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1998 – 1999
– 2000 – 2001
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
MIGRATION LEGISLATION AMENDMENT
BILL (NO. 5) 2001
EXPLANATORY
MEMORANDUM
(Circulated by
authority of the
Minister for Immigration and Multicultural Affairs,
The
Hon. Philip Ruddock MP)
MIGRATION LEGISLATION AMENDMENT BILL (NO. 5) 2001
1. The Migration Legislation Amendment Bill (No. 5) 2001 (“the
Bill”) amends the Migration Act 1958 (“the Act”) to
ensure that private sector organisations can continue to disclose, to officers
exercising powers and functions under the Act, information concerning a
person’s travel, or proposed travel, to or from Australia.
2. Airlines provide personal information regarding incoming passengers to
officers of the Department of Immigration and Multicultural Affairs and other
persons performing functions under the Act. The provision of this information
facilitates immigration clearance, and a failure to receive the information may
cause considerable processing delays at airport primary lines. Passenger
information is also received from shipping companies and masters of sea vessels,
to facilitate immigration clearance at sea ports.
3. Airlines and
shipping companies, as well as some travel agents, will be bound by the
Privacy Act 1988 (“the Privacy Act”) on commencement of the
Privacy Amendment (Private Sector) Act 2000 on 21 December 2001. The
purpose of these amendments is to ensure that such organisations can continue to
provide information relating to travel to and from Australia, without being in
breach of the Privacy Act.
4. Private sector organisations bound by the
Privacy Act will be required to implement the National Privacy Principles
(NPPs). NPP 2 sets out the principles that apply to use and disclosure of
personal information. It restricts the disclosure of personal information for
other (secondary) purposes to the limited circumstances set out in that
principle. One circumstance is where the use or disclosure is required or
authorised by or under law.
5. Section 488B will expressly authorise the
disclosure of information about any matter relating to travel to or from
Australia. This will ensure that disclosure of such information by an
organisation to which the Privacy Act applies will be authorised by law and so
will not breach NPP2.
6. The disclosure must be done for a purpose likely
to facilitate the administration or enforcement of the Act or the regulations.
Disclosure may be made by an airline operator, a shipping operator, a travel
agent or a prescribed organisation.
7. The provision authorises
disclosure of personal information regarding a person’s past, current or
proposed travel on the way (directly or indirectly) to the migration zone, or
travel which involves the departure of any person from the migration zone.
FINANCIAL IMPACT STATEMENT
8. This amendment will have no
financial impact.
MIGRATION LEGISLATION AMENDMENT BILL (NO. 5) 2001
NOTES
ON INDIVIDUAL CLAUSES
Clause 1 Short
title
1. The short title by which this Act may be cited is the
Migration Legislation Amendment Act (No. 5) 2001.
Clause
2 Commencement
2. Clause 2 provides that this Act commences on
21 December 2001, immediately after the commencement of Schedule 1 to the
Privacy Amendment (Private Sector) Act 2000.
Clause 3 Schedule(s)
3. This clause provides that each Act
specified in a Schedule to this Act is amended or repealed as set out in the
applicable items in the Schedule concerned. In addition, any other item in a
Schedule to this Act has effect according to its terms.
SCHEDULE 1 – Amendment of the Migration Act 1958
Item 1 After section 488A
4. This item inserts section
488B.
5. Subsection 488B(1) authorises the disclosure, to an officer, of
information about any matter relating to a person’s past, current or
proposed travel on the way (directly or indirectly) to the migration zone, or
relating to past, current or proposed travel involving the departure of any
person from the migration zone.
6. The provision authorises disclosure of such information by an airline operator, a shipping operator, a travel agent or a prescribed organisation. This will, for example, enable airline companies, acting through their employees, to continue to provide advance passenger processing information, without being in breach of the Privacy Act. The provision is not intended to affect or restrict the disclosure of information by organisations or persons not subject to that Act.
7. The disclosure must be for a purpose that is likely to facilitate the
administration or enforcement of the Act or regulations.
8. Subsection
488B(2) provides that section 488B does not:
• require anyone to
disclose information; or
• affect a requirement in the Act or
regulations for a person to disclose information.
9. Subsection 488B(3)
sets out definitions for the section.
10. It provides that
“officer” includes a clearance officer within the meaning of section
165 of the Act. That section defines clearance officer as an officer, or other
person, authorised by the Minister to perform duties for the purposes of
Division 5 of Part 2 of the Act, which deals with immigration
clearance.
11. The expression “officer”, as used in section
488B, will also include an “officer” as defined in subsection 5(1)
of the Act. That definition includes officers of the Department of Immigration
and Multicultural Affairs, customs officers, Australian Protective Service
officers, Australian Federal Police officers, State and Territory police
officers, and other persons authorised by the Minister to be officers for the
purposes of the Act.
12. Subsection 488(3) also defines
“organisation” to have the same meaning as in the Privacy Act, and
"travel agent” to include an organisation that is involved in arranging or
facilitating travel.