must provide their personal identifiers.
Item 21 Subparagraph 172(3)(b)(ii)
39. This item repeals
existing subparagraph 172(3)(b)(ii) and substitutes new subparagraphs
172(3)(b)(ii), 172(3)(b)(iii) and 172(3)(b)(iv).
40. Section 172 deals
with the immigration status of non-citizens on entry to Australia. It outlines
the circumstances in which a non-citizen is “immigration cleared”,
“in immigration clearance”, “refused immigration
clearance” or “bypasses immigration clearance”.
41.
Subsection 172(3) details the circumstances in which a person, who is with a
clearance officer for the purposes of being immigration cleared under section
166, is refused immigration clearance. Under paragraph 172(3)(b), a person who
has had his or her visa cancelled, or refuses, or is unable, to do certain
things, is refused immigration clearance.
42. New subparagraph
172(3)(b)(iii) introduces an additional requirement where the person who is with
a clearance officer for the purpose of being immigration cleared under section
166 is a non-citizen who has been required under new paragraph 166(1)(aa) to
provide one or more personal identifiers. In effect, new subparagraph
172(3)(b)(iii) requires such a person to comply with any requirement of a
clearance officer under new paragraph 166(1)(aa) to provide a personal
identifier. If he or she refuses, or is unable, to comply with the requirement,
he or she will be refused immigration clearance.
43. This item inserts new subsections 175(2), (3), (4) and (5) at the
end of section 175 of the Act.
44. Broadly, section 175 requires a
person who is on board, or about to board, a vessel that is to leave Australia
to provide certain identity and travel authority documents to a clearance
officer. This applies to citizens and non-citizens.
45. New subsection
175(2) introduces an additional requirement, in relation to non-citizens only,
that a person who is on board, or about to board, a vessel that is to leave
Australia, must, if the prescribed circumstances exist, be required by a
clearance officer to provide one or more personal identifiers.
46. In
effect, this amendment allows a clearance officer to require a non-citizen who
is on board, or about to board, a vessel that is to leave Australia, to do one
or more things set out in subsections 175(1) or (2). This includes, in
prescribed circumstances, requiring non-citizens to provide their personal
identifier(s), either by way of an identification test carried out by an
authorised officer or otherwise.
47. New subsection 175(3) clarifies
that new subsection 175(2) does not limit a clearance officer’s existing
power under subparagraph 175(1)(a)(ii) to require a non-citizen to show the
officer evidence (other than a personal identifier) of the non-citizen’s
identity.
48. This amendment means that the current requirement to
provide identity information remains in effect and operates concurrently with
the new requirement to provide a personal identifier.
49. Note that if
the Minister considers that it is not necessary or practical to require all
non-citizens who are on board, or about to board, a vessel that is to leave
Australia to provide one or more personal identifiers, then the Minister is able
to make a determination under new section 258.
50. New subsection 175(4)
provides the general rule for how a non-citizen is to comply with a requirement
to provide a personal identifier in new subsection 175(2). A non-citizen must
comply by way of one or more identification tests carried out by an authorised
officer.
51. This applies irrespective of whether an authorised officer
or a clearance officer actually requires the non-citizen to provide one or more
personal identifies. For example, it may be a clearance officer, who is not
appointed as an authorised officer for the purposes of carrying out
identification tests, who actually requires the non-citizen to provide one or
more personal identifiers under new subsection 175(2). However, the
identification test itself must be carried out by an authorised
officer.
52. This item also inserts a new note at the end of new
subsection 170(4). The note reflects new section 5D, and makes it clear that if
the instrument of authorisation appointing an authorised officer specifies which
type(s) of identification tests that authorised officer can carry out, then that
authorised officer can only carry out those specified types of identification
tests.
53. New subsection 175(5) details an exception to the general
rule set out in new subsection 175(4). It effectively provides that, in the
prescribed circumstances, the non-citizen can comply with the requirement to
provide a prescribed personal identifier other than by way of an identification
test carried out by an authorised officer.
54. New subsection 175(5)
provides that such a non-citizen must also comply with
any further
requirements prescribed in the Regulations in relation to the provision of the
personal identifier. For example, these may include requirements as to when,
where and how such non-citizens must provide their personal identifiers.
Item 23 Subsection 188(1)
55. This item repeals
subsection 188(1) and substitutes new subsection 188(1).
56. New
subsection 188(1) provides that an officer may require a person, whom the
officer knows or reasonably suspects is a non-citizen, to do one or more of the
following things:
• show the officer evidence of being a lawful
non-citizen; or
• show the officer evidence of the person’s
identity.
1. In effect, this amendment enables an officer to require a
person, whom an officer knows or reasonably suspects is a non-citizen, to show
the officer evidence of his or her identity, as well as evidence of his or her
lawful status.
Item 24 At the end of section 188
2. This
item inserts new subsections 188(4), (5), (6) and (7) at the end of section 188
of the Act.
3. Broadly, existing section 188 requires a person, whom an
officer knows or reasonably suspects is a non-citizen, to show the officer
evidence of being a lawful non-citizen.
4. New subsection 188(4) means
that an officer must, if the prescribed circumstances exist, require a person
whom the officer knows or reasonably suspects is a non-citizen to provide one or
more personal identifiers of the type or types prescribed in the
Regulations.
5. In effect, this amendment, together with other amendments
to section 188 in item 23 of this Schedule:
• enable an officer to
require a person whom the officer knows or reasonably suspects is a non-citizen
to show the officer evidence or being a lawful non-citizen and/or evidence of
his or her identity; and
• require an officer, in prescribed
circumstances, to require a person whom the officer knows or reasonably suspects
is a non-citizen to provide his or her personal identifier(s), either by way of
an identification test carried out by an authorised officer or
otherwise.
1. New subsection 188(5) makes it clear that new subsection
188(4) does not limit an officer’s power under new subsection 188(1) to
require a person known or reasonably suspected to be a non-citizen to show
evidence of his or her lawful status or evidence (other than a personal
identifier) of his or her identity.
2. This amendment means that the
current requirement to provide evidence of lawful status remains in effect and
operates concurrently with the new requirements to provide prescribed personal
identifiers and other evidence of identity.
3. Note that if the Minister
considers that it is not necessary or practical to require all persons whom an
officer knows or reasonably suspects is a non-citizen to provide one or more
personal identifiers, then the Minister is able to make a determination under
new section 258.
4. New subsection 188(6) effectively provides a general
rule for how a non-citizen is to comply with a requirement to provide a personal
identifier in new subsection 188(4). A non-citizen must provide the personal
identifier by way of one or more identification tests carried out by an
authorised officer.
5. This applies irrespective of whether an
authorised officer or an officer actually requires the non-citizen to provide
one or more personal identifies. For example, it may be an officer, who is not
appointed as an authorised officer for the purposes of carrying out
identification tests, who actually requires the non-citizen to provide one or
more personal identifiers under new subsection 188(4). However, the
identification test itself must be carried out by an authorised
officer.
6. This item also inserts a new note at the end of new
subsection 188(6). The note reflects new section 5D, and makes it clear that if
the instrument of authorisation appointing an authorised officer specifies which
type(s) of identification tests that authorised officer can carry out, then that
authorised officer can only carry out those specified types of identification
tests.
7. New subsection 188(7) details an exception to the general rule
set out in new subsection 188(6). It effectively provides that, in the
prescribed circumstances, the non-citizen can comply with the requirement to
provide a prescribed personal identifier other than by way of an identification
test carried out by an authorised officer.
8. New subsection 188(7)
provides that such a non-citizen must also comply with
any further
requirements prescribed in the Regulations in relation to the provision of the
personal identifier. For example, these may include requirements as to when,
where and how such non-citizens must provide their personal identifiers.
9. This item inserts new subparagraph 190(1)(b)(iia) after subparagraph
190(1)(b)(ii) of the Act as a consequence of the amendment made by item 17 of
this Schedule to insert new paragraph 166(1)(aa).
10. Section 189
requires an officer to detain a person whom the officer knows or reasonably
suspects is an unlawful non-citizen. Section 190 expands on section 189.
Section 190 provides that, for the purposes of section 189, an officer suspects
on reasonable grounds that a person is an unlawful non-citizen if the officer
knows or suspects that the person was required to comply with section 166 and
the person did one or more of the following things:
• bypassed,
attempted to bypass, or appeared to attempt to bypass, immigration
clearance;
• was not able to show evidence required by section 166 to
be shown; or
• was not able to give information required by section 166
to be given.
1. New subparagraph 190(1)(b)(iia) sets out an additional
circumstance where an officer
may suspect on reasonable grounds that a
person is an unlawful non-citizen. The additional circumstance is where a
person who is a non-citizen went to a clearance officer but was not able to
comply with, or did not otherwise comply with, any requirement under section 166
to provide one or more personal identifiers.
