Australian Border Force (Secrecy and Disclosure) Rule 2025

EXPLANATORY STATEMENT

Issued by authority of the Minister for Home Affairs

Australian Border Force Act 2015

Legislative authority

The Australian Border Force Act 2015 (the Act) concerns the Australian Border Force (ABF), the Australian Border Force Commissioner, and persons performing work for the Department of Home Affairs (the Department), and for related purposes.

Subsection 58(1) of the Act allows the Minister of the Department to make, by legislative instrument, rules prescribing matters required or permitted to be prescribed by rules, or necessary or convenient to be prescribed for carrying out of giving effect to the Act.

Subsection 46(o) of the Act provides that the rules may prescribe permitted purposes for the disclosure of Immigration and Border Protection (IBP) information for the purposes of sections 44 and 45 of the Act.

Paragraph 44(4)(f) of the Act also provides that the rules may prescribe certain bodies and persons to whom IBP information may be disclosed (if other requirements are satisfied) under section 44 of the Act.

Purpose

The Australian Border Force (Secrecy and Disclosure) Rule 2015 (the 2015 Rule) is scheduled to sunset on 1 October 2025. This means that the Rule will be automatically repealed by the operation of subsection 50(1) of the Legislation Act 2003 and cease to be in force.

The purpose of the Australian Border Force (Secrecy and Disclosure) Rule 2025 (the 2025 Rule) is to remake the 2015 Rule, to ensure that the Department can continue to disclose IBP information to the permitted bodies and persons and for the permitted purposes provided for in the 2015 Rule. The 2025 Rule does not remove the existing bodies and persons to which IBP information can be disclosed to for the purposes of section 44(4)(f) of the Act as they remain operationally necessary.

The 2025 Rule provides four further permitted purposes for the disclosure of IBP information, including information that is also personal information. In the ABF Act, ‘personal information’ has the same meaning as in the Privacy Act 1988 (‘Privacy Act’). The additional purposes will provide clarity regarding the disclosure of IBP information, which will support greater operational effectiveness for the ABF and minimise operational barriers.

Background

The 2015 Rule prescribes permitted purposes for the disclosure of IBP information that is or is not also personal information made by entrusted persons under sections 44 and 45 of the Act. Section 44 of the Act outlines the circumstances in which an entrusted person may disclose IBP information to a person or body. Section 45 of the Act outlines the circumstances in which IBP information may be disclosed to a foreign country, agency or authority of a foreign country or a public international organisation. Sections 44 and 45 of the Act require, amongst other things, that the Secretary is satisfied that the disclosure of any IBP information that is also personal information is necessary for a purpose mentioned in s 46 of the Act.

In addition, section 51 of the Act sets out the interaction between the Act with the Privacy Act, and relevantly provides that the disclosure, in accordance with sections 44 and 45 of the ABF Act, is taken to be a disclosure that is authorised by the Privacy Act, and therefore lawfully disclosed for the purposes of the Privacy Act as well.

Since the 2015 Rule was last amended in 2018, emerging operational needs have given rise to the need for further permitted purposes from that outlined in legislation to facilitate disclosure of IBP information. Consultation with Government stakeholders has identified the requirement to:

retain the existing permitted purposes;
prescribe four additional permitted purposes to satisfy these operational needs; and
retain the existing bodies and persons to whom IBP information may be disclosed.

These amendments to the 2015 Rule will align the permitted purposes for disclosure of IBP information with operational needs.

As a result of broad consultation across Government, the following four permitted purposes are included in the 2025 Rule:

a purpose relating to matters covered by the Australian Trade and Investment Commission Act 1985 (the Austrade Act);
a purpose relating to trade and supply chain regulation, and to the mapping and understanding of risks to supply chains that are critical to the national interest;
a purpose relating to matters covered under the Export Control Act 2020, Illegal Logging Prohibition Act 2012, and Imported Food Control Act 1992; and
a purpose relating to matters covered under the Environment Protection and Biodiversity Conservation Act 1999, Ozone Protection and Synthetic Greenhouse Gas Management Act 1989, Product Emissions Standards Act 2017, and Recycling and Waste Reduction Act 2020.

Impact and Effect

The retaining of the existing permitted purposes ensures that the Department can continue to disclose IBP information to the permitted bodies and persons, for the permitted purposes currently outlined in subsection 46(o) of the 2015 Rule. The impact of adding further permitted purposes ensures that the purposes for which IBP information can be disclosed are clear and operationally current, preventing operational delay and barriers.

