EXPLANATORY STATEMENT
Migration Regulations 1994
ACCESS TO MOVEMENT RECORDS
(REGULATION 3.10A)
- This Instrument is made under regulation 3.10A of the Migration Regulations 1994 (‘the Regulations’).
- 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.
- 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.
- 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).
- 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.
- 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. In particular this instrument includes the Department of Human Services, New South Wales as a specified agency and the Guardianship of Children legislation as specified legislation.
7. 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.
8. Pursuant to section 17 of the Legislative Instruments Act 2003 (Cth) consultation occurred with the Department of Human Services, New South Wales.
9. The Instrument, IMMI 10/005, commences on 27 March 2010.
Overview
The Explanatory Statement outlines a legislative instrument made under the Migration Regulations 1994, specifically addressing Regulation 3.10A. This instrument aims to amend the Migration Act 1958 by allowing authorised officers or employees of prescribed Commonwealth, State or Territory agencies to access movement records for specified purposes, facilitating the administration of certain prescribed legislation and reducing fraud against the Commonwealth. The Minister has specified the Department of Human Services, New South Wales as an agency and the Guardianship of Children legislation as relevant legislation in this context. This initiative was introduced to ensure that access to movement records is controlled and responsive to the needs of the administration of the specified legislation. The instrument, IMMI 10/005, commenced on 27 March 2010, following consultation with the relevant department as required under the Legislative Instruments Act 2003 (Cth).
Scope and Application
The explanatory statement pertains to an instrument made under regulation 3.10A of the Migration Regulations 1994, which is designed to facilitate the administration of certain prescribed Commonwealth, State or Territory legislation and to minimise fraud against the Commonwealth. This regulation operates under subsection 488(1) of the Migration Act 1958, which prohibits the reading, examination, reproduction, use, or disclosure of movement records unless authorised by the Minister. The instrument allows the Minister to authorise officers or prescribed employees of specified agencies, such as the Department of Human Services in New South Wales, to perform these actions for specified purposes as outlined in prescribed legislation, such as the Guardianship of Children legislation. The instrument, IMMI 10/005, commenced on 27 March 2010, and was developed after consultation with the relevant departments as required by the Legislative Instruments Act 2003 (Cth).
Key Provisions
The Migration Regulations 1994 (Regulation 3.10A) provide the framework for the use of movement records by specified agencies for prescribed purposes. Under subregulation 3.10A(1), the Minister can specify Commonwealth, State or Territory legislation through a Gazette Notice, enabling authorised officers to access movement records as required by this legislation. Subregulation 3.10A(2) specifies that employees of prescribed agencies, including those from the Commonwealth, States or Territories, can access movement records for purposes also outlined by the Minister in a Gazette Notice.
These regulations impose clear obligations on the specified agencies and their employees. The agencies must ensure that their employees who access movement records are appropriately authorised and that the records are used solely for the prescribed purposes outlined in the Gazette Notice. They must also maintain strict confidentiality and compliance with any conditions set by the Minister to protect the integrity of the movement records and prevent misuse.
Violations of these provisions can lead to significant consequences. Under subsection 488(1) of the Migration Act 1958, unauthorised access, reading, examination, reproduction, use or disclosure of movement records is strictly prohibited. Authorised officers who fail to adhere to the specified conditions or misuse their access can face penalties. While the specific penalties are not detailed in the provided text, unauthorised actions under the Act can typically result in both civil and criminal penalties, reflecting the sensitive nature of movement records and the need for stringent controls to prevent fraud and misuse.