2008 - 2009

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

 

 

MIGRATION AMENDMENT (PROTECTION OF IDENTIFYING INFORMATION) BILL 2009

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Immigration and Citizenship,

Senator the Hon. Chris Evans)

MIGRATION AMENDMENT (PROTECTION OF IDENTIFYING INFORMATION) BILL 2009

 

OUTLINE

 

The Migration Amendment (Protection of Identifying Information) Bill 2009 (the “Bill”) amends the Migration Act 1958 (the “Act”) to:

 

·          ensure that all personal identifiers obtained by the Department are governed by

Part 4A of the Act ; and

·          provide in sections 336FA and 336FB that personal information must only be disclosed by an officer to the extent necessary in order to obtain help from an individual to identify, authenticate the identity of, or locate the subject, in connection with the administration of the Act

 

The Migration Legislation Amendment (Identification and Authentication) Act 2004 introduced a strict regime for the collection, use, access and disclosure of “personal identifiers” collected under the Act.  Section 336A provided the definition for “identifying information” that included a generic reference to “any personal identifier”.  A “personal identifier” is defined in section 5A of the Act to include fingerprints or handprints, measurements of a person’s height and weight, a photograph or other image of a person’s face and shoulders, an audio or video recording of a person, an iris scan, a person’s signature or any other identifier prescribed by the regulations that does not involve an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914 .  Sections 336C, 336E, 336G, 336H, 336K of Part 4A of the Act provide for criminal penalties of imprisonment for 2 years or 120 penalty units, or both for the unauthorized disclosure, modification, impairment or failure to destroy identifying information as soon as practicable after the person is no longer required under the Archives Act 1983 to keep the identifying information.

 

The Migration Legislation Amendment (Information and Other Measures) Act 2007  (the “Information and Other Measures Act”) amended Part 4A of the Act to address limitations of certain provisions dealing with identifying information to ensure the Department could disclose information necessary in the enforcement and prosecution of criminal law.  The definition of “identifying information” in paragraph 336A(a) was amended to provide that “identifying information” is “any personal identifier provided under section 40, 46, 166, 170, 175, 188, 192 or 261AA of the Act.

 

Since the amendments to the definition of “identifying information” in paragraph 336A(a) in the Information and Other Measures Act, it has come to the Department’s attention that this provision is more limited than the original policy intention that all personal identifiers are governed by Part 4A of the Act.  The following “personal identifiers” on our clients are not currently protected by Part 4A:

 

·          those collected from other agencies (either domestic or international)

·          those collected from unsolicited external sources

·          those collected from law enforcement agencies (often shared with the department as part of an investigation)

 

As there are criminal penalties associated with the unauthorized disclosure, modification, impairment or failure to destroy identifying information as soon as required in Part 4A of the Act, rectification of the definition is required as soon as possible.

 

The Bill also limits the disclosure of personal information under subsection 336FA(1) (which authorises disclosure of certain personal identifiers for the purpose of obtaining an individual’s help to identify, authenticate the identity of, or locate, a subject) and personal information under subsection 336FB(1) (which authorises the disclosure of personal information when disclosing personal identifiers under subsection 336FA(1)). The limit will provide that for a disclosure of information to be authorised under the above subsections, the information must only be disclosed to the extent necessary in order to obtain the individual’s help.

 

financial impact statement

 

The amendments in this Bill will have no financial impact.

MIGRATION AMENDMENT (PROTECTION OF IDENTIFYING INFORMATION) BILL 2009

 

notes on individual clauses

 

Clause 1          Short title

 

1.       Clause 1 provides that the short title by which this Act may be cited is the Migration Amendment (Protection of Identifying Information) Act 2009 .

 

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.

 

3.       Table item 1 provides that sections 1 to 3 of this Act and anything in this Act not elsewhere covered by the table will commence on the day on which this Act receives the Royal Assent.

 

4.       Table item 2 provides that Part 1 of Schedule 1 to this Act commences on a single day to be fixed by Proclamation.  However, it also provides that if any provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

 

5.       An explanatory note is provided to assist the reader at the end of this table.  It specifies that the table relates only to the provisions of this Act as originally passed by both Houses of Parliament and assented to.  It states clearly that the table will not be expanded to deal with provisions inserted in this Act after it receives the Royal Assent.

 

6.       Subclause 2(2) explains that column 3 of the table contains additional information that is not part of this Act.  It specifies that information in this column may be added to or edited in any published version of this Act.

 

Clause 3          Schedule(s)

 

7.       This clause provides that each Act specified in a Schedule to the Migration Amendment (Protection of Identifying Information) Act 2009 is amended or repealed as set out in the applicable items in the Schedule concerned.  In addition, any other item in a Schedule to the Migration Amendment (Protection of Identifying Information) Act 2009 has effect according to its terms.

