Migration Regulations 1994 - Specification under regulation 3.10A - Access to Movement Records - June 2009

Overview

The Migration Regulations 1994 were enacted to address the need for a controlled and responsive mechanism to authorise the access to movement records, thereby facilitating the administration of prescribed legislation and minimising fraud against the Commonwealth. This regulation was established under the authority of the Migration Act 1958, with the purpose of enabling access to movement records by prescribed employees of Commonwealth, State, or Territory agencies for specific purposes as outlined in a Gazette Notice. The policy objective is to ensure that the use of movement records information by external agencies is authorised appropriately, thereby enhancing the administration of various legislative frameworks while maintaining stringent controls to prevent misuse. The regulation, numbered IMMI 09/053, commenced on 1 July 2009, following consultations with the relevant agencies as required by section 17 of the Legislative Instruments Act 2003.

Scope and Application

The Instrument made under regulation 3.10A of the Migration Regulations 1994 is designed to facilitate the administration of prescribed Commonwealth, State, or Territory legislation by enabling authorised access to movement records. It applies to specific persons, entities, and purposes as determined by the Minister through a Gazette Notice. The Act applies to officers or employees of prescribed agencies, which can include federal, state, or territory bodies, who need to access movement records for purposes specified in the regulations. The geographic reach of this regulation is national, covering all Commonwealth, State, and Territory jurisdictions within Australia. The regulation aims to minimise fraud against the Commonwealth by ensuring that access to movement records is controlled and authorised appropriately. Notably, the regulation does not specify exclusions or exemptions but allows for flexibility through subordinate instruments, which can be tailored to the specific needs of various agencies and purposes. This allows for a responsive approach to the administration of migration-related matters while maintaining stringent controls on the use of sensitive information.

Key Provisions

The Migration Regulations 1994 (Regulation 3.10A) sets out provisions that specify how movement records can be accessed under certain conditions. Under subregulation 3.10A(1), the Minister can specify through a Gazette Notice Commonwealth, State or Territory legislation that allows for the use of movement records. This means that the Minister has the authority to determine which laws can utilise these records to aid in their administration. Subregulation 3.10A(2) further elaborates by detailing that the Minister can also specify, again through a Gazette Notice, which agencies and employees are permitted to access these records and for what purposes. The Act imposes certain obligations and requirements on the parties it governs. Section 488(1) of the Migration Act 1958 stipulates that no person is allowed to read, examine, reproduce, use, or disclose any part of movement records without the authority provided under section 488(2). This establishes a baseline prohibition on the unauthorised use of movement records. Section 488(2) then allows the Minister to grant specific permissions to officers or prescribed employees of agencies to perform these actions under certain circumstances. This means that while there is a general prohibition, there are specific exceptions when the Minister authorises individuals to handle movement records for prescribed purposes or under prescribed legislation. The legislation also sets out consequences for breaches of its provisions. Any unauthorised access, examination, reproduction, use, or disclosure of movement records, in contravention of section 488(1), can result in legal repercussions. The precise nature of these consequences, including any potential penalties, would be further defined by the specific provisions of the prescribed legislation and the conditions under which the authorisation was given. However, the document does not specify the exact penalties for breaches, so further reference to the primary legislation or relevant case law would be necessary to determine the exact consequences.