2. In effect, this
amendment means that if:
• an officer knows or reasonably suspects
that a person was required to comply with section 166; and
• the
person did not comply with a requirement to provide one or more personal
identifiers under new paragraph 166(1)(aa);
then the officer may suspect
on reasonable grounds that the person is an unlawful non-citizen and must detain
the person under section 189.
2. Section 189 requires an officer to detain a person whom the officer
knows or reasonably suspects is an unlawful non-citizen. Section 190 expands on
section 189. New subsection 190(1) will provide that, for the purposes of
section 189, an officer suspects on reasonable grounds that a person is an
unlawful non-citizen if the officer knows or suspects that the person was
required to comply with section 166 and the person did one or more of the
following things:
• bypassed, attempted to bypass, or appeared to
attempt to bypass, immigration clearance;
• was not able to show
evidence required by section 166 to be shown; or
• was not able to comply with a requirement under section 166 to
provide one or more personal identifiers.
1. New subsection 190(2) sets
out an additional circumstance where an officer
2. New subsection 192(2A) enables an officer to require a person who
holds a visa
that may be cancelled on certain grounds and is detained under
subsection 192(1), to provide one or more prescribed types of personal
identifiers.
3. The effect of new subsection 190(2) is that if a person
is detained for questioning
detention under section 192 and is required to,
but does not provide, a personal identifier, then the person must be detained
under section 189.
4. Note that under new subsections 192A(1) and (2), a
non-citizen may request that authorisation to require a personal identifier be
obtained from a senior authorising officer. If such a request is made, then the
non-citizen cannot be taken not to have complied with the request unless the
authorisation is obtained.
5. Once a person is detained under section
189, the provisions in new Division 13AA, contained in item 32 of this Schedule,
apply.
6. This item also alters the heading to section 190 of the Act to
make it clear that section 190 relates to detention as a result of both
non-compliance with immigration clearance and non-compliance with section 192 of
the Act. This amendment is consequential to the insertion of new subsection
190(2).
7. Item 27 inserts new subsection 191(2) at the end of section 191 of the
Act.
8. Broadly, existing section 191 provides that a person in
immigration detention because of section 190 must be released
if:
• the person gives evidence of his or her identity and
Australian citizenship;
• an officer knows or reasonably believes that
the person is an Australian citizen; or
• the person complies with
section 166 and either shows an officer evidence of being a lawful non-citizen
or is granted a visa.
1. New subsection 191(2) provides that a person
detained because of new subsection 190(2) must be released
if:
• 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;
• the person
gives evidence of his or her identity and Australian citizenship;
• an
officer knows or reasonably believes that the person is an Australian citizen;
or
• 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 of the Act
or on character grounds.
1. This amendment is consequential to the
insertion of new subsection 190(2) by item 26 of this Schedule. The
purpose of the amendment is to ensure that if a person is in immigration
detention because he or she failed to provide a personal identifier under
subsection 192(2A), then the person must be released if he or she later provides
a personal identifier to an authorised officer and is a lawful
non-citizen.
2. This item inserts new subsections 192(2A), (2B), and (2C) after
subsection 192(2) of the Act.
3. Existing subsection 192(1) effectively
means that if an officer knows or reasonably suspects that a non-citizen holds a
visa that may be cancelled under certain provisions of the Act, then the officer
may detain the non-citizen. The remainder of the section sets out the time
limit for the detention, and obligations of the officer. This type of detention
is known as “questioning detention”.
4. New subsection
192(2A) means an officer must, if the prescribed circumstances exist, require a
non-citizen who is detained under subsection 192(1) to provide one or more
prescribed personal identifiers.
5. Note that if the Minister considers
that it is not necessary or practical to require all non-citizens detained under
section 192 to provide one or more personal identifiers, then the Minister is
able to make a determination under new section 258.
6. New subsection
192(2B) effectively provides a general rule for how a non-citizen is to comply
with a requirement to provide a personal identifier in paragraph 192(2A). A
non-citizen must provide the personal identifier by way of an identification
test carried out by an authorised officer.
7. This applies irrespective
of whether an authorised officer or an officer actually requires the non-citizen
to provide one or more personal identifies. For example, it may be an officer,
who is not appointed as an authorised officer for the purposes of carrying out
identification tests, who actually requires the non-citizen to provide one or
more personal identifiers under new subsection 192(2A). However, the
identification test itself must be carried out by an authorised
officer.
8. This item also inserts a new note at the end of new
subsection 192(2B). The note reflects new section 5D, and makes it clear that
if the instrument of authorisation appointing an authorised officer specifies
which type(s) of identification tests that authorised officer can carry out,
then that authorised officer can only carry out those specified types of
identification tests.
9. New subsection 192(2C) details an exception to
the general rule set out in new subsection 192(2B). It effectively provides
that, in the prescribed circumstances, the non-citizen can comply with the
requirement to provide a prescribed personal identifier other than by way of an
identification test carried out by an authorised officer.
10. New
subsection 192(2C) provides that such a non-citizen must also comply with
any
further requirements prescribed in the Regulations in relation to the provision
of the personal identifier. For example, these may include requirements as to
when, where and how such non-citizens must provide their personal identifiers.
11. This item makes a minor technical amendment to subsection 192(5) of
the Act. It is an amendment consequential to the insertion of new subsection
190(2) contained in item 26 of this Schedule.
12. Existing subsection
192(1) enables an officer to detain a non-citizen if the officer suspects that
the non-citizen holds a visa that may be cancelled on certain grounds. However,
existing subsection 192(5) requires such a non-citizen to be released within
four hours of being detained.
13. New subsection 190(2) effectively
provides that, where a non-citizen fails to provide a personal identifier under
new subsection 192(2A), an officer may reasonably suspect that the person is an
unlawful non-citizen. If so, the officer must detain the person under section
189.
14. Therefore, this amendment to subsection 192(5) means that a
non-citizen detained under section 189 because of new subsection 190(2) does not
have to be released within four hours of being detained. Instead, new
subsection 191(2), contained in item 27 of this Schedule, will govern when such
a non-citizen must be released from immigration detention.
15. This item inserts new section 192A after existing section 192 of the
Act.
16. New subsection 192A only applies to non-citizens who have been
detained under section 192 of the Act, and persons whom an officer, in the
course of exercising or considering the exercising of his or her powers under
section 188, knows or reasonably suspects are non-citizens.
17. New
subsection 192A(1) enables a non-citizen, who is required under section 188 or
192 to provide one or more personal identifiers, to request that an
authorisation to require the personal identifiers be obtained. If such a
request is made, then the non-citizen cannot be taken not to have complied with
the requirement unless the authorisation is obtained.
18. New subsection
192A(2) enables a parent or guardian of a minor or an incapable person, who is
required under section 188 or 192 to provide one or more personal identifiers,
to request that an authorisation to require one or more personal identifiers be
obtained. If such a request is made, then the minor or independent person cannot
be taken not to have complied with the request unless the authorisation is
obtained.
19. If the minor’s parent or guardian or incapable
person’s parent or guardian is not readily available, an independent
person may request that an authorisation to require one or more personal
identifiers be obtained.
20. This provision interacts with new sections
261AL and 261AM. These provisions require an officer or authorised officer,
before obtaining the consent of a parent, guardian or independent person to
carry out an identification test on a minor or independent person, to inform the
parent, guardian or independent person that they may request an authorisation
under section 192A.
21. New subsection 192A(3) provides that if a request
is made by a non-citizen under new subsection 192A(1), or by a parent or
guardian of a minor, or an independent person under new subsection 192A(2), then
an authorised officer or an officer must apply to a senior authorising officer
for an authorisation.
22. New subsection 192A(4) provides that the
senior authorising officer to whom the
application for authorisation is made
must not be the authorised officer or officer who is requiring the non-citizen
to provide one or more personal identifiers. In other words, the person who
gives an authorisation must not be the same person who requires the non-citizen
to provide one or more personal identifiers.
23. New subsection 192A(5)
requires the senior authorising officer to give the
authorisation if he or
she is reasonably satisfied that the person is:
• a person whom an
officer, in the course of exercising or considering the exercise of his or her
powers under section 188, knows or reasonably suspects is a non-citizen; or
• detained for questioning detention under section 192 of the Act.
1. New paragraph 192A(6)(a) provides that a senior authorising officer
may give an
authorisation by telephone, fax or other electronic means. New
paragraph 192A(6)(b) also requires that such an authorisation must be recorded
in writing, and signed by the person giving the authorisation, within one
business day after it is given.
2. However, new subsection 192A(7)
provides that a failure to comply with new paragraph 192A(6)(b) does not affect
the validity of an identification test carried out on the basis of that
authorisation.
3. New subsection 192A(8) provides that a senior
authorising officer cannot delegate the
power to give an authorisation to
any other person.
