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Australian Border Force Amendment (Protected Information) Bill 2017

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2016-2017

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

AUSTRALIAN BORDER FORCE AMENDMENT

(PROTECTED INFORMATION) BILL 2017

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Immigration and Border Protection,

the Hon Peter Dutton MP)



 

AUSTRALIAN BORDER FORCE AMENDMENT (PROTECTED INFORMATION) BILL 2017

OUTLINE

The Australian Border Force Amendment (Protected Information) Bill 2017 (the Bill)  amends the Australian Border Force Act 2015 (the ABF Act) to:

·          repeal the definition of protected information in subsection 4(1) of the ABF Act, that includes any information obtained in a person’s capacity as an entrusted person, and substitute a definition of Immigration and Border Protection information , so that only specific kinds of information are covered by the secrecy and disclosure provisions in Part 6 of the ABF Act;

·          repeal paragraphs 44(2)(d) and 45(2)(d), removing the current requirements for bodies to which information can be disclosed and classes of information to be prescribed in the Australian Border Force (Secrecy and Disclosure) Rule 2015 (the ABF Rule), as the operation of these provisions is ineffective and reduces operational and administrative efficiency;

·          add new permitted purposes for which Immigration and Border Protection information that contains personal information can be disclosed under the ABF Act, relating to inter-country adoption, protection of national security and defence of Australia, and location of missing persons.

The integrated Department of Immigration and Border Protection (the Department), including its operational enforcement arm, the Australian Border Force (ABF), supports a range of activities, including international trade, the supply of skilled labour for our domestic economy, business relationships, revenue collection, law enforcement and national security outcomes, travel and tourism facilitation, community protection and building a prosperous and cohesive society. The breadth of these activities means that the environment in which the Department operates is complex and continually evolving.

The ABF Act provides the legislative framework for the administration and operability of the ABF and addresses certain matters, such as the secrecy and disclosure of information, that apply to the whole Department.

The secrecy and disclosure provisions in Part 6 of the ABF Act were adapted from the model within the now repealed Customs Administration Act 1985 (the Customs Administration Act) which had governed secrecy and disclosure in the Australian Customs and Border Protection Service. However, this model has not kept pace with the developments in the modern border environment and the maturation of the Department since integration. The amendments in this Bill are required to update the legislative settings to facilitate the evolving work of the Department.

Information obtained by the Department may be collected from individuals, industry, other sectors of government or foreign partners. The Department also generates substantial amounts of information internally. Information is a valuable asset and as its custodian, the Department must ensure that the information is only used and disclosed for legitimate purposes.

This involves balancing of the competing interests of transparent, open and accountable government with the necessary interest of protecting information from disclosure which would lead to identifiable harm.

Mishandling of information can cause significant damage to the national and public interest. Individuals can also suffer serious detriment where personal and sensitive information is inappropriately disclosed.

The aim of the measures in this Bill, therefore, is to ensure that Immigration and Border Protection information, including personal information, is provided with the appropriate level of protection, and that entrusted persons properly handle this information.

As not all information obtained by the Department requires protection, the definition of the information to be protected has been refined to include only certain kinds of information, such as that relating to: the security, defence and international relations of Australia; prevention, detection and investigation of offences; protection of public health and safety; or sensitive personal and commercial matters.

The three new permitted purposes for which protected information that contains personal information can be lawfully disclosed under section 46 of the ABF Act reflect, in the Department’s operational experience, the additional circumstances in which protected information that contains personal information needs to be disclosed on a regular basis. Prescribing these purposes on the face of the Act provides clear authority for the disclosure of Immigration and Border Protection information in these specific circumstances.

Since the ABF Act commenced in 2015, the experience of the Department is that paragraphs 44(2)(d) and 45(2)(d) of the ABF Act are difficult and cumbersome to administer without necessarily providing any additional level of protection against the disclosure of protected information. These provisions are therefore to be repealed.

FINANCIAL IMPACT STATEMENT

These amendments will have no financial impact.

 



 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Australian Border Force Amendment (Protected Information) Bill 2017

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

This Bill revises the secrecy and disclosure provisions contained within the Australian Border Force Act 2015 (ABF Act). This revision is necessary to clarify the policy intent and simplify the administration of the provisions.

The integrated Department of Immigration and Border Protection (the Department), including the Australian Border Force, has a complex and evolving remit, supporting international trade, the supply of skilled labour for our domestic economy, business relationships, revenue collection, law enforcement and national security outcomes, travel and tourism facilitation, community protection and building a prosperous and cohesive society.

