Commonwealth of Australia Explanatory Memoranda

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AUSTRALIAN BORDER FORCE AMENDMENT (PROTECTED INFORMATION) BILL 2017

                                  2016-2017




   THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                     HOUSE OF REPRESENTATIVES




            AUSTRALIAN BORDER FORCE AMENDMENT
              (PROTECTED INFORMATION) BILL 2017




         SUPPLEMENTARY EXPLANATORY MEMORANDUM



           Amendments to be Moved on Behalf of the Government




(Circulated by authority of the Minister for Immigration and Border Protection,
                          the Hon. Peter Dutton MP)
                                               2


Amendments to the Australian Border Force Amendment (Protected Information) Bill
2017

OUTLINE

The Australian Border Force Amendment (Protected Information Bill 2017 (the Bill)
proposes to amend the Australian Border Force Act 2015 (the ABF Act) to amend the
secrecy and disclosure regime set out in Part 6.

In particular, the ABF Bill proposes to repeal the definition of "protected information" in
subsection 4(1) of the ABF Act, which covers any information obtained in a person's
capacity as an entrusted person, and substitute a definition of "Immigration and Border
Protection information", so that only specific kinds of information are covered by the secrecy
and disclosure provisions in Part 6 of the ABF Act. It would be an offence to disclose or
make a record of such information, which is punishable by imprisonment for 2 years.

However, new kinds of information not already covered by the new definition of
"Immigration and Border Protection information" that require protection by the Department
of Immigration and Border Protection (the Department) could be identified in the future.
Such information may require protection more quickly than an amendment to the ABF Act
would permit. Therefore, the ABF Bill includes a new power in subsection 4(7) that would
enable the Secretary of the Department to prescribe additional kinds of information, by
legislative instrument, for the purposes of paragraph (f) of the new definition of "Immigration
and Border Protection information". This would enable a swift response to the need to
protect from disclosure information that is not covered by one of the other kinds of
information set out in this new definition.

The ABF Bill is currently the subject of an inquiry by the Senate Legal and Constitutional
Affairs Legislation Committee. Concerns have been raised in submissions to this inquiry, and
at the public hearing on the Bill, in relation to the Secretary's power to prescribe additional
kinds of information. As this has the potential to widen the application of the offence
provision, concerns have been raised that this power should not be exercised by an unelected
public official.

Therefore, in order to address these concerns, it is proposed to amend proposed new
subsection 4(7) so that this power can only be exercised by the Minister, and not the
Secretary. As the instrument prescribing new kinds of information is a legislative instrument,
it will be subject to scrutiny by both Houses of Parliament and may be subject to
disallowance.

FINANCIAL IMPACT STATEMENT

The amendments have no financial impact.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

A Statement of Compatibility with Human Rights has been completed in relation to the
amendments in this Bill, and the Government amendments to the Bill, and assesses that the
amendments are compatible with Australia's human rights obligations. A copy of the
Statement of Compatibility with Human Rights is at Attachment A.
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AMENDMENTS TO THE AUSTRALIAN BORDER FORCE AMENDMENT
(PROTECTED INFORMATION) BILL 2017


NOTES ON AMENDMENTS

Amendment (1) - Schedule 1, item 5, page 5 (line 1)

1.      This amendment amends proposed subsection 4(7) of Australian Border Act 2015 (the
ABF Act), to be inserted by item 5 of Schedule 1 to the Bill, to delete the reference to the
Secretary and substitute with a reference to the Minister. This will mean that the power to
prescribe additional kinds of information for the purposes of paragraph (f) of the definition of
"Immigration and Border Protection information" will be exercisable by the Minister
administering the ABF Act, and not the Secretary.

Amendment (2) - Schedule 1, item 5, page 5 (line 4)

2. This amendment also amends proposed subsection 4(7) of Australian Border Act 2015
(the ABF Act), to be inserted by item 5 of Schedule 1 to the Bill, to delete the reference to the
Secretary and substitute with a reference to the Minister. This amendment will mean that
before the Minister prescribes additional kinds of information, he or she must be satisfied of
certain matters set out in subsection 4(7). The matters are that the disclosure of the
information would or could reasonably be expected to prejudice the effective working of the
Department, or otherwise harm the public interest.
                                             4                              Attachment A



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

Government Amendments to the Australian Border Force Amendment (Protected
Information) Bill 2017

The Government amendments to the Bill are 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 amendments to the Bill

This Statement of Compatibility with Human Rights relates to the Government amendments
to the Australian Border Force Amendment (Protected Information) Bill 2017 (the Bill) and
should be read together with the Statement of Compatibility with Human Rights prepared for
the Bill.

The amendments to the Bill will amend proposed new subsection 4(7) of the Australian
Border Force Act 2015 to allow the Minister, rather than the Secretary of the Department, to
prescribe, by legislative instrument, additional kinds of information for the purposes of
paragraph (f) of the definition of "Immigration and Border Protection Information", if the
Minister is satisfied that disclosure of the information would or could reasonably be expected
to:

           a) prejudice the effective working if the Department; or
           b) otherwise harm the public interest.

These amendments do not engage any relevant human rights and freedoms in addition to
those already addressed in the statement of compatibility with human rights set out in the
Explanatory Memorandum for the Bill. Therefore, to the extent that the Bill engages human
rights, the limitations are reasonable, necessary and proportionate. Accordingly, these
amendments are compatible with the relevant human rights obligations.


      The Hon. Peter Dutton MP, Minister for Immigration and Border Protection