Purposes included from the 2015 Rule

Assisting in the detection or identification of persons who may pose a possible risk to Australia or a foreign country

The Department undertakes its role of protecting Australia’s borders in collaboration with partner agencies responsible for national security and related matters. From time to time the Department needs to disclose IBP information that contains personal information to these agencies for the purposes of the powers, duties and functions of these partner agencies insofar as they relate to identifying individuals who may pose a risk to Australia or to a foreign country. Including this permitted purpose in the 2025 Rule is necessary to continue to enable effective disclosure under section 44 and section 45 of the ABF Act of IBP information that may contain personal information for these legitimate purposes.

Investigation or assisting in the investigation of potential misconduct or a potential integrity issue

Integrity and the detection and prevention of misconduct promotes good governance and public administration in Australia. The disclosure of IBP information for the purpose of investigating potential misconduct or integrity contributes to the timely detection and investigation of such concerns. Including this permitted purpose in the 2025 Rule is necessary to continue to enable effective disclosure under section 44 and section 45 of the ABF Act of IBP information that may contain personal information for these legitimate purposes.

Additional Purposes

Matters covered by the Austrade Act

The inclusion of purposes related to the Austrade Act is considered necessary to fulfil Austrade’s functions and to address data sharing challenges. This includes the provision of Integrated Cargo System (ICS) data to Austrade, to enable them to carry out legislated responsibilities pursuant to the Austrade Act. The addition of the permitted purpose for matters relating to the Austrade Act balances the needs of partner agencies in seeking to deliver Government initiatives, particularly facilitating and encouraging trade and investment between Australia and foreign countries, with the expectations of industry and the community in the ethical and responsible management of data. The addition of this purpose was suggested following consultation with Austrade.

Mapping and understanding of risks to supply chains that are critical to the national interest

The 2025 Rule prescribes an additional permitted purpose in circumstances relating to trade and supply regulation, and the mapping and understanding of risks to supply chains that are critical to the national interest. The explicit addition of this provision supports operational requirements. As an example of the need to explicitly include this purpose, the COVID-19 pandemic highlighted that supply chains are a major national security issue, but risks to supply chains are not prescribed by the 2015 Rule as a permitted purpose.

The inclusion will primarily enable the Department of Home Affairs to share data collected in the Integrated Cargo System (ICS) with other Government entities. The ICS is used by the Australian Border Force to manage the import and export of goods into and out of Australia.

Matters relating to export control, illegal logging and imported food control

The addition of the permitted purpose to disclose IBP information for matters relating to export control, illegal logging and imported food control, assists the Government to disrupt the trafficking of regulated commodities and detect the manipulation of border systems and controls. This protects the nation’s food supply, agricultural industries, market access and the environment. It will also assist in the identification and mitigation of vulnerabilities in border security arising from changes in international markets, supply chains, policies and legislation as well as identifying behavioural and system indicators of non-compliance in the movement of goods and conveyances into and out of Australia.

Environmental Protection and Biodiversity Conservation, Ozone Protection, Product Emissions, and Recycling

The 2025 Rule also prescribes an additional permitted purpose to disclose IBP information relating to matters to support the Australian Government in safeguarding the environment, protecting the ozone layer, mitigating the impacts of global warming and encourage investment in Australia’s circular economy, which will in turn assist Australia to meet its international obligations. Disclosure of this information also helps to disrupt the illegal trade of regulated wildlife, hazardous gases, waste, and other harmful products that threaten both the environment and human health. It focuses on detecting and preventing the misuse of border systems and controls, addressing vulnerabilities in border security created by shifts in demand, supply chains, policies, and legislation. These disclosures assist in the identification of behavioural and systemic indicators of non-compliance in the movement of goods and conveyances to and from Australia.

Permitted bodies and persons

The 2025 Rule retains the list of ten permitted bodies and persons that IBP information can be disclosed to as these permitted bodies and persons remain operationally relevant. The Australian Red Cross Society, as humanitarian observers, monitor conditions within immigration facilities and disclosure continues to be necessary to facilitate this arrangement. The Royal Society for the Prevention of Cruelty to Animals (RSPCA) has member societies in each State & Territory within Australia, as well as the national office, RSPCA Australia. Their work includes investigating animal cruelty complaints, as well as issues regarding animal trade. For this reason, disclosure remains relevant to these bodies.

