EXPLANATORY STATEMENT
Migration Regulations 1994
ACCESS TO MOVEMENT RECORDS
(REGULATION 3.10A)
- This Instrument is made under regulation 1.17 and regulation 3.10A of the Migration Regulations 1994 (‘the Regulations’).
2. Regulation 1.17 of the Regulations provides that the Minister may, by notice published in the Gazette, specify matters required by individual provisions of the Regulations to be specified for the purposes of those provisions.
3. Subsection 488(1) of the Migration Act 1958 (‘the Act’) provides that a person must not read, examine, reproduce, use or disclose any part of movement records otherwise than in accordance with an authority given under subsection 488(2). Subsection 488(2) of the Act provides that the Minister may authorise on officer to perform one or more of the actions prohibited by subsection 488(1).
4. Specifically, subparagraph 488(2)(a)(vii) of the Act permits the Minister to authorise an officer to perform one or more of the actions 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 those actions for a prescribed purpose.
5. Subregulation 3.10A(1) of the Regulations provides that for the purposes of subparagraph 488(2)(a)(vii) of the Act, Commonwealth, State or Territory legislation specified by the Minister in a Gazette Notice is prescribed.
6. Subregulation 3.10A(2) of the Regulations provides that for paragraph 488(2)(g) of the Act, an agency of the Commonwealth, a State or a Territory, an employee of a prescribed agency, and a purpose specified by the Minister in a Gazette Notice is prescribed.
7. The purpose of the Instrument is to facilitate the administration of prescribed legislation and minimise fraud against the Commonwealth by enabling access to movement records to be authorised in a controlled and responsive manner.
8. The Instrument operates to allow the use of movement records information by external agencies in order to administer various legislation. The Instrument will allow prescribed employees of a prescribed Commonwealth, State or Territory agency to read, examine, reproduce, use or disclose movement records for prescribed purposes.
9. Pursuant to section 18 of the Legislative Instruments Act 2003 (Cth) consultation is not necessary. The Instrument is of a machinery nature.
10. The Instrument, IMMI 06/005, commences on the day after registration on the Federal Register of Legislative Instruments.
Overview
The Migration Regulations 1994 were enacted to provide a framework for the administration of the Migration Act 1958, addressing the need for clear, regulated procedures for the handling of movement records. This legislative instrument, introduced in 2006, targets the problem of unauthorised access to sensitive migration information while facilitating legitimate use by authorised personnel. The instrument, made under the authority of the Minister for Immigration and Border Protection, aims to strike a balance between safeguarding personal data and enabling effective administration of related laws. The policy objective is to streamline the process by which movement records can be accessed by specified officers or employees of prescribed agencies for designated purposes, thus enhancing the efficiency and integrity of migration-related administration.
Scope and Application
The Migration Regulations 1994, as amended, facilitate the administration of prescribed Commonwealth, State or Territory legislation by enabling access to movement records, which are otherwise protected from unauthorised use under the Migration Act 1958. Specifically, Regulation 3.10A allows for the Minister to specify which Commonwealth, State or Territory legislation is prescribed, and consequently, which employees of prescribed agencies are authorised to perform actions such as reading, examining, reproducing, using, or disclosing movement records for prescribed purposes. The Minister’s authority to prescribe such legislation and agencies is exercised through a notice published in the Gazette. This regulation serves to minimise fraud against the Commonwealth by ensuring that access to sensitive movement records is granted in a controlled and responsive manner, aligned with the stated objectives of the Act. The scope of this regulation is limited to the geographic and jurisdictional boundaries of Australia, including its Commonwealth, States, and Territories.
Key Provisions
The Migration Regulations 1994 (Regulation 3.10A) provide a framework for allowing access to movement records for certain prescribed purposes. Regulation 1.17 allows the Minister to specify matters required by individual provisions of the Regulations to be specified for the purposes of those provisions. Regulation 3.10A specifically facilitates access to movement records by authorised officers and employees of prescribed agencies for the purposes of prescribed Commonwealth, State, or Territory legislation. Regulation 3.10A(1) permits the Minister to specify which Commonwealth, State, or Territory legislation allows access to movement records, while Regulation 3.10A(2) allows the Minister to specify which agencies, employees, and purposes are prescribed for accessing these records. The purpose of these regulations is to facilitate the administration of prescribed legislation and to minimize fraud against the Commonwealth.
These regulations impose specific obligations on the Minister and authorised officers and employees. The Minister must publish a notice in the Gazette specifying which Commonwealth, State, or Territory legislation and agencies are prescribed for accessing movement records. Authorised officers and employees must only use movement records in accordance with the specified purposes and legislation. They must ensure that their use of these records is strictly for the purposes outlined in the Minister’s notice. The regulations ensure that access to movement records is controlled and limited to authorised personnel for legitimate purposes.
Breaches of these regulations can result in both civil and criminal consequences. Subsection 488(1) of the Migration Act 1958 strictly prohibits unauthorised reading, examining, reproducing, using, or disclosing any part of movement records. Subsection 488(2) allows for authorisation of such actions only when granted by the Minister. Any unauthorised use of movement records can lead to legal action, with penalties including fines and imprisonment. Specifically, under section 489 of the Act, penalties for unauthorised actions can include fines of up to $22,200 for individuals and $111,000 for corporations, along with potential imprisonment for up to 2 years. These provisions underscore the importance of adhering to the specified authorisations and purposes outlined in the regulations.