Migration (Access to Movement Records) Instrument (LIN 23/015) 2023

EXPLANATORY STATEMENT

Issued by authority of the Minister for Home Affairs

Migration Regulations 1994

Migration (Access to Movement Records) Instrument (LIN 23/015) 2023

1                The instrument, Departmental reference LIN 23/015, is made under subregulations 3.10A(1) and (2) of the Migration Regulations 1994 (the Regulations).

2                The instrument repeals Migration (LIN 20/033: Access to Movement Records) Instrument 2020 (LIN 20/033) in accordance with subsections 33(3) of the Acts Interpretation Act 1901 (the Acts Interpretation Act).  That subsections provides that a power to make a legislative instrument includes a power to amend or repeal that instrument in the same manner, and subject to the same conditions, as the power to make the instrument. 

3                The instrument commences the day after registration, and is a legislative instrument for the Legislation Act 2003 (the Legislation Act).

Purpose

4                Subsection 488(1) of the Migration Act 1958 (the Act) provides that a person must not read, examine, reproduce by any means, use, or disclose by any means, any part of the movement records, otherwise than in accordance with an authority given by the Minister pursuant to subsection 488(2) of the Act.

• Subparagraph 488(2)(a)(vii) of the Act provides that the Minister may authorise an officer to perform one or more actions prohibited by subsection 488(1) for the purposes of prescribed Commonwealth, State or Territory legislation.
• Paragraph 488(2)(g) of the Act permits the Minister to authorise a prescribed employee of a prescribed agency of the Commonwealth, or of a State or Territory to perform one or more of the actions prohibited by subsection 488(1) of the Act for prescribed purposes.

5                Subregulation 3.10A(1) of the Regulations provides that the prescribed legislation for subparagraph 488(2)(a)(vii) of the Act is that specified by the Minister in an instrument in writing.

• Similarly, subregulation 3.10A(2) of the Regulations provides that for paragraph 488(2)(g) of the Act, the Minister may specify a Commonwealth, State or Territory agency, an employee of a prescribed agency, and a purpose in an instrument in writing.

6                Therefore, the purpose of this instrument is to specify:

• the prescribed Commonwealth, State and Territory legislation for the purposes of which an officer may be authorised to access the movement records for subregulation 3.10A(1); and
• the prescribed agencies and employees of the Commonwealth, a State or Territory for paragraphs 3.10A(2)(a) and (b) of the Regulations, and the purpose for which those employees may access the movement records pursuant to paragraph 3.10A(2)(c).

7                Movement records are defined in subsection 5(1) of the Act as information stored in a notified data base. In practice, movement records are information stored within the Department’s Movement Reconstruction Database, which is part of the Travel and Immigration Processing System (TRIPS).

• Information within the movement records include the name, date of birth, gender, date of entry to or departure from Australia, port, airport or flight, passport details, and any visa information for persons who enter and leave Australia. 

8                Certain employees within a number of Commonwealth, State and Territory government agencies consistently require access to the movement records to perform statutory duties and associated functions and to properly administer Commonwealth, State or Territory legislation mentioned in Schedule 1 to the instrument.

Consultation

9                External consultation was undertaken with government agencies which have requested access to the Movements Reconstruction Database or for which access is currently being negotiated. 

10            Consultation was also undertaken where agencies requested to update agency names, legislation or prescribed purposes. Consultation was undertaken with the following agencies:

• the Attorney-General’s Department;
• the Australian Competition & Consumer Commission;
• the Australian Criminal Intelligence Commission;
• the Australian Electoral Commission;
• the Australian Institute of Health and Welfare;
• the Australian Transaction Reports and Analysis Centre;
• the Department of Agriculture, Fisheries and Forestry;
• the Department of Education;
• the Department of Health;
• the National Disability Insurance Agency;
• the Northern Territory Police;
• the Queensland Revenue Office;
• the Professional Services Review Agency;
• Revenue New South Wales;
• Revenue South Australia;
• Services Australia;
• Sport Integrity Australia;
• the State Revenue Office Victoria;
• the Tax Practitioners Board;
• the Victoria Police;
• the Western Australia Department of Mines, Industry Regulation and Safety; and
• the Western Australia Police Force.

11            The Office of Impact Analysis (previously known as Office of Best Practice Regulation (OBPR)) was consulted and considered that the instrument dealt with matters of a minor nature. As such, impact analysis is not required (OBPR reference number: OBPR22-02102).

Documents incorporated by reference

12            The instrument incorporates a number of pieces of Commonwealth, State and Territory legislation by reference as in force from time to time, in accordance with section 10A of the Acts Interpretation Act as applied by paragraph 13(1)(a) of the Legislation Act.

