EXPLANATORY STATEMENT

Migration Regulations 1994

Migration (LIN 18/068: Access to Movement Records) Instrument 2018

(regulation 3.10A)

1. The instrument, LIN 18/068, is made under regulation 3.10A of the Migration Regulations 1994 (the Regulations).
2. This instrument repeals IMMI 16/090 (F2018C00075) made under regulation 3.10A of the Regulations and in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the AIA). Subsection 33(3) of the AIA states that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
3. The instrument operates to specify the agencies, employees and purposes for which movement records can be accessed by external agencies under the Regulations and the Migration Act 1958 (the Act). Disclosure of information relating to movement records is often necessary for the proper administration of a variety of legislation and for a number of purposes. The instrument seeks to facilitate this and to assist relevant agencies and their officers in performing their functions effectively.
4. Subsection 488(1) of the Act prohibits a person from reading, examining, reproducing, using or disclosing any part of the movement records. However, subparagraph 488(2)(a)(vii) of the Act permits the Minister to authorise an officer to perform for the purposes of any prescribed legislation an action prohibited by subsection 488(1). Under subparagraph 488(2)(a)(vii) of the Act, subregulation 3.10A(1) of the Regulations allows for Commonwealth, State and Territory legislation specified by the Minister in an instrument in writing to be prescribed. The instrument specifies which Commonwealth, State or territory legislation is prescribed.
5. Similarly, paragraph 488(2)(g) of the Act permits the Minister to authorise a prescribed employee of a prescribed agency to perform an action prohibited by subsection 488(1) for a specified purpose. Under paragraph 488(2)(g) of the Act, subregulation 3.10A(2) of the Regulations allows for the agency, employee and purpose to be specified in an instrument in writing. The instrument specifies these agencies, employees and purposes.
6. The purpose of the instrument is to update the information previously contained in IMMI 16/090 and reflect changes made to legislation, agencies and employees. There have been updates made to legislative references and additional government agencies have been included for the purposes of sharing movement records.
7. In the table in Schedule A, the following changes have been made:
   1. The prescribed Commonwealth/State/Territory legislation has been updated to reflect citation changes or to correct typographical errors.
   2. The Children and Young People Act 2008 (ACT), Competition and Consumer Act 2010 (Cth), Confiscation of Proceeds of Crime Act 1989 (NSW), Health Ombudsman Act 2013 (Cth), Health Practitioner Regulation National Law Act 2009 (Qld), National Disability Insurance Scheme Act 2013 (Cth), Residential Tenancies Act 2010 (NSW) and Terrorism (High Risk Offenders) Act 2017 (NSW) have been added.
   3. The Coroners Act 1997 (ACT), the Coroners Act 2009 (NSW), the Coroners Act 1993 (NT), the Coroners Act 2003 (Qld), the Coroners Act 2003 (SA), the Coroners Act 1995 (Tas) and the Coroners Act 2008 (Vic) have been added.
   4. References to the Australian Consumer Law 2010 (WA), Criminal Property Confiscation Act 2000 (NSW), Customs Act 1901 (Cth), Excise Act 1901 (Cth), Family Law Act 1975 (Cth), Migration Act 1958 (Cth), Privacy Act 1988 - Privacy (Persons Reported as Missing) Rule 2014, Quarantine Act 1908 (Cth) and Superannuation Funds (Assessment and Collection) Act 1997 (Cth) have been removed.

8.             In the table in Schedule B, the following changes have been made:

1. The Australian Signals Directorate, the Office of the Health Ombudsman, the Clean Energy Regulator and the National Disability Insurance Agency have been added as prescribed agencies.
2. Twenty-eight agencies have been removed as prescribed agencies. These agencies no longer have direct access to movement records. This change has been made to ensure that movement records are directly accessed only by agencies who require access in order to perform their functions effectively.