Consultation

The Department consulted with relevant Government stakeholders, including the Department of Agriculture, Fisheries and Forestry and Austrade, as well as internal stakeholders including the Data Services Branch and Industry and Border Systems Executive – Strategy & Capability Branch, on proposed permitted purposes to be added to the Rule.

External consultation was not undertaken as the Rule applies to ‘entrusted persons’ as defined by the Act which predominately captures internal staff.

Commencement

The 2025 Rule commences on the day after it is registered on the Federal Register of Legislation.

Details and Operation

The 2025 Rule is a legislative instrument for the purposes of the Legislation Act 2003.

Details of the 2025 Rule are set out in Attachment A.

A Statement of Compatibility with Human Rights has been prepared in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011, and is set out in Attachment B.

The 2025 Rule is subject to sunsetting requirements as set out in subsection 50(1) of the Legislation Act 2003.

ATTACHMENT A

Details of the proposed Australian Border Force (Secrecy and Disclosure) Rule 2025

Section 1 – Name

This section provides that the title of this instrument is the Australian Border Force (Secrecy and Disclosure) Rule 2025.

Section 2 – Commencement

This section sets out that this instrument commences on the day after the instrument is registered on the Federal Register of Legislation.

Section 3 - Authority

This section provides the authority under which this instrument to be made, is the Australian Border Force Act 2015.

Section 4 – Bodies and persons

This section provides that for paragraph 44(4)(f) of the Act, the purposes mentioned in Schedule 1 are prescribed.

Section 5 – Permitted purposes

This section provides that for paragraph 46(o) of the Act, the purposes mentioned in Schedule 2 are prescribed.

Section 6 - Repeals

This section provides that the instruments specified in a schedule to the instrument is amended or repealed as set out in the relevant schedule.

Schedule 1—Permitted bodies and persons

The table in this schedule outlines out the ten bodies and persons that are prescribed for the purposes of section 4.

These bodies and persons prescribed are as follows:

item [1] retains the Australian Red Cross Society as table item 1 of Section 1 in Schedule 1;
item [2] retains the Royal Society for the Prevention of Cruelty to Animals Australia as table item 2 of Section 1 in Schedule 1;
item [3] retains the Royal Society for the Prevention of Cruelty to Animals New South Wales as table item 3 of Section 1 in Schedule 1;
item [4] retains the Royal Society for the Prevention of Cruelty to Animals Victoria as table item 4 of Section 1 in Schedule 1;
item [5] retains the Royal Society for the Prevention of Cruelty to Animals Queensland as table item 5 of Section 1 in Schedule 1;
item [6] retains the Royal Society for the Prevention of Cruelty to Animals Western Australia as table item 6 of Section 1 in Schedule 1;
item [7] retains the Royal Society for the Prevention of Cruelty to Animals South Australia as table item 7 of Section 1 in Schedule 1;
item [8] retains the Royal Society for the Prevention of Cruelty to Animals Tasmania as table item 8 of Section 1 in Schedule 1;
item [9] retains the Royal Society for the Prevention of Cruelty to Animals Australian Capital Territory as table item 9 of Section 1 in Schedule 1; and
item [10] retains the Royal Society for the Prevention of Cruelty to Animals Darwin Regional Branch as table item 10 of Section 1 in Schedule 1.

The list of ten permitted bodies and persons that IBP information can be disclosed to remains operationally relevant. The Australian Red Cross Society, as humanitarian observers, monitor conditions within immigration facilities and disclosure continues to be necessary to facilitate this arrangement. The Australian Red Cross Society also supports the health and wellbeing of vulnerable migrants, including by providing migrant and refugee settlement services, and a service to trace family members and re-establish contact with their relatives.

The Royal Society for the Prevention of Cruelty to Animals (RSPCA) has member societies in each State & Territory within Australia, as well as the national office, RSPCA Australia. Their work includes investigating animal cruelty complaints, as well as issues regarding animal trade. For this reason, disclosure remains relevant to these bodies.

Schedule 2—Permitted purposes

The table in this schedule outlines six permitted purposes that are prescribed for the purposes of section 5.

Items [1]-[2] of the table retain the existing permitted purposes as:

a purpose relating to assisting in the detection or identification of persons who may pose a possible risk to Australia or a foreign country;
a purpose relating to the investigation or assisting in the investigation of potential misconduct or a potential integrity issue.

