Bills Digest no. 155 2008–09
Migration Amendment (Protection of Identifying
Information) Bill 2009
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
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Date
introduced: 27 May 2009
House: House of Representatives
Portfolio: Immigration and
Citizenship
Commencement:
On Proclamation or 6
months after Royal Assent, which ever is the
earlier.
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The Bill s main purpose is to
amend the Migration Act 1958 to ensure that all personal
identity information obtained by the Department of Immigration and
Citizenship (the Department) is subject to the access, use and
disclosure regime in Part 4A of the Act.
The amendments in the Bill are related to the enactment of the
Migration Legislation Amendment (Identification and
Authentication) Act 2004 (the 2004 Act). The operative
provisions of that Act amended the Migration Act and came into
force in August 2004. The 2004 Act was significant for providing
for the collection of biometric data by immigration officials. In
particular, the Act strengthened the powers of government officials
to collect personal identifiers (signatures, photographs, height
and weight measurements, fingerprints, iris scans, audio or video
recordings etc) under the Migration Act in respect of non-citizens
in certain situations. These situations might include routine
circumstances such as when a person is applying for an Australian
visa or going through immigration clearance or circumstances when
the person is suspected of being an unlawful non-citizen. The
amended Migration Act in Part 4A contained various restrictions on
accessing and disclosing such personal identifiers except where
expressly permitted. Contravention of these restrictions
constituted criminal offences carrying significant penalties,
including up to two years imprisonment.
The Migration Legislation Amendment (Information and Other
Measures) Act 2007 (the 2007 Act) made further amendments in
this new regime in order to broaden the circumstances in which
certain personal identifying information may be lawfully accessed
or disclosed. Of specific relevance to this Bill, the 2007 Act
amended two definitions in Part 4A, specifically the terms disclose
and identifying information , the effect being to narrow the range
of circumstances where disclosure of personal identifiers may be an
offence.
The Minister s second reading speech to the Bill states that
since 2007 it has come to the Department s attention that these
2007 amendments are more limited than the original policy intention
and that legal advice suggests that some personal identifiers
collected by the Department are not protected by the Part 4A
access, use and disclosure regime. These include personal
identifiers collected from:
- other agencies (both domestic and international)
- unsolicited external sources, and
- law enforcement agencies (often shared with the department as
part of an investigation).[1]
The Explanatory Memorandum further comments:
As there are criminal penalties associated with
the unauthorised disclosure, modification, impairment or failure to
destroy identifying information as soon as required in Part 4A of
the Act, rectification of the definition [ie identifying
information ] is required as soon as possible.[2]
The Bill effectively removes the 2007 amendments made to the
terms disclose and identifying information its effect being to
subject all personal identifiers collected by the Department for
immigration purposes to the same statutory regime in Part 4A of the
Act.
As an aside, it is of note that the Department, like all
Commonwealth agencies, must also comply with the Information
Privacy Principles contained in the Privacy Act 1988 when
dealing with personal information. However, in contrast to Part 4A
of the Migration Act, under the Privacy Act, there are no criminal
offences for contravention of those privacy principles.
The amendments in the Bill
will have no financial impact.[3]
Part 4A of the Migration Act sets out the
obligations relating to access and disclosure of personal
identifier information under the Act. Central to the access and
disclosure regime is the definition of identifying information
contained in section 336A. Amongst other things identifying
information means any personal identifier provided under sections
40, 46, 166, 170, 175, 188, 192 or 261AA of the Act.[4] The effect of the
existing definition of identifying information is that the offence
provisions in Part 4A only apply where the identifying information
was a personal identifier provided under the specific provisions
listed above.
A personal identifier is defined in section 5A of the Act to
include fingerprints or handprints, measurements of a person s
height and weight, a photograph or other image of a person s face
and shoulders, an audio or video record of a person s face, an iris
scan, a person s signature or certain other identifiers prescribed
by the regulations. The purposes for collecting personal
identifiers are set out in subsection 5A(3) and range from the very
specific to detect forum shopping by applicants for visas, to the
more general. For example:
- to assist in the identification, in the present or future, of
any non-citizen required to provide identifying information
- to improve the procedures for determining visa applications,
and
- to enhance the Department s ability to identify non-citizens
who have a criminal history, who are of character concern or who
are of national security concern.
Item 2 amends the definition of identifying
information in section 336A as described above. It deletes from
paragraph (a) provided under section 40, 46, 166, 170, 175, 188,
192 or 261AA and substitutes obtained by the Department for one or
more of the purposes referred to in subsection 5A(3) .
The effect of item 2 is to expand the
definition of identifying information to include any personal
identifier obtained by the Department for immigration purposes.
Item 1 proposes a similar and related
amendment. It would amend the definition of disclose in section
336A removing references to sections 40, 46, 166, 170, 175, 188,
192 or 261AA of the Migration Act and linking the definition of
disclose to the definition of identifying information . The effect
is to make the terms disclose and identifying information
consistent for the purposes of Part 4A.
The combined effect of items 1 and 2 is to broaden the range of
circumstances where disclosure of personal identifiers may be an
offence so that all personal identifiers collected by the
Department for immigration purposes are subject to the same
statutory regime in Part 4A of the Act.
Items 3 to 5 propose
amendments to sections 336FA and 336FB. These sections authorise
disclosure of certain personal identifiers for the purpose of
obtaining an individual s help to identify, authenticate the
identity of, or locate, a subject. Disclosure is subject to certain
conditions and limitations.[5] The amendments in items 3 and
5 would provide a further condition, namely that,
for a disclosure of information to be authorised for these
purposes, the information must only be disclosed to the extent
necessary in order to obtain an individual s help.
Concluding comments
The Bill is short but not insignificant. Its main provisions
reverse a drafting change made in 2007 that effectively placed some
personal identity information obtained by the Department outside
the Part 4A obligations regarding the use and disclosure of
personal identifiers.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277
2438.
Mary Anne Neilsen
2 June 2009
Bills Digest Service
Parliamentary Library
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