Australian Border Force Amendment (Protected Information) Act 2017

Administered by Department of Home Affairs

Legislation au C2017A00115 In force Act

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Australian Border Force Amendment (Protected Information) Act 2017

 

No. 115, 2017

 

 

 

 

 

An Act to amend the Australian Border Force Act 2015, and for related purposes

 

 

Contents

1 Short title

2 Commencement

3 Schedules

Schedule 1—Amendments

Part 1—Amendments commencing on 1 July 2015

Australian Border Force Act 2015

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

Part 2—Amendments commencing on the day after Royal Assent

Australian Border Force Act 2015

Part 3—Consequential amendments

Petroleum and Other Fuels Reporting Act 2017

 

 

 

Australian Border Force Amendment (Protected Information) Act 2017

No. 115, 2017

 

 

 

An Act to amend the Australian Border Force Act 2015, and for related purposes

[Assented to 30 October 2017]

The Parliament of Australia enacts:

1  Short title

  This Act is the Australian Border Force Amendment (Protected Information) Act 2017.

2  Commencement

 (1) 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.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

30 October 2017

2.  Schedule 1, Part 1

Immediately after the commencement of the Australian Border Force Act 2015.

1 July 2015

3.  Schedule 1, Part 2

The day after this Act receives the Royal Assent.

31 October 2017

4.  Schedule 1, Part 3

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.

31 October 2017

(paragraph (a) applies)

 

Note: This table relates only to the provisions of this Act as originally enacted.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.

 (2) 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.

3  Schedules

  Legislation 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

Part 1—Amendments commencing on 1 July 2015

Australian Border Force Act 2015

1  Subsection 4(1)

Insert:

duty of confidence means any duty or obligation arising under the common law or at equity pursuant to which a person is obliged not to disclose information.

Immigration and Border Protection information means information of any of the following kinds that was obtained by a person in the person’s capacity as an entrusted person:

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

 (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;

 (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;

 (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;

 (e) information the disclosure of which would or could reasonably be expected to cause competitive detriment to a person;

 (f) information of a kind prescribed in an instrument under subsection (7).

Note: See also subsections (4) to (7).

intelligence agency means:

 (a) the Australian Geospatial‑Intelligence Organisation; or

 (b) the Australian Secret Intelligence Service; or

 (c) the Australian Security Intelligence Organisation; or

 (d) the Australian Signals Directorate; or

 (e) the Defence Intelligence Organisation; or

 (f) the Office of National Assessments; or

 (g) a government body or authority responsible for intelligence gathering for, or the security of, a foreign country.

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

Repeal the definition.

3  Subsection 4(4) (heading)

Repeal the heading, substitute:

Immigration and Border Protection information

4  Subsection 4(4)

Omit “protected information”, substitute “Immigration and Border Protection information”.

5  At the end of section 4

Add:

 (5) Without limiting the definition of Immigration and Border Protection information in subsection (1), the following kinds of information are taken to be information the disclosure of which would or could reasonably be expected to prejudice the security, defence or international relations of Australia:

 (a) information that has a security classification;

 (b) information that has originated with, or been received from, an intelligence agency.

 (6) Without limiting the definition of Immigration and Border Protection information in subsection (1), information that was provided to the Commonwealth pursuant to a statutory obligation or otherwise by compulsion of law is taken to be 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.

 (7) The Minister may, by legislative instrument, prescribe a kind of information for the purposes of paragraph (f) of the definition of Immigration and Border Protection information in subsection (1) if the Minister is satisfied that disclosure of the information would or could reasonably be expected to:

 (a) prejudice the effective working of the Department; or

 (b) otherwise harm the public interest.

6  Section 41

Omit “protected information”, substitute “Immigration and Border Protection information”.

7  Paragraph 42(1)(c)

Omit “protected information”, substitute “Immigration and Border Protection information”.

8  After subsection 42(1)

Insert:

 (1A) If the information is Immigration and Border Protection information because of the operation of subsection 4(5) or (6), the fault element of recklessness for paragraph (1)(c) of this section is taken to be satisfied if the person is reckless as to whether or not whichever of the following applies:

 (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.

Note: Recklessness is the fault element for paragraph (1)(c)—see section 5.6 of the Criminal Code.

