Commonwealth Numbered Regulations - Explanatory Statements

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PASSPORTS AMENDMENT REGULATIONS 2004 (NO. 2) 2004 NO. 212

Subsection 12(1) of the Passports Act 1938 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for carrying out or giving effect to the Act.

Regulation 12 of the Passports Regulations 1939 currently provides that the Minister may disclose specified information contained in an Australian travel document, or about such a document, to the Comptroller of the New Zealand Customs Service.

These Regulations amend the Passports Regulations 1939 (the Regulations) by substituting anew Regulation 12, which allows the Minister to disclose specified Australian passport information to immigration authorities in New Zealand and the United States of America, and the International Criminal Police Organisation (Interpol). This power will enable the Minister to inform these authorities about Australian travel documents which are lost, stolen or otherwise invalid and assist the immigration authorities in assessing Australian travellers.

Regulation 1 names the Regulations as the Passports Amendment Regulations 2004 (No. 2).

Regulation 2 provides that the Regulations commence when they are notified in the Gazette.

Regulation 3 provides that the Passports Regulations 1939 are amended as set out in Schedule l.

Schedule 1 replaces existing Regulation 12 with a new Regulation, entitled Disclosure of information to specified persons or organisations.

New subregulation 12(1) allows the Minister to disclose specified information to specified persons or organisations for the purposes of: (a) informing the person or organisation about the status of an Australian travel document; or (b) traveller facilitation.

Under new paragraph (a), the Minister may advise when Australian documents have become invalid, including when they have been lost or stolen. Minimising the problems caused by lost or stolen passports is a key policy objective for the government. During 2002-03, a total of 32 479 passports were recorded as lost or stolen. This translates into around 3% of issued passports. Lost or stolen passports provide criminals with the potential to travel illegally. It is important that these documents be removed from circulation. Countries which are party to the Convention on International Civil Aviation (Australian Treaty Series 1957 No. 5) are obliged to seize the travel documents of a person impersonating the rightful holder of the travel document (Annex 9, Facilitation, 3.56).

Under new paragraph (b), foreign governments' immigration authorities (initially New Zealand) will be able to verify the validity of Australian travel documents. A traveller facilitation program, known as the Advance Passenger Processing system, is in place for Australians returning to Australia under the Migration Act 1958 (section 245J) and the Migration Regulations 1994 (Regulation 3.13A). As a result, the vast majority of travellers can be processed with minimal intervention and delay. The new regulation will enable Australians to enjoy this same arrangement when travelling to New Zealand.

New subregulation 12(2) specifies the persons or organisations to which the information may be disclosed. The Secretary of the New Zealand Department of Labour and the Department of Homeland Security are responsible, inter alia, for the immigration authorities in their respective countries. The International Criminal Police Organisation (Interpol) maintains a list of lost and stolen travel document numbers which may be provided to law enforcement and border control authorities internationally.

New subregulation 12(3) specifies the information which may be disclosed by the Minister. There are three categories of information. The minimum necessary information would be disclosed for the relevant purpose, taking into account operational needs and possible technological constraints. New paragraph 12(3)(a) permits the disclosure of information contained on the data page of an Australian travel document. New subparagraphs (i)-(x) list relevant data elements specified in Document 9303 Machine Readable Travel Documents, under the Convention on International Civil Aviation. The term 'authority' in new subparagraph (v) refers to the issuing authority, or issuing office, of the travel document.

New paragraph 12(3)(b) permits the disclosure of information about the status of an Australian travel document, including whether it has been lost or stolen.

New paragraph 12(3)(c) permits the disclosure of any other information that is necessary to establish the authenticity of a passenger holding an Australian travel document. This would be used in individual cases to establish that a person carrying an Australian travel document is the person to whom it was issued. Information that may be disclosed under this subparagraph could include the eye colour and height of the document holder, any endorsements contained in the passport and the signature of the holder.

New subregulation 12(4) repeats the existing requirement that a recipient authority must enter into a memorandum of understanding that has been signed by or for the Minister. The memorandum must state the purpose of the disclosure and the information to be disclosed. It will deal with storage and security of the information, reflecting the requirement contained in the Privacy Act 1988 (section 14, Information Privacy Principle 4). Provisions in the memorandum will also deal with the disclosure of the information by the other party. These provisions will cover further disclosure for law enforcement purposes in connection with the lost or stolen passport. In entering into these arrangements, the Minister will assess that the recipient overseas authority will effectively uphold the principles for fair handling of the information in a manner substantively similar to the Commonwealth Privacy Act 1988.

New subregulation 12(5) allows for disclosure of information by the Minister to a different person or organisation which becomes responsible for a purpose mentioned in new subregulation 12(1). This is necessary to respond to changes in the administration of immigration and border control in other countries. For example, the New Zealand Immigration Service, under the Secretary of the New Zealand Department of Labour, has taken over responsibility for traveller facilitation from the Comptroller of the New Zealand Customs Service, which was listed under the previous Regulation 12. New paragraphs (a) and (b) require a new memorandum of understanding which complies with new subregulation 12(4).

New subregulation 12(6) defines the term Australian travel document for the purposes of this regulation. It incorporates Australian passports, and other travel documents authorised under the Regulations (Regulations 8, 9 and 10).