MIGRATION AND OMBUDSMAN LEGISLATION AMENDMENT BILL 2005

i Migration and Ombudsman Legislation Amendment Bill 2005 No. , 2005

Contents

Short title ......................................................................................1

Commencement .............................................................................1

Schedule(s)....................................................................................3

Schedule 1--Amendments relating to time limits for processing

protection visas

Migration Act 1958

Schedule 2--Amendments relating to the Commonwealth

Ombudsman

Part 1--Main amendments

Complaints (Australian Federal Police) Act 1981

Ombudsman Act 1976

Part 2--Other amendments

Migration Act 1958

Ombudsman Act 1976

Postal Industry Ombudsman Act 2005

Schedule 3--Amendments relating to identifying information

Migration Act 1958

Schedule 4--Technical amendments relating to legislative

instruments

Migration Act 1958

Migration Legislation Amendment Act (No. 1) 2001

Migration and Ombudsman Legislation Amendment Bill 2005 No. , 2005 1

A Bill for an Act to amend the Ombudsman Act

1976 and the law relating to migration, and for

related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Migration and Ombudsman

Legislation Amendment Act 2005.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Migration and Ombudsman Legislation Amendment Bill 2005 No. , 2005

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day on which this Act receives the

Royal Assent.

2. Schedule 1

The day on which this Act receives the

Royal Assent.

3. Schedule 2,

Part 1

The day on which this Act receives the

Royal Assent.

4. Schedule 2,

item 26

The later of:

(a) the start of the day on which this Act

receives the Royal Assent; and

(b) immediately after the commencement of

item 16 of Schedule 1 to the Postal

Industry Ombudsman Act 2005.

However, if item 16 of Schedule 1 to the

Postal Industry Ombudsman Act 2005 does

not commence at or before the start of the

day on which this Act receives the Royal

Assent, the provision(s) do not commence at

all.

5. Schedule 2,

item 27

The day on which this Act receives the

Royal Assent.

However, if item 16 of Schedule 1 to the

Postal Industry Ombudsman Act 2005

commences at or before the start of the day

on which this Act receives the Royal Assent,

the provision(s) do not commence at all.

Migration and Ombudsman Legislation Amendment Bill 2005 No. , 2005 3

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

6. Schedule 2,

items 28 to 31

The later of:

(a) the start of the day on which this Act

receives the Royal Assent; and

(b) immediately after the commencement of

item 11 of Schedule 1 to the Postal

Industry Ombudsman Act 2005.

However, the provision(s) do not commence

at all if the event mentioned in

paragraph (b) does not occur.

7. Schedule 2,

item 32

Immediately before the commencement of

item 16 of Schedule 1 to the Postal Industry

Ombudsman Act 2005.

However, if item 16 of Schedule 1 to the

Postal Industry Ombudsman Act 2005

commences at or before the start of the day

on which this Act receives the Royal Assent,

the provision(s) do not commence at all.

8. Schedule 3

The day after this Act receives the Royal

Assent.

9. Schedule 4

The day on which this Act receives the

Royal Assent.

Note:

This table relates only to the provisions of this Act as originally

passed by the Parliament and assented to. It will not be expanded to

deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Schedule 1 Amendments relating to time limits for processing protection visas

4 Migration and Ombudsman Legislation Amendment Bill 2005 No. , 2005

Schedule 1--Amendments relating to time

limits for processing protection visas

Migration Act 1958

1 After section 65

Insert:

65A Period within which Minister must make decision on protection

visas

(1) If an application for a protection visa:

(a) was validly made under section 46; or

(b) was remitted by any court or tribunal to the Minister for

reconsideration;

then the Minister must make a decision under section 65 within 90

days starting on:

made or remitted; or

(d) in the circumstances prescribed by the regulations--the day

prescribed by the regulations.

(2) Failure to comply with this section does not affect the validity of a

decision made under section 65 on an application for a protection

visa.

2 At the end of Subdivision AL of Division 3 of Part 2

Add:

91Y Secretary's obligation to report to Minister

Secretary must give periodic reports to Minister

(1) The Secretary must give a report under this section to the Minister

within 45 days after the end of each of the following periods (each

of which is a reporting period):

Amendments relating to time limits for processing protection visas Schedule 1

Migration and Ombudsman Legislation Amendment Bill 2005 No. , 2005 5

(a) the period that started on 1 July 2005 and ends, or ended, on

31 October 2005; and

(b) each subsequent period of 4 months.

