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 07/042, commences 1 July 2007.
Overview
The Migration Regulations 1994, enacted by the Australian Parliament, were supplemented by the instrument F2007L01882 in 2007 to address the need for a controlled and responsive mechanism for accessing movement records in the administration of various prescribed Commonwealth, State, or Territory legislation. This regulation was introduced to facilitate the efficient administration of such legislation and to minimise potential fraud against the Commonwealth. The objective, as stated in the explanatory statement, is to allow authorised officers and employees of prescribed agencies to access movement records for specific purposes, thereby ensuring compliance and integrity in the handling of these records.
The instrument, which commenced on 1 July 2007, was created under the authority of the Migration Act 1958 and does not require consultation as it is of a machinery nature. By specifying which Commonwealth, State, or Territory legislation, agencies, and employees can access movement records, the regulation aims to streamline administrative processes and enhance the security of migration records.
Scope and Application
The Migration Regulations 1994, as amended by Instrument F2007L01882, provide a framework for the controlled access to movement records by authorised officers and employees of prescribed agencies within the Commonwealth, states, or territories. Specifically, the Regulations allow the Minister to authorise officers or prescribed employees to access movement records for purposes outlined in prescribed Commonwealth, State, or Territory legislation. This authorisation is intended to facilitate the administration of various legislative requirements and to reduce fraud against the Commonwealth. The authorisation is made through notices published in the Gazette, which specify the relevant legislation, agencies, employees, and purposes for accessing the records. The Regulations do not require consultation under section 18 of the Legislative Instruments Act 2003 and are considered to be of a machinery nature. The provisions of this Instrument came into effect on 1 July 2007.
Key Provisions
The Migration Regulations 1994, as amended by Regulation 3.10A, introduce provisions that allow for the controlled access to movement records under certain circumstances. Regulation 3.10A(1) and 3.10A(2) specify that the Minister can designate Commonwealth, State or Territory legislation and agencies, and their employees, for purposes of accessing movement records under the Migration Act 1958. This means that certain authorised personnel can access movement records to facilitate the administration of specified legislation, thereby preventing fraud against the Commonwealth.
Under the Migration Act 1958, section 488(1) prohibits the unauthorised reading, examination, reproduction, use, or disclosure of movement records. However, section 488(2) allows the Minister to grant authority to officers or prescribed employees to perform these actions for the purposes of specified legislation, as outlined in Regulation 3.10A. This authorisation ensures that access to sensitive information is tightly controlled and only granted when necessary for the administration of prescribed laws.
The obligations imposed by the Act and the Regulations are clear: only those who are specifically authorised by the Minister can access movement records. This authorisation must be given in accordance with the prescribed legislation and purposes as specified in a Gazette Notice. The Act requires that such access be strictly limited to the purposes for which it is authorised, ensuring that the sensitive nature of movement records is respected and that their use is limited to appropriate and necessary circumstances.
Failure to comply with the provisions of the Act and the Regulations can lead to serious consequences. The unauthorised access, reading, examination, reproduction, use, or disclosure of movement records is an offence under section 488(1) of the Act. The penalties for such breaches can be severe, including substantial fines and imprisonment, reflecting the importance of protecting the integrity of movement records and preventing misuse of sensitive information. The exact penalties can vary depending on the nature and severity of the breach, but they underscore the legal seriousness of non-compliance with these provisions.