This article will outline points in relation to modifying, impairing, and destroying identity information. The Migration Act 1958 and the Australian Citizenship Act 2007 state that the government has the authority to collect one or more personal identifiers from non-citizens and citizenship applicants in a range of situations. Personal identifiers include:
- A photo or other image of a person’s face and shoulders
- A person’s signature
- A measurement of a person’s height and weight
- A person’s fingerprints or handprints
- An audio or video recording of a person (Migration Act only)
- An iris scan
- Any other personal identifier prescribed in the regulations. This applies as long as it does not involve an intimate forensic procedure and is an image, measurement, or recording of an external part of the body.
The Migration Act prohibits the disclosure of identifying information about a person without their consent. However, there are exceptions in certain circumstances, such as when the disclosure is necessary for law enforcement or national security purposes. Read on to learn about provisions about modifying, impairing, and destroying identity information.
Section 336G: Unauthorised Modification of Identifying Information
Section 336G of modifying, impairing, and destroying identity information provisions outlines the unauthorised modification of identifying information. A person commits an offence under this section if they:
- Change identifying information without permission.
- Intend to change the information.
- Know that changing the information is not permissible.
Punishment: Up to 2 years in prison, or a fine of up to 120 penalty units, or both.
Section 336H: Unauthorised Impairment of Identifying Information
Section 336H of modifying, impairing, and destroying identity information provisions outlines the unauthorised impairment of identifying information. A person commits an offence under this section if they:
- Interfere with the accuracy, security, or operation of identifying information or the system used to store it, without permission.
- Intend to interfere with the information or system.
- Know that interfering with the information or system is not permissible.
Penalty: Up to 2 years in prison, or a fine of up to 120 penalty units, or both.
Section 336J: Meanings of Unauthorised Modification and Unauthorised Impairment Etc.
Section 336J of modifying, impairing, and destroying identity information provisions explains the following:
- Unauthorised modification or impairment means any modification or impairment of identifying information, or of the reliability, security, or operation of a system that stores identifying information, that is caused by a person who is not entitled to cause that modification or impairment.
- A modification or impairment is not unauthorised merely because the person who caused it had an ulterior purpose for doing so.
- For an offence under this Part, a person causes an unauthorised modification or impairment if their conduct substantially contributes to it.
What if a person causes a modification or impairment of the kind mentioned in Section 336J(1) under a warrant issued under the law of the Commonwealth, a State, or a Territory? If this is the case the person may be able to cause that modification or impairment.
Section 336K: Destroying Identity Information
Section 336K of modifying, impairing, and destroying identity information provisions outlines destroying identity information. This section makes it an offence to fail to destroy identifying information that is no longer required to be kept under the Archives Act 1983. This section applies to all identifying information, except for:
- Personal identifiers, such as measurements of a person’s height and weight, photographs or images of a person’s face and shoulders, and signatures.
- Identifying information derived from or relating to personal identifiers.
- The person responsible for destroying identifying information is the person who:
- Has day-to-day control of the database that stores the information; or
- Has day-to-day responsibility for the system under which the information is stored.
To destroy identifying information, a person must either:
- Physically destroy it (if it is a personal identifier); or
- Destroy any means of identifying it with the person to whom it relates.
The penalty for failing to destroy identifying information is imprisonment for up to 2 years, or a fine of up to 120 penalty units, or both.
Section 336L: Identifying Information That May Be Indefinitely Retained
Section 336L of modifying, impairing, and destroying identity information provisions allows the indefinite retainment of identifying information. This information is about non-citizens who meet certain criteria, including:
- Non-citizens who have been in immigration detention.
- Non-citizens who have had a visa application refused or cancelled.
- Non-citizens who have entered Australia on a temporary visa and then remained unlawfully after the visa expired.
- Non-citizens who have been convicted of an offence under the Migration Act or the regulations.
- Non-citizens who have been subject to action to deport or remove them from Australia.
- Non-citizens who have been issued with a conclusive certificate by the Minister of Immigration, Citizenship, Migrant Services, and Multicultural Affairs.
The Minister may only issue a conclusive certificate if they believe that the non-citizen is a threat to the security of Australia or of a State or Territory, or that it is in the public interest to do so. Only the Minister personally can exercise the power to issue a conclusive certificate.
How Can a Migration Lawyer Help?
Modifying, impairing, and destroying identity information is a serious migration law case. Aside from this legal matter, migration lawyers can help with various migration law matters. Migration lawyers can help you with a wide range of legal matters like:
- Visa applications: Migration lawyers can help you with all aspects of the visa application process, from choosing the right visa to completing the application forms.
- Visa appeals: If you face refusal o visa application, a migration lawyer can help you to appeal. They will assess your case and advise you on your chances of success.
- Deportation: If you are facing deportation, a migration lawyer can help you to fight your case. They will assess your case and advise you on your legal options.
- Australian citizenship applications: Migration lawyers can help you with all aspects of the citizenship application process, from completing the application forms to preparing for the citizenship test. They can also represent you at any interviews or hearings.
- Other immigration matters: Migration lawyers can also help you with other immigration matters, such as applying for a waiver of a visa requirement or sponsoring a family member to come to Australia.
JB Solicitors is a leading law firm that can help you with all aspects of your case, especially with modifying, impairing, and destroying identity matters.
Contact us today.