13            Commonwealth legislation incorporated by reference can be accessed on the Federal Register of Legislation website (www.legislation.gov.au).  State and Territory legislation can be accessed via the respective online databases:

• NSW legislation: www.legislation.nsw.gov.au;
• Victorian legislation: www.legislation.vic.gov.au;
• Queensland Legislation: www.legislation.qld.gov.au;
• South Australian Legislation: www.legislation.sa.gov.au;
• Western Australian Legislation: www.legislation.wa.gov.au;
• Tasmanian Legislation: www.legislation.tas.gov.au;
• ACT Legislation Register: www.legislation.act.gov.au;
• Northern Territory Legislation: www.legislation.nt.gov.au.

Details of the instrument

14            Details of the instrument are set out in Attachment A.

Parliamentary scrutiny etc. 

15            The instrument is subject to disallowance under section 42 of the Legislation Act. A Statement of Compatibility with Human Rights has been prepared in relation to the instrument, and provides that to the extent the instrument may limit the prohibition against arbitrary or unlawful interference with privacy, this is necessary in furtherance of a legitimate objective and is proportionate to that objective.   The Statement is included at Attachment B to this explanatory statement. 

16            The instrument was made by a delegate of the Minister in accordance with subregulation 3.10A(1) and (2) of the Regulations.

Attachment A

Details of the Migration (Access to Movement Records) Instrument (LIN 23/015) 2023

Section 1 Name

This section provides that the name of the instrument is the Migration (Access to Movement Records) Instrument (LIN 23/015) 2023 (the instrument).

Section 2 Commencement

This section provides that the instrument commences on the day after registration of the instrument on the Federal Register of Legislation.

Section 3 Definitions

Subsection 3(1) defines security vetting so as to include pre-employment screening as well as ongoing assessment of a person’s suitability or eligibility to work for a particular agency.

Subsection 3(2) provides the abbreviation of the approved APS employee classification under the Public Service Classification Rules 2000.

Section 4 Commonwealth, State or Territory legislation

The section provides that prescribed Commonwealth, State or Territory legislation is specified in Schedule 1 for subregulation 3.10A(1) of the Regulations.

Section 5 Agencies, employees and purposes

The section provides that Commonwealth, State or Territory agencies, employees, and purposes are specified in Schedule 2 for paragraphs 3.10A(2)(a), (b) and (c) of the Regulations.

Section 6 Repeal

Migration (LIN 20/033: Access to Movement Records) Instrument 2020 is repealed by this section.

Schedule 1 Commonwealth, State and Territory legislation

Schedule 1 lists Commonwealth, State and Territory legislation for the purposes of subregulation 3.10A(1).  This enables the Minister to authorise officers to perform actions which would otherwise be prohibited under subsection 488(1) for subparagraph 488(2)(a)(vii) of the Act.

Schedule 2 Prescribed agencies, employees and purposes

Schedule 2 lists specified Commonwealth, State or Territory agencies, employees and purposes for paragraphs 3.10A(2)(a), (b) and (c). This enables the Minister to authorise these employees of these agencies to perform actions which would otherwise be prohibited under subsection 488(1) for paragraph 488(2)(g) of the Act, provided that those actions are for a specified purpose.

Attachment B

Statement of Compatibility with Human Rights

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

Migration (Access to Movement Records) Instrument (LIN 23/015) 2023

This 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

Subsection 488(1) of the Migration Act 1958 (the Act) provides that a person must not read; examine; reproduce by any means; use; disclose by any means; any part of the Movement Records, otherwise than in accordance with an authority given under subsection 488(2) of the Act. A penalty applies to the performing of an act prohibited by subsection 488(1), unless when authorised in accordance with subsection 488(2) of the Act.

The term ‘Movement Records’ means information stored in a notified data base, which the Movements Reconstruction Database (referred to as the Movement Data Base in Gazette Notice 34 dated 31 August 1994) is declared to be pursuant to section 489 of the Act.

The Movement Reconstruction Database contains information kept for the purposes of the Act in relation to the entry into, and departure of persons from, Australia since June 1981. The information may include a traveller's name, date of birth, gender and relationship status, country of birth, departure and/or arrival date, travel document number and country, port code and flight/vessel details, visa subclass and expiry date, and the number of movements.

The circumstances in which the Minister may authorise a person to perform one or more of the actions prohibited by subsection 488(1) of the Act include where the action is required for the purposes of prescribed legislation (subparagraph 488(2)(a)(vii) of the Act) and where the action is being performed by a prescribed employee of a prescribed agency for a prescribed purpose (subsection 488(2)(g) of the Act).

