Section 38 — Environment Protection and Biodiversity Conservation Act 1999: Retesting

When retesting is permitted (1) If: (a) an approved 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 approved officer, authorised officer or detention officer is not satisfied about the integrity of that personal identifier; the approved officer who carried out the earlier test or another approved 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 approved 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 approved officer, authorised 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 Secretary, the Director, the Chief Executive Officer of the Great Barrier Reef Marine Park Authority or an SES Band 3 employee in the Department (who is not an approved officer, authorised officer or detention officer referred to in subclause (1)). Authorisation to retest (4) The senior authorising officer, Secretary, Director, Chief Executive Officer 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 an authorisation under subclause (4) cannot be delegated to any other person. Use of force (9) An authorisation under subclause (4) does not authorise the use of force in carrying out an identification test. Note: See clause 32 on the use of force in carrying out identification tests. Effect of refusing to authorise retesting (10) 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 Schedule, to have complied with any requirement under this Schedule to provide the personal identifier in question. Definitions (11) In this clause: senior authorising officer means an authorised officer, or detention officer, who: (a) has been authorised, or is included in a class of authorised officers or detention officers who have been authorised, by the Secretary to perform the functions of a senior authorising officer under this clause; and (b) is not the Secretary or an SES Band 3 employee in the Department. 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. Note: This clause corresponds closely to section 261AK of the Migration Act 1958.