To support this mandate, Part 6 of the ABF Act contains a central secrecy and disclosure regime, which works alongside information disclosure provisions in other portfolio legislation.

This Bill seeks to balance the need to protect certain information, where appropriate, against the Australian Government’s commitment to open government. This Bill clarifies the policy and legislative intent, which is to protect certain information from unauthorised disclosure to prevent harm to national and public interests, while meeting the expectations of the Australian community of transparency and accountability within the Australian Government. This balance is needed to appropriately manage information disclosures and preserve public confidence in government.

In addition, the Bill seeks to streamline the administration of Part 6, ensuring compliance and improving efficiency.

The Bill proposes to:

·          repeal the definition of protected information in subsection 4(1) of the ABF Act and substitute a definition of Immigration and Border Protection information , so that only specific kinds of information obtained by the Department are covered by the secrecy and disclosure provisions in Part 6 of the ABF Act;

·          remove the current requirements for bodies to which information can be disclosed and classes of information to be prescribed in the Australian Border Force (Secrecy and Disclosure) Rule 2015 (the ABF Rule);

·          add new permitted purposes for which Immigration and Border Protection information can be disclosed to the ABF Act, including the permitted purpose currently set out in Schedule 4 of the ABF Rule.

Part 1 of Schedule 1 to the Bill will have retrospective application, backdated to 1 July 2015. The retrospectivity clarifies that only information which could cause an identifiable harm (if disclosed) is to be protected under the ABF Act. The narrower definition of Immigration and Border Protection information will reassure individuals who may otherwise erroneously believe that they have committed an offence.

The Bill maintains provisions making it an offence to record or disclose information obtained by a person in their capacity as an entrusted person. The unauthorised disclosure of information, including personal information, is punishable by imprisonment for two years.

The Bill defines Immigration and Border Protection information to specify certain kinds of information that require protection from unauthorised disclosure. The scope of the definition is based on the harm that could be caused by unauthorised disclosure of the information. The definition does not extend to all information held by the Department.

The Bill maintains the specified exceptions in defined circumstances, including where a record or disclosure is in the course of employment, is required by another law or by order of a court or tribunal, or is authorised by the Secretary.

These provisions are reasonable, necessary and proportionate to provide assurances to the Australian public, business, industry and government partners in Australia and internationally that information provided to the Department will be appropriately handled.

Human rights implications

Right to Privacy

Article 17 of the International Covenant on Civil and Political Rights (ICCPR) states:

  1.  No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
  2. Everyone has the right to the protection of the law against such interference or attacks.

The amendments engage the right to privacy contained in Article 17 of the ICCPR. Australia’s obligations under Article 17 are reflected in the Privacy Act 1988 (the Privacy Act). Consequently, the extent to which an individual is entitled to a right to privacy in Australia is governed by the Privacy Act. Section 14, Schedule 1 to the Privacy Act contains the Australian Privacy Principles that assist government departments to ensure the lawful collection, solicitation, storage, security, access, correction, use and disclosure of personal information. It is intended that this Bill will align with the Privacy Act.

 

Article 17(1) prevents arbitrary or unlawful interference with privacy, and Article 17(2) affords the right to legal protection against the stated ‘arbitrary or unlawful attacks’. Although the United Nations Human Rights Committee has not defined privacy, it should be understood to comprise freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy. The Bill does not have the effect of intruding into privacy on an unwarranted or unreasonable basis.

The possible imposition on privacy through the restricted sharing of Immigration and Border Protection information will not be unlawful as the Bill ensures that any disclosure of information may only occur for legislatively stated permitted purposes. Such disclosure would not be arbitrary, as:

·          it will not be unlimited in nature; and

·          entrusted persons, and individuals with whom they deal, will have certainty regarding the circumstances in which information will be properly disclosed.

The legislative prescription regarding disclosure of Immigration and Border Protection information ensures that individuals are protected from arbitrary or unlawful interference with their privacy. Therefore, the proposed amendments are consistent with Australia’s obligations under Articles 17(1) and 17(2) of the ICCPR.

Freedom of expression and communication

Article 19 of the ICCPR states:

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

The amendments engage with Article 19 of the ICCPR, specifically in relation to the rights of all entrusted persons to freedom of political communication. This Bill acknowledges the freedom of political communication and imposes restrictions in line with the exceptions specifically envisaged by Article 19(3), such as protection of national security, public order, or public health or morals.