Secretary must give additional reports to Minister as required

(2) The Minister may give to the Secretary a notice requiring the

Secretary to give to the Minister a report under this section in

addition to the reports required under subsection (1). The notice

must specify the period to which the report is to relate (also a

reporting period).

(3) The Secretary must give the report under subsection (2) to the

Minister:

(a) within 45 days after the day on which the reporting period

ends; or

(b) within 45 days after the day on which the Minister gives the

notice to the Secretary;

whichever is later.

(4) A notice under subsection (2) is not a legislative instrument.

Information that must be included in report

(5) A report under this section relating to a reporting period must

include information about each application for a protection visa:

(a) that:

(i) an applicant has validly made under section 46; or

(ii) a court or tribunal has remitted to the Minister for

reconsideration; and

(b) for which:

(i) the Minister has made a decision under section 65 during

the reporting period, but has not made the decision

within the decision period; or

(ii) the Minister has not made a decision under section 65

before or during the reporting period, and the decision

period has ended (whether before or during the reporting

period).

(6) The report must also include:

Schedule 1 Amendments relating to time limits for processing protection visas

6 Migration and Ombudsman Legislation Amendment Bill 2005 No. , 2005

(a) the date on which each application was made that:

(i) was validly made under section 46; and

(ii) paragraph (5)(b) applies to; and

(b) the reasons why decisions were not made within the decision

period.

Note:

The reasons mentioned in paragraph (6)(b) may relate to aspects of

processing applications that are beyond the Department's control.

Information that must not be included in the report

(7) A report under this section must not include:

(a) the name of any current or former applicant for a protection

visa; or

(b) any information that may identify such an applicant; or

application for a protection visa made by the applicant

mentioned in paragraph (a); or

(d) any information that may identify that other person.

Information that may be included in the report

(8) The report may include any other information that the Secretary

thinks appropriate.

Reports to be tabled in Parliament

(9) The Minister must cause a copy of a report under this section to be

tabled in each House of the Parliament within 15 sitting days of that

House after the day on which the Minister receives the report from

the Secretary.

Definition

(10) In this section:

decision period for an application for a protection visa means the

period of 90 days starting on:

(a) the day on which the application for the protection visa was

made or remitted as mentioned in subsection (5); or

(b) in the circumstances prescribed by the regulations--the day

prescribed by the regulations.

Amendments relating to time limits for processing protection visas Schedule 1

Migration and Ombudsman Legislation Amendment Bill 2005 No. , 2005 7

3 After section 414

Insert:

414A Period within which Refugee Review Tribunal must review

decision on protection visas

(1) If an application for review of an RRT-reviewable decision:

(a) was validly made under section 412; or

(b) was remitted by any court to the Refugee Review Tribunal for

reconsideration;

then the Refugee Review Tribunal must review the decision under

section 414 and record its decision under section 430 within 90 days

starting on the day on which the Secretary gave the Registrar the

documents that subsection 418(2) requires the Secretary to give to

the Registrar.

(2) Failure to comply with this section does not affect the validity of a

decision made under section 415 on an application for review of an

RRT-reviewable decision.

4 After section 440

Insert:

440A Principal Member's obligation to report to Minister

Principal Member must give periodic reports to Minister

(1) The Principal Member must give a report under this section to the

Minister within 45 days after the end of each of the following

periods (each of which is a reporting period):

(a) the period that started on 1 July 2005 and ends, or ended, on

31 October 2005; and

(b) each subsequent period of 4 months.

Principal Member must give additional reports to Minister as

required

(2) The Minister may give to the Principal Member a notice requiring

the Principal Member to give to the Minister a report under this

section in addition to the reports required under subsection (1). The

Schedule 1 Amendments relating to time limits for processing protection visas

8 Migration and Ombudsman Legislation Amendment Bill 2005 No. , 2005

notice must specify the period to which the report is to relate (also a

reporting period).