4. New subsection 192A(9) defines a “senior
authorising officer” to mean an officer whom the Secretary has authorised,
or is in a class of officers whom the Secretary has authorised, to perform the
functions of a senior authorising officer under new section 192A.
5. In
practice, senior authorising officers for the purposes of new section 192A will
be Departmental regional office managers or compliance team
managers.
6. The reason that these non-citizens may request that
authorisation be obtained from a senior authorising officer, but non-citizens
required to provide personal identifiers under the amendments to sections 40,
46, 166, 170 or 175 contained in this Schedule cannot do so, is that these
non-citizens may be detained as a direct result of failing to provide a personal
identifier when required to do so. These consequences will not apply to
non-citizens required to provide personal identifiers under the amendments to
sections 40, 46, 166, 170 and 175 contained in this Schedule.
7. Item 31 repeals existing section 258 of the Act and inserts new
sections 258, 258A, 258B, 258C, 258D, 258E, 258F and 258G into the Act.
8. New section 258 enables the Minister to make a determination in
writing that certain
non-citizens, who would otherwise be required to
provide one or more personal identifiers under sections 40, 46, 166, 170, 175,
188 or 192 (as amended by this Schedule), are not required to provide such
personal identifiers.
9. New section 258 allows the Minister, for the
purposes of sections 40, 46, 166, 170,
175, 188 and 192, to determine any
one or more of the following:
• classes of non-citizens referred to
in those sections who are not required to provide any personal identifiers for
the purposes of one or more of those sections;
• classes of
non-citizens referred to in those sections who are not required to provide one
or more types of personal identifiers under one or more of those
sections;
• circumstances in which non-citizens referred to in those
sections are not required to provide any personal identifiers under one or more
of those sections; and
• circumstances in which non-citizens referred
to in those sections are not required to provide one or more types of personal
identifiers under one or more of those sections.
1. It is intended that
the Minister can, for example, determine that any applicants for
certain
classes of visas are not required to provide personal identifiers.
Alternatively, the Minister could determine that some applicants for certain
types of visas are not required to provide certain types of personal identifiers
that would otherwise be required.
2. Under new subsection 258(2), a
determination made by the Minister under new
section 258 is a disallowable
instrument for the purposes of section 46A of the Acts Interpretation Act
1901.
Section 258A When non-citizen cannot be required to provide
personal identifier
3. New section 258A provides another circumstance
where a person cannot be required
to provide a personal identifier of a
particular type under sections 40, 46, 166, 170, 175, 188 or 192 of the Act. New
section 258 provides that a person cannot be required to provide a personal
identifier of a particular type under those sections if the person is a
non-citizen in immigration detention and, during that detention, has already
provided the same type of personal identifier under new Division 13AA of Part
2.
4. New Division 13AA of Part 2 inserts provisions relating to the
collection of personal
identifiers from non-citizens in immigration
detention.
5. Section 258A is intended to prevent a non-citizen from
being required to provide the
same type of personal identifier where the
non-citizen is a person to whom both Division 13AA of Part 2 and one or more of
sections 40, 46, 166, 170, 175, 188 or 192 applies. For example, a non-citizen
who is in immigration detention and has already complied with a requirement
under Division 13AA to provide his or her fingerprints may, while in immigration
detention, make an application for a protection visa. If the regulations made
under new subsection 46(2A) (inserted by item 16 of this Schedule) require a
non-citizen who makes an application for a protection visa to provide his or her
fingerprints, then the non-citizen cannot be required to provide his or
fingerprints under new Division 13AA.
identification tests
6. New section 258B requires an authorised
officer to give certain information, in a certain way, to a non-citizen before
carrying out an identification test for the purposes of section 40, 46, 166,
170, 175, 188 or 192.
7. New subsection 258B(1) requires an authorised
officer to inform the non-citizen of
certain matters.
8. If the
person is a non-citizen who is detained under section 192, or a person whom an
officer, in the course of exercising or considering the exercise of his or her
powers under section 188, knows or reasonably suspects is a non-citizen, then he
or she must be informed that he or she may request that an authorisation be
obtained from a senior authorising officer under new section 192A.
9. In
any case, all non-citizens must be informed of such other matters as are
prescribed
in the regulations.
10. New subsection 258B(2) further
explains the authorised officer’s duty to inform under
subsection
258B(1). The duty to inform means that the authorised officer must inform the
non-citizen, 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.
11. New subsection 258B(3) makes it clear that the
authorised officer may comply with
new section 258B by giving a form to the
non-citizen that sets out the information specified in the regulations. The
information will include such matters as:
• the purpose and reasons
for the test;
• the way in which the test is to be carried
out;
• the ways in which the information that is collected can be
used;
• the circumstances in which the information obtained may be
disclosed to third parties;
• that the identification test may produce
evidence against the non-citizen that might be used in a court of law or a
tribunal; and
• the non-citizen’s right to make a complaint to
the Privacy Commissioner, or to make an application under the Freedom of
Information Act 1982 and how he or she may do so.
1. As a result, any
form that is given to a non-citizen in accordance with this section will
be
in a language (including braille) in which the non-citizen is reasonably fluent
(whether or not this is the language of the non-citizen’s home
country)
identification tests
2. New section 258C provides that a
non-citizen must be given certain information
before the non-citizen can be
required to provide a personal identifier under new subsections 40(5), 46(2C),
166(1C), 170(5), 175(5), 188(7) or 192(2C). That is, new section 258C only
applies where a non-citizen is required to provide a personal identifier other
than by way of an identification test conducted by an authorised
officer.
3. New subsection 258C(1) provides that a non-citizen must be
informed of such matters
as are specified in the regulations before the
non-citizen is required to provide a personal identifier under new subsections
40(5), 46(2C), 166(1C), 170(5), 175(5), 188(7) or 192(2C). New subsection
258C(1) also provides that the non-citizen must be informed in the manner
prescribed in the regulations.
4. The information that may be specified
in the regulations under new subsection
258C(1) may include such matters
as:
• the purpose and reasons for the test;
• the ways in
which the information that is collected can be used;
• the
circumstances in which the information obtained may be disclosed to third
parties;
• that the personal identifier may produce evidence against
the non-citizen that might be used in a court of law or a tribunal;
and
• the non-citizen’s right to make a complaint to the Privacy
Commissioner, or to make an application under the Freedom of Information Act
1982 and how he or she may do so.
1. For the purposes of new
subsection 258C(1), the prescribed manner in which a
non-citizen will be
informed may vary according to different circumstances. For example, the
regulations may prescribe that non-citizens seeking to enter Australia through
major international airports, who are required to be automatically photographed
when passing through immigration clearance, are to be given a form before
arrival in Australia. The form will set out the information specified in the
regulations.
2. As another example, the regulations might specify that an
applicant for a visa, who is
required to provide a photograph with his or
her application, may be informed by information set out on the application
form.
3. New subsection 258C(2) makes it clear that it will not
necessarily be an officer or
authorised officer who informs the non-citizen
of the matters prescribed in the regulations. For example, the regulations may
prescribe that non-citizens who are required to provide a personal identifier
when passing through immigration clearance will be informed by public signs or
notices. The signs will inform non-citizens of such matters as are described in
paragraph 199, and will be translated into a number of major
languages.
Section 258D Regulations may prescribe manner for
carrying out identification tests
4. New section 258D provides that
the manner in which an authorised officer is to carry
out identification
tests under section 40, 46, 166, 170, 175, 188 or 192 may be prescribed in the
regulations.
5. New subsection 258D(2) also allows for the regulations to
prescribe the
procedure and requirements that apply if a personal identifier
is provided under section 40, 46, 166, 170, 175, 188 or 192 other than by way of
an identification test carried out by an authorised officer.
6. For
example, new subsection 258D(2) enables regulations to prescribe the procedures
and requirements in relation to how a non-citizen may provide a personal
identifier (other than by way of an identification test carried out by an
authorised officer) under new subsection 46(2C). The requirements prescribed
under new subsection 258D(2) may include requirements as to when, where and how
such non-citizens must provide their personal identifiers.
7. New section 258E sets out the general rules that will apply where an
authorised officer carries out an identification test on a non-citizen under
section 40, 46, 166, 170, 175, 188 or 192 of the Act. These general rules are
similar to the rules set out in new section 261AD in relation to immigration
detainees. These rules are based on those contained in section 23XI of the
Crimes Act 1914.
8. Under new paragraph 258E(a), an identification
test must be carried out in
circumstances affording reasonable privacy to
the non-citizen.
9. New paragraph 258E(b) prohibits an identification
test from being 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. For example, new
subsection 258G enables an authorised officer to ask another authorised officer
or an officer to help him or her carry out an identification
test.
10. New paragraph 258E(c) provides that an identification test must
not involve the
removal of more clothing than is necessary for carrying out
the test.
11. Under new paragraph 258E(d), an identification test must
not involve more visual
inspection than is necessary for the carrying out of
the test.
