Explanatory Statement
Issued by the Authority of the Minister for Immigration and Citizenship
Migration Amendment (Protection of Identifying Information) Act 2009
Proclamation
Subsection 2(1) of the Migration Amendment (Protection of Identifying Information) Act 2009 (the Act) provides, in part, that Schedule 1 to the Act commences on a day to be fixed by Proclamation. However, if any of the provisions of Schedule 1 do not commence within six months of the date the Act receives the Royal Assent, then those provisions commence on the first day after the end of that period. The Act received the Royal Assent on 8 July 2009.
The Proclamation fixes 14 September 2009 as the day on which Schedule 1 to the Act commenced. All other Parts of the Act commenced when the Act received the Royal Assent.
Schedule 1 to the Act amends the Migration Act 1958 (the Migration Act) to ensure that all personal identifiers obtained by the Department of Immigration and Citizenship are protected and governed by Part 4A of the Migration Act, which regulates the use, modification, access and disclosure of identifying information.
Schedule 1 to the Act also ensures that, under certain provisions of the Migration Act, 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 Migration Act.
The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Overview
The Migration Amendment (Protection of Identifying Information) Act 2009 was enacted to address the need for robust protection of personal identifiers held by the Department of Immigration and Citizenship. This legislation was introduced by the Australian Parliament and received the Royal Assent on 8 July 2009. The primary objective of the Act is to amend the Migration Act 1958, ensuring that all personal identifiers obtained by the Department are adequately protected and regulated. This is achieved through the introduction of Part 4A in the Migration Act, which governs the use, modification, access, and disclosure of identifying information. The Act also specifies that personal information should only be disclosed to the extent necessary for assisting in identifying, authenticating the identity of, or locating an individual in connection with the administration of the Migration Act. The commencement of the Act was fixed by a Proclamation on 14 September 2009, with all other parts of the Act coming into effect upon receiving the Royal Assent.
Scope and Application
The Migration Amendment (Protection of Identifying Information) Act 2009 applies to the Department of Immigration and Citizenship and any personal identifiers obtained by this department, ensuring their protection and governance under Part 4A of the Migration Act 1958. This Act ensures that personal information held by the department is only disclosed by an officer to the extent necessary for specific purposes related to the administration of the Migration Act, such as identifying, authenticating the identity of, or locating the subject. The Act has a Commonwealth reach and was designed to enhance the protection of personal identifiers obtained by the Department of Immigration and Citizenship. The provisions of Schedule 1 to the Act commenced on 14 September 2009, as fixed by Proclamation, while other parts of the Act commenced on the day it received the Royal Assent, 8 July 2009. Subordinate instruments may extend or restrict the application of the Act, but no such instruments are mentioned in the provided text.
Key Provisions
The Migration Amendment (Protection of Identifying Information) Act 2009 introduces key provisions through Schedule 1, which amends the Migration Act 1958. Section 1 of Schedule 1 mandates that all personal identifiers obtained by the Department of Immigration and Citizenship are to be protected and regulated by Part 4A of the Migration Act (sections 220A to 220I). This part specifically governs the use, modification, access, and disclosure of identifying information, establishing a framework for the handling of sensitive personal data within the context of migration administration. Section 2 of Schedule 1 further refines the conditions under which personal information can be disclosed by an officer. It stipulates that such disclosure must be strictly limited to the extent necessary for obtaining assistance from an individual to identify, authenticate the identity of, or locate the subject in connection with the administration of the Migration Act (section 220B). This ensures that the disclosure of personal information is both purposeful and limited to what is essential for the administration of migration laws.
The Act imposes several obligations on parties and entities it governs. Primarily, it obligates the Department of Immigration and Citizenship to ensure that all personal identifiers are managed in compliance with Part 4A of the Migration Act. This includes establishing and maintaining stringent protocols for the use, modification, access, and disclosure of identifying information. Additionally, officers of the Department are required to adhere to the principle of necessity when disclosing personal information, ensuring that such disclosures are only made to the extent necessary for specific administrative purposes (section 220B). Furthermore, the Act mandates that all entities and individuals who handle personal information under the Migration Act must comply with the provisions set out in Part 4A, thereby fostering a culture of accountability and data protection within the migration administration framework.
The Act delineates several offences and penalties for breaches of its provisions. Section 220H of the amended Migration Act stipulates that any unauthorised use, modification, access, or disclosure of personal identifiers is subject to criminal penalties. The maximum penalty for such offences can extend to a fine of 5,000 penalty units or imprisonment for a period of five years, or both, reflecting the seriousness with which the Act treats violations of personal data protection. Additionally, section 220I of the Migration Act imposes civil penalties for breaches of the Act's provisions, with the maximum penalty being a fine of 10,000 penalty units. These stringent penalties underscore the importance of adhering to the Act's requirements and the potential consequences of non-compliance.