Migration Legislation Amendment (Protected Information) Act 2003
No. 75, 2003
An Act to amend the Migration Act 1958, and for other purposes
Contents
1 Short title
2 Commencement
3 Schedule(s)
Schedule 1—Amendment of the Migration Act 1958
Schedule 2—Amendment of the Freedom of Information Act 1982
Migration Legislation Amendment (Protected Information) Act 2003
No. 75, 2003
An Act to amend the Migration Act 1958, and for other purposes
[Assented to 15 July 2003]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Migration Legislation Amendment (Protected Information) Act 2003.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.
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 | 15 July 2003 |
2. Schedule 1, items 1 to 5 | The day on which this Act receives the Royal Assent | 15 July 2003 |
3. Schedule 1, items 5A to 5D | The day after this Act receives the Royal Assent | 16 July 2003 |
4. Schedule 1, item 6 | The day on which this Act receives the Royal Assent | 15 July 2003 |
5. Schedule 1, item 6A | The day after this Act receives the Royal Assent | 16 July 2003 |
6. Schedule 1, item 7 | The day on which this Act receives the Royal Assent | 15 July 2003 |
7. Schedule 1, item 8 | The day after this Act receives the Royal Assent | 16 July 2003 |
8. Schedule 2 | The day after this Act receives the Royal Assent | 16 July 2003 |
Note: This table relates only to the provisions of this Act as originally passed by 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 is for additional information that is not part of this Act. This information may be included 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Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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—Amendment of the Migration Act 1958
1 At the end of subsection 476(2)
Add “or subsection 503A(3)”.
2 After subsection 503A(3)
Insert:
(3A) The Minister does not have a duty to consider whether to exercise the Minister’s power under subsection (3).
3 After subsection 503A(4)
Insert:
(4A) If a person divulges or communicates particular information to a Commonwealth officer in accordance with a declaration under subsection (3):
(a) the officer must not be required to divulge or communicate the information to the Federal Court or the Federal Magistrates Court; and
(b)
Overview
The Migration Legislation Amendment (Protected Information) Act 2003 was enacted to amend the Migration Act 1958 and address the need to safeguard sensitive information provided by law enforcement and intelligence agencies. The Act was passed by the Parliament of Australia and received Royal Assent on 15 July 2003. It introduces measures to protect confidential information disclosed to the Federal Court or the Federal Magistrates Court by introducing permanent and interim non-disclosure orders. The policy objective of the Act is to ensure that sensitive information, which could compromise national security, international relations, or the effectiveness of law enforcement, is not disclosed in a way that could undermine legal proceedings or investigations. This Act is designed to prevent the inadvertent disclosure of confidential information while still allowing for its use in appropriate legal contexts, subject to specific authorisations and court orders.
Scope and Application
The Migration Legislation Amendment (Protected Information) Act 2003 amends the Migration Act 1958 to enhance the protection of confidential information in the context of migration proceedings and to modify the operation of the Freedom of Information Act 1982 in relation to certain protected information. The Act applies to the disclosure of information communicated to authorised migration officers by gazetted agencies, which include Australian law enforcement or intelligence bodies, foreign law enforcement bodies, and war crimes tribunals. It is designed to safeguard sensitive information relevant to migration powers and to protect the interests of Australia's national security and international relations. The Act also outlines provisions for making permanent and interim non-disclosure orders to prevent the disclosure of confidential information to the public, the Federal Court, or the Federal Magistrates Court without authorisation. The Act's provisions commence on specific dates outlined in the Act, with certain sections coming into effect upon Royal Assent and others on subsequent days. The Act extends its reach through subordinate instruments, allowing for the specification of additional matters to be considered in making non-disclosure orders and the details of gazetted agencies to be treated as protected information.
Key Provisions
- The Migration Legislation Amendment (Protected Information) Act 2003 amends the Migration Act 1958 to enhance the protection of confidential information in certain circumstances. Key provisions include the introduction of new sections 503A, 503B, 503C, and 503D in the Migration Act 1958. Section 503A allows the Minister for Immigration, Multicultural and Indigenous Affairs to issue declarations permitting the disclosure of confidential information to the Federal Court or Federal Magistrates Court, but only under specific conditions. These conditions include the nature of the information and its relevance to certain migration powers. Section 503B empowers the Federal Court or Federal Magistrates Court to make permanent non-disclosure orders to ensure that confidential information is not divulged or communicated to the public, the applicant, or their legal representative unless a declaration is made under section 503A. Section 503C allows for interim non-disclosure orders to protect information while a permanent non-disclosure order is being considered. Section 503D ensures that details of gazetted agencies are also protected as if they were the confidential information itself.
- The Act imposes several obligations on the Minister, the Federal Court, and the Federal Magistrates Court. The Minister must provide written notice to the Federal Court or Federal Magistrates Court of their intention to apply for a permanent non-disclosure order at least seven days prior to making the application. The Federal Court or Federal Magistrates Court may make interim or permanent non-disclosure orders to prevent the disclosure of confidential information. The Federal Court or Federal Magistrates Court may vary or revoke such orders if both the Minister and the applicant consent. Furthermore, the Act mandates that if section 503A or 503B applies to information communicated by a gazetted agency, then the agency’s details are similarly protected as if they were the confidential information itself.
- Violation of the non-disclosure orders established under sections 503B or 503C constitutes an offence. A person found guilty of contravening such an order faces imprisonment for up to two years. These offences take precedence over other provisions of the Act or any other Commonwealth law. In addition, the Act also amends the Freedom of Information Act 1982 to ensure that protected information under the Migration Act 1958 is exempt from disclosure under the Freedom of Information Act, thereby reinforcing the confidentiality of sensitive migration-related information.
- Area of Law
- Immigration & Refugee Law
- Instrument
- Act
- Concepts
- Commencement Provisions
- Reporting & Disclosure Obligations
- Regulatory Standards
- Prohibited Conduct