Retaining items (1) and (2) ensures that the Department can continue to disclose IBP information to the permitted bodies and persons, for the permitted purposes outlined in the Rule, as they remain operationally relevant.

Item [3] to [6] of the table in the schedule prescribes additional permitted purposes of disclosure of IBP information. This ensures that the Department can meet operational needs and clarify the permitted disclosure of IBP information.

Items [3] to [6] insert four new permitted purposes as follows:

a purpose relating to matters covered by the Australian Trade and Investment Commission Act 1985;
a purpose relating to trade and supply chain regulation and relating to the mapping and understanding of risks to supply chains that are critical to the national interest;
a purpose relating to matters covered under the Export Control Act 2020, Illegal Logging Prohibition Act 2012, and Imported Food Control Act 1992;
a purpose relating to matters covered under the Environment Protection and Biodiversity Conservation Act 1999, Hazardous Waste (Regulation of Exports and Imports) Act 1989, Ozone Protection and Synthetic Greenhouse Gas Management Act 1989, Product Emissions Standards Act 2017 and Recycling and Waste Reduction Act 2020.

Matters covered by the Australian Trade and Investment Commission Act 1985.

The inclusion of purposes related to the Austrade Act is considered necessary to fulfil their functions and to address data sharing challenges. This includes the provision of Integrated Cargo System (ICS) data to Austrade, in order to enable them to carry out legislated responsibilities pursuant to the Austrade Act. The effect of this amendment is to balance the needs of partner agencies in seeking to deliver Government initiatives, particularly facilitating and encouraging trade and investment between Australia and foreign countries, with the expectations of industry and the community around the ethical and responsible management of data. The addition of this purpose was suggested following consultation with Austrade

Mapping and understanding of risks to supply chains that are critical to the national interest

The inclusion of this purposes allows for the disclosure of IBP information in matters relating to trade and supply chain regulation. This is intended to support operational requirements and minimise operational barriers in the Australian Border Force.

Matters relating to export control, illegal logging and imported food control

Inclusion of this purpose assists the Government in disrupting the trafficking of regulated commodities and detect the manipulation of border systems and controls. This is intended to protect the nation’s food supply, agricultural industries, market access and the environment. It will also assist in the identification and mitigation of vulnerabilities in border security arising from changes in international markets, supply chains, policies and legislation as well as identifying behavioural and system indicators of non-compliance in the movement of goods and conveyances into and out of Australia.

Environmental Protection and Biodiversity Conservation, Ozone Protection, Product Emissions, and Recycling

The inclusion of this purpose supports the Australian Government in safeguarding the environment, protecting the ozone layer, mitigating the impacts of global warming and encourage investment in Australia’s circular economy, which will in turn assist Australia to meet international obligations.

The effect of this additional purpose is intended to disrupt the illegal trade of regulated wildlife, hazardous gases, waste, and other harmful products that threaten both the environment and human health. It focuses on detecting and preventing the misuse of border systems and controls, addressing vulnerabilities in border security created by shifts in demand, supply chains, policies, and legislation. Furthermore, the approach is intended to identify behavioural and systemic indicators of non-compliance in the movement of goods and conveyances to and from Australia.

These proposed additional permitted purposes to the Rule will ensure disclosure of IBP information that is also personal information can be disclosed under s 44 and s 45 of the Act when it is necessary for one or more of the permitted purposes. This will support greater operational effectiveness for the Australian Border Force and minimise operational barriers.

Schedule 3—Repeals

The schedule provides that the whole of the Australian Border Force (Secrecy and Disclosure) Rule 2015 is repealed.

ATTACHMENT B

Statement of Compatibility with Human Rights

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

Australian Border Force (Secrecy and Disclosure) Rule 2025

This Disallowable Legislative Instrument 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 Disallowable Legislative Instrument

The Australian Border Force (Secrecy and Disclosure) Rule 2015 (the 2015 Rule) is anticipated to sunset on 1 October 2025, meaning it will be automatically repealed by the operation of subsection 50(1) of the Legislation Act 2003 and cease to be in force.

Section 44 of the Australian Border Force Act 2015 (the ABF Act) outlines the circumstances in which an entrusted person may disclose immigration and border protection information (IBP information) to a person or body. In addition to the persons and bodies listed in subsection 44(4) of the ABF Act, paragraph 44(4)(f) provides that another person or body may be prescribed by the rules.

