Commonwealth Consolidated Acts

MIGRATION ACT 1958 - SECT 261AE

When use of force is permitted

  (1)   Subject to subsection   (2) and section   261AF, an authorised officer, or a person authorised under section   261AG to help the authorised officer, may use reasonable force:

  (a)   to enable the identification test to be carried out; or

  (b)   to prevent the loss, destruction or contamination of any personal identifier or any meaningful identifier derived from the personal identifier.

However, this section does not authorise the use of force against a minor or an incapable person, or if the personal identifier in question is a person's signature.

  (2)   The officer or person must not use force unless:

  (a)   the non - citizen required to provide the personal identifier in question has refused to allow the identification test to be carried out; and

  (b)   all reasonable measures to carry out the identification test without the use of force have been exhausted; and

  (c)   use of force in carrying out the identification test is authorised under subsection   (4).

Applications for authorisation to use force

  (3)   An authorised officer may apply to a senior authorising officer (who is not an officer referred to in subsection   (1)) for an authorisation to use force in carrying out the identification test.

Authorisation to use force

  (4)   The senior authorising officer may authorise the use of force in carrying out the identification test if he or she is reasonably satisfied that:

  (a)   the non - citizen required to provide the personal identifier in question has refused to allow the identification test to be carried out; and

  (b)   all reasonable measures to carry out the identification test without the use of force have been exhausted.

  (5)   An authorisation under subsection   (4):

  (a)   may be given by telephone, fax or other electronic means; and

  (b)   must be recorded in writing, and signed by the person giving the authorisation, within one business day after it is given.

  (6)   A failure to comply with paragraph   (5)(b) does not affect the validity of an identification test carried out on the basis of that authorisation.

  (7)   The power to give an authorisation under subsection   (4) cannot be delegated to any other person.

Definition

  (8)   In this section:

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