These provisions uphold the implied constitutional freedom of political communication by providing assurances to Immigration and Border Protection workers that their freedom of political expression is protected consistent with Article 19 of the ICCPR and commensurate with Australian and international standards.

The secrecy and information disclosure provisions enable information to be shared within Australia and internationally in furtherance of the national and public interest, and balanced against possible harms. As such, this Bill is consistent with Article 19 of the ICCPR.

Conclusion

To the extent that this Bill engages human rights, the limitations are reasonable, necessary and proportionate. Accordingly, this Bill is compatible with the relevant human rights obligations for the reasons outlined above.

 

Hon Peter Dutton MP, Minister for Immigration and Border Protection

 



 

AUSTRALIAN BORDER FORCE AMENDMENT (PROTECTED INFORMATION) BILL 2017

 

  NOTES ON CLAUSES

 

Clause 1   Short title

1.         Clause 1 provides that the short title by which this Act may be cited is the Australian Border Force Amendment (Protected Information) Act 2017.

 

Clause 2   Commencement

2.         Subclause 2(1) provides that each provision of this Act specified in Column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

3.         Table item 1 provides that sections 1 to 3 and anything else in this Act not covered elsewhere by this table commences the day this Act receives the Royal Assent.

 

4.         Table item 2 provides that Schedule 1, Part 1 of this Act will commence immediately after the commencement of the Australian Border Force Act 2015 (that is, on 1 July 2015).

 

5.         Part 1 of the Act commences retrospectively from 1 July 2015 to reflect the policy intention that Part 6 of the ABF Act, as amended by this Act, is what the law was always intended to be. That is, the policy intention is that the narrow categories of Immigration and Border Protection information are taken to have been in effect from 1 July 2015.

 

6.         Table item 3 provides that Schedule 1, Part 2 of this Act will commence on the day after this Act receives the Royal Assent.

 

7.         Part 2 of the Act repeals paragraph 44(2)(d) and 45(2)(d) of the ABF Act to remove the requirements that a proposed disclosure of a class of protected information that contains personal information is made to a body or person prescribed in the ABF Rule and that the class of information is prescribed in the ABF Rule as a class of information that may be disclosed to that body or person. Part 2 of the Act also adds three new permitted purposes for which Immigration and Border Protection information that contains personal information may be disclosed for the purposes of section 46 of the ABF Act.

 

8.         As these amendments are concerned with ensuring the Act is less administratively burdensome to administer, it is desirable for these amendments to commence prospectively rather than retrospectively.

 

9.         Table item 4 provides that Schedule 1, Part 3 of this Act will commence on the later of:

 

(a) the day after this Act receives the Royal Assent; and

(b) the day the Petroleum and Other Fuels Reporting Act 2017 commences.

 

However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.

 

10.     The definition of protected information is proposed to be inserted into the Petroleum and Other Fuels Reporting Act 2017 (the Petroleum and Other Fuels Reporting Act), which, on that date on which the Bill is introduced, is still a Bill currently before the Parliament. Once that Act is passed, the definition of protected information will be amended by the Bill (that is, the definition of protected information will be repealed and substituted with Immigration and Border Protection information ). This commencement provision recognises this, but also recognises that the amendments made by Part 3 of Schedule 1, including the new definition of Immigration and Border Protection information , will commence on the day after the Act receives the Royal Assent in the event that the Petroleum and Other Fuels Reporting Act does not commence.

 

11.     The note under subclause 2(1) states that this table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

 

12.     Subclause 2(2) provides that any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

 

Clause 3   Schedules

13.     This clause is the formal enabling provision for the Schedules to the Bill, providing that each Act specified in a Schedule is amended or repealed in accordance with the applicable items of the Schedule. This Bill amends the ABF Act and the Petroleum and Other Fuels Reporting Act.

 

14.     This clause also provides that other items of a Schedule have effect according to their terms. This is a standard enabling clause for transitional, savings and application items in amending legislation.



 

Schedule 1 - Amendments

Australian Border Force Act 2015

15.     The purpose of Schedule 1 to the Bill is to repeal the definition of protected information in subsection 4(1) of the ABF Act and substitute a definition of Immigration and Border Protection information so that only specific kinds of information obtained by a person in the person’s capacity as an entrusted person are regulated by the secrecy and disclosure provisions in Part 6 of the ABF Act. 

