Document ID: chunk:federal_register_of_legislation:C2005A00103:clause:1a_38:p1
Version: federal_register_of_legislation:C2005A00103
Segment Type: clause
Provision Reference: sch 1A cl 38 (pt 1/2)
Character Range: 58649–61394

38  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 subclause (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, officer or detention officer is not satisfied about the integrity of that personal identifier;
the authorised officer who carried out the earlier test or another authorised 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 subclause (4).

 (2) If the non‑citizen is required under subclause (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 subclause (4)—a senior authorising officer (who is not an authorised officer, officer or detention officer referred to in subclause (1)); or
 (b) if the earlier test was a test authorised under subclause (4) by a senior authorising officer—the Managing Director of AFMA, the Secretary of the Department or an SES Band 3 employee in the Department (who is not an authorised officer, officer or detention officer referred to in subclause (1)).

Authorisation to retest

 (4) The senior authorising officer, Managing Director, Secretary 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 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