12. Under new paragraph 258E(e), unless an authorised officer
believes, on reasonable grounds, 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 new Division 13AB. New Division 13AB of
Part 2 of the Act sets out specific provisions that apply in cases where minors
and incapable persons are required to provide personal identifiers under the
Act.
13. New section 258E does not apply in relation to the provision of
a personal identifier
under new subsection 40(5), 46(2C), 166(1C), 170(5),
175(5), 188(7) or 192(2C). This is because it may not be reasonably practicable
to apply these rules where the personal identifier is to be provided other than
by way of an identification test carried out by an authorised officer. For
example, if non-citizens seeking to enter Australia through major international
airports must be automatically photographed, it is not reasonably practicable to
prohibit this test being carried out in the presence or view of another person.
However, specific rules in relation to these types of particular circumstances
will be made by way of regulations under new subsection
258D(2).
Section 258F Identification tests not to be carried out in
cruel, inhuman or degrading manner etc.
14. Under new section 258F
the carrying out of an identification test, for the purposes of
the Act, is
not of itself taken to be cruel, inhuman or degrading or to be a failure to
treat a person with humanity and with respect for human dignity.
15. However, new section 258F makes it clear that nothing in the Act
itself authorises the
carrying out of an 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.
16. This section reflects
Articles 7 and 10(1) of the International Covenant on Civil and
Political
Rights.
17. New section 258F applies whether a personal identifier is
provided by way of an
identification test carried out by an authorised
officer, or otherwise under new subsection 40(5), 46(2C), 166(1C), 170(5),
175(5), 188(7) or 192(2C).
18. New section 258G enables an authorised officer to ask another
authorised officer or
an officer (as defined in subsection 5(1) of the Act)
to help him or her to carry out an identification test. It also provides that
the other person is authorised to give that help.
19. Item 32 inserts new Divisions 13AA and 13AB after Division 13 of Part
2 of the Act. New Division 13AA contains provisions that deal specifically with
the provision of personal identifiers by non-citizens in immigration detention.
New Division 13AB contains provisions that deal specifically with the provision
of personal identifiers by non-citizens who are minors or who are incapable
persons.
Division 13AA – Identification of immigration
detainees
Subdivision A – Provision of personal
identifiers
20. New subsection 261AA(1) makes it compulsory for a non-citizen who is
in
immigration detention to provide to an authorised officer one or more
prescribed types of personal identifiers.
21. “Immigration
detention” is currently defined in section 5 of the Act to mean:
• being in the company of, and restrained by, an officer or
another person directed by the Secretary to accompany and restrain the detainee;
or
• being held by, or on behalf of, an officer:
- in a
detention centre established under the Act; or
- in a prison or remand centre
of the Commonwealth, a State or a Territory; or
- in a police station or
watch house; or
- in relation to a non-citizen who is prevented, under
section 249 of the Act, from leaving a vessel – on that vessel; or
- in
another place approved by the Minister in writing.
1. For example, the
regulations may prescribe that a non-citizen in immigration
detention must
provide his or her fingerprints and photographs on entry to an immigration
detention centre.
2. In practice, the Minister will consult with the
Attorney-General before the
Governor-General makes regulations for the
purpose of prescribing one or more types of personal identifiers that a
non-citizen in immigration detention must provide under new subsection 261AA(1).
3. However, the requirement in new subsection 261AA(1) will not apply in
the prescribed circumstances. This will allow regulations to prescribe
circumstances in which a non-citizen is not required to comply with a
requirement to provide a prescribed type of personal identifier. For example,
it is intended that regulations may prescribe that a non-citizen in immigration
detention need not comply with a requirement to provide a prescribed type of
personal identifier if he or she is suffering from a medical
condition.
4. New subsection 261AA(2) makes it clear that a non-citizen
in immigration detention can only provide the one or more prescribed types of
personal identifiers by way of one or more identification tests carried out by
an authorised officer. This can be contrasted to non-citizens who are not in
immigration detention, who may be required to provide prescribed types of
personal identifiers other than by way of identification tests carried out by
authorised officers – see new subsections 40(5), 46(2C), 166(1C), 170(5),
175(5), 188(7) and 192(2C).
5. The note to new subsection 261AA(2)
explains that, subject to certain
restrictions, new section 261AE allows
reasonable force to be used to carry out identification tests under Division
13AA.
6. New subsection 261AA(3) makes it clear that Division 13AA does
not generally apply to a non-citizen who is in immigration detention only
because he or she is detained for questioning detention under section 192 of the
Act.
7. However, if a non-citizen is in immigration detention because
he or she has been detained under section 192, and has not provided a prescribed
type of personal identifier required under new subsection 192(2A), then Division
13AA will apply to him or her.
Section 261AB Authorised officers must
require and carry out identification tests
8. New section 261AB
specifies who must carry out identification tests and the manner
in which
identification tests must be carried out.
9. New subsection 261AB(1)
means that an authorised officer must, other than in circumstances prescribed
for the purposes of subsection 261AA(1), require the non-citizen in immigration
detention to provide one or more prescribed types of personal identifiers by way
of one or more identification tests carried out by the authorised officer.
Further, the authorised officer must carry out the one or more identification
tests on the non-citizen.
10. New subsection 261AB(2) provides certain
safeguards that will be in place during the
carrying out of an
identification test under new Division 13AA.
11. New paragraph
261AB(2)(a) effectively means that an authorised officer can only carry out a
particular identification test if his or her instrument of appointment under new
section 5D specifies that type of identification test. This is to ensure that
an authorised officer only carries out those identification tests that he or she
is authorised to carry out.
12. Under new paragraph 261AB(2)(b), each
identification test must be carried out in
accordance with new Subdivision B
of Division 13AA. Subdivision B of Division 13AA sets out matters such as
general rules for the carrying out of an identification test and when reasonable
force may be used to carry out an identification test.
13. Under new
paragraph 261AB(2)(c), unless the authorised officer believes on
reasonable
grounds 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 new Division 13AB.
14. New Division 13AB sets out
specific provisions that apply where minors and incapable persons are required
to provide personal identifiers under the Act. For example, new section 261AL
restricts the types of personal identifiers that a non-citizen minor who is less
than 15 years old can be required to provide. As another example, in the case of
any non-citizen minor who is required to provide a personal identifier by way of
an identification test conducted by an authorised officer, the minor’s
parent or guardian, or an independent person, must be present while the test is
being carried out.
Section 261AC Information to be provided before
carrying out identification tests
15. New section 261AC requires an
authorised officer to give certain information to a
non-citizen in
immigration detention before carrying out an identification test.
16. New subsection 261AC provides that the authorised officer must:
• inform the non-citizen that he or she may ask that an
independent person (as defined in subsection 5(1) of the Act as amended by item
7 of this Schedule) be present while the identification test is carried out and
that the test be carried out by a person of the same sex as him or her;
and
• inform the non-citizen of such other matters as are specified in
the regulations.
1. New subsection 261AC(2) further explains the
authorised officer’s duty to inform the
non-citizen under subsection
261AC(1). The duty to inform means that the authorised officer must inform the
non-citizen, 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.
2. New subsection 261AC(3) makes it clear that the
authorised officer may comply with
new section 261AC by giving a form to the
non-citizen that sets out the information specified in the regulations.
However, the authorised officer can only give such a form if the information is
in a language (including braille) in which the non-citizen is able to
communicate with reasonable fluency.
3. The information that may be
prescribed in the regulations may include such matters as:
• the
purpose and reasons for the test;
• the way in which the test is to be
carried out, including the power to use reasonable force, if
necessary;
• the ways in which the information that is collected can be
used;
• the circumstances in which the information obtained may be
disclosed to third parties;
• that the identification test may produce
evidence against the non-citizen that might be used in a court of law or a
tribunal;
• a video recording may be made of the test;
and
• the non-citizen’s right to make a complaint to the Privacy
Commissioner, or to make an application under the Freedom of Information Act
1982 and how he or she may do so.
1. As a result, any form that is
given to a non-citizen in accordance with this section will
be in a language
in which the non-citizen is reasonably fluent (whether or not this is the
language of the non-citizen’s home country).
2. New section 261AD contains the general rules for carrying out
identification tests on
a non-citizen in immigration detention under new
Division 13AA. These rules are based on those contained in section 23XI of the
Crimes Act 1914.
3. Under new paragraph 261AD(a), an
identification test must be carried out in
circumstances affording
reasonable privacy to the non-citizen.
4. Under new paragraph 261AD(b),
an identification test must not be carried out in the
presence or view of a
person who is of the opposite sex to the non-citizen, if the non-citizen so
requests and if it is practicable to comply with the request.
5. This
paragraph is intended to operate so that, if requested by a non-citizen who is
to
undergo a test, persons such as an independent person who must be present
during the carrying out of the test or a person who is to help the authorised
officer carry out the test will not be of the opposite sex to the non-citizen.
