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MIGRATION ACT 1958 - SECT 261AK

Retesting

When retesting is permitted

             (1)  If:

                     (a)  an authorised officer has carried out an identification test (the earlier test ) on a non-citizen in accordance with this Division (including a test authorised under subsection (4)); and

                     (b)  either:

                              (i)  a personal identifier that is provided as a result of the earlier test being carried out is unusable; or

                             (ii)  an authorised officer or an officer is not satisfied about the integrity of that personal identifier;

the officer who carried out the earlier test or another officer may require the non-citizen to provide the personal identifier again, and may carry out the test again in accordance with this Division, if:

                     (c)  the requirement is made while the earlier test is being carried out or immediately after it was carried out; or

                     (d)  carrying out the test again is authorised under subsection (4).

             (2)  If the non-citizen is required under subsection (1) to provide the personal identifier again, the non-citizen is taken, for the purposes of this Division, not to have provided the personal identifier as a result of the earlier test being carried out.

Applications for authorisation to retest

             (3)  An authorised officer may apply for an authorisation to carry out the test again. The application is to be made to:

                     (a)  if the earlier test was not a test authorised under subsection (4)--a senior authorising officer (who is not an officer referred to in subsection (1)); or

                     (b)  if the earlier test was a test authorised under subsection (4) by a senior authorising officer--the Secretary, Australian Border Force Commissioner or an SES Band 3 employee in the Department (who is not an officer referred to in subsection (1)).

Authorisation to retest

             (4)  The senior authorising officer, Secretary, Australian Border Force Commissioner or SES Band 3 employee (as the case requires) may authorise the test to be carried out again if:

                     (a)  he or she is reasonably satisfied that the personal identifier that is provided as a result of the earlier test being carried out is unusable; or

                     (b)  he or she is not reasonably satisfied about the integrity of that personal identifier.

             (5)  An authorisation under subsection (4):

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

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

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

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

Use of force

             (8)  An authorisation under subsection (4) does not authorise the use of force in carrying out an identification test.

Note:          See section 261AE on the use of force in carrying out identification tests.

Effect of refusing to authorise retesting

             (9)  If an application for an authorisation to carry out an identification test again on a non-citizen is refused, the non-citizen is taken, for the purposes of this Act, to have complied with any requirement under this Act to provide the personal identifier in question.

Definitions

           (10)  In this section:

"senior authorising officer " means an officer (other than an SES Band 3 employee in the Department) whom the Secretary or Australian Border Force Commissioner has authorised, or who is included in a class of officers whom the Secretary or Australian Border Force Commissioner has authorised, to perform the functions of a senior authorising officer under this section.

SES Band 3 employee means an SES employee with a classification of Senior Executive Band 3, and includes an SES employee who has been temporarily assigned duties that have been allocated a classification of Senior Executive Band 3.



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