Section 5(1) of the Act defines ‘prescribed’ to mean prescribed by the regulations. The regulation which prescribes the matters for the purposes of subparagraph 488(2)(a)(vii) and paragraph 488(2)(g) is regulation 3.10A of the Migration Regulations 1994 (Cth) (the Regulations).

Regulation 3.10A states –

(1)    For subparagraph 488(2)(a)(vii) of the Act, Commonwealth, State or Territory legislation specified by the Minister in an instrument in writing for this subregulation is prescribed.

Note: Under subsection 488(1) of the Act, a person must not read, examine, reproduce, use or disclose any part of the Movement Records. However, subparagraph 488(2)(a)(vii) of the Act permits the Minister to authorise an officer to perform one or more of those actions for the purposes of prescribed Commonwealth, State or Territory legislation.

(2) For paragraph 488(2)(g) of the Act:

(a)   an agency of the Commonwealth, a State or a Territory specified by the Minister in an instrument in writing for this paragraph is prescribed; and

(b)   an employee of a prescribed agency who is specified by the Minister in an instrument in writing for this paragraph is prescribed; and

(c)    a purpose specified by the Minister in an instrument in writing for this paragraph is prescribed.

Note: Under subsection 488(1) of the Act, a person must not read, examine, reproduce, use or disclose any part of the Movement Records. However, paragraph 488(2)(g) of the Act permits the Minister to authorise a prescribed employee of a prescribed agency of the Commonwealth, or of a State or Territory, to perform one or more of those actions for a prescribed purpose.

Accordingly, Migration (Access to Movement Records) Instrument (LIN 23/015) 2023 prescribes the legislation for the purposes of subparagraph 488(2)(a)(vii) and employees, agencies and purposes for the purposes of paragraph 488(2)(g) of the Act. 

This instrument also repeals Migration (LIN 20/033: Access to Movement Records) Instrument 2020, signed on 24 March 2020 and cited as LIN 20/033.

The key changes in this instrument from LIN 20/033 are:

Schedule 1

Addition of legislation:

• Anti-Money Laundering and Counter Terrorism-Financing Act 2006 (Cth);
• Australian Hearing Services Act 1991 (Cth);
• Australian Institute of Health and Welfare Act 1987 (Cth);
• Australian Institute of Health and Welfare (Ethics Committee) Regulations 2018 (Cth);
• Back to Work Act 2015 (Vic);
• Bankruptcy Regulations 2021 (Cth);
• Betting Tax Act 2001 (NSW);
• Children and Community Service Act 2004 (WA);
• Children and Young Persons (Care and Protection) Regulation 2022 (NSW);
• Child Support Legislation Amendment (Reform of the Child Support Scheme—New Formula and Other Measures) Act 2006 (Cth);
• Disability Services Act 1986 (Cth);
• Education Act 1990 (NSW);
• Emergency Services Levy Act 2017 (NSW);
• Export Control Act 2020 (Cth);
• Farm Household Support Act 2014 (Cth);
• Financial Transaction Reports Act 1988 (Cth);
• Fire Services Property Levy Act 2012 (Vic);
• Health Insurance Levies Act 1982 (NSW);
• First Home Owner Grant and Home Buyer Schemes Act 2000 (Vic);
• First Home Owner Grant and Shared Equity Act 2000 (NSW);
• Industrial Relations Act 1979 (WA);

• Land Tax Act 2005 (Vic);
• Long Service Leave Act 1958 (WA);
• Minimum Conditions of Employment Act 1993 (WA);
• Payroll Tax Act 2007 (Vic);
• Payroll Tax Act 2009 (SA);
• Sport Integrity Australia Act 2020 (Cth);
• Sport Integrity Australia Regulations 2020 (Cth);
• State Debt Recovery Act 2018 (NSW);
• Unclaimed Money Act 1995 (NSW);
• Unclaimed Money Act 2008 (Vic).

This instrument either removes or replaces reference to any repealed legislation specified in LIN 20/033.

Schedule 2

The purposes and employees of several agencies have been updated to reflect changes to agency structures and to confine access to purposes under specified acts that the agencies administer. These changes effectively restrict Movement Records to specific levels of staff or work areas in specific agencies for specific purposes.

The following seven agencies have been added to facilitate access to Movement Records to enable those agencies to perform their statutory duties and associated functions effectively:

• the Australian Competition and Consumer Commission (ACCC);
• the Australian Institute of Health and Welfare (AIHW);
• the Australian Transaction Reports and Analysis Centre (AUSTRAC);
• the Department of Mines, Industry Regulation and Safety (DMIRS);
• the Professional Services Review Agency (PSR);
• Sport Integrity Australia (SIA); and
• the Tax Practitioners Board (TPB).