This is subject to the proviso that it is practicable to comply with the
non-citizen’s request.
6. New paragraph 261AD(b) does not affect
the operation of new section 261AH, which
requires that, if requested by the
non-citizen, an authorised officer of the same sex as the non-citizen must carry
out the identification test.
7. New paragraph 261AD(c) prohibits an
identification test from being 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 the Act.
8. For
example, new sections 261AG, 261AI and 261AJ are relevant in determining who may
or must be present during the carrying out an identification test. New section
261AG allows an authorised officer to get help from another authorised officer
or an officer to carry out an identification test. New sections 261AI and 261AJ
mean that, in certain circumstances, an independent person must be present
during the carrying out of an identification test.
9. New paragraph
261AD(d) provides that an identification test must not involve the
removal
of more clothing than is necessary for carrying out the test.
10. Under
new paragraph 261AD(e), an identification test must not involve more visual
inspection than is necessary for the carrying out of the test.
11. Under
new paragraph 261AD(f), if two or more identification tests are to be carried
out, the tests must be carried out at the same time, if it is practicable to do
so.
12. New section 261AE deals with the use of reasonable force in carrying
out
identification tests on non-citizens in immigration detention.
13. New subsection 261AE(1) provides that, subject to new subsection
261AE(2) and
new section 261AF, an authorised officer, or a person who is
authorised to help the authorised officer under new section 261AG, may use
reasonable force in the circumstances set out in new paragraphs 261AE(1)(a) and
261AE(1)(b).
14. Under new paragraphs 261AE(1)(a) and 261AE(1)(b),
reasonable force may be used
to enable the identification test to be carried
out or to prevent the loss, destruction or contamination of any personal
identifier or any meaningful identifier derived from a personal
identifier.
15. However, new subsection 261AE(1) limits the circumstances
in which reasonable
force may be used to carry out an identification test.
New subsection 261AE(1) provides that section 261AE does not authorise the use
of force against a minor or an incapable person, or if the personal identifier
is a person’s signature.
16. New subsection 261AE(2) effectively
means that there are a number of pre-conditions that must be met before
reasonable force can be used to carry out an identification test. The
authorised officer or person authorised to help must not use force
unless:
• the non-citizen has refused to allow the identification
test to be carried out; and
• all reasonable measures to carry out the
identification test without the use of force have been exhausted;
and
• use of force in carrying out the identification test is
authorised under new subsection 261AE(4).
1. New subsection 261AE(3)
enables an authorised officer to apply to a senior
authorising officer for
an authorisation to use force to carry out the identification
test.
2. For the purposes of new section 261AE, it is anticipated that a
senior authorising
officer will be an officer whose duties as an officer
involve the management of immigration detention functions.
3. New
subsection 261AE(3) makes it clear that the senior authorising officer cannot be
the same officer seeking authorisation to use reasonable force to carry out an
identification test under new subsection 261AE(1).
4. New subsection
261AE(4) provides that the senior authorising officer may authorise
the use
of force in carrying out the identification test if he or she is reasonably
satisfied that:
• the non-citizen required to provide the personal
identifier in question has refused to allow the identification test to be
carried out; and
• all reasonable measures to carry out the
identification test without the use of force have been exhausted.
1. New
paragraph 261AE(5)(a) provides that a senior authorising officer may give an
authorisation under new subsection 261AE(4) by telephone, fax or other
electronic means. New paragraph 261AE(5)(b) also requires that such an
authorisation must be recorded in writing, and signed by the person giving the
authorisation, within one business day after it is given.
2. New
subsection 261AE(6) provides that a failure to comply with new paragraph
261AE(5)(b) does not affect the validity of an identification test carried
out on the basis of that authorisation.
3. New subsection 261AE(7)
provides that a senior authorising officer cannot delegate
the power to give
an authorisation to any other person.
4. New subsection 261AE(8) defines
a “senior authorising officer” to mean an officer
whom the
Secretary has authorised, or is in a class of officers whom the Secretary has
authorised, to perform the functions of a senior authorising officer under new
section 261AE.
Section 261AF Identification tests not to be carried
out in cruel, inhuman or degrading manner
5. Under new section 261AF,
the carrying out of an identification test for the purposes
of the Act, is
not of itself taken to be cruel, inhuman or degrading or to be a failure to
treat a person with humanity and with respect for human dignity.
6. However, new section 261AF makes it clear that nothing in the Act
itself authorises
the carrying out of an 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.
7. These provisions reflect
Articles 7 and 10(1) of the International Covenant on Civil
and Political
Rights.
Section 261AG Authorised officer may get help to carry out
identification tests
8. New section 261AG enables an authorised
officer to ask another authorised officer or
an officer (as defined in
subsection 5(1) of the Act) to help him or her to carry out an identification
test. It also provides that the other person is authorised to give that
help.
Section 261AH Identification tests to be carried out by
authorised officer of the same sex as non-citizen
9. New section
261AH requires that an identification test be carried out by an authorised
officer of the same sex as the 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.
10. New section 261AI explains the two circumstances in which an
independent person
must be present while an identification test is being
carried out on a non-citizen in immigration detention.
11. First, an
independent person must be present if force is used in the carrying out of an
identification test.
12. The second situation applies where force is
not used in the carrying out of an
identification test. If the non-citizen
requests that an independent person be present while an identification test is
being carried out, and an independent person is readily available at the same
place as the non-citizen and willing to attend the test within a reasonable
time, then the test must be carried out in the presence of an independent
person.
13. A definition of an “independent person” is
inserted in subsection 5(1) of the Act by
item 7 of this Schedule to mean a
person (other than an officer or an authorised officer) who:
• is
capable of representing the interests of a non-citizen who is providing, or is
to provide, a personal identifier; and
• who, as far as practicable, is
acceptable to the non-citizen who is providing, or is to provide, the personal
identifier; and
• if the non-citizen is a minor, is capable of
representing the best interests of the minor.
1. The Department of
Immigration and Multicultural and Indigenous Affairs will work
with the
Attorney-General’s Department to develop guidelines on the classes or
categories of persons that will, wherever practicable, be independent persons in
cases where reasonable force is to be used.
2. New subsection 261AJ(1) allows an authorised officer to video record
the carrying
out of an identification test.
3. Under new subsection
261AJ(2), the authorised officer may decide that, if the
carrying out of an
identification test is not video recorded, the identification test must be
carried out in the presence of an independent person.
4. The non-citizen
will be able to request a copy of the video under the Freedom of
Information Act 1982.
5. New section 261AK sets out the circumstances in which an authorised
officer may carry out the same type of identification test on more than one
occasion on a non-citizen in immigration detention, and the safeguards that will
apply.
6. New subsection 261AK(1) effectively means that there are a
number of pre-conditions that must be met before a non-citizen may be required
to provide a personal identifier again under new Division 13AA. The authorised
officer who carried out the earlier test or another officer can only require a
non-citizen in immigration detention to provide the same type of personal
identifier again if:
• the personal identifier that is provided is
unusable; or
• an authorised officer or an officer is not satisfied
about the integrity of the personal identifier that is provided.
1. For
example, a fingerprint that is provided might be unusable if it is smudged or a
photograph that is provided might be unusable if it is too dark. As another
example, a technical failure of equipment may mean that the attempt to provide a
personal identifier is unsuccessful. In these circumstances, the non-citizen
should not be taken to have complied with the requirement to provide the
identifier.
2. In addition, the authorised officer or another officer may
only require the non-citizen to provide the personal identifier again in the
circumstances set out in new paragraphs 261AK(1)(c) and (d).
3. New
paragraph 261AK(1)(c) allows an authorised officer to carry out the test again
if the requirement to provide the same type of personal identifier is made while
the earlier test is being carried out or immediately after it was carried out.
4. For example, if a person in immigration detention provides a
fingerprint that is smudged, new paragraph 261AK(1)(c) allows an authorised
officer to immediately take another fingerprint from the non-citizen. As another
example, if an authorised officer attempts to take a photograph of a detainee
but there is a technical failure of the equipment used, an authorised officer
may take another photograph immediately afterwards. This paragraph applies
whether or not the earlier test was the first test, or a later retest authorised
by a senior authorising officer or the Secretary or an SES Band 3
employee.
5. New paragraph 261AK(1)(d) allows an authorised officer to
carry out an identification test again if he or she is authorised under new
subsection 261AK(4). It effectively applies where a non-citizen may be required
to provide the same type of personal identifier again, but on a separate
occasion (that is, not while the earlier test is still being carried out or
immediately afterwards). This is necessary because it may not always be evident
during the carrying out of a test, or immediately afterwards, that the personal
identifier is unusable.
6. New subsection 261AK(2) provides that if a
non-citizen is required to provide a
personal identifier again under new
subsection 261AK(1), the non-citizen it taken, for the purposes of new Division
13AA, not to have provided the personal identifier as a result of the earlier
test being carried out.
