Migration Legislation Amendment (Identification and Authentication) Act 2004
No. 2, 2004
An Act to amend the Migration Act 1958, and for related purposes
Contents
1 Short title
2 Commencement
3 Schedule(s)
Schedule 1—Amendments
Migration Act 1958
Migration Legislation Amendment (Identification and Authentication) Act 2004
No. 2, 2004
An Act to amend the Migration Act 1958, and for related purposes
[Assented to 27 February 2004]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Migration Legislation Amendment (Identification and Authentication) Act 2004.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.
Commencement information |
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent | 27 February 2004 |
2. Schedule 1 | A single day to be fixed by Proclamation, subject to subsection (3) | 27 August 2004 |
Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.
(3) If a provision covered by item 2 of the table does not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Amendments
Migration Act 1958
1 Subsection 5(1) (at the end of the definition of authorised officer)
Add:
Note: Section 5D can affect the meaning of this term for the purposes of carrying out identification tests.
2 Subsection 5(1)
Insert:
character concern has the meaning given by section 5C.
3 Subsection 5(1) (definition of data base)
Before “means”, insert “(except in Part 4A)”.
4 Subsection 5(1) (at the end of the definition of data base)
Add:
Note: Section 336A defines this term differently for the purposes of Part 4A.
5 Subsection 5(1)
Insert:
identification test means a test carried out in order to obtain a personal identifier.
6 Subsection 5(1)
Insert:
incapable person means a person who is incapable of understanding the general nature and effect of, and purposes of, a requirement to provide a personal identifier.
7 Subsection 5(1)
Insert:
independent person means a person (other than an officer or an authorised officer) who:
(a) is capable of…
Overview
The Migration Legislation Amendment (Identification and Authentication) Act 2004 was enacted to amend the Migration Act 1958, introducing new provisions related to the identification and authentication of non-citizens in Australia. The Act was passed by the Parliament of Australia and received Royal Assent on 27 February 2004, with certain provisions commencing on 27 August 2004. The primary objective of this legislation is to enhance the integrity of immigration processes, improve identification procedures, and combat identity fraud in immigration matters. It does so by mandating the collection of personal identifiers from non-citizens, specifying the types of personal identifiers that can be required, and outlining the circumstances under which these identifiers must be provided. The Act also sets out procedures for carrying out identification tests, including restrictions on the types of tests that can be conducted and the conditions under which they can be carried out. Furthermore, the Act establishes obligations for the retention, disclosure, modification, impairment, and destruction of identifying information, aiming to protect the privacy and security of personal identifiers while facilitating the efficient processing of immigration applications.
Scope and Application
The Migration Legislation Amendment (Identification and Authentication) Act 2004 amends the Migration Act 1958 by enhancing the ability of the Department of Immigration and Multicultural and Indigenous Affairs to identify, authenticate the identity of, and obtain information about non-citizens. This Act applies to non-citizens, minors, incapable persons, officers, and authorised officers. The Act extends to the Commonwealth of Australia, including the Australian Capital Territory, the Jervis Bay Territory, external territories, and offshore places. The Act does not apply to the Northern Territory. The Act includes various definitions, such as "personal identifier," "independent person," and "minor." The Act also specifies the types of personal identifiers that can be required from non-citizens and the circumstances in which they can be required. Furthermore, the Act establishes procedures for carrying out identification tests, including the use of reasonable force in certain circumstances. The Act also includes provisions for the authorisation of identification tests, the recording of identification tests, and the use of force in carrying out identification tests. The Act further outlines the obligations relating to identifying information, including access to identifying information, disclosure of identifying information, modifying and impairing identifying information, and destroying identifying information. The Act also includes provisions for the Minister to determine that personal identifiers are not required in certain circumstances, and for the Minister to authorise officers to carry out identification tests. The Act extends or restricts application through subordinate instruments, such as regulations and authorisations. The Act includes a review provision, requiring an independent review of the operation of the amendments made by the Act to be undertaken as soon as possible after the third anniversary of the commencement of the Act.
Key Provisions
- The Migration Legislation Amendment (Identification and Authentication) Act 2004 amends the Migration Act 1958 to introduce new requirements for the provision and handling of personal identifiers for non-citizens. Section 5A of the Act defines "personal identifier" to include fingerprints, measurements of height and weight, photographs, audio or video recordings (excluding those under section 261AJ), iris scans, signatures, and other identifiers prescribed by regulation. The Act specifies that certain types of identifiers, such as those requiring intimate forensic procedures, are not to be collected unless prescribed by regulation (section 5B). Non-citizens who cannot provide a usable personal identifier, or whose provided identifier does not meet integrity or quality requirements, are deemed not to have provided a personal identifier (section 5B). The Act also defines "character concern" (section 5C) and limits the types of identification tests that authorised officers may carry out (section 5D).
- The Act imposes obligations on non-citizens to provide personal identifiers under certain circumstances, such as applying for a visa, being on an overseas vessel, or being on a vessel leaving Australia. It specifies the types of personal identifiers that can be required, which include photographs, signatures, and other identifiers contained in travel documents or prescribed by regulation (sections 40, 46, 166, 170, 175, 188, and 192). The Act also mandates that certain personal identifiers must be provided through identification tests carried out by authorised officers, unless the identifier is of a prescribed type and provided in a manner compliant with further requirements (sections 40(4), 46(2B), 166(1B), 170(4), 175(4), 188(6), and 192(2B)).
- The Act outlines specific offences and penalties for breaches, including unauthorised access to, disclosure of, modification, impairment, and destruction of identifying information (sections 336C, 336E, 336G, 336H, and 336K). Penalties for these offences include imprisonment for up to 2 years, fines of up to 120 penalty units, or both. The Act also prohibits the unauthorised access to, provision of, modification, impairment, and destruction of video recordings of identification tests (sections 261AKB, 261AKD, 261AKE, 261AKF, and 261AKH), with similar penalties. Additionally, the Act requires authorised officers to inform non-citizens of their rights and the matters they must be informed of before identification tests are carried out (sections 258B and 258C). The Act includes provisions for the review of its operation by the Minister, to be conducted three years after its commencement (section 35).
- Area of Law
- Immigration & Refugee Law
- Instrument
- Act
- Concepts
- Definitions & Interpretation
- Commencement Provisions
- Licensing & Registration
- Enforcement Powers
- Regulatory Standards
- Civil Penalty Provisions