Section 45 of the ABF Act outlines the circumstances in which IBP information may be disclosed to a foreign country, agency or authority of a foreign country or a public international organisation.

Sections 44 and 45 of the ABF Act require, amongst other things, that the Secretary is satisfied that the disclosure of any IBP information that is also personal information is necessary for a purpose mentioned in section 46 of the ABF Act. In addition to the purposes listed in that section, subsection 46(o) allows for other purposes to be prescribed by the rules.

The purpose of this Disallowable Legislative Instrument, the Australian Border Force (Secrecy and Disclosure) Rule 2025 (the 2025 Rule), is to remake the 2015 Rule and prescribe:

bodies and persons for the purposes of paragraph 44(4)(f) of the ABF Act, being the Australian Red Cross Society, the Royal Society for the Prevention of Cruelty to Animals’ national office and its member societies in each State and Territory within Australia;
permitted purposes under subsection 46(o) of the ABF Act, to include a purpose relating to:
- assisting in the detection or identification of persons who may pose a possible risk to Australia or a foreign country;
- assisting in the investigation of potential misconduct or a potential integrity issue.
additional permitted purposes under subsection 46(o) of the ABF Act, that were not included in the 2015 Rule, are to include a purpose relating to:
- the Australian Trade and Investment Commission Act 1975 (Austrade Act);
- international trade and supply chain regulation and relating to the mapping and understanding of risks to supply chains that are critical to the national interest;
- matters covered under the Export Control Act 2020, Illegal Logging Prohibition Act 2012, and Imported Food Control Act 1992;
- matters covered under the Environment Protection and Biodiversity Conservation Act 1999, Hazardous Waste (Regulation of Exports and Imports) Act 1989, Ozone Protection and Synthetic Greenhouse Gas Management Act 1989, Product Emissions Standards Act 2017 and Recycling and Waste Reduction Act 2020.

These additional permitted purposes are being included as a result of broad consultation across Government.

The 2025 Rule commences on the day after registration on the Federal Register of Legislation.

Human rights implications

This Disallowable Legislative Instrument, the 2025 Rule, engages the following right:

Right to privacy in Article 17 of the International Covenant on Civil and Political Rights (ICCPR).

Right to Privacy

Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy.

Interferences with privacy may be permissible, provided that the interference is authorised by law and is not arbitrary. For an interference with the right to privacy to be not arbitrary, the interference must be for a reason consistent with the provisions, aims and objectives of the ICCPR and be reasonable in the particular circumstances. The United Nations Human Rights Committee has interpreted ‘reasonableness’ in this context to mean that ‘any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case’.[1] The term unlawful means that no interference can take place except as authorised under domestic law.

The right to privacy is engaged by this Disallowable Legislative Instrument as it prescribes certain bodies to which, and certain purposes for which, personal information may be disclosed under the ABF Act.

In the ABF Act, ‘personal information’ has the same meaning as in the Privacy Act 1988 (the Privacy Act), which is defined as:

information or an opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not and whether the information or opinion is recorded in a material form or not.

The Privacy Act is the principal piece of Commonwealth legislation protecting the handling of individuals’ personal information. This includes the collection, use, storage and disclosure of personal information in the federal public sector. The Privacy Act allows for the use and disclosure of personal information where it is required or authorised under other Australian laws.

The Disallowable Legislative Instrument does not alter the requirements for the disclosure of IBP information (including IBP information that contains personal information) under sections 44 or section 45 of the ABF Act. Disclosures under the ABF Act can only occur if the legal requirements in the relevant provisions have been satisfied.

As noted in the Overview, the requirements under section 44 of the ABF Act include (in part) that the Secretary is satisfied that the information will enable or assist that body or person to perform or exercise their functions, duties or powers. The requirements in section 45 of the ABF Act include (in part) that the Secretary of the Department of Home Affairs (the Secretary) is satisfied that the information will be used in accordance with the agreement in force between the Commonwealth (or an agency or authority of the Commonwealth) and a foreign country, or an agency, authority of a foreign country or a public international organisation. The Secretary may under subsection 45(5) of the ABF Act, by writing, impose conditions to be complied with by a foreign country, an agency or authority of a foreign country or a public international organisation in relation to IBP information.

Importantly, a requirement common to both section 44 and section 45 of the ABF Act is that the Secretary is satisfied that the disclosure of personal information is necessary for a permitted purpose mentioned in section 46 of the ABF Act.