1. The instrument also updates the employee roles and prescribed purposes for 22 agencies to support lawful access. In particular, changes have been made to the prescribed employees and purposes for the Department of Home Affairs, the Australian Federal Police and the Commonwealth Attorney-General’s Department to better reflect changing needs, machinery of government changes and restructuring within agencies.
2. As a result of the recent machinery of government change, the reference to the former Department of Immigration and Border Protection has been updated in the table in Schedule B to the Department of Home Affairs.
   1. The instrument has been updated to allow greater specificity in relation to employees who are prescribed under the Act.
   2. The prescribed purposes have also been limited in their scope.
3. Additionally, the instrument seeks to prescribe:
   1. Australian Federal Police (AFP) appointees who are not members of the AFP that are engaged overseas under section 69A of the Australian Federal Police Act 1979 (Cth) (the AFP Act), seconded to the AFP under section 69D of the AFP Act or engaged as a consultant or contractor under section 35 of the AFP Act. These appointees may access movement record information for the prescribed purpose of assisting the AFP in the performance of their statutory duties and associated functions that are not for the purposes of law enforcement; and
   2. Employees of the Australian Government Attorney-General’s Department who can access movement record information for the following prescribed purposes:
      1. for the consideration of enquiries in connection with international transfer applications from prisoners, extradition requests, mutual assistance requests, assistance requests and in cooperation, or in response to requests for cooperation, under the International Criminal Court Act 2002 (Cth), the Mutual Assistance in Criminal Matters Act 1987 (Cth), the International War Crimes Tribunal Act 1995 (Cth), the Family Law Act 1975 (Cth), the Family Law Regulations 1984 (Cth), the Criminal Code Act 1995 (Cth) and the Extradition Act 1988 (Cth);
      2. in undertaking work relating to child protection measures, international child abduction matters and international maintenance matters;
      3. to enable cooperation in relation to bilateral agreements between the Government of Australia and the Government of the Republic of Lebanon, and the Government of the Arab Republic of Egypt.
4. Consultation was undertaken in order to determine the agencies and employees who needed access to the movement records database, and the best way to facilitate this access and use. Consultation was undertaken with, but not limited to:
   1. Commonwealth agencies, including the following: Administrative Appeals Tribunal; Australian Bureau of Statistics; AusCheck (formerly a part of the Attorney General's Department); Attorney General's Department; Australian Criminal Intelligence Commission; Australian Federal Police; Australian Securities and Investments Commission; Australian Signals Directorate; Australian Taxation Office; Centrelink; Civil Aviation Safety Authority; Child Support Agency; Clean Energy Regulator; Department of Agriculture and Water Resources; Department of Education and Training; Department of Foreign Affairs and Trade; Department of Health; Department of Human Services; Department of Industry; Department of Social Services; Fair Work Ombudsman.
   2. State agencies, including the following: Office of the Health Ombudsman, Queensland; Office of State Revenue, Queensland; Revenue NSW; Revenue SA; State Revenue Office Victoria; TAFE NSW; Worksafe Victoria.
5. The Office of Best Practice Regulation (OBPR) have advised that a Regulatory Impact Statement is not required (OBPR Reference 23141).

14.         The officer (Senior Executive Service, Band One, Compliance and Corporate Coordination Branch/ABF Business Services Division) who made the instrument was delegated the powers required to make the instrument in the Australian Border Force (Minister) Delegations and Authorisations 2018 (ABF (M) No. 1 of 2018), signed on 15 February 2018.

15.         Under section 42 of the Legislation Act 2003, the instrument is subject to disallowance and therefore a Statement of Compatibility with Human Rights has been provided.

16.         The instrument commences on the day after it is registered on the Federal Register of Legislation.

Statement of Compatibility with Human Rights

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

Legislative Instrument LIN 18/068

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 Legislative Instrument

Subsection 488 of the Act provides that a person may 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 under subsection 488(2). 

Movement records are records or information stored on a notified database. The notified database is currently the Movement Data Base. This database contains arrival and departure records of travellers to and from Australia dating from 1981. They 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) include where the action is required for the purposes of prescribed legislation (subparagraph 488(2)(vii)) and where the action is being performed by a prescribed employee of a prescribed agency for a prescribed purpose.

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 444(2)(a)(vii) and paragraph 488(2)(g) is regulation 3.10A of the Migration Regulations 1994 (Cth).

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.

This Instrument 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). 

This Legislative Instrument updates the information contained in the existing Regulation 3.10A Instrument ‘Access to Movement Records’ (IMMI 16/090) signed on 2 September 2016.

This update makes three key changes:

(1)          It will remove 28 agencies from the current instrument (2016/090) who do not have direct systems access to the movement reconstruction database. This update will have no impact on the agencies, the Department or individuals as the agencies never had access. This change corrects the list of agencies.

(2)          It serves to permit Department of Home Affairs employees, contractors or IT Contractors to disclose movement records to the Australian Federal Police (AFP) and state and territory police forces for the purposes of locating missing persons (a police function that is additional to law enforcement functions, which are accounted for in s 488 (2) (e)).

(3)          It narrows the prescribed employees and the prescribed purposes for which they can access the movement reconstruction database. This ensures the scope of purposes does not exceed those explicitly set out by Parliament in s 488(2).

Human rights implications

This Legislative Instrument engages the prohibition against arbitrary or unlawful interference with privacy in that it seeks to control government access to the personal information contained in movement records. However, the disclosure of movement records as authorised by this Instrument will not be an 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 disclosure of movement records will be lawful as authorised by this Instrument. To the extent that the changes to the Instrument may limit the right to privacy through the sharing of movement records information 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. The further restrictions that the update to the Instrument impose ensure that the disclosure of 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 protecting the Australian community.

Further, the protection of the right in Article 17(1), and consistent with the requirement in Article 17(2), is set out in domestic Australian law in the Privacy Act 1988 (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 in particular agencies acting under particular legislation and purposes specified in the Instrument.

Conclusion

To the extent the Instrument may limit the right to privacy, as discussed above, this is necessary in furtherance of a legitimate goal and is proportionate to that goal.  This change is compatible with the relevant human rights obligations for the reasons outlined above.