Migration Regulations 1994 - Specification of Access to Movement Records - IMMI 14/011

Administered by Department of Home Affairs

Legislation au F2014L00451 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

         Migration Regulations 1994

 

ACCESS TO MOVEMENT RECORDS

(Regulation 3.10A)

 

 

  1. This Instrument is made under regulation 3.10A of the Migration Regulations 1994 (‘the Regulations’).

 

2.                   The purpose of the Instrument is to facilitate the administration of prescribed legislation and minimise fraud against the Commonwealth by enabling authorised access to movement records.

 

3.                   The Instrument operates to allow the use of information relating to movement records by external agencies in order to administer a variety of legislation. The Instrument will allow prescribed employees of prescribed Commonwealth, State or Territory agencies to read, examine, reproduce, use or disclose movement records for prescribed purposes.

 

4.                   The instrument has been updated to amend certain Agency names, descriptions of roles and descriptions of purposes in Schedule B to the Instrument so that those descriptions better reflect the way the Instrument is utilised.

 

5.                   Consultation was undertaken before the instrument was made with the following stakeholder agencies:

(a)   RevenueSA

(b)   Department of Treasury and Finance

(c)   The State Revenue Office

(d)   Victoria Department of Treasury and Finance

(e)   Australian Human Rights Commission

(f)    Western Australia Police

(g)   Department of Defence

(h)   Australian Secret Intelligence Service

(i)     Australian Taxation Office

(j)     Department of Human Services

 

6.                   Under section 42 of the Legislative Instruments Act 2003 the Instrument is subject to disallowance and therefore a Human Rights Statement of Compatibility has been provided.

 

7.                   The Office of Best Practice Regulation has advised that a Regulatory Impact Statement is not required (OBPR Reference 2014/16641).

 

8.                   The Instrument, IMMI 14/011, commences on 9 May 2014.


Statement of Compatibility with Human Rights

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

 

 

Commonwealth of Australia, Migration Regulations 1994, ACCESS TO MOVEMENT
RECORDS (REGULATION 3.10A) No. 14/011

 

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

This Instrument of Authorisation prescribes the legislation, agencies, employees and purposes for which movement records information contained in the Movements Reconstruction database will be shared for the purpose of Regulation 3.10A of the Migration Regulations 1994 – Access to movement records, which 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 of 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 1 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 of 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 1 or more of those actions for a prescribed purpose.”

This legislative instrument updates the information contained in the existing Regulation 3.10A Instrument (IMMI 13/107) signed on 31 October 2013. 

Human rights implications

This Legislative Instrument engages the prohibition against 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 extent to which an individual is entitled to a right to privacy in Australia is governed by 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. It is intended that the proposed dissemination of the Movements Reconstruction database will be executed in accordance with the Privacy Act.  Article 17(2) affords the right to legal protection against the aforesaid ‘arbitrary or unlawful attacks’.

 

The possible imposition on privacy through the sharing of movement records information has lawful authority and is necessary to meet the policy objectives of Regulation 3.10A.

The policy objective of Regulation 3.10A is to provide for the Minister to stipulate relevant legislation under which movement records may be disclosed and used.  Such prescription regarding when movement records may be disclosed strives to ensure that individuals are protected from arbitrary or unlawful interference with their privacy (that is, through the arbitrary disclosure of movement record information).  Therefore, the proposed amendments are consistent with Australia’s obligations under Articles 17(1) and 17(2) of the ICCPR.

Conclusion

This legislative instrument engages the right to privacy as articulated in Article 17 of the ICCPR and is compatible with the relevant human rights obligations for the reasons outlined above.

 

 

 

The Hon. Scott Morrison, MP

Minister for Immigration and Border Protection

 

 

Overview

The Migration Regulations 1994, updated via Legislative Instrument F2014L00451, were enacted to address the need for authorised access to movement records while preventing fraud against the Commonwealth. This legislative instrument, crafted under regulation 3.10A of the Migration Regulations, allows specific employees of prescribed Commonwealth, state, or territory agencies to access, read, examine, reproduce, use, or disclose movement records for prescribed purposes. The objective is to facilitate the administration of relevant legislation and ensure compliance with legal requirements. Enacted by the Minister for Immigration and Border Protection, this regulation aims to balance the need for authorised access to movement records with the protection of individual privacy rights, as stipulated in the Privacy Act 1988 and in accordance with Australia’s obligations under the International Covenant on Civil and Political Rights. The legislative instrument was subject to consultation with various stakeholder agencies and is compatible with human rights as confirmed in the Statement of Compatibility.

Scope and Application

The Migration Regulations 1994 (Regulation 3.10A) provide a framework for the access to movement records to facilitate the administration of prescribed legislation and to minimise fraud against the Commonwealth. This regulation allows authorised personnel from prescribed Commonwealth, State, or Territory agencies to access, read, examine, reproduce, use, or disclose movement records for specified purposes. These prescribed purposes include the administration of various laws and policies, ensuring that the movement records are used for legitimate and authorised activities. The instrument has been updated to refine the descriptions of agencies, roles, and purposes to better reflect current practices and needs. It is important to note that this regulation operates within the boundaries of the Privacy Act 1988, which safeguards personal information and ensures that any access to movement records does not constitute arbitrary or unlawful interference with privacy. This legislative instrument is subject to disallowance and a Human Rights Statement of Compatibility has been provided, affirming its alignment with Australia's obligations under the International Covenant on Civil and Political Rights.

Key Provisions

The Migration Regulations 1994 (Regulation 3.10A) provide the framework for the sharing of movement records information with authorised external agencies to prevent fraud and facilitate the administration of relevant legislation. Under section 3.10A(1) of the Regulations, the Minister is empowered to specify Commonwealth, State, or Territory legislation that allows for the reading, examination, reproduction, use, or disclosure of movement records. This authorisation overrides the general prohibition under section 488(1) of the Act, which restricts such actions unless permitted by specific legislative provisions. Section 3.10A(2) goes further by allowing the Minister to designate specific agencies and their employees who are permitted to access and use movement records for specified purposes. The Regulations impose obligations on the parties and entities they govern. They require that any access to movement records by authorised employees of prescribed agencies must be strictly for the purposes outlined in the Regulations. This means that such employees are bound by the specified purposes and cannot use the information for any other reason. Furthermore, these agencies must ensure that the handling of movement records complies with the Privacy Act 1988, which regulates the collection, use, disclosure, and storage of personal information. The Regulations mandate that any access and use of movement records should be executed in a manner that respects privacy rights and adheres to the Australian Privacy Principles. Any breaches of these Regulations can result in both civil and criminal consequences. Specifically, unauthorised access, examination, reproduction, use, or disclosure of movement records can lead to significant penalties. Under section 488(3) of the Act, an individual who contravenes the specified prohibitions can be fined up to 120 penalty units or imprisoned for up to 12 months, or both. These penalties underscore the seriousness with which the law treats violations related to the misuse of movement records. Additionally, agencies that fail to comply with the Privacy Act while handling such records may face further penalties as stipulated under the Privacy Act itself.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.