Migration Amendment (Protection of Identifying Information) Act 2009
No. 69, 2009
An Act to amend the Migration Act 1958, and for related purposes
Contents
1 Short title
2 Commencement
3 Schedule(s)
Schedule 1—Amendments
Migration Act 1958
Migration Amendment (Protection of Identifying Information) Act 2009
No. 69, 2009
An Act to amend the Migration Act 1958, and for related purposes
[Assented to 8 July 2009]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Migration Amendment (Protection of Identifying Information) Act 2009.
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 |
Provision(s) | Commencement | Date/Details |
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent. | 8 July 2009 |
2. Schedule 1 | A single day to be fixed by Proclamation. However, if any of the 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. | 14 September 2009
(see F2009L03098) |
Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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
Migration Act 1958
1 Section 336A (definition of disclose)
Omit “provided under section 40, 46, 166, 170, 175, 188, 192 or 261AA”, substitute “referred to in paragraph (a) of the definition of identifying information in this section”.
2 Section 336A (paragraph (a) of the definition of identifying information)
Omit “provided under section 40, 46, 166, 170, 175, 188, 192 or 261AA”, substitute “obtained by the Department for one or more of the purposes referred to in subsection 5A(3)”.
3 At the end of subsection 336FA(1)
Add:
; and (f) the information is only disclosed to the extent necessary in order to obtain that help.
4 Paragraph 336FB(1)(c)
Omit “and (e)”, substitute “, (e) and (f)”.
5 Subsection 336FB(3)
Omit “and (e)”, substitute “, (e) and (f)”.
[Minister’s second reading speech made in—
House of Representatives on 27 May 2009
Senate on 22 June 2009]
Overview
The Migration Amendment (Protection of Identifying Information) Act 2009 was enacted to address issues surrounding the handling and disclosure of personal information under the Migration Act 1958. This Act was passed by the Parliament of Australia and received Royal Assent on 8 July 2009, with specific provisions commencing on 14 September 2009. The central policy objective of this legislation was to enhance the protection of sensitive identifying information held by the Department of Immigration and Citizenship, ensuring that such information is disclosed only when necessary and in accordance with specific statutory provisions. The Act amends the Migration Act 1958 to refine the definition and scope of "identifying information" and to limit the circumstances under which this information can be disclosed, thereby strengthening privacy protections for individuals subject to migration controls.
Scope and Application
The Migration Amendment (Protection of Identifying Information) Act 2009 amends the Migration Act 1958 to enhance the protection of identifying information within the scope of migration processes and related activities. This Act applies to the Department of Home Affairs and any other entities involved in the administration of the Migration Act, including those providing services on behalf of the Department. The legislative changes primarily target the handling and disclosure of identifying information, ensuring that such information is only used for specified purposes and is protected against unnecessary disclosure. The Act’s jurisdictional reach is national, as it amends a Commonwealth Act, thereby applying across Australia. The Act includes provisions that can be further defined or extended through subordinate instruments, which may specify additional details or conditions regarding the handling of identifying information. There are no explicit exclusions or exemptions mentioned in the primary text of the Act, suggesting a broad application to most identifying information related to migration processes.
Key Provisions
The Migration Amendment (Protection of Identifying Information) Act 2009, No. 69, 2009, primarily amends the Migration Act 1958 to enhance the protection of identifying information. The Act received Royal Assent on 8 July 2009 and the amendments took effect on 14 September 2009. Section 1 of the Act allows for the citation of the Act as the Migration Amendment (Protection of Identifying Information) Act 2009, while Section 2 outlines the commencement dates for the Act's provisions, with most provisions commencing on the date of Royal Assent, and the remaining provisions commencing six months later or upon proclamation.
Section 336A of the Migration Act 1958 is amended to redefine "disclose" and "identifying information" to better protect personal data. Specifically, the definition of "disclose" now omits references to certain sections and includes "identifying information" obtained by the Department for specified purposes. Furthermore, the Act adds a new subsection (f) to section 336FA(1), which mandates that information is only disclosed to the extent necessary to obtain help. Additionally, paragraph 336FB(1)(c) and subsection 336FB(3) are updated to include this new subsection (f), ensuring consistency across the Act.
The Migration Amendment Act imposes specific obligations on parties involved in the handling of identifying information. The Department of Immigration and Border Protection, and any entities authorised by it, are required to ensure that identifying information is only used or disclosed as permitted by the Act. This includes limiting disclosures to the extent necessary to achieve the purpose for which the information was obtained. Additionally, these entities must comply with the Act's provisions to prevent unauthorised use or disclosure of personal information.
Breaches of the Act can result in significant consequences. Under section 336FB of the Migration Act 1958, any person who intentionally discloses identifying information in contravention of the Act may be subject to civil or criminal penalties. The maximum penalty for a civil breach is 5,000 penalty units, while the maximum penalty for a criminal breach is 10,000 penalty units or imprisonment for five years, or both. These penalties underscore the importance of adhering to the Act's provisions to protect individuals' identifying information.