9  Section 43

Omit “protected information”, substitute “Immigration and Border Protection information”.

10  Subsection 44(1) (heading)

Repeal the heading, substitute:

Immigration and Border Protection information that is not personal information

11  Subsection 44(1)

Omit “protected information, or a class of protected information,”, substitute “Immigration and Border Protection information”.

12  Subsection 44(2) (heading)

Repeal the heading, substitute:

Immigration and Border Protection information that is personal information

13  Subsection 44(2)

Omit “protected information, or a class of protected information,”, substitute “Immigration and Border Protection information”.

14  Paragraphs 44(6)(a) and (b)

Omit “protected information”, substitute “Immigration and Border Protection information”.

15  Subsection 45(1) (heading)

Repeal the heading, substitute:

Immigration and Border Protection information that is not personal information

16  Subsection 45(1)

Omit “protected information, or a class of protected information,”, substitute “Immigration and Border Protection information”.

17  Subsection 45(2) (heading)

Repeal the heading, substitute:

Immigration and Border Protection information that is personal information

18  Subsection 45(2)

Omit “protected information, or a class of protected information,”, substitute “Immigration and Border Protection information”.

19  Subsection 45(5)

Omit “protected information”, substitute “Immigration and Border Protection information”.

20  Sections 47, 48 and 49

Omit “protected information”, substitute “Immigration and Border Protection information”.

21  After section 50

Insert:

50A  Information must be certified as appropriately classified before proceedings can be initiated

  If, an offence against section 42 relates to information that has a security classification, proceedings for the offence must not be initiated unless the Secretary has certified that it is appropriate that the information had a security classification at the time of the conduct that is alleged to constitute the offence.

22  Paragraphs 51(a) and (b)

Omit “protected information” (wherever occurring), substitute “Immigration and Border Protection information”.

23  After section 57

Insert:

57A  Act not to apply so as to exceed Commonwealth power

 (1) If a provision of this Act, or of an instrument made under this Act:

 (a) would, apart from this section, have an application (an invalid application) in relation to:

 (i) one or more particular persons, things, matters, places, circumstances or cases; or

 (ii) one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases;

  because of which the provision exceeds the Commonwealth’s legislative power; but

 (b) also has at least one application (a valid application) in relation to:

 (i) one or more particular persons, things, matters, places, circumstances or cases; or

 (ii) one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases;

  that, if it were the provision’s only application, would be within the Commonwealth’s legislative power;

it is the Parliament’s intention that the provision is not to have the invalid application, but is to have every valid application.

 (2) This section applies to a provision of this Act, or of an instrument made under this Act, whether the provision is enacted or made before, on or after the commencement of this section.

24  Application—Immigration and Border Protection information

To avoid doubt, if:

 (a) before the day this Act receives the Royal Assent a person did an act, or omitted to do an act; and

 (b) at the time of the act or omission, the act or omission did not make the person liable to a penalty under Part 6 of the Australian Border Force Act 2015;

then, despite the amendments of that Act made by this Schedule, the person is not liable to a penalty for the act or omission.

25  Savings—interaction with Privacy Act

(1) This item applies in relation to the making of a record, or a disclosure, of protected information if the record or disclosure was made:

 (a) on or after 1 July 2015; and

 (b) before the day this Act receives the Royal Assent.

(2) Despite the amendments made by this Part, section 51 of the Australian Border Force Act 2015, as in force immediately before the day this Act receives the Royal Assent, continues to apply in relation to the making of the record or the disclosure, as if those amendments had not been made.

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

26  Subitem 5(3) of Schedule 9

Repeal the subitem.

Part 2—Amendments commencing on the day after Royal Assent

Australian Border Force Act 2015

27  Paragraph 44(2)(c)

Omit “condition; and”, substitute “condition.”.

28  Paragraph 44(2)(d)

Repeal the paragraph.

29  Paragraph 45(2)(c)

Omit “law; and”, substitute “law.”.

30  Paragraph 45(2)(d)

Repeal the paragraph.

31  After paragraph 46(n)

Insert:

 (na) a purpose relating to the inter‑country adoption of a child;

 (nb) a purpose relating to the protection of national security or the defence of Australia;

 (nc) a purpose relating to locating a missing person;

Part 3—Consequential amendments

Petroleum and Other Fuels Reporting Act 2017

32  Subsection 31(1)

Omit “protected information”, substitute “Immigration and Border Protection information”.