 

16.     Schedule 1 also simplifies the operation of sections 44 and 45 of the ABF Act by omitting the requirement that the ABF Rule prescribe the bodies or persons to whom Immigration and Border Protection information may be disclosed, and the class of Immigration and Border Protection information that may be disclosed. Schedule 1 also inserts into section 46 of the ABF Act three new permitted purposes for which Immigration and Border Protection information that contains personal information may be disclosed.

 

 

Part 1 - Amendments commencing on 1 July 2015

Item 1             Subsection 4(1)

 

17.     This item inserts a new definition of duty of confidence into the ABF Act. That expression is defined to mean any duty or obligation arising under the common law or at equity pursuant to which a person is obliged not to disclose information.

 

18.     This is a consequential amendment to paragraph (d) of the definition of Immigration and Border Protection information , inserted by this item.

 

19.     This item also inserts a new definition of Immigration and Border Protection information in section 4 of the ABF Act.

 

20.     Under subsection 42(1) of the ABF Act, a person commits an offence if the person is, or has been, an entrusted person, the person makes a record of, or discloses, information, and the information is protected information.

 

21.     Section 4 of the ABF Act currently defines protected information to mean information that was obtained by a person in the person’s capacity as an entrusted person. Entrusted person is defined in section 4 of the ABF Act to mean the Secretary, the Australian Border Force Commissioner (including in his or her capacity as the Comptroller-General of Customs) or an Immigration and Border Protection Worker.

 

22.     The new definition of Immigration and Border Protection information in subsection 4(1) of the ABF Act defines that expression as information of any of the following kinds that was obtained by a person in the person’s capacity as an entrusted person:

 

Paragraph (a): information the disclosure of which would or could reasonably be expected to prejudice the security, defence or international relations of Australia

 

23.     Broadly speaking, the security of Australia refers to matters concerning the protection of Australia and its population from active measures of foreign intervention, espionage, sabotage, subversion and terrorism, and the security of any communications system or cryptographic system of any country used for defence or conduct of international relations.

 

24.     The security of Australia also includes attacks on Australia’s defence system, that is, activities that are intended to, and are likely to, obstruct, hinder or interfere with the performance by the Australian Defence Force of its functions or with the carrying out of other activities by or for Australia for the purposes of the defence or safety of the Commonwealth.

 

25.     The defence of Australia includes meeting Australia’s international obligations and ensuring the proper conduct of international defence relations, measures to deter and prevent foreign incursions into Australian territory, and the protection of the Australian Defence Force from hindrance or activities which would prejudice its effectiveness.

 

26.     The purpose of including this kind of information is that the disclosure of such information would enable possible enemies of the Australian government to obtain knowledge of the security and defence measures used. The disclosure of certain information provided by a foreign country may diminish confidence in the Department, or Australia more generally, as a reliable recipient of information, making that country less willing to cooperate with the Department in the future. This would damage international relations, hindering the flow of information and the conduct of joint operations.

 

27.     Information which could be captured by this paragraph includes:

 

·          extracts of documents relating to trade and migration negotiations with foreign governments;

·          high level data and information on human trafficking exchanged with other countries which, if disclosed to third parties, could damage Australia’s relations with those other countries.

 

28.     Item 5 below deems information that has a security classification and information that has originated with, or been received from, an intelligence agency as also coming within Immigration and Border Protection information covered by this paragraph.

 

Paragraph (b): Information the disclosure of which would or could reasonably be expected to prejudice the prevention, detection or investigation of, or the conduct of proceedings relating to, an offence or a contravention of a civil penalty provision

 

29.     The purpose of including this kind of information is to prevent the compromise of live operations or the disclosure of law enforcement methods which, if disclosed, would or could reduce their effectiveness.

 

30.     This is necessary to uphold the Department’s law enforcement role, ensuring there is no prejudice to current or pending investigations or prosecutions, or the ongoing detection of offences.

 

31.     This also applies to contraventions of civil penalty provisions because civil penalties are imposed for contravention of certain provisions of the Migration Act. It is therefore necessary to protect the investigatory process concerning contraventions of those civil penalty provisions.

 

32.     Information that could be covered by this paragraph includes:

 

·          information obtained by the interception of communications under warrant, or by reason of any action authorised by warrant;

·          information relevant to customs prosecutions under Part XIV of the Customs Act;

·          information concerning the exercise of powers of officers under Part XII of the Customs Act;

·          information concerning possible offences and civil penalties in relation to work by non-citizens in Subdivision C of Division 12 of Part 2 of the Migration Act.