(3) The Principal Member must give the report under subsection (2) to

the Minister:

(a) within 45 days after the day on which the reporting period

ends; or

(b) within 45 days after the day on which the Minister gives the

notice to the Principal Member;

whichever is later.

(4) A notice under subsection (2) is not a legislative instrument.

Information that must be included in report

(5) A report under this section relating to a reporting period must

include information about each application for a review of an

RRT-reviewable decision:

(a) that:

(i) an applicant has validly made under section 412; or

(ii) a court has remitted to the Refugee Review Tribunal for

reconsideration; and

(b) for which:

(i) the Refugee Review Tribunal has reviewed the decision

under section 414 and has recorded its decision under

section 430 during the reporting period, but has not done

so within the decision period; or

(ii) the Refugee Review Tribunal has not reviewed the

decision under section 414 and has not recorded its

decision under section 430 before or during the reporting

period, and the decision period has ended (whether before

or during the reporting period).

(6) The report must also include:

(a) the date on which each application was made that:

(i) was validly made under section 412; and

(ii) paragraph (5)(b) applies to; and

(b) the reasons why decisions were not reviewed within the

decision period.

Amendments relating to time limits for processing protection visas Schedule 1

Migration and Ombudsman Legislation Amendment Bill 2005 No. , 2005 9

Note:

The reasons mentioned in paragraph (6)(b) may relate to aspects of

processing applications for review that are beyond the Refugee

Review Tribunal's control.

Information that must not be included in the report

(7) A report under this section must not include:

(a) the name of any current or former applicant for review of an

RRT-reviewable decision; or

(b) any information that may identify such an applicant; or

application for review of an RRT-reviewable decision made

by the applicant mentioned in paragraph (a); or

(d) any information that may identify that other person.

Information that may be included in the report

(8) The report may include any other information that the Principal

Member thinks appropriate.

Reports to be tabled in Parliament

(9) The Minister must cause a copy of a report under this section to be

tabled in each House of the Parliament within 15 sitting days of that

House after the day on which the Minister receives the report from

the Principal Member.

Definition

(10) In this section:

decision period for an application for review of an RRT-reviewable

decision means the period of 90 days starting on the day on which

the Secretary has given to the Registrar the documents required to

be given by subsections 418(2) and 418(3).

5 Application of amendments

(1)

The amendments made by items 1 and 3 of this Schedule apply only to

applications made on or after the commencement of those items.

(2)

The amendments made by items 2 and 4 of this Schedule apply in

relation to:

Amendments relating to the Commonwealth Ombudsman Schedule 2

Main amendments Part 1

Migration and Ombudsman Legislation Amendment Bill 2005 No. , 2005 11

Schedule 2--Amendments relating to the

Commonwealth Ombudsman

Part 1--Main amendments

Complaints (Australian Federal Police) Act 1981

1 Subsection 38(2)

Omit "paragraph 19(1)(a)", substitute "subsection 19(1)".

Ombudsman Act 1976

2 Subsection 3(1)

Insert:

Commonwealth service provider has the meaning given by

section 3BA.

3 After subsection 3(4A)

Insert:

(4B) For the purposes of this Act, if:

(a) a person is not an officer of a Department or prescribed

authority; and

(b) the person is, or is an employee of, a Commonwealth service

provider of the Department or prescribed authority under a

contract; and

exercise of a power or the performance of a function for or on

behalf of the Department or prescribed authority; and

(d) the person does not exercise the power or perform the function

by reason of:

(i) his or her holding, or performing the duties of, an office

established by, or in accordance with the provisions of,

an enactment; or

(ii) his or her being a Judge of a court of, or a magistrate of,

a State or Territory; and

Schedule 2 Amendments relating to the Commonwealth Ombudsman

Part 1 Main amendments

12 Migration and Ombudsman Legislation Amendment Bill 2005 No. , 2005

(e) the regulations do not otherwise provide;

the action is taken to be action taken by the Department or

prescribed authority.

4 Subsection 3(7A)

Omit "under Part II".