7. New subsection 261AK(3) enables an authorised
officer to apply for an authorisation
to carry out the identification test
again. It specifies to whom the application must be made. An authorised officer
may make the application to either a senior authorising officer or the
Secretary, or an SES Band 3 employee, depending on the circumstances.
Essentially, it creates a two-tier system. If a retest has not previously been
authorised, then an authorised officer can only apply to a senior authorising
officer. If a retest has been previously authorised by a senior authorising
officer, then an authorised officer can only apply to the Secretary, or an SES
Band 3 employee.
8. New subsection 261AK(3) makes it clear that the
senior authorising officer, the Secretary or an SES Band 3 employee cannot be
the same officer requiring the non-citizen to provide the personal identifier
again under new subsection 261AK(1).
9. Paragraph 261AK(3)(a) provides
that the application is to be made to a senior authorising officer if the
earlier test was not a test authorised under new subsection
261AK(4).
10. For the purposes of new subsection 261AK(3), it is
anticipated that a senior authorising officer will be an officer whose duties as
an officer involve the management of immigration detention functions.
11. Paragraph 261AK(3)(b) provides that the application is to be made to
the Secretary or an SES Band 3 employee if the earlier test was authorised to be
carried out again by a senior authorising officer under new subsection
261AK(4).
12. The effect of new subsections 261AK(1) and (3) is that a
non-citizen may be required to provide the same type of personal identifier more
than once if the requirement is made either during, or immediately after, the
test is carried out. However, if a non-citizen is required to provide the
personal identifier again on a second occasion, then the test can only be
carried out if it is authorised by a senior authorising officer. If a
non-citizen is then required to provide the personal identifier on a third
occasion, the test can only be carried out if it is authorised by the Secretary
or an SES Band 3 employee.
13. If the Secretary, or an SES Band 3
employee, has already given an authorisation under new subsection 261AK(4) for a
non-citizen to be re-tested, then an authorised officer cannot make a further
application for an authorisation to carry out the identification test again.
That is, a non-citizen cannot be required to provide the same type of personal
identifier on any more than three separate occasions.
14. New subsection
261AK(4) empowers the senior authorising officer, the Secretary, or an SES Band
3 employee in the Department (as the case requires), to authorise the carrying
out of an identification test again if he or she is satisfied of certain
matters. That is, if:
• he or she is reasonably satisfied that the
personal identifier that is provided as a result of the earlier test is
unusable; or
• he or she is not reasonably satisfied about the
integrity of the personal identifier that is provided.
1. New paragraphs
261AK(5)(a) and (b) set out the way in which an authorisation is to be given.
New paragraph 261AK(5)(a) enables a senior authorising officer, or the Secretary
or an SES Band 3 employee, to give an authorisation under new subsection
261AK(4) by telephone, fax or other electronic means. However, new paragraph
261AK(5)(b) requires that such an authorisation must be recorded in writing, and
signed by the person giving the authorisation, within one business day after it
is given.
2. New subsection 261AK(6) provides that a failure to comply
with new paragraph
261AK(5)(b) does not affect the validity of an
identification test carried out on the basis of that authorisation.
3. New subsection 261AK(7) provides that a senior authorising officer,
the Secretary or an SES Band 3 employee cannot delegate the power to give an
authorisation to any other person.
4. New subsection 261AK(8) makes it
clear that an authorisation given under new
subsection 261AK(4) does not
authorise the use of force in carrying out an identification test. An authorised
officer is required to make a separate application to a senior authorising
officer in accordance with section 261AE for an authorisation to use force in
the carrying out of an identification test.
5. New subsection 261AK(9)
sets out the effect of a refusal by a senior authorising officer, the Secretary
or an SES Band 3 employee to authorise that an identification test be carried
out again. In the event of such a refusal, the non-citizen is deemed to have
complied with any requirement under the Act to provide the personal identifier
(that is the subject of the application for authorisation).
6. For
example, an authorised officer may make an application under new subsection
261AK(3) to a senior authorising officer to carry out a second identification
test to obtain a fingerprint from a non-citizen in immigration detention. If
the senior authorising officer refuses to authorise the retest, then the
non-citizen will be taken to have provided the fingerprint.
7. New
subsection 261AK(10) inserts definitions of “senior authorising
officer”, “SES Band 3 employee” and “SES employee”
for the purposes of new section 261AK.
8. New subsection 261AK(10)
defines a “senior authorising officer” to mean an officer,
other
than an SES Band 3 employee in the Department, whom the Secretary has
authorised, or is in a class of officers whom the Secretary has authorised, to
perform the functions of a senior authorising officer under new section
261AK.
9. New subsection 261AK(10) also defines a “SES Band 3
employee” to mean 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.
10. “SES employee” is defined to have the meaning given by
the Public Service Act 1999.
11. New Division 13AB sets out special provisions for minors and
incapable persons.
12. A definition of “minor” is inserted
into subsection 5(1) of the Act by item 8 of this Schedule to mean a person who
is less than 18 years old. Therefore, new subsections 261AL(2), (3), (4), (5)
and (6) apply to persons who are aged less than 18 years old. However, new
subsection 261AL(1) only applies to those minors who are aged less than 15 years
old.
13. A definition of “incapable person” is inserted
into subsection 5(1) of the Act by item 6 of this Schedule to mean a person who
is incapable of understanding the general nature and effect of, and purposes of
a requirement to provide a personal identifier.
Section
261AL Minors
14. New subsection 261AL(1) only applies to non-citizen
minors who are less than 15 years old. It applies to all non-citizen minors who
are less than 15 years old, and are required to provide a type or types of
personal identifiers under the Act.
15. New subsection 261AL(1)
restricts the types of personal identifier that a non-citizen who is less than
15 years old can be required to provide under this Act. It provides that a
non-citizen under 15 years of age can only be required to provide a personal
identifier consisting of:
• measurements of his or her height or
weight; or
• a photograph or other image of his or her face or
shoulders.
1. The age of 15 years old was chosen because this is
consistent with international
comparisons in a migration
context.
2. Unlike new subsection 261AL(1), new subsections 261AL(2),
(3), (4), (5) and (6) apply to all non-citizen minors – that is,
non-citizens who are aged less than 18 years old – who are required to
provide personal identifiers under certain provisions of the Act.
3. New
subsections 261AL(2), (3) and (4) set out the requirements in relation to
consent where an authorised officer is to carry out an identification test on a
non-citizen minor.
4. New subsection 261AL(2) provides that a non-citizen
minor must not be required to
provide a personal identifier by way of an
identification test carried out by an authorised officer under section 40, 46,
188 or 192 unless:
• a parent or guardian consents to the minor
providing a personal identifier (paragraph (a)); or
• if a parent or
guardian is not readily available, or the Minister is the minor’s guardian
– an independent person consents to the minor providing the personal
identifier (paragraph (b)).
1. To facilitate efficient passenger
processing through Australia’s air and seaports, consent of a parent or
guardian of a minor, or an independent person, will not required where the minor
is required to provide a personal identifier to an officer:
• on
entering Australia (under section 166);
• travelling on an overseas
vessel from a port to another port (under section 170);
• on departing
Australia (under section 175).
1. It would not be reasonably practicable
to obtain a minor’s parent or guardian’s consent for each minor
entering or departing Australia, or travelling between ports.
2. New
paragraph 261AL(2)(a) is subject to new subsection 261AL(3). New subsection
261AL(3) makes it clear that if the Minister is the non-citizen
minor’s guardian, the Minister cannot consent to the minor providing the
personal identifier. The effect of new subsections 261AL(2) and (3) is that if
the Minister is the guardian of a non-citizen minor, the Minister cannot consent
to the minor providing a personal identifier. Instead, an independent person
must give their consent for the minor to provide a personal
identifier.
3. A definition of an independent person is inserted in
subsection 5(1) of the Act by item 7 of this Schedule to mean a person
(other than an officer or an authorised officer) who:
• is capable
of representing the interests of a non-citizen who is providing, or is to
provide, a personal identifier;
• as far as practical, is acceptable
to the non-citizen who is providing, or is to provide, the personal identifier;
and
• if the non-citizen is a minor, is capable of representing the
best interests of the minor.
1. The definition of “independent
person” specifically excludes officers and authorised
officers from
being an independent person. Because the definition of an “independent
person” excludes an officer from being an independent person, a senior
authorising officer, as defined in new subsections 192A(9), 261AE(8) and
261AK(10), cannot be an independent person for the purpose of this provision.
The Secretary or an SES Band 3 employee, as defined in new subsection 261AK(10),
also cannot be an independent person for the purposes of this
provision.
2. New subsection 261AL(4) requires an authorised officer or
officer, who is seeking the
consent of a parent or guardian, or an
independent person, under new subsection 261AL(2), to provide the same
information that must be provided to the minor under new section 258B to the
minor’s parent or guardian, or the independent person.