In addition, section 51 of the Act sets out the interaction of the Act with the Privacy Act, and relevantly provides that the disclosure, in accordance with sections 44 and 45 of the ABF Act, is taken to be a disclosure that is authorised by the Privacy Act, and therefore lawfully disclosed for the purposes of the Privacy Act as well.

The prescription of bodies and persons for the purpose paragraph 44(4)(f) of the ABF Act and the prescription of permitted purposes (including the additional permitted purposes) for the purpose of subsection 46(o) of the ABF Act by this Disallowable Legislative Instrument does not alter these requirements for lawful disclosure of information under the ABF Act, which help ensure that information disclosure is lawful, reasonable, necessary and proportionate.

Information disclosure under the ABF Act to the persons and bodies prescribed by the 2025 Rule, and for the permitted purposes prescribed by the 2025 Rule, would be lawful and not arbitrary both in relation to the matters being prescribed in the 2025 Rule that had been in the 2015 Rule and in relation to those matters which are being prescribed for the first time in the 2025 Rule, being the four additional permitted purposes. These are described in more detail below.

Prescription of bodies and persons in the same terms as the 2015 Rule

The persons and bodies prescribed by the 2025 Rule for the purposes of paragraph 44(4)(f) of the ABF Act (also prescribed in the 2015 Rule) are the Australian Red Cross Society, the Royal Society for the Prevention of Cruelty to Animals (RSPCA) national office, RSPCA Australia, and the RSPCA’s member societies in each State and Territory within Australia.

The Australian Red Cross Society, as humanitarian observers, monitor conditions within immigration facilities and provide assistance to those in detention. The Australian Red Cross Society also supports the health and wellbeing of vulnerable migrants, including by providing migrant and refugee settlement services, and a service to trace family members and re-establish contact with their relatives. Information disclosure to the Australian Red Cross Society of relevant IBP information that may contain personal information continues to be necessary to facilitate the performance of each of these functions.

The work of the RSPCA includes investigating animal cruelty complaints, as well as issues regarding animal welfare in the trade industry. Information disclosure to the RSPCA of relevant IBP information that may contain personal information continues to be necessary to facilitate RSPCA’s work.

Prescription of permitted purposes in the same terms as the 2015 Rule

The ability to disclose IBP information for the purposes which were also included in the 2015 Rule will continue to be used in the identification of individuals who may pose a risk to Australia or a foreign country, and for assisting in the investigation of potential misconduct or integrity.

The Department undertakes its role of protecting Australia’s borders in collaboration with partner agencies responsible for national security and related matters and as such may need to disclose IBP information that contains personal information to these agencies for the purposes of the powers, duties and functions of these partner agencies insofar as they relate to identifying individuals who may pose a risk to Australia or to a foreign country. Including this permitted purpose in the 2025 Rule is necessary to continue to enable effective disclosure under section 44 and section 45 of the ABF Act of IBP information that may contain personal information for these legitimate purposes.

Additional purpose relating to the Australian Trade and Investment Commission Act 1985 (Austrade Act)

Disclosure of IBP information for a permitted purpose relating to the Australian Trade and Investment Commission Act 1985 is necessary to enable Austrade to effectively fulfil its functions, particularly delivering quality trade and investment services to businesses and policy advice to government to grow Australia’s prosperity.

This disclosure will include the provision of Integrated Cargo System (ICS) data to Austrade, in order to enable Austrade to carry out legislated responsibilities pursuant to the Australian Trade and Investment Commission Act 1985. The addition of the permitted purpose for matters relating to the Australian Trade and Investment Commission Act 1985 assists in meeting the expectations of industry and the community in relation to the ethical and responsible management of data, including data that contains personal information.

Additional purpose relating to international trade and supply chain regulation and relating to the mapping and understanding of risks to supply chains that are critical to the national interest

The inclusion of ‘matters related to international trade and supply chain regulation and mapping and understanding of risks to supply chains that are critical to the national interest’ is necessary for ensuring access to essential goods and services and enhancing Australia’s resilience to global shocks.

The inclusion will primarily enable the Department of Home Affairs to share data collected in the Integrated Cargo System (ICS) with other Government entities. The ICS is used by the Department of Home Affairs’ operational arm, the Australian Border Force, to manage the import and export of goods into and out of Australia.

