Bills Digest No. 57 2001-02
Migration Legislation Amendment Bill (No. 5) 2001
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Migration Legislation Amendment Bill
(No. 5) 2001
Date Introduced: 23 August 2001
House: House of Representatives
Portfolio: Immigration and Multicultural Affairs
Commencement: 21 December 2001
To amend the
Migration Act 1958 to permit private sector organisations
to provide information to the Department of Immigration and
Multicultural Affairs, avoiding the recent restrictions imposed by
the Privacy Amendment (Private Sector) Act 2000.
The Privacy Amendment (Private Sector) Act
2000 sought to establish a national privacy scheme for the
private sector in Australia.(1) An act by a private
sector 'organisation' will breach privacy if it breaches an
approved privacy code that is binding on the organisation or, if
the organisation is not bound by a code, a National Privacy
Principle (NPP). NPP 2 relates to the use and disclosure of
personal information. Generally, information may only be used or
disclosed in accordance with the primary purpose for which it was
collected. However, use and disclosure is permissible for a
secondary purpose including:
-
- where the secondary purpose is related to the primary purpose
and the individual would reasonably expect it to be used for that
secondary purpose(2)
-
- where the individual has expressly or implicitly consented to
the use or disclosure(3)
-
- where the use or disclosure is required or authorised
by or under law, and(4)
-
- where the organisation reasonably believes the use or
disclosure is reasonably necessary for a range of activities
carried out by an enforcement body.(5)
The Migration Legislation Amendment Bill (No. 5)
2001 seeks to authorise the disclosure of information relating to
travel to and from the 'migration zone' for migration control
purposes by certain private organisations that provide travel
related services.
Schedule 1 inserts proposed section
488B into the Migration Act 1958 (the Act).
Proposed section
448B provides that certain private sector
organisations may disclose travel information to an
'officer' under the Act 'for any purpose that is likely to
facilitate the administration or enforcement' of the Act or
Regulations. The information covered by this provision is
'any information relating to travel that has been, is
being or is proposed to be undertaken ... on the way ... to ... or
... that involves the departure from the migration zone'. The
organisations encompassed are airline operators, shipping
operators, travel agents and 'prescribed organisations'. The
provision does not require persons to provide information. Nor does
it detract from other disclosure obligations under the Act.
An 'officer' includes:
-
- an authorised officer of the Department of Immigration and
Multicultural Affairs
-
- a customs officer
-
- a protective services officer, and
-
- an officer of the Australian Federal Police.(6)
Clearly the expression 'likely to facilitate the
administration or enforcement of [the Act]' is designed to limit
the disclosure of personal information by private sector
organisations. Moreover, it is designed to ensure that officers
other than 'authorised officers' only receive travel information
for the purposes of their role under the Migration Act
1958.
However the nature and presence of the
limitation raises two issues:
-
- It is unclear whether the limitation imposes any restrictions
on the officers. While officers may only receive travel information
for the purposes of their role under the Migration Act
1958 it is unclear whether they may use information for
other purposes.
-
- It is unclear whether the limitation imposes a burden on
private organisations. The expression has been used in other
legislation in provisions relating to the transfer of information
between government agencies,(7) issue of ministerial
directions to a government agency,(8) and measures to
assist negotiations between parties.(9) All of these
provisions are addressed to government agencies. Clearly, the
intention is to place a limitation on the disclosure of personal
information by private sector organisations. However, while it may
be reasonable to expect a government agency to form an opinion
about what information is 'likely to facilitate the administration'
of legislation, it may be unreasonable to expect a private
organisation to do the same, particularly when an error in
judgement could constitute a breach of the Privacy Act
1988.
Significantly, information may be disclosed
regarding travel on the way directly or indirectly to the
migration zone. Thus, information may be disclosed relating to
travel to and from destinations prior to the migration zone or
previous legs of a person's travel.
-
- For further background on this Act, see Mary Anne Neilsen,
Privacy Amendment (Private Sector) Act 2000, Bills Digest No.
193 1999-2000.
- Privacy Act 1988, Schedule 3, Sub-item 2.1(a)
- Privacy Act 1988, Schedule 3, Sub-item 2.1(b)
- Privacy Act 1988, Schedule 3, Sub-item 2.1(g).
- Privacy Act 1988, Schedule 3, Sub-item 2.1(h).
- Migration Act 1958, section 5.
- Mandatory transfer of information between agencies regarding
departure prohibition orders: Child Support (Registration and
Collection) Act 1988, section 72G inserted by Schedule 6 of
the Child Support Legislation Amendment Act (No. 2) 2000;
Taxation Administration Act 1953, section 14S, inserted by
section 312 of the Taxation Laws Amendment Act 1984.
Discretionary transfer of information from the Australian
Broadcasting Association to the Classification Board:
Broadcasting Services Act 1992, paragraph 30(5)(c),
inserted by Schedule 1 of the Broadcasting Services Amendment
(Online Services) ACT 1999.
- Federal Airports Corporation Act 1986, section 41(1A),
inserted by Schedule 4 of the Airports (Transitional) Act
1996.
- Trade Practices Act 1974, section 152CT, inserted by
item 62 of the Telecommunications Legislation Amendment Act
1999; subsection 152BBC(3), inserted by item 54 of the
Telecommunications Legislation Amendment Act 1999.
Nathan Hancock
18 September 2001
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
© Commonwealth of Australia 2000
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Published by the Department of the Parliamentary Library,
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