 

Paragraph (c): Information the disclosure of which would or could reasonably be expected to prejudice the protection of public health, or endanger the life or safety of an individual or group of individuals

 

33.     This kind of information recognises that disclosing information that endangers the life or safety of an individual or group of individuals is a serious matter warranting the protection of Part 6 of the ABF Act. The sensitivity of certain health situations can lead to an individual being placed in a situation of additional risk if the information were to be disclosed. The language of this paragraph is broadly consistent with section 16A of the Privacy Act 1988 (the Privacy Act) and paragraph 37(1)(c) of the Freedom of Information Act 1982 .

 

34.     This kind of information could include:

 

·          biographical details of individuals in witness protection programmes that could result in those witnesses being located, threatened and/or harmed by the alleged offender(s) or their associates;

·          biographical details of perpetrators of child abuse and other serious crimes (in the context of the possible cancellation of the perpetrator’s visa under section 501 of the Migration Act or the possible revocation of the Australian citizenship of the alleged offender under the Australian Citizenship Act 2007 (the Australian Citizenship Act)).

 

Paragraph (d): Information the disclosure of which would or could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence

 

35.     The purpose of including this kind of information is to recognise that individuals who provide information to the Department on the understanding that it will be kept confidential have a right to expect that it will be protected under Part 6 of the ABF Act. The Department’s ability to function effectively depends on this information and any breakdown of trust between the Department and the client in this context will have adverse repercussions for the Department and the Government generally. Lack of client confidence in the Department’s ability to protect confidential information could result in such information being withheld. For example, reluctance to report persons working in breach of their visa conditions or persons who have provided false documentation or are in contrived relationships could hinder investigation of those types of cases.

 

36.     The kinds of information that could be covered by this paragraph include:

 

·          information that identifies an informant who reports breaches of sponsorship obligations under the Migration Act;

·          information from a sponsor of an applicant for a partner visa to the effect that they no longer wish to sponsor their partner for the grant of that visa, in the context of claims of family violence;

·          details of aviation operations that are commercial-in-confidence, such as discussions with airlines regarding the commencement of flights.

 

37.     Item 5 below deems information that was provided pursuant to a statutory obligation or otherwise by compulsion of law as information that comes within this paragraph of the definition of Immigration and Border Protection information .

 

Paragraph (e): Information the disclosure of which would or could reasonably be expected to cause competitive detriment to a person

 

38.     This paragraph is concerned with protecting commercial information that is provided to the Department.  This recognises that disclosing such information could cause significant damage to an entity’s business interests where the information provides a commercial advantage to a competitor or potential competitor. For example, the unauthorised disclosure of such information may result in competitors of a commercial entity undercutting the service it provides or counterfeiting its product.

 

39.     The kinds of information handled by the Department that could come within this paragraph include:

 

·          commercially sensitive information received from and about commercial entities, such as names of suppliers, prices paid for goods, the value of consignments and quantities of goods imported, or proposed to be imported, into Australia;

·          technical specifications about the various products the subject of an application for a Tariff Concession Order (TCO) under Part XVA of the Customs Act.



 

 

 

Paragraph (f): Information of a kind prescribed in an instrument under subsection (7)

 

40.     New subsection 4(7) (inserted by item 5 below) allows the Secretary of the Department  to prescribe a kind of information for the purposes of paragraph (f) of the definition of Immigration and Border Protection information in subsection 4(1). The effect of this item is discussed further at item 5 below.

 

41.     This item also inserts a definition of intelligence agency into section 4 of the ABF Act. This definition mirrors that in section 8 of the Public Interest Disclosure Act 2013 , which refers to the core Australian intelligence agencies. However, overseas bodies or authorities responsible for intelligence gathering for, or the security of, a foreign country are also included in the definition. This recognises that information is disclosed directly to the Department by these overseas bodies and authorities, and that such information should be given the same level of protection as that originating with, or received from, Australian intelligence agencies.

 

Item 2             Subsection 4(1) (definition of protected information )

 

42.     This item repeals the definition of protected information in subsection 4(1) of the ABF Act.

 

43.     This is a consequential amendment to the amendment made by item 1 above, which inserts the definition of Immigration and Border Protection information in subsection 4(1) of the ABF Act.

 

Items 3 and 4             Subsection 4(4) (heading) and subsection 4(4)

 

44.     These are consequential amendments to the amendments made by items 1 and 2 above, which repeal the definition of protected information and insert the definition of Immigration and Border Protection information in subsection 4(1) of the ABF Act.  These provisions refer to protected information so these amendments substitute that reference to Immigration and Border Protection Information .

