Document ID: chunk:federal_register_of_legislation:C2005A00103:clause:1a_32
Version: federal_register_of_legislation:C2005A00103
Segment Type: clause
Provision Reference: sch 1A cl 32
Character Range: 53588–56275

32  Use of force in carrying out identification tests

When use of force is permitted

 (1) Subject to subclause (2) and clause 33, an authorised officer, or a person authorised under clause 34 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 clause 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 authorised 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 subclause (4).

Applications for authorisation to use force

 (3) An authorised officer may apply to a senior authorising officer (who is not an authorised officer referred to in subclause (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 subclause (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 record made under paragraph (5)(b) is not a legislative instrument.

 (7) 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.

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

Definition

 (9) In this clause:

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

Note: This clause corresponds closely to section 261AE of the Migration Act 1958.