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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Australian Border Force Amendment
(Protected Information) Bill 2017
No. , 2017
(Immigration and Border Protection)
A Bill for an Act to amend the Australian Border
Force Act 2015, and for related purposes
No. , 2017
Australian Border Force Amendment (Protected Information) Bill 2017
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Part 1--Amendments commencing on 1 July 2015
3
Australian Border Force Act 2015
3
Customs and Other Legislation Amendment (Australian Border
Force) Act 2015
9
Part 2--Amendments commencing on the day after Royal
Assent
10
Australian Border Force Act 2015
10
Part 3--Consequential amendments
11
Petroleum and Other Fuels Reporting Act 2017
11
No. , 2017
Australian Border Force Amendment (Protected Information) Bill 2017
1
A Bill for an Act to amend the Australian Border
1
Force Act 2015, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Australian Border Force Amendment (Protected
5
Information) Act 2017.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Australian Border Force Amendment (Protected Information) Bill 2017
No. , 2017
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1,
Part 1
Immediately after the commencement of the
Australian Border Force Act 2015.
1 July 2015
3. Schedule 1,
Part 2
The day after this Act receives the Royal
Assent.
4. Schedule 1,
Part 3
The later of:
(a) the day after this Act receives the Royal
Assent; and
(b) the day the Petroleum and Other Fuels
Reporting Act 2017 commences.
However, the provisions do not commence
at all if the event mentioned in paragraph (b)
does not occur.
1
Note:
This table relates only to the provisions of this Act as originally
2
enacted. It will not be amended to deal with any later amendments of
3
this Act.
4
(2) Any information in column 3 of the table is not part of this Act.
5
Information may be inserted in this column, or information in it
6
may be edited, in any published version of this Act.
7
3 Schedules
8
Legislation that is specified in a Schedule to this Act is amended or
9
repealed as set out in the applicable items in the Schedule
10
concerned, and any other item in a Schedule to this Act has effect
11
according to its terms.
12
Amendments Schedule 1
Amendments commencing on 1 July 2015 Part 1
No. , 2017
Australian Border Force Amendment (Protected Information) Bill 2017
3
Schedule 1--Amendments
1
Part 1--Amendments commencing on 1 July 2015
2
Australian Border Force Act 2015
3
1 Subsection 4(1)
4
Insert:
5
duty of confidence means any duty or obligation arising under the
6
common law or at equity pursuant to which a person is obliged not
7
to disclose information.
8
Immigration and Border Protection information means
9
information of any of the following kinds that was obtained by a
10
person in the person's capacity as an entrusted person:
11
(a) information the disclosure of which would or could
12
reasonably be expected to prejudice the security, defence or
13
international relations of Australia;
14
(b) information the disclosure of which would or could
15
reasonably be expected to prejudice the prevention, detection
16
or investigation of, or the conduct of proceedings relating to,
17
an offence or a contravention of a civil penalty provision;
18
(c) information the disclosure of which would or could
19
reasonably be expected to prejudice the protection of public
20
health, or endanger the life or safety of an individual or group
21
of individuals;
22
(d) information the disclosure of which would or could
23
reasonably be expected to found an action by a person (other
24
than the Commonwealth) for breach of a duty of confidence;
25
(e) information the disclosure of which would or could
26
reasonably be expected to cause competitive detriment to a
27
person;
28
(f) information of a kind prescribed in an instrument under
29
subsection (7).
30
Note:
See also subsections (4) to (7).
31
intelligence agency means:
32
(a) the Australian Geospatial-Intelligence Organisation; or
33
Schedule 1 Amendments
Part 1 Amendments commencing on 1 July 2015
4
Australian Border Force Amendment (Protected Information) Bill 2017
No. , 2017
(b) the Australian Secret Intelligence Service; or
1
(c) the Australian Security Intelligence Organisation; or
2
(d) the Australian Signals Directorate; or
3
(e) the Defence Intelligence Organisation; or
4
(f) the Office of National Assessments; or
5
(g) a government body or authority responsible for intelligence
6
gathering for, or the security of, a foreign country.
7
2 Subsection 4(1) (definition of protected information)
8
Repeal the definition.