3. New
subsection 261AL(5) requires certain persons to be present while an authorised
officer carries out an identification test on a non-citizen minor. It
provides that the authorised officer must carry out the identification test in
the presence of a parent or guardian of the minor, or an independent
person.
4. However, new subsection 261AL(6) acts as a limit on new
subsection 261AL(5). It makes it clear that if the Minister is the non-citizen
minor’s guardian, then the identification test can only be carried out in
the presence of an independent person other than the Minister.
5. New subsection 261AM(1) limits the types of personal identifiers that
a non-citizen
who is an incapable person can be required to provide under
the Act.
6. New subsection 261AM(1) provides that an incapable person
can only be required to
provide a personal identifier consisting of:
• measurements of the his or her height or weight; or
• a photograph or other image of his or her face or shoulders.
1. New subsections 261AM(2) and (3) set out the requirements in relation to
consent where an authorised officer is to carry out an identification test on a
non-citizen who is an incapable person.
2. New subsection 261AM(2)
provides that a non-citizen who is an incapable person must not be required to
provide a personal identifier by way of an identification test carried out by an
authorised officer under section 40, 46, 188 or 192 unless:
• a
parent or guardian of the incapable person consents to the incapable person
providing a personal identifier (paragraph (a)); or
• if a parent or
guardian of the incapable person is not readily available, an independent person
consents to the incapable person providing the personal identifier (paragraph
(b)).
1. To facilitate passenger processing through Australia’s air
and seaports, consent of a parent or guardian, or an independent person, will
not be required where the incapable person is required to provide a personal
identifier to an officer:
• on entering Australia (under section
166);
• travelling on an overseas vessel from a port to another port
(under section 170);
• on departing Australia (under section 175).
1. It would not be reasonably practicable to obtain consent from a
parent or guardian, or an independent person, for each incapable person entering
or departing Australia, or travelling between ports.
2. A definition of
an independent person is inserted in subsection 5(1) of the Act by item 7
of this Schedule to mean a person (other than an officer or an authorised
officer) who:
• is capable of representing the interests of a
non-citizen who is providing, or is to provide, a personal identifier;
• as far as practical, is acceptable to the non-citizen who is
providing, or is to provide, the personal identifier; and
• if the
non-citizen is a minor, is capable of representing the best interests of the
minor.
1. The definition of “independent person” specifically
excludes officers and authorised
officers from being an independent person.
Because the definition of an “independent person” excludes an
officer from being an independent person, a senior authorising officer, as
defined in new subsections 192A(9), 261AE(8) and 261AK(10), cannot be an
independent person for the purposes of this provision. The Secretary or an SES
Band 3 employee, as defined in new subsection 261AK(10) also cannot be an
independent person for the purposes of this provision.
2. New subsection
261AM(3) requires an authorised officer or officer, who is seeking the consent
of a parent or guardian, or an independent person, under new subsection
261AM(2), to provide the same information that must be provided to the incapable
person under new section 258B to the parent or guardian, or the independent
person.
3. New subsection 261AM(4) requires that a parent or guardian,
or an independent person, be present where a non-citizen who is an incapable
person provides a personal identifier by way of an identification test carried
out by an authorised officer.
4. Item 33 inserts a new Part 4A after Part 4 of the Act. New Part 4A
governs the access, disclosure and destruction of personal identifiers and
information derived from personal identifiers.
Division 1 – Preliminary
Section
336A Definitions
5. New section 336A inserts definitions of
“data base”, “destroy”, “disclose”,
“identifying information”, “permitted disclosure”,
“unauthorised impairment” and “unauthorised
modification” into the Act, for the purposes of new Part
4A.
6. “Database” means, for the purposes of Part 4A only, a
discrete body of information stored by electronic means,
containing:
• indexes of persons who have provided personal
identifiers in accordance with the Act; and
• their identifying
information.
1. “Destroy”, in relation to identifying
information, has the meaning given by new subsection
336K(4).
2. “Disclose”, in relation to identifying
information that is a personal identifier, includes provide access to the
personal identifier.
3. “Identifying information” is defined
broadly to include:
• any personal identifier;
• any
meaningful identifier derived from any personal identifier; or
• any
record of a result of analysing any personal identifier or any meaningful
identifier derived from any personal identifier; or
• any other
information, derived from any personal identifier, any meaningful identifier
derived from any personal identifier or any record of a kind referred to above
that could be used to discover a particular person’s identity or to get
information about a particular person.
1. “Permitted
disclosure” has the meaning given by subsections 336E(2) and
(3).
2. “Unauthorised impairment” and “unauthorised
modification” have the meanings given by section 336J.
Section
336B Application
3. New section 336B makes it clear that section 15.4 of the Criminal Code (which relates to extended geographical jurisdiction) applies to all offences against this Part.
Section 336C Accessing identifying information
4. New
336C(1) makes it an offence for a person to access identifying information where
that person is not authorised under new section 336D to access the identifying
information for the purpose for which the person accessed it. The penalty
applying to such an offence is 2 years imprisonment or 120 penalty units, or
both.
5. New subsection 336C(2) provides that this offence does not apply
if a person accesses identifying information through a permitted disclosure. The
term “permitted disclosure” is defined in new subsections 336E(2)
and (3) of new Part 4A of the Act.
6. For example, if identifying
information is permitted to be disclosed to the Migration Review Tribunal under
new subsection 336E(2), new subsection 336(2) ensures that a tribunal member who
accesses the information will not be guilty of an offence.
7. The note at
the end of new subsection 336C(2) points out that a defendant bears an
evidential burden in relation to the matters in subsection 336C(2).
8. New section 336D sets out who may authorise a person to access
identifying information, and for what purposes.
9. Under new subsection
336D(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.
10. New
subsection 336D(2) provides that the Secretary must specify, in the
authorisation, the purposes for which access to identifying information is
authorised. The purposes must be one or more of the following
purposes:
• one or more of the purposes set out in new subsection
5A(3);
• disclosing identifying information in accordance with new Part
4A;
• administering or managing the storage of identifying
information;
• making identifying information available to the person
to whom it relates;
• modifying identifying information to enable it to
be matched with other identifying information;
• modifying identifying
information in order to correct errors or ensure compliance with appropriate
standards;
• making decisions under the Act or the regulations, or
under the Australian Citizenship Act 1948 or the regulations made under
that Act; and
• complying with laws of the Commonwealth or the States
or Territories.
1. However, new subsection 336D(3) provides that the
Secretary must not specify, as a
purpose for which access is authorised, a
purpose that will include or involve the purpose of using a prescribed type of
personal identifier in investigating, or prosecuting a person for, an offence
against a law of the Commonwealth or a State or Territory.
Section 336E Disclosing identifying information
2. New
subsection 336E(1) makes it an offence for a person to engage in conduct that
causes disclosure of identifying information if the disclosure is not a
permitted disclosure. The penalty for such an offence is 2 years imprisonment
or 120 penalty units or both.
3. New subsection 336E(2) defines a
“permitted disclosure” for the purposes of new section 336E. In
broad terms, it provides that a “permitted disclosure” is a
disclosure that:
• is for the purpose of data-matching in order to
achieve certain outcomes related, generally, to the administration of the
Act;
• is for the purpose of administering or managing the storage of
identifying information; or
• is authorised under new section 336F and
is for the purpose, or one or more of the purposes, for which the disclosure is
authorised; or
• is for the purpose of making the identifying
information in question available to the non-citizen to whom it relates;
or
• takes place under an arrangement entered into with an agency of
the Commonwealth, or with a State or Territory or an agency of the State or
Territory, for the exchange of identifying information; or
• 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
• is for
the purpose of an investigation by the Privacy Commissioner or Ombudsman
relating to carrying out an identification test or requiring the provision of a
personal identifier; or
• is made to a prescribed body or agency for
the purpose of inquiring into the operation of provisions of the Act relating to
the carrying out of an identification test or requiring the provision of a
personal identifier (for example, the Office of the Federal Privacy
Commissioner, the Human Rights and Equal Opportunity Commission or the
Australian National Audit Office); or
• takes place with the written
consent of the non-citizen to whom the identifying information in question
relates.
1. However, new subsection 336E(3) sets out a limitation on what
constitutes a permitted disclosure. It provides that a disclosure is not a
permitted disclosure if it is for the purpose of using a prescribed type of
personal identifier in investigating, or prosecuting a person for, an offence
against a law of the Commonwealth or a State or Territory.
Section
336F Authorising disclosure of identifying information to foreign countries
etc.
2. New section 336F sets out the circumstances in which
identifying information may be disclosed to foreign countries, bodies of a
foreign country, international organisations and bodies of the Commonwealth, a
State or a Territory.