5 Subparagraph 3(17)(a)(v)

Repeal the subparagraph, substitute:

(v) subparagraphs 35(3)(b)(i) and (ia);

6 After section 3B

Insert:

3BA Commonwealth service providers

A person is a Commonwealth service provider of a Department or

prescribed authority under a contract (the Commonwealth

contract) if:

(a) both of the following apply:

(i) the person, and the Department or prescribed authority

or the Commonwealth, are parties to the Commonwealth

contract;

(ii) for the purposes of the Commonwealth contract, the

person is responsible for providing goods or services, for

or on behalf of the Department or prescribed authority,

to another person who is not a Department or prescribed

authority or the Commonwealth; or

(b) both of the following apply:

(i) the person, and a person who is (under a previous

application of this section) a Commonwealth service

provider of the Department or prescribed authority under

the Commonwealth contract, are parties to another

contract (the subcontract);

(ii) under the subcontract and for the purposes of the

Commonwealth contract, the person is responsible for

providing goods or services, for or on behalf of the

Department or prescribed authority, to another person

Amendments relating to the Commonwealth Ombudsman Schedule 2

Main amendments Part 1

Migration and Ombudsman Legislation Amendment Bill 2005 No. , 2005 13

who is not a Department or prescribed authority or the

Commonwealth.

7 Subsection 4(2)

Repeal the subsection, substitute:

(2) The functions of the Commonwealth Ombudsman are to investigate

complaints made to him or her under this Act and to perform such

other functions as are conferred on him or her by:

(a) this Act or the regulations; or

(b) another Act or regulations made under another Act; or

enactment.

8 At the end of section 4

Add:

(4) The Commonwealth Ombudsman, in performing his or her

functions in relation to immigration (including immigration

detention), may, if he or she so chooses, be called the Immigration

Ombudsman.

9 After subsection 7A(1)

Insert:

Disclosure of information

(1A) Subsections (1B), (1C), (1D) and (1E) apply if:

(a) the Ombudsman requests the principal officer, or (if

applicable) an officer referred to in the arrangement, to give

information (including an answer to a question) to the

Ombudsman or to produce a document or other record to the

Ombudsman; or

(b) the principal officer, or (if applicable) an officer referred to in

the arrangement, reasonably believes that information or a

document or other record would assist the Ombudsman to

make a determination under subsection (1).

(1B) If the officer:

Schedule 2 Amendments relating to the Commonwealth Ombudsman

Part 1 Main amendments

14 Migration and Ombudsman Legislation Amendment Bill 2005 No. , 2005

(a) gives the information to the Ombudsman or produces the

document or record to the Ombudsman; and

(b) by doing so:

(i) contravenes any other enactment; or

(ii) might tend to incriminate the officer or make the officer

liable to a penalty; or

(iii) discloses a legal advice given to a Minister, a

Department or a prescribed authority; or

(iv) discloses a communication between an officer of a

Department or of a prescribed authority and another

person or body, being a communication protected against

disclosure by legal professional privilege; or

(v) otherwise acts contrary to the public interest;

the information or the production of the document or record is not

admissible in evidence against the officer in proceedings other than

proceedings for an offence against section 137.1, 137.2 or 149.1 of

the Criminal Code that relates to this Act.

(1C) The officer is not liable to any penalty under the provisions of any

other enactment by reason of his or her giving the information to the

Ombudsman or producing the document or record to the

Ombudsman.

(1D) For the purposes of the Privacy Act 1988, the giving of the

information to the Ombudsman or the production of the document

or record to the Ombudsman is taken to be authorised by law.

(1E) Subsection (1B) does not otherwise affect a claim of legal

professional privilege that anyone may make in relation to the

information, document or record.

Note 1: The following heading to subsection 7A(1) is inserted "Ombudsman may make

preliminary inquiries".

Note 2: The following heading to subsection 7A(2) is inserted "Arrangements with

Departments and prescribed authorities".