To the extent that the measure may interfere with the right to privacy, the limitation of the right to privacy for this purpose is reasonable, necessary and proportionate. The incursion on privacy is limited to trade data. The provision of trade data will help identify critical supply chain vulnerabilities that could impact Australia’s national interest including our: health, safety or wellbeing; economic stability and viability; national security; and international partners. This provides Australia ongoing access to critical goods including personal protective equipment, critical pharmaceuticals, agricultural, veterinary and industrial chemicals, critical minerals, semiconductors, telecommunications equipment, water treatment chemicals and critical plastics.

Additional purpose relating to matters covered under the Export Control Act 2020, Illegal Logging Prohibition Act 2012, and Imported Food Control Act 1992

Disclosure of IBP information for a purpose relating to the Export Control Act 2020, Illegal Logging Prohibition Act 2012, and Imported Food Control Act 1992 is intended to assist with export control, preventing illegal logging and imported food control.

This additional purpose will assist the Australian Government to disrupt the trafficking of regulated commodities and detect the manipulation of border systems and controls. This in turn will protect the nation’s food supply, agricultural industries, market access and the environment. It will also assist in the identification and mitigation of vulnerabilities in border security arising from changes in international markets, supply chains, policies and legislation as well as identifying behavioural and system indicators of non-compliance in the movement of goods and conveyances into and out of Australia.

To the extent that the measure may interfere with the right to privacy, the limitation for this additional purpose is reasonable and proportionate because it ensures the integrity of supply chains and Australia’s food supply, agricultural industries, market access and the environment, and provides for the provision of information for the explicit purpose of executing requirements under the legislation included in this particular measure.

The ICS export data (which could include personal information of sole operators or natural persons associated with an organisation in the company name assists in the prevention of crime and detection and analysis of criminal conduct with respect to goods subject to prohibition on export, non-compliance with conditions relating to export, the trade of illegal products and managing compliance with Australian food standards and the requirements of public health and safety. The 2018 Senate Inquiry on the Implication of Climate Change for Australia’s National Security acknowledged the importance of agriculture in maintaining national security, as a reduction in the supply of agricultural products may threaten Australia’s food security, increase commodity prices, create social and political unrest, inflation, and eventually an economic slowdown and regional instability. Similarly, criminal acts that breach export legislation have the potential to cause both environmental harm to the importing country, as well as potentially serious financial damage to Australian industries if non-compliance result in market closures. It is in the national interest to identify and act on breaches of export controls in an efficient and expedient manner, and the disclosure of relevant IBP information is necessary to assist with this identification and enforcement of breaches of export controls.

Additional purpose relating to matters covered under the Environment Protection and Biodiversity Conservation Act 1999, Hazardous Waste (Regulation of Exports and Imports) Act 1989, Ozone Protection and Synthetic Greenhouse Gas Management Act 1989, Product Emissions Standards Act 2017 and Recycling and Waste Reduction Act 2020

The objective of this additional purpose is to environmental protection and biodiversity conservation, ozone protection, product emissions and recycling. This proposed measure would support the Australian Government in safeguarding the environment, protecting the ozone layer, mitigating the impacts of global warming and encourage investment in Australia’s circular economy, which will in turn assist Australia to meet our international obligations. The disclosure of IBP information for this purpose will help to disrupt the illegal trade of regulated wildlife, hazardous gases, waste, and other harmful products that threaten both the environment and human health. It will also assist with detecting and preventing the misuse of border systems and controls, addressing vulnerabilities in border security created by shifts in demand, supply chains, policies, and legislation. Furthermore, the disclosure of IBP information for this purposes will identify behavioural and systemic indicators of non-compliance in the movement of goods and conveyances to and from Australia.

The limitation of the right to privacy for this purpose is necessary for protecting the environment, disrupting illegal activity that threatens environmental and human health and preventing the misuse of and non-compliance with border system and controls. The limitation is reasonable and proportionate because it allows for the provision of information that would assist in ensuring the integrity of the Australian border system and inform law enforcement efforts relating to protection of environmental and human health, the regulated import and export of wildlife, national fuel quality, for explicit purposes of the legislation included in this measure.

Conclusion

This disallowable legislative instrument is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

The Hon Tony Burke MP

Minister for Home Affairs

[1] Toonen v Australia, Communication No. 488/1992, para. 8.3. See also communications Nos. 903/1999, para 7.3, and 1482/2006, paras. 10.1 and 10.2.

Administered by Department of Home Affairs

Legislative authority

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Human rights implications

Conclusion

Interactions

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Statement of Compatibility with Human Rights

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