This article will discuss provisions under obligations relating to video recordings of identification tests of the Migration Act 1958. Identification tests are conducted to verify the identity of individuals involved in migration law matters. These tests can include various methods such as identification from:
- Photographs or photo boards
- Voice identification
- Identification of things; and
- Video footage
The Migration Act in Australia has provisions that limit the types of identification tests that authorised officers may carry out. Additionally, there are obligations relating to video recordings of identification tests. These limitations and obligations ensure that identification tests are conducted in a fair and lawful manner.
Section 261AKA: Definitions Under Obligations Relating to Video Recordings of Identification Tests
Section 261AKA contains relevant definitions in this article. These are:
| “permitted provision”, of a video recording | The meaning is available in Subsection 261AKD(2). Note: We will also cover Section AKD in this article |
| “provide” (in relation o a video recording) | To provide access to the recording |
| “related document” | This means a document that contains information from a video recording of an identification test |
| “video recording” | This is a video recording made under Section 261AJ or a copy of such a recording. This may also include a related document. |
Section 261AKB: Accessing Video Recordings
Section 261AKB of obligations relating to video recordings of identification tests pertains to accessing video recordings. Here is an explanation of the section:
1. Offence: According to subsection (1) of Section 261AKB, it is an offence for a person to access a video recording. This is if they are not authorised under Section 261AKC to access it for the intended purpose. In other words, unauthorised access to video recordings is prohibited.
2. Penalty: The penalty for committing the offence outlined in subsection (1) is imprisonment for 2 years, 120 penalty units, or both. This means that individuals who are found guilty of accessing video recordings without proper authorisation may face imprisonment or fines.
3. Exception: Subsection (2) of Section 261AKB provides an exception to the offence. This section does not apply if the access to the video recording is through the provision of a video recording that is a permitted provision. The details of what constitutes a permitted provision are not provided in the given information.
261AKC: Authorising Access to Video Recordings
Section 261AKC deals with the authorisation of access to video recordings. The section states that the Secretary or Australian Border Force (ABF) Commissioner may authorise a person to access a video recording of an identification test. However, the authorisation must specify the purpose for which the access is authorised.
Section 261AKC of obligations relating to video recordings of identification tests lists the following purposes for authorisation to video recording access:
- Providing the video recording to another person in accordance with this Subdivision.
- Administering or managing the storage of video recordings.
- Making the video recording available to the person to whom it relates.
- Modifying related documents in order to correct errors or ensure compliance with appropriate standards.
- Any purpose connected with determining whether a civil or criminal liability has arisen from a person carrying out or helping to carry out an identification test under this Act.
- Complying with laws of the Commonwealth or the States or Territories.
The Secretary or ABF Commissioner cannot authorise access to a video recording for the purpose of:
- Investigating an offence against a law of the Commonwealth or a State or Territory (other than an offence involving whether an identification test was carried out lawfully).
- Prosecuting a person for such an offence.
Section 261AKD: Providing Video Recordings
Section 261AKD of obligations relating to video recordings of identification tests states that a person commits an offence if:
- They cause a video recording to be provided to another person; and
- The provision of the recording is not a permitted provision of the recording.
The section lists the following as permitted provisions of a video recording for the purposes of:
- Administering or managing the storage of video recordings.
- Providing the video recording to the non-citizen to whom it relates.
- A proceeding relating to the non-citizen to whom the video recording relates.
- Determining whether a civil or criminal liability has arisen from a person carrying out or helping to carry out an identification test under this Act.
- An investigation by the Information Commissioner under the Privacy Act 1988 or the Ombudsman relating to carrying out an identification test.
- Providing the video recording to a prescribed body or agency for the purpose of the body or agency inquiring into the operation of provisions of this Act relating to carrying out an identification test.
- Providing the video recording with the written consent of the non-citizen to whom the video recording relates.
The section also states that a provision of a video recording is not a permitted provision of the recording. This is if:
- It constitutes a disclosure of identifying information relating to a personal identifier of a prescribed type; and
- It is for the purpose of investigating or prosecuting an offence, except for offences related to the lawfulness of an identification test.
Section 261AKE: Unauthorised Modification of Video Recordings
Section 2161AKE of obligations relating to video recordings of identification testsoutlines the unauthorised modification of video recordings. Here are some key points to remember:
- The unauthorised modification of a video recording is an offence.
- The modification must be intentional and the person must know that it is unauthorised.
- The offence is punishable by imprisonment for up to two years, \]a fine of up to 120 penalty units, or both.
Section 261AKF: Unauthorised Impairment of Video Recordings
Section 261AKF of obligations relating to video recordings of identification tests outlines unauthorised impairment of video recordings. The section states that a person commits an offence if they cause any unauthorised impairment of an identification test’s:
- Reliability
- Security; or
- Operation of a video recording of an identification test
The person also commits an offence under this section if:
- The person intends to cause the impairment; and
- The person knows that the impairment is unauthorised.
The offence is punishable by imprisonment for up to two years, a fine of up to 120 penalty units, or both.
Section 261AKG: Unauthorised Modification and Unauthorised Impairment Etc.
Section 261AKG of obligations relating to video recordings of identification tests outlines unauthorised modification and unauthorised impairment.
Unauthorised modification is defined as any modification of a video recording that the Secretary or ABF Commissioner does not authorise. On the other hand, unauthorised impairment is defined as any act or omission that makes a video recording less:
- Reliable
- Secure; or
- Operational.
The section also states that a person is not considered to have caused an unauthorised modification or impairment. However, they must prove that they had an ulterior purpose for doing so. Finally, the section states that a person is entitled to cause a modification or impairment of a video recording. This applies if they do so under a warrant that the government issued.
Section 261AKH: Destroying Video Recordings
Section 261AKH of obligations relating to video recordings of identification tests relates to the topic of destroying video recordings. The section states that a person commits an offence if:
- They are the person who has day-to-day responsibility for the system under which a video recording is stored; and
- They fail to physically destroy the recording, and all copies of the recording, within 10 years after it was made.
The offence is punishable by imprisonment for up to two years, a fine of up to 120 penalty units, or both.
The Importance of Seeking Legal Advice
Here are some of the reasons why it is important to seek legal advice from a migration lawyer about the obligations relating to video recordings of identification tests:
To understand the law. The law on video recordings of identification tests is complex and constantly evolving. A migration lawyer can help you to understand the law and to ensure that you are complying with your obligations.
To avoid penalties. The penalties for failing to comply with the law on video recordings of identification tests can be severe. A migration lawyer can help you to avoid these penalties.
To protect your rights. The law on video recordings of identification tests also protects the rights of individuals. A migration lawyer can help you to assert your rights and to ensure that your privacy is protected.
To get the best outcome. A migration lawyer can help you to get the best possible outcome in your case. They can negotiate with the authorities on your behalf and can represent you in court if necessary.
JB Solicitors is a well-respected migration law firm with a team of experienced lawyers. Our team can help you with all aspects of migration law.