 

 

 

 

[Minister’s second reading speech made in—

House of Representatives on 9 August 2017

Senate on 12 September 2017]

 

(151/17)

 

Overview

The Australian Border Force Amendment (Protected Information) Act 2017 (C2017A00115) was enacted to amend the Australian Border Force Act 2015 and address the need for stricter protection of sensitive information related to immigration and border protection. This Act was introduced by the Parliament of Australia and received Royal Assent on 30 October 2017. The primary policy objective of the Act is to enhance the protection of Immigration and Border Protection information, which includes data that could compromise national security, defence, international relations, public health, and competitive interests, as well as information that could lead to legal actions for breach of confidence. By introducing this Act, the government aims to ensure that sensitive information handled by the Australian Border Force is adequately safeguarded against unauthorised disclosure. The Act makes significant amendments to the Australian Border Force Act 2015, replacing the term "protected information" with "Immigration and Border Protection information" throughout the Act. It also introduces new provisions to specify the types of information that fall under this category and outlines stricter penalties for unauthorised disclosure. Furthermore, the Act includes provisions to ensure that certain information must be appropriately classified before legal proceedings can be initiated, particularly in cases involving information with a security classification. The amendments are designed to align the Act with the Commonwealth's legislative powers and to avoid any potential conflicts with other legislation, such as the Privacy Act 1988.

Scope and Application

The Australian Border Force Amendment (Protected Information) Act 2017 amends the Australian Border Force Act 2015 to redefine and expand the scope of information classified as sensitive and subject to specific handling requirements. This Act applies to any person or entity that comes into contact with or manages information classified as "Immigration and Border Protection information," which encompasses a broader range of sensitive data compared to the previously defined "protected information." Such information includes, but is not limited to, data that could prejudice national security, international relations, public health, and the effective working of the Department. The geographic and jurisdictional reach of this Act is national, impacting all territories and entities within Australia. Certain provisions of the Act commence on different dates, with significant amendments taking effect from 1 July 2015, and additional changes coming into force on the day after Royal Assent, which was 31 October 2017. This Act also extends its application through subordinate instruments, allowing the Minister to further define what constitutes sensitive information through legislative instruments, provided certain criteria are met. The Act includes specific exclusions and thresholds, such as the requirement for a certification of appropriate classification before initiating proceedings for offences related to information with a security classification.

Key Provisions

The Australian Border Force Amendment (Protected Information) Act 2017 introduces significant changes to the Australian Border Force Act 2015, primarily focusing on the handling and protection of sensitive information. The Act modifies the definition of information that requires protection, now referred to as "Immigration and Border Protection information," and expands the types of information covered under this term. For instance, under section 4(1), the Act redefines "Immigration and Border Protection information" to include information that, if disclosed, could prejudice national security, defence, international relations, public health, or the safety of individuals. It also encompasses information that could lead to competitive harm or is provided under compulsion of law. These changes are effective from 1 July 2015, as outlined in Schedule 1, Part 1 of the Act. The Act imposes stringent obligations on individuals and entities, particularly those within the Australian Border Force, to maintain the confidentiality of Immigration and Border Protection information. Section 41, for example, mandates that any unauthorised disclosure of such information is subject to penalties. This includes a requirement for information to be appropriately classified before legal proceedings can be initiated if the information pertains to national security, as stipulated in section 50A. Furthermore, the Act extends the duty of confidentiality to information obtained in the course of performing duties, as clarified under section 4(1). This duty applies to both intentional and reckless disclosures of sensitive information. Violations of the Act's provisions regarding the unauthorised disclosure of Immigration and Border Protection information can result in severe consequences. Under section 42, unauthorised disclosure of such information can lead to civil and criminal penalties. The penalties for such offences are significant, reflecting the sensitive nature of the information involved. Specifically, an individual found guilty of unauthorised disclosure may face imprisonment for up to five years, reflecting the gravity with which the legislation treats breaches of confidentiality regarding sensitive information. The Act also includes provisions to ensure that its application does not exceed the legislative powers of the Commonwealth, as outlined in section 57A.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.