10 After subsection 8(2)

Insert:

Amendments relating to the Commonwealth Ombudsman Schedule 2

Main amendments Part 1

Migration and Ombudsman Legislation Amendment Bill 2005 No. , 2005 15

Disclosure of information

(2A) Subsections (2B), (2C), (2D) and (2E) apply if:

(a) either:

(i) for the purposes of an investigation under this Act

(whether or not the investigation has been completed),

the Ombudsman requests a person to give information

(including an answer to a question) to the Ombudsman

or to produce a document or other record to the

Ombudsman; or

(ii) a person reasonably believes that information or a

document or other record is relevant to an investigation

under this Act (whether or not the investigation has been

completed); and

(b) any of the following apply:

(i) the person obtained the information, document or record

in the course of the person's duties as the principal

officer of a Department or prescribed authority, and the

person is still the principal officer of the Department or

prescribed authority;

(ii) the person obtained the information, document or record

in the course of the person's duties as the principal

officer of a Department or prescribed authority, the

person is no longer the principal officer of the

Department or prescribed authority, and the principal

officer of the Department or prescribed authority has

authorised the person to give the information to the

Ombudsman or to produce the document or other record

to the Ombudsman;

(iii) the person obtained the information, document or record

in the course of the person's duties as an officer (other

than as the principal officer) of a Department or

prescribed authority, and the principal officer of the

Department or prescribed authority has authorised the

officer to give the information to the Ombudsman or to

produce the document or other record to the

Ombudsman;

(iv) the person obtained the information, document or record

lawfully but not in the course of the person's duties as an

Schedule 2 Amendments relating to the Commonwealth Ombudsman

Part 1 Main amendments

16 Migration and Ombudsman Legislation Amendment Bill 2005 No. , 2005

officer (including as the principal officer) of a

Department or prescribed authority.

(2B) If the person:

(a) gives the information to the Ombudsman or produces the

document or record to the Ombudsman; and

(b) by doing so:

(i) contravenes any other enactment; or

(ii) might tend to incriminate the person or make the person

liable to a penalty; or

(iii) discloses a legal advice given to a Minister, a

Department or a prescribed authority; or

(iv) discloses a communication between an officer of a

Department or of a prescribed authority and another

person or body, being a communication protected against

disclosure by legal professional privilege; or

(v) otherwise acts contrary to the public interest;

the information or the production of the document or record is not

admissible in evidence against the person in proceedings other than

proceedings for an offence against section 137.1, 137.2 or 149.1 of

the Criminal Code that relates to this Act.

(2C) The person is not liable to any penalty under the provisions of any

other enactment by reason of his or her giving the information to the

Ombudsman or producing the document or record to the

Ombudsman.

(2D) For the purposes of the Privacy Act 1988, the giving of the

information to the Ombudsman or the production of the document

or record to the Ombudsman is taken to be authorised by law.

(2E) Subsection (2B) does not otherwise affect a claim of legal

professional privilege that anyone may make in relation to the

information, document or record.

Note 1: The following heading to subsection 8(1) is inserted "Ombudsman must inform of

investigation".

Note 2: The following heading to subsection 8(2) is inserted "Investigations to be in private".

Note 3: The following heading to subsection 8(3) is inserted "Ombudsman may obtain

information".

Note 4: The following heading to subsection 8(4) is inserted "Rights to appear".

Amendments relating to the Commonwealth Ombudsman Schedule 2

Main amendments Part 1

Migration and Ombudsman Legislation Amendment Bill 2005 No. , 2005 17

Note 5: The following heading to subsection 8(8) is inserted "Ombudsman may discuss

investigation with Ministers".

Note 6: The following heading to subsection 8(10) is inserted "Breaches of duty etc.".

11 At the end of section 8

Add:

(11) If:

(a) a person is, or is an employee of, a Commonwealth service

provider of a Department or prescribed authority under a

contract; and

(b) in the opinion of the Ombudsman, there is evidence that the

person has engaged in conduct that:

(i) would, if the person were an officer of the Department or

prescribed authority, amount to a breach of duty or to

misconduct; or

(ii) should be brought to the attention of the principal officer

of the Department or prescribed authority; and

circumstances, of sufficient force to justify the Ombudsman

doing so;

the Ombudsman must bring the evidence to the notice of the

principal officer of the Department or prescribed authority.

12 Subsection 9(1AA)

Omit all the words from and including "(1AA)" to and including "is

capable of", substitute:

(1AA) If the Ombudsman has reason to believe that a person who is:

(aa) an officer of a Department or prescribed authority; or

(ab) a Commonwealth service provider of a Department or

prescribed authority under a contract; or

(ac) an employee of Commonwealth service provider of a

Department or prescribed authority under a contract;

is capable of

13 Subsection 9(1AA)

Omit "identity of the officer", substitute "identity of the person".