9
3 Subsection 4(4) (heading)
10
Repeal the heading, substitute:
11
Immigration and Border Protection information
12
4 Subsection 4(4)
13
Omit "protected information", substitute "Immigration and Border
14
Protection information".
15
5 At the end of section 4
16
Add:
17
(5) Without limiting the definition of Immigration and Border
18
Protection information in subsection (1), the following kinds of
19
information are taken to be information the disclosure of which
20
would or could reasonably be expected to prejudice the security,
21
defence or international relations of Australia:
22
(a) information that has a security classification;
23
(b) information that has originated with, or been received from,
24
an intelligence agency.
25
(6) Without limiting the definition of Immigration and Border
26
Protection information in subsection (1), information that was
27
provided to the Commonwealth pursuant to a statutory obligation
28
or otherwise by compulsion of law is taken to be information the
29
disclosure of which would or could reasonably be expected to
30
found an action by a person (other than the Commonwealth) for
31
breach of a duty of confidence.
32
Amendments Schedule 1
Amendments commencing on 1 July 2015 Part 1
No. , 2017
Australian Border Force Amendment (Protected Information) Bill 2017
5
(7) The Secretary may, by legislative instrument, prescribe a kind of
1
information for the purposes of paragraph (f) of the definition of
2
Immigration and Border Protection information in subsection (1)
3
if the Secretary is satisfied that disclosure of the information would
4
or could reasonably be expected to:
5
(a) prejudice the effective working of the Department; or
6
(b) otherwise harm the public interest.
7
6 Section 41
8
Omit "protected information", substitute "Immigration and Border
9
Protection information".
10
7 Paragraph 42(1)(c)
11
Omit "protected information", substitute "Immigration and Border
12
Protection information".
13
8 After subsection 42(1)
14
Insert:
15
(1A) If the information is Immigration and Border Protection
16
information because of the operation of subsection 4(5) or (6), the
17
fault element of recklessness for paragraph (1)(c) of this section is
18
taken to be satisfied if the person is reckless as to whether or not
19
whichever of the following applies:
20
(a) the information has a security classification;
21
(b) the information originated with, or was received from, an
22
intelligence agency;
23
(c) the information was provided to the Commonwealth pursuant
24
to a statutory obligation or otherwise by compulsion of law.
25
Note:
Recklessness is the fault element for paragraph (1)(c)--see section 5.6
26
of the Criminal Code.
27
9 Section 43
28
Omit "protected information", substitute "Immigration and Border
29
Protection information".
30
10 Subsection 44(1) (heading)
31
Repeal the heading, substitute:
32
Schedule 1 Amendments
Part 1 Amendments commencing on 1 July 2015
6
Australian Border Force Amendment (Protected Information) Bill 2017
No. , 2017
Immigration and Border Protection information that is not
1
personal information
2
11 Subsection 44(1)
3
Omit "protected information, or a class of protected information,",
4
substitute "Immigration and Border Protection information".
5
12 Subsection 44(2) (heading)
6
Repeal the heading, substitute:
7
Immigration and Border Protection information that is personal
8
information
9
13 Subsection 44(2)
10
Omit "protected information, or a class of protected information,",
11
substitute "Immigration and Border Protection information".
12
14 Paragraphs 44(6)(a) and (b)
13
Omit "protected information", substitute "Immigration and Border
14
Protection information".
15
15 Subsection 45(1) (heading)
16
Repeal the heading, substitute:
17
Immigration and Border Protection information that is not
18
personal information
19
16 Subsection 45(1)
20
Omit "protected information, or a class of protected information,",
21
substitute "Immigration and Border Protection information".
22
17 Subsection 45(2) (heading)
23
Repeal the heading, substitute:
24
Amendments Schedule 1
Amendments commencing on 1 July 2015 Part 1
No. , 2017
Australian Border Force Amendment (Protected Information) Bill 2017
7
Immigration and Border Protection information that is personal
1
information
2
18 Subsection 45(2)
3
Omit "protected information, or a class of protected information,",
4
substitute "Immigration and Border Protection information".
5
19 Subsection 45(5)
6
Omit "protected information", substitute "Immigration and Border
7
Protection information".
8
20 Sections 47, 48 and 49
9
Omit "protected information", substitute "Immigration and Border
10
Protection information".