 

Item 5             At the end of section 4

 

45.     The effect of new subsection 4(5) of the ABF Act is to deem the following kinds of information as information the disclosure of which would or could reasonably be expected to prejudice the security, defence or international relations of Australia:

·          information that has a security classification;

·          information that has originated with, or been received from, an intelligence agency.

 

46.     This provision highlights that these particular kinds of information are kinds of information which, if disclosed, would or could reasonably be expected to prejudice the security, defence or international relations of Australia.

 

47.     However, this provision does not limit the kinds of information that may come within paragraph (a) of the definition of Immigration and Border Protection information.

 

48.     The requirement that the information has a security classification picks up the Australian Government’s Protective Security Policy Framework (the Framework). The Framework sets out the system for identifying official information whose compromise could have a business impact level of high or above for the Australian Government.   It is the mechanism for protecting the confidentiality of information generated by the Government or provided to it by other governments and private entities.

The security classifications reflect the level of damage done to the national interest, organisations and individuals, of unauthorised disclosure, or compromise of the confidentiality, of information.

 

49.      Information that has a security classification includes:

 

·          new policy proposals and associated costing information marked as Protected or Cabinet-in-Confidence;

·          other Cabinet documents, including Cabinet decisions;

·          budget related material, including budget related material from other Government departments;

·          adverse security assessments and qualified adverse security assessments of individuals from other agencies, including an individual whose citizenship may potentially cease in accordance with section 35 of the Australian Citizenship Act (which deals with cessation of a person’s citizenship on the basis of their service outside Australia in the armed forces of an enemy country or declared terrorist organisation).

 

50.     The protection of information that has originated with, or has been received from, an intelligence agency recognises the sensitivity of the information given to the Department by domestic and foreign intelligence agencies, and the higher duties of secrecy associated with the work of these agencies. It recognises that the nature of intelligence information held by domestic and foreign intelligence agencies means that its disclosure could cause serious damage to Australia’s security.

 

51.     The kinds of information that may originate with, or be received from, an intelligence agency include:

 

·          intelligence information provided by domestic and international intelligence agencies, including signals intelligence and other intelligence derived from technological means;

·          information about specific intelligence products and the capabilities of such products, which, if disclosed, may pose a direct threat to intelligence sources.

 

52.     The effect of new subsection 4(6) of the ABF Act is to deem information that was provided to the Commonwealth pursuant to a statutory obligation or otherwise by compulsion of law as information the disclosure of which would or could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence.

 

53.     This provision recognises that where information is provided in accordance with a statutory obligation, the recipient of the information is under an implied statutory duty to use that information only for the purpose for which it was provided (subject to any statutory provision to the contrary).

 

54.     This provision highlights that this particular kind of information is a kind of information which, if disclosed, would or could reasonably be expected to found an action by a person (other than the Commonwealth) for breach of a duty of confidence.

 

55.     However, this provision does not limit the kinds of information that may come within paragraph (d) of the definition of Immigration and Border Protection information .

 

56.     The kinds of information that may be covered by this provision include:

 

·          information provided in response to a requirement under section 140XF of the Migration Act to require a person to produce records or documents to an inspector in the sponsor monitoring context;

·          information relevant to ascertaining the identity and location of an unlawful non-citizen provided in response to a notice given under section 18 of the Migration Act;

·          information about the passengers of an international passenger air service provided pursuant to the obligation in section 64AF of the the Customs Act;

·          records or information contained in records provided to an authorised officer in response to a requirement by the authorised officer under section 240AC of the Customs Act;

·          information provided in response to a subpoena.

 

57.     New subsection 4(7) of the ABF Act permits the Secretary of the Department, by legislative instrument, to prescribe a kind of information for the purposes of paragraph (f) of the definition of Immigration and Border Protection information in subsection 4(1) of the ABF Act if the Secretary is satisfied that the disclosure of the information would or could reasonably be expected to prejudice the effective working of the Department or otherwise harm the public interest.

 

58.     New kinds of information, not already covered by the above definition of Immigration and Border Protection information , that require protection could be identified and need to be disclosed by the Department. Such information may require protection more quickly than an amendment to the ABF Act would permit.  The new power in subsection 4(7) is necessary to enable the Secretary to act swiftly to protect information that is not covered by one of the other limbs of the definition from disclosure.