Schedule 2 Amendments relating to the Commonwealth Ombudsman

Part 1 Main amendments

18 Migration and Ombudsman Legislation Amendment Bill 2005 No. , 2005

14 Subsection 11A(1)

Omit "by or under this Act or any other Act".

15 Subsection 14(1)

Repeal the subsection, substitute:

(1) For the purposes of an investigation under this Act, an authorised

person may, at any reasonable time of the day:

(a) enter a place that is:

(i) occupied by a Department or prescribed authority; or

(ii) occupied by a person who is a Commonwealth service

provider of a Department or prescribed authority under a

contract, if the person occupies the place predominantly

for the purposes of the contract; and

(b) carry on the investigation at the place.

16 Subsection 14(4)

After "under this section", insert "(including premises occupied by a

Commonwealth service provider)".

17 Subsection 19(1)

Repeal the subsection, substitute:

(1) The Ombudsman must, as soon as practicable, and in any event

within 6 months, after each 30 June submit to the Minister, for

presentation to the Parliament, a report of the operations of the

Ombudsman during the year that ended on that 30 June.

18 Paragraph 19(2)(b)

Omit "under this Act".

19 Subsection 19C(1)

Repeal the subsection, substitute:

(1) The functions of the Defence Force Ombudsman are to investigate

complaints made to him or her under this Act and to perform such

other functions as are conferred on him or her by:

(a) this Act or the regulations; or

Amendments relating to the Commonwealth Ombudsman Schedule 2

Main amendments Part 1

Migration and Ombudsman Legislation Amendment Bill 2005 No. , 2005 19

(b) another Act or regulations made under another Act.

20 Subsection 29(8)

Omit "under this Act or any other law".

21 Paragraph 35(3)(a)

Omit "under this Act".

22 Subparagraph 35(3)(b)(i)

Omit "furnished", substitute "given".

23 After subparagraph 35(3)(b)(i)

Insert:

(ia) if the information was given by a person who is, or is an

employee of, a Commonwealth service provider of a

Department or prescribed authority under a contract--

with the consent of the principal officer of the

Department or prescribed authority or of the responsible

Minister; or

24 Subparagraph 35(3)(b)(ii)

Repeal the subparagraph, substitute:

(ii) if the information was given by a person otherwise than

as set out in subparagraph (i) or (ia)--with the consent

of the person who gave the information.

25 Subsections 35(7) and 35A(1) and (2)

Omit "under this Act".

Schedule 2 Amendments relating to the Commonwealth Ombudsman

Part 2 Other amendments

20 Migration and Ombudsman Legislation Amendment Bill 2005 No. , 2005

Part 2--Other amendments

Migration Act 1958

26 Paragraph 193(3)(b)

Repeal the paragraph.

27 Subsection 193(3)

Repeal the subsection, substitute:

(3) If a person covered by subsection (1) has not made a complaint in

writing to the Human Rights and Equal Opportunity Commission,

paragraph 20(6)(b) of the Human Rights and Equal Opportunity

Commission Act 1986 does not apply to the person.

Ombudsman Act 1976

28 Subsection 19M(1)

Repeal the subsection, substitute:

(1) The functions of the Postal Industry Ombudsman are to investigate

complaints made to him or her under this Act and to perform such

other functions as are conferred on him or her by:

(a) this Act or the regulations; or

(b) another Act or regulations made under another Act.

29 Subparagraph 19R(3)(b)(vii)

Omit "(10)", substitute "(11)".

30 After subparagraph 19R(3)(b)(viii)

Insert:

(viiia) paragraphs 9(1AA)(ab) and (ac);

31 After subparagraph 19R(3)(d)(i)

Insert:

(ia) subparagraph 35(3)(b)(ia);

Amendments relating to the Commonwealth Ombudsman Schedule 2

Other amendments Part 2

Migration and Ombudsman Legislation Amendment Bill 2005 No. , 2005 21

Postal Industry Ombudsman Act 2005

32 Items 15 and 16 of Schedule 1

Repeal the items, substitute:

15 Subsection 193(3)

Repeal the subsection, substitute:

(3) If:

(a) a person covered by subsection (1) has not made a complaint

in writing to the Human Rights and Equal Opportunity

Commission, paragraph 20(6)(b) of the Human Rights and

Equal Opportunity Commission Act 1986 does not apply to

the person; and

to the Postal Industry Ombudsman, paragraph 7(3)(b) of the

Ombudsman Act 1976 (as that paragraph applies because of

section 19R of that Act) does not apply to the person.

