Section 32 — Environment Protection and Biodiversity Conservation Act 1999: Use of force in carrying out identification tests

When use of force is permitted (1) Subject to subclause (2) and clause 33, an approved officer, or a person authorised under clause 34 to help the approved 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 approved 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) the use of force in carrying out the identification test is authorised under subclause (4). Applications for authorisation to use force (3) An approved officer may apply to a senior authorising officer (who is not an approved 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 authorised officer, or detention officer, whom the Secretary has authorised, or who is included in a class of authorised officers or detention officers whom the Secretary 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.