 

59.     A legislative instrument made by the Secretary for the purposes of subsection 4(7) of the ABF Act is subject to Parliamentary scrutiny and is disallowable under section 42 of the Legislation Act 2003 .

 

Item 6             Section 41

 

60.     This is a consequential amendment to the amendment made by item 1 above, which inserts the definition of Immigration and Border Protection information in subsection 4(1) of the ABF Act. This provision refers to protected information so this amendment substitutes that reference to Immigration and Border Protection Information .

 

Item 8             After subsection 42(1)

 

61.     The offence in subsection 42(1) contains three physical elements. The third of these physical elements is that the information that is either recorded or disclosed by an entrusted person is Immigration and Border Protection information (paragraph 42(1)(c)). The fault element of this physical element is recklessness (in accordance with section 5.6 of the Criminal Code Act 1995 ) .

 

62.     As set out in item 5 above, certain categories of information are deemed to be parts of paragraph (a) and (d) of the new definition of Immigration and Border Protection information.

 

63.     New subsection 42(1A) complements the amendments in item 5, by stating that the fault element in paragraph 42(1)(c) is taken to be satisfied if the person who records or discloses the information is reckless as to whether or not:

 

(a)     the information has a security classification;

(b)    the information originated with, or was received from, an intelligence agency;

(c)     the information was provided to the Commonwealth pursuant to a statutory obligation or otherwise by compulsion of law.

 

Items 7, 9, 10, 12, 14, 15, 17, 19, 20 and 22             Paragraph 42(1)(c), section 43, subsection 44(1) (heading), Subsection 44(2) (heading), Paragraphs 44(6)(a) and (b), subsection 45(1) (heading), Subsection 45(2) (heading), Subsection 45(5), and Sections 47, 48 and 49 and Paragraphs 51(a) and (b)

 

64.     These are consequential amendments to the amendment made by item 1 above, which inserts the definition of Immigration and Border Protection information in subsection 4(1) of the ABF Act.

 

Items 11, 13, 16 and 18         Subsections 44(1), 44(2), 45(1) and 45(2)

 

65.     These amendments complement the amendment in item 28 below, which repeals paragraph 44(2)(d) of the ABF Act, by removing the reference to a class of information.

 

Item 21                       After section 50

 

66.     The requirement in new section 50A of the ABF Act means that proceedings for an offence against section 42 of the ABF Act can only be initiated if the Secretary has certified that it was appropriate that the information had a security classification at the time the conduct that is alleged to constitute the offence occurred (that is, the disclosure of Immigration and Border Protection information ). This ensures that a person cannot be prosecuted where, at the time of disclosure, it was not appropriate that the information had a security classification.

 

67.     It is not proposed that the Secretary’s certificate is an evidentiary certificate.

 

Item 23                       After section 57

 

68.     The effect of new section 57A is that where a provision of the ABF Act, or an instrument made under the ABF Act, has an application that exceeds the Commonwealth’s legislative power but also has at least one application that does not, the provision is not to have the invalid application but is to have every valid application. This provision applies to any provision of the ABF Act, or an instrument under the ABF Act, including an instrument under new subsection 4(7), whether enacted or made before, on or after commencement.

 

Item 24                       Application - Immigration and Border Protection information

 

69.     This provision reinforces that if a person was not liable for a penalty under Part 6 of the ABF Act before this Act receives the Royal Assent, the amendments made by this Act do not render them liable to a penalty.



 

Item 25                       Savings - interaction with Privacy Act

 

70.     The effect of this item is that disclosures of protected information, to the extent that the protected information contained personal information, between 1 July 2015 and the time the Act receives the Royal Assent continue to be taken to be disclosures that are authorised by law for the purposes of the Privacy Act. This is despite the amendments made by this Part of the Act, which repeal the definition of protected information and insert the definition of Immigration and Border Protection information retrospectively with effect on and from 1 July 2015.

 

Customs and Other Legislation Amendment (Australian Border Force) Act 2015

 

Item 26                       Subitem 5(3) of Schedule 9

 

71.     This item repeals the provision in the Customs and Other Legislation Amendment (Australian Border Force) Act 2015 that transitioned protected information under section 16 of the Customs Administration Act into the definition of protected information in the ABF Act.  It is no longer feasible to transition all pre-1 July 2015 protected information to the new definition of Immigration and Border Protection information as that information will no longer align with the new definition. While this means that Part 6 of the ABF Act may not be used in some circumstances to prosecute the disclosure of information obtained when section 16 of the Customs Administration Act was in force, alternative prosecution options are still available.