Schedule 3 Amendments relating to identifying information

22 Migration and Ombudsman Legislation Amendment Bill 2005 No. , 2005

Schedule 3--Amendments relating to

identifying information

Migration Act 1958

1 At the end of subsection 336E(2)

Add:

; or (j) is authorised by section 336FA; or

(k) is authorised by section 336FC.

2 After section 336F

Insert:

336FA Disclosure of certain personal identifiers to selected

individuals

(1) For the purposes of paragraph 336E(2)(j), this section authorises

the disclosure, by an officer, of identifying information that relates

to a person (the subject) if:

(a) the information disclosed is a personal identifier within the

meaning of paragraph (b), (c), (d) or (f) of the definition of

personal identifier in subsection 5A(1); and

(b) the disclosure is made to an individual; and

help to do one or more of the following in connection with the

administration of this Act:

(i) identify, authenticate the identity of, or locate, the

subject;

(ii) refer the officer to another person who might be able to

help identify, authenticate the identity of, or locate, the

subject; and

(d) the officer has reasonable grounds to believe that the

individual might be able to provide the help that is the purpose

of the officer's disclosure; and

(e) the officer is satisfied that it is reasonably necessary to make

the disclosure to the individual in order to obtain that help.

Amendments relating to identifying information Schedule 3

Migration and Ombudsman Legislation Amendment Bill 2005 No. , 2005 23

Note:

The personal identifiers covered by this section are measurements of

a person's height and weight, photographs or other images of a

person's face and shoulders, audio or video recordings of a person

(other than video recordings under section 261AJ) and signatures.

(2) Nothing in subsection (1) prevents an officer from disclosing the

personal identifier to more than one individual at the same time, as

long as the requirements of subsection (1) are met in relation to each

one of those individuals.

336FB Disclosure of other relevant information to selected

individuals

(1) An officer may disclose, to an individual, personal information

(within the meaning of the Privacy Act 1988) about a person (the

subject) if:

(a) the officer is disclosing, to the individual, a personal identifier

of the subject and the disclosure is authorised by

section 336FA; and

(b) the personal information is disclosed together with the

personal identifier; and

the personal information as well as the personal identifier.

(2) This section does not apply to personal information that is

identifying information.

(3) Nothing in subsection (1) prevents an officer from disclosing the

personal information to more than one individual at the same time,

as long as the requirements of paragraphs 336FA(1)(b), (c), (d) and

(e) are met in relation to each one of those individuals.

336FC Disclosure of certain personal identifiers to the general public

(1) For the purposes of paragraph 336E(2)(k), this section authorises

the disclosure of identifying information that relates to a person (the

subject) who is not a minor, if:

(a) the information disclosed is a personal identifier within the

meaning of paragraph (b), (c), (d) or (f) of the definition of

personal identifier in subsection 5A(1); and

Schedule 3 Amendments relating to identifying information

24 Migration and Ombudsman Legislation Amendment Bill 2005 No. , 2005

(b) the disclosure is for the purpose of obtaining the public's help

to identify, authenticate the identity of, or locate, the subject,

in connection with the administration of this Act; and

personal identifier.

Note:

The personal identifiers covered by this section are measurements of

a person's height and weight, photographs or other images of a

person's face and shoulders, audio or video recordings of a person

(other than video recordings under section 261AJ) and signatures.

(2) The Secretary must not authorise disclosure of the personal

identifier unless:

(a) the Secretary is satisfied that other reasonable steps have been

taken to identify, authenticate the identity of, or locate, the

subject; and

(b) either:

(i) the Secretary is satisfied that the subject has been

informed of the proposed disclosure (including the

personal identifier that is to be disclosed and the manner

in which the disclosure is to be made) and the Secretary

has either considered the subject's views in relation to

the proposed disclosure or been satisfied that the subject

has no views in relation to it; or

(ii) the Secretary is satisfied that the subject cannot be

found; and

identifier that is to be disclosed; and

(d) the Secretary is satisfied that it is reasonably necessary to

authorise disclosure in order to identify, authenticate the

identity of, or locate, the subject; and

(e) if personal information (within the meaning of the Privacy Act

1988) that is not identifying information is to be disclosed

together with the personal identifier--the Secretary is satisfied

that it is reasonably necessary to disclose the personal

information together with the personal identifier in order to

identify, authenticate the identity of, or locate, the subject.