The names of the following agencies have been updated to reflect changes to agency names from recent Machinery of Government changes:

• Department of Agriculture, Water and the Environment (formerly known as the Department of Agriculture and Water Resources);
• Department of Education (formerly known as the Department of Education, Skills and Employment);
• Department of Health and Aged Care (formerly the Department of Health);
• the Fines Enforcement and Recovery Unit (FERU), Department of Treasury and Finance, South Australia was formerly part of the Attorney General’s Department, South Australia’s portfolio; and
• the Queensland Revenue Office has gained the fine administration function from the Department of Transport and Main Roads and the Queensland Police Service.

Human rights implications

This Disallowable Legislative Instrument engages the prohibition against arbitrary or unlawful interference with privacy.  Article 17(1) of the International Covenant on Civil and Political Rights (ICCPR) states that:

‘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.’

Article 17(2) of the ICCPR states that:

‘Everyone has the right to the protection of the law against such interference or attacks.’

The prohibition against arbitrary or unlawful interference with privacy is engaged as the instrument seeks to control government access to the personal information in Movement Records. The access to Movement Records will be lawful as authorised by this instrument. To the extent that this instrument may limit the prohibition against arbitrary or unlawful interference with privacy through the sharing of Movement Records, this is necessary, reasonable and proportionate in meeting the policy objectives of regulation 3.10A, that is to facilitate government and law enforcement agencies in the exercise of their functions and duties. In particular, the following additional agencies have been added to the instrument for the following reasons:

• ACCC is specified so that Movement Records can be accessed for the administration or enforcement of the criminal law or a law imposing a pecuniary penalty under the Competition and Consumer Act 2010 (Cth), as well as for the collection of intelligence related to such activity.  In particular, Movement Records can establish if a person of interest is currently in Australia, identify their contact details, create an investigation timeline and corroborate alleged conduct.
• AIHW is specified so that Movement Records can be accessed to contribute to a proposed dataset which will improve national data on health and welfare outcomes for refugee and humanitarian entrants.
• AUSTRAC is specified so that Movement Records can be accessed to investigate and enforce compliance against persons of interest who do not comply with the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth).
• Western Australia DMIRS is specified so that Movement Records can be accessed to investigate and administer compliance under the legislation for which DMIRS has the power of general administration. In particular, DMIRS participates in Australian Border Force’s Taskforce Cadena, which involves the investigation of matters involving overseas workers. Investigators only require general information about whether persons of interest have left the country.
• PSR is specified so that Movement Records can be accessed to investigate Medicare-referred cases of possible inappropriate practice relating to Medicare, the Dental Benefits Scheme and the Pharmaceutical Benefits Scheme.
• SIA is specified so that Movement Records can be accessed to prevent, investigate and address threats to sports integrity and to coordinate a national approach to matters relating to sports integrity in Australia under the Sports Integrity Australia Act 2020 (Cth).
• TPB is specified so that Movement Records can be accessed to regulate tax practitioners to protect and assure consumers that tax practitioners meet appropriate standards of professional and ethical conduct.

The further restrictions that the instrument imposes ensure that the access to Movement Records only occurs where it is necessary for persons who have a need to access the information in the exercise of their functions under legislation.  As such, preventing broad access to Movement Records and limiting it to those persons and agencies who have a need for the exercise of power is reasonable and proportionate to the legitimate objective of facilitating government and law enforcement agencies in the exercise of their statutory duties and associated functions.

Further, the protection of the right in Article 17(1), and consistent with the requirement in Article 17(2), is set out in domestic law under the Privacy Act 1988 (Cth) (the Privacy Act).  The Privacy Act contains the Australian Privacy Principles which regulate how agencies may collect, use, disclose and store, personal information, and how individuals may access and correct personal information held about them. Given that the proposed dissemination of the information in the Movements Reconstruction Database will be executed in accordance with the Privacy Act, the personal information contained in this database will be afforded the legal protection of the Privacy Act. 

Additionally, the instrument itself provides lawful protections in that it restricts the disclosure of the personal information in Movement Records to officers and employees in particular agencies acting under particular legislation and for purposes specified in the instrument. The Act imposes a penalty of imprisonment for 2 years for the unlawful access to Movement Records contrary to section 488 of the Act. 

Conclusion

To the extent the instrument may limit the prohibition against arbitrary or unlawful interference with privacy, as discussed above, this is necessary in furtherance of a legitimate objective and is reasonable and proportionate to that objective.  This Disallowable Legislative Instrument is compatible with the relevant human rights obligations for the reasons outlined above.

The Hon. Clare O’Neil MP

Minister for Home Affairs