11
21 After section 50
12
Insert:
13
50A Information must be certified as appropriately classified before
14
proceedings can be initiated
15
If, an offence against section 42 relates to information that has a
16
security classification, proceedings for the offence must not be
17
initiated unless the Secretary has certified that it is appropriate that
18
the information had a security classification at the time of the
19
conduct that is alleged to constitute the offence.
20
22 Paragraphs 51(a) and (b)
21
Omit "protected information" (wherever occurring), substitute
22
"Immigration and Border Protection information".
23
23 After section 57
24
Insert:
25
57A Act not to apply so as to exceed Commonwealth power
26
(1) If a provision of this Act, or of an instrument made under this Act:
27
(a) would, apart from this section, have an application (an
28
invalid application) in relation to:
29
Schedule 1 Amendments
Part 1 Amendments commencing on 1 July 2015
8
Australian Border Force Amendment (Protected Information) Bill 2017
No. , 2017
(i) one or more particular persons, things, matters, places,
1
circumstances or cases; or
2
(ii) one or more classes (however defined or determined) of
3
persons, things, matters, places, circumstances or cases;
4
because of which the provision exceeds the Commonwealth's
5
legislative power; but
6
(b) also has at least one application (a valid application) in
7
relation to:
8
(i) one or more particular persons, things, matters, places,
9
circumstances or cases; or
10
(ii) one or more classes (however defined or determined) of
11
persons, things, matters, places, circumstances or cases;
12
that, if it were the provision's only application, would be
13
within the Commonwealth's legislative power;
14
it is the Parliament's intention that the provision is not to have the
15
invalid application, but is to have every valid application.
16
(2) This section applies to a provision of this Act, or of an instrument
17
made under this Act, whether the provision is enacted or made
18
before, on or after the commencement of this section.
19
24 Application
--Immigration and Border Protection
20
information
21
To avoid doubt, if:
22
(a) before the day this Act receives the Royal Assent a person
23
did an act, or omitted to do an act; and
24
(b) at the time of the act or omission, the act or omission did not
25
make the person liable to a penalty under Part 6 of the
26
Australian Border Force Act 2015;
27
then, despite the amendments of that Act made by this Schedule, the
28
person is not liable to a penalty for the act or omission.
29
25 Savings
--interaction with Privacy Act
30
(1)
This item applies in relation to the making of a record, or a disclosure,
31
of protected information if the record or disclosure was made:
32
(a) on or after 1 July 2015; and
33
(b) before the day this Act receives the Royal Assent.
34
Amendments Schedule 1
Amendments commencing on 1 July 2015 Part 1
No. , 2017
Australian Border Force Amendment (Protected Information) Bill 2017
9
(2)
Despite the amendments made by this Part, section 51 of the Australian
1
Border Force Act 2015, as in force immediately before the day this Act
2
receives the Royal Assent, continues to apply in relation to the making
3
of the record or the disclosure, as if those amendments had not been
4
made.
5
Customs and Other Legislation Amendment (Australian
6
Border Force) Act 2015
7
26 Subitem 5(3) of Schedule 9
8
Repeal the subitem.
9
Schedule 1 Amendments
Part 2 Amendments commencing on the day after Royal Assent
10
Australian Border Force Amendment (Protected Information) Bill 2017
No. , 2017
Part 2--Amendments commencing on the day after
1
Royal Assent
2
Australian Border Force Act 2015
3
27 Paragraph 44(2)(c)
4
Omit "condition; and", substitute "condition.".
5
28 Paragraph 44(2)(d)
6
Repeal the paragraph.
7
29 Paragraph 45(2)(c)
8
Omit "law; and", substitute "law.".
9
30 Paragraph 45(2)(d)
10
Repeal the paragraph.
11
31 After paragraph 46(n)
12
Insert:
13
(na) a purpose relating to the inter-country adoption of a child;
14
(nb) a purpose relating to the protection of national security or the
15
defence of Australia;
16
(nc) a purpose relating to locating a missing person;
17
Amendments Schedule 1
Consequential amendments Part 3
No. , 2017
Australian Border Force Amendment (Protected Information) Bill 2017
11
Part 3--Consequential amendments
1
Petroleum and Other Fuels Reporting Act 2017
2
32 Subsection 31(1)
3
Omit "protected information", substitute "Immigration and Border
4
Protection information".
5