(3) For the purposes of subparagraph (2)(b)(i), if the subject does not

express a view in relation to the proposed disclosure within a

Amendments relating to identifying information Schedule 3

Migration and Ombudsman Legislation Amendment Bill 2005 No. , 2005 25

reasonable time of being informed of it, the Secretary is entitled to

be satisfied that the subject has no views in relation to it.

(4) If the Secretary authorises disclosure of a personal identifier under

paragraph (1)(c), the authority covers all disclosures of the

identifier made for the purpose mentioned in paragraph (1)(b).

(5) An authority under paragraph (1)(c) is not a legislative instrument.

336FD Disclosure of other relevant information to the general public

(1) For the purposes of:

(a) paragraph (1)(d) of Information Privacy Principle 11 in

section 14 of the Privacy Act 1988; and

(b) paragraph 2.1(g) of National Privacy Principle 2 in

Schedule 3 to the Privacy Act 1988;

the disclosure by a person of personal information (within the

meaning of the Privacy Act 1988) about another person (the

subject) is taken to be a disclosure that is authorised by law if:

the disclosure is authorised by section 336FC; and

(d) the personal information is disclosed together with the

personal identifier; and

(e) the disclosure of the personal information is for the purpose

mentioned in paragraph 336FC(1)(b).

(2) This section does not apply to personal information that is

identifying information.

Schedule 4 Technical amendments relating to legislative instruments

26 Migration and Ombudsman Legislation Amendment Bill 2005 No. , 2005

Schedule 4--Technical amendments relating

to legislative instruments

Migration Act 1958

1 Subsection 39(1)

Omit "49A of the Acts Interpretation Act 1901", substitute "14 of the

Legislative Instruments Act 2003".

2 Subsection 39(1)

Omit "notice published in the Gazette", substitute "legislative

instrument".

3 Subsection 245J(1)

Omit "approve in writing", substitute "by legislative instrument,

approve".

4 Subsection 245J(4)

Repeal the subsection.

5 Subsection 245K(1)

Omit "in writing", substitute "by legislative instrument".

6 Subsection 245K(3)

Repeal the subsection.

7 Subsection 258(1)

Omit "(1)".

8 Subsection 258(1)

Omit "in writing", substitute "by legislative instrument".

9 Subsection 258(2)

Repeal the subsection.

10 Subsections 306AD(1), (2) and (3)

Technical amendments relating to legislative instruments Schedule 4

Migration and Ombudsman Legislation Amendment Bill 2005 No. , 2005 27

Omit "writing", substitute "legislative instrument".

11 Subsection 306AD(4)

Repeal the subsection.

12 Subsection 332A(1)

Omit "written determination made", substitute "determination made, by

legislative instrument,".

13 Subsection 332A(2)

Repeal the subsection.

14 Paragraph 495A(3)(b)

Omit "determines, in writing,", substitute ", by legislative instrument,

determines".

15 Subsection 495A(4)

Repeal the subsection.

16 Subsection 503A(9) (note to the definition of gazetted

agency)

Omit "section 46", substitute "subsection 13(3) of the Legislative

Instruments Act 2003 or subsection 46(3)".

17 Subsection 504(2)

Omit "49A of the Acts Interpretation Act 1901", substitute "14 of the

Legislative Instruments Act 2003".

18 Subsection 504(2)

Omit "a notice published in the Gazette", substitute "an instrument in

writing made under the regulations".

Migration Legislation Amendment Act (No. 1) 2001

19 Item 11 of Schedule 1

Omit "section 48 of the Acts Interpretation Act 1901", substitute

"subsection 12(2) of the Legislative Instruments Act 2003".

Commonwealth of Australia Bills

MIGRATION AND OMBUDSMAN LEGISLATION AMENDMENT BILL 2005