 

Part 2              Amendments commencing on the day after Royal Assent

 

Australian Border Force Act 2015

 

Item 27           Paragraph 44(2)(c)

 

72.     This is a technical consequential amendment to the amendment made by item 28 below, which repeals paragraph 44(2)(d) of the ABF Act.

 

Item 28                       Paragraph 44(2)(d)

 

73.     This item repeals paragraph 44(2)(d) of the ABF Act.

 

74.     The effect of this amendment is to remove the requirements in paragraph 44(2)(d) of the ABF Act that a proposed disclosure of a class of Immigration and Border Protection information that contains personal information is made to a body or person prescribed in the ABF Rule, and that the class of information is prescribed in the ABF Rule as a class of information that may be disclosed to that body or person.

 

75.     The experience of the Department is that these requirements add a burdensome level of bureaucratic overlay. However, before information in question can be disclosed, the remaining requirements in subsection 44(2) must still be satisfied.  These requirements are:

 

a)       that the Secretary of the Department is satisfied that the information will enable or assist the body or person to perform or exercise any of its functions, duties or powers;

b)       that the Secretary be satisfied that the disclosure of the personal information is necessary for a section 46 purpose; and

c)       that the body or person has complied with a condition under subsection 44(6) (if relevant).

 

76.     These requirements provide adequate safeguards concerning the disclosure of Immigration and Border Protection information that is personal information.

 

Item 29                       Paragraph 45(2)(c)

 

77.     This is a technical consequential amendment to the amendment made by item 30 below, which repeals paragraph 45(2)(d) of the ABF Act.

 

Item 30                       Paragraph 45(2)(d)

 

78.     This paragraph repeals paragraph 45(2)(d) of the ABF Act.

 

79.     The effect of this amendment is to remove the requirements in paragraph 45(2)(d) of the ABF Act that the disclosure of a class of Immigration and Border Protection information that contains personal information be made to a foreign country, agency, authority or organisation prescribed in the ABF Rule and that the class of information is prescribed in the ABF Rule as a class of information that may be disclosed to that foreign country, agency, authority or organisation.

 

80.     The experience of the Department is that these requirements add a burdensome level of bureaucratic overlay. However, before Immigration and Border Protection information that contains personal information can be disclosed under section 45, the remaining requirements in subsection 45(2) must still be satisfied.  These requirements are:

a)       that the Secretary is satisfied that the information will be used in accordance with an agreement to which subsection 45(4) of the ABF Act applies;

b)       that the Secretary is satisfied that the disclosure of the information to the foreign country, agency, authority or organisation is necessary for a purpose mentioned in section 46; and

c)       that the foreign country, agency, authority or organisation has undertaken not to use or further disclose the information except in accordance with the agreement or otherwise as required or authorised by law.

 

81.     These requirements provide adequate safeguards concerning the disclosure of Immigration and Border Protection information that is personal information.

 

Item 31                       After paragraph 46(n)

 

82.     This item inserts in section 46 of the ABF Act three new permitted purposes for which Immigration and Border Protection information that contains personal information can lawfully be disclosed under that provision.

 

83.     The first purpose, which relates to the inter-country adoption of a child, is relevant to the Department’s function of deciding visa applications for the adoption of children both overseas and in Australia.

 

84.     The second purpose, relating to the protection of national security or the defence of Australia, recognises that Immigration and Border Protection information should be able to be disclosed in the interest of the national security or defence of Australia.  This purpose is already in the ABF Rule but is moved to the face of the ABF Act for ease of reference.

 

85.     The third purpose, which relates to locating a missing person, recognises the frequency with which the Department receives requests for information about missing persons from the Australian Federal Police, State and Territory police forces and other agencies such as the Red Cross, and is based on the approach adopted in the Privacy (Persons Reported as Missing) Rule 2014 .

 

Part 3              Consequential amendments

 

Petroleum and Other Fuels Reporting Act 2017

 

Item 32                       Subsection 31(1)

 

86.     This is a consequential amendment to the amendment made by item 1 of Part 1 of Schedule 1 above.  As mentioned above, the definition of protected information is proposed to be inserted into the Petroleum and Other Fuels Reporting Act, which, on the date on which the Bill is introduced, is still a Bill currently before the Parliament. Once that Act is passed, the definition of protected information will be amended by the Bill (that is, the definition of protected information will be repealed and substituted with Immigration and Border Protection information ).