 

 

SCHEDULE 1 - Amendments

 

Migration Act 1958

 

Item 1             Section 336A (definition of disclose )

 

8.       This item omits “provided under section 40, 46, 166, 170, 175, 188, 192 or 261AA” and substitutes “referred to in paragraph (a) of the definition of identifying information in this section” in the definition of “disclose” in section 336A of Part 4A of the Act.

9.       The definition of “disclose ” in section 336A provides a definition of the term in Part 4A of the Act.

 

10.   The omitting of references to the sections currently listed in the definition of “disclose” is to ensure that the definition accords with the definition of “identifying information” in section 336A that will be amended in Item 2 of this Bill. The definitions of “disclose” and “identifying information” are integrally linked and this amendment ensures that these terms are consistent in Part 4A of the Act.

Item 2             Section 336A (paragraph (a) of the definition of identifying information )

 

11.    This item omits “provided under section 40, 46, 166, 170, 175, 188, 192 or 261AA” and substitutes “obtained by the Department for one or more of the purposes referred to in subsection 5A(3)” in paragraph (a) of the definition of “identifying information” in section 336A of Part 4A of the Act.

 

12.   .The definition of “identifying information” in section 336A provides a definition of the term in Part 4A of the Act. Section 5A of the Act provides for the definition of “personal identifier” in the Act. Subsection 5 A(3) provides for the purposes for which the Minister must be satisfied before prescribing an identifier under paragraph (1)(g) of the definition in Section 5A of the Act. Under paragraph (2)(c) the Minister must be satisfied that obtaining the identifier will promote one or more of the purposes referred to in subsection 5A(3) of the Act.

 

13.   This item is to provide for a limited expansion of the definition of “identifying information” to any “personal identifier” obtained by the Department for one or more of the purposes referred to in subsection 5A(3) of the Act.

 

14.   The purposes in subsection 5A(3) that will limit the definition of “identifying information” include for example, to assist in the identification of, and to authenticate the identity of, any person who can be required under this Act to provide a personal identifier; assist in identifying in the future, any such person; improve the integrity of entry programs, including passenger processing at Australia’s border; facilitate a visa-holder’s access to his or her rights under this Act or the regulations; improve the procedures for determining visa applications; enhance the Department’s ability to identify non-citizens who have a criminal history, who are of character concern or who are of national security concern; and combat document and identity fraud in immigration matters.

 

Item 3             At the end of subsection 336FA(1)

 

15.    This item adds “; and (f) the information is only disclosed to the extent necessary in order to obtain that help” at the end of subsection 336FA(1) of Part 4A of the Act.

 

16.   This item adds new paragraph (f) in subsection 336FA(1) to provide that for the purposes of paragraph 336E(2)(j) a permitted disclosure by an officer of identifying information that relates to a person (the subject) is authorised, if among other things, the information is only disclosed to the extent necessary in order to obtain help from an individual to identify, authenticate the identity of, or locate the subject, in connection with the administration of the Act. Section 336E(2)(j) provides that a disclosure of identifying information is permitted if it is authorised by section 336FA.

 

Item 4             Paragraph 336FB(1)(c)

 

17.    This item omits “and (e)” and substitutes “,(e) and (f)” in paragraph 336FB(1)(c) of Part 4A of the Act.

 

18.   Paragraph 336FB(1)(c) provides that an officer may disclose to an individual, personal information (within the meaning of the Privacy Act 1988 ) about a person (the subject) if among other things, paragraphs 336FA(1)(b), (c), (d) and (e) are met in relation to the personal information as well as the personal identifier.

 

19.   The item amends paragraph 336FB(1)(c) to include a reference to the new paragraph 336FA(1)(f) in the list of paragraphs that must be met for an officer to disclose to an individual, personal information about a person. The amendment in effect will provide that an officer may disclose to an individual, personal information about a person (the subject) if among other things, paragraph 336FA(1)(f) is met in relation to the personal information as well as the personal identifier. Paragraph 336FA(1)(f) will provide that the relevant information is only disclosed to the extent necessary in order to obtain help.

 

Item 5             Subsection 336FB(3)

 

20.    This item omits “and (e)” and substitutes “,(e) and (f)” in subsection 336FB(3) of

Part 4A of the Act.

 

21.   Subsection 336FB(3) provides that nothing in subsection 336FB(1) prevents an officer from disclosing the personal information to more than one individual at the same time, as long as the requirements of paragraphs 336FA(1)(b), (c), (d) and (e) are met in relation to each one of those individuals.

 

22.   The item amends subsection 336FB(3) to include a reference to the new paragraph 336FA(1)(f) in the list of paragraphs that must be met in relation to each one of those individuals. The amendment in effect will provide that nothing in subsection (1) prevents an officer from disclosing the personal information to more than one individual at the same time, as long as among other things, the requirements in paragraphs 336FA(1)(b), (c), (d), (e) and (f) are met in relation to each one of those individuals. Paragraph 336FA(1)(f) will provide that the relevant information is only disclosed to the extent necessary in order to obtain help.