3. New subsection 336F(1) allows the Secretary to
authorise, in writing, 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:
• one or more specified foreign countries (paragraph
(a));
• one or more specified bodies of a foreign country (being a body
which is a police force or police service body, a law enforcement body,
including a war crimes tribunal, or a border control body) (paragraph
(b));
• 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 (paragraph (c));
• one or more prescribed bodies of a foreign country, or of the
Commonwealth or a State or Territory (paragraph (d)); and
• one or more
prescribed international organisations (paragraph (e)).
1. Under new
paragraph 336F(1)(c), the Secretary will be able to authorise an officer to
disclose identifying information to international organisations such as the
United Nations High Commissioner for Refugees and the International Organisation
for Migration.
2. Under new paragraphs 336F(1)(d) and (e), the Secretary
will be able to authorise an officer to disclose identifying information to
prescribed bodies of a foreign country, the Commonwealth of Australia or a State
or Territory of Australia, or to prescribed international organisations. This
may include, for example, bodies such as Interpol or a body established by the
European Union.
3. In practice, the Minister will consult with the
Attorney-General before the Governor-General makes regulations for the purpose
of prescribing bodies or international organisations under new paragraphs
336F(1)(d) and (e).
4. New subsection 336F(2) requires that the Secretary
specify the purpose(s) for which disclosure is authorised in the authorisation.
The Secretary must specify as the purpose or purposes for which disclosure is
authorised, one or more of the purposes set out in new subsection
5A(3).
5. New subsections 336F(3) and 336F(4) set out the circumstances
in which a disclosure is taken not to be authorised under new section 336F.
These circumstances relate to where the identifying information relates
to:
• a non-citizen who is an applicant for a protection visa;
or
• a non-citizen who is an offshore entry person who makes a claim
for protection under the Refugees Convention as amended by the Refugees
Protocol.
1. An offshore entry person is defined in section 5 of the Act
to mean a person who entered Australia at an excised offshore place after the
excision time for that offshore place, and became an unlawful non-citizen
because of that entry. Section 46A of the Act provides that an offshore entry
person cannot make a valid application for a protection visa unless the Minister
determines otherwise.
2. Under new subsection 336F(3), a disclosure is
taken not to be authorised if:
• the person to whom the identifying
information relates is an applicant for a protection visa or an offshore entry
person who makes a protection claim; and
• the disclosure is to either
a foreign country in respect of which the application or claim is made, or a
body of such a country.
1. Under new subsection 336F(4), a disclosure is
taken not to be authorised if:
• the person to whom the identifying
information relates is an applicant for a protection visa, or an offshore entry
who makes a protection claim; and
• 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.
1. New subsection 336F(5) sets out certain circumstances in which new
subsections 336F(3) and (4) will not apply. These circumstances are
where:
• the applicant for a protection visa, or the offshore entry
person who makes a protection claim, has requested or agreed to return to the
foreign country in respect of which the application or claim is made; or
• the person’s application for a protection visa has been
refused and the application is finally determined (within the meaning of
subsection 5(9) of the Act); or
• an offshore entry person makes a
claim for protection under the Refugees Convention as amended by the Refugees
Protocol and, following assessment of the claim, the person is found not to be a
person to whom Australia owes obligations under the Refugees Convention as
amended by the Refugees Protocol.
1. In such cases, subsection 336F(5)
provides that a disclosure will be authorised under new subsection 336F(1).
Section 336G Unauthorised modification of identifying
information
2. New section 336G makes it an offence for a person
to:
• cause any unauthorised modification of identifying
information; and
• intend to cause the modification;
and
• know that the modification is
unauthorised.
1. “Unauthorised modification” is defined in
new section 336J.
2. The penalty for such an offence is 2 years
imprisonment or 120 penalty units or both.
Section 336H Unauthorised
impairment of identifying information
3. New section 336H makes it an
offence for a person to:
• cause any unauthorised impairment of the
reliability of identifying information, or the security of the storage of
identifying information, or the operation of a system by which identifying
information is stored; and
• intend to cause the impairment;
and
• know that the impairment is
unauthorised.
1. “Unauthorised impairment” is defined in new
section 336J.
2. The penalty for such an offence is 2 years imprisonment
or 120 penalty units or both.
Section 336J Meanings of
unauthorised modification and unauthorised impairment
etc.
3. New section 336J provides the meanings of
“unauthorised modification” and “unauthorised
impairment” for the purposes of new Part 4A in the Act.
4. New
subsection 336J(1) provides that:
• modification of identifying
information; or
• the impairment of the reliability of identifying
information; or
• the impairment of the security of the storage of
identifying information; or
• the 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.
1. New subsection 336J(2) explains that any such modification
or impairment caused by a person is not unauthorised merely because he or she
has an ulterior purpose for causing it.
2. New subsection 336J(3)
provides that, for the purposes of an offence under new Part 4A, a person causes
any such unauthorised modification or impairment if the person’s conduct
substantially contributes to it.
3. New subsection 336J(4) provides that,
for the purposes of new subsection 336J(1), if a person:
• causes
any modification or impairment of a kind mentioned in new subsection 336J(1);
and
• 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.
Section 336K Destroying identifying information
1. New
subsection 336K(1) makes it an offence if a person:
• is the
responsible person for identifying information; and
• the identifying
information is not of a kind that may, under new section 336L, be indefinitely
retained; and
• the person fails to destroy the identifying information
as soon as practicable after the end of the period for which the person is no
longer required under the Archives Act 1983 to keep the identifying
information.
1. The penalty for the offence is 2 years imprisonment or
120 penalty units or both.
2. The note at the end of new subsection
336K(1) refers to the relevant section of the Archives Act 1983 for the
obligation to keep the identifying information.
3. New subsection
336K(2) provides that new section 336K does not apply if the identifying
information is derived from or relates to the following types of personal
identifiers:
• a measurement of a person’s height and
weight;
• a photograph or other image of a person’s face and
shoulders; or
• a person’s signature.
1. The note at the
end of new subsection 336K(2) points out that a defendant bears an evidential
burden in relation to the matters in subsection 336K(2).
2. New
subsection 336K(3) defines the “responsible person” for identifying
information as:
• if the identifying information is stored on a
database – the person who has day-to-day control of the database;
or
• otherwise – the person who has day-to-day responsibility for
the system under which the identifying information is stored.
1. A
“responsible person” may include, for example, a person who is
contracted by the
Department to have responsibility for the system where the
identifying information is stored.
2. New subsection 336K(4) provides
that 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.
3. New section 336L sets out which identifying information may be
retained indefinitely, depending on the non-citizen to whom it
relates.
4. New subsection 336L(1) provides that identifying information
may be indefinitely retained if the non-citizen to whom it
relates:
• is, or has ever been, in immigration detention
(paragraph (a)); or
• has ever had an application for a visa refused or
a visa cancelled (paragraph (b)); or
• has ever entered Australia on a
temporary visa and, since its expiry, remained in Australia as an unlawful
non-citizen (paragraph (c));
• has ever been convicted of an offence
against the Act or the regulations (paragraph (d)); or
• has ever been
subject to action taken under the Act or the regulations for the purpose of
deporting or removing the non-citizen from Australia (paragraph (e));
or
• is a person in respect of whom the Minister has issued a
conclusive certificate under new subsection 336L(4) (paragraph
(f)).
1. New subsection 336L(2) provides that, in relation to new
paragraph 336L(1)(a), identifying information cannot be indefinitely retained
only because the non-citizen is detained for questioning detention under section
192. However, if a non-citizen detained for questioning detention under section
192 is subsequently detained under section 189 because he or she failed to
provide a prescribed personal identifier, then the non-citizen’s
identifying information can be indefinitely retained under new paragraph
336L(1)(a).
2. New subsection 336L(3) provides that, in relation to new
paragraph 336L(1)(b), identifying information cannot be indefinitely retained if
the decision to refuse the application for a visa, or to cancel the visa, was
set aside on review.
3. New subsection 336L(4) enables the Minister to
issue a conclusive certificate in respect of a non-citizen in two circumstances.
The first is if the Minister is satisfied that the non-citizen is a threat to
the security of the Commonwealth or of a State or Territory. The second is if
the Minister is satisfied that it is in the public interest to do
so.
4. New subsection 336L(5) provides that the Minister’s power
under new subsection 336L(4) must be exercised by the Minister
personally.
5. This item inserts a new section 487 in the Act before section 488 of
the Act.
6. New section 487 provides limited legal protection to a person who
carries out or helps to carry out identification tests under the
Act.
7. In particular, new section 487 provides that such a person is
protected from incurring any civil or criminal liability in respect of a thing
done by the person as long as:
• it was properly and necessarily
done in good faith in carrying out or helping to carry out the identification
test; and
• the person believed on reasonable grounds that the
identification test was carried out in accordance with this Act.
1. The
note at the end of new section 487 points out that new section 487 does not
provide any protection in respect of action taken maliciously.