Australian Passports Amendment (Identity-Matching Services) Bill 2018 - Commentary on Ministerial Responses [2018] AUSStaCSBSD 72 (21 March 2018)

• Chapter 2
• Commentary on ministerial responses
• Australian Passports Amendment (Identity-matching Services) Bill 2018
• Significant matters in delegated legislation2

---

Chapter 2

Commentary on ministerial responses

2.1 This chapter considers the responses of ministers to matters previously raised by the committee.

Australian Passports Amendment (Identity-matching Services) Bill 2018

Purpose	This bill seeks to amend the Australian Passports Act 2005 to provide a legal basis for ensuring that the minister is able to make passport data available for all the purposes of identity-matching services
Portfolio	Foreign Affairs and Trade
Introduced	House of Representatives on 7 February 2018
Bill status	Before the House of Representatives

2.2 The committee dealt with this bill in Scrutiny Digest No. 2 of 2018. The minister responded to the committee's comments in a letter dated 7 March 2018. Set out below are extracts from the committee's initial scrutiny of the bill and the minister's response followed by the committee's comments on the response. A copy of the letter is available on the committee's website.^[1]

Significant matters in delegated legislation^[2]

Initial scrutiny – extract

2.3 Section 46 of the Australian Passports Act 2005 (Passports Act) currently provides that, on request, the minister may disclose personal information, of a kind specified in a minister's determination, to a person specified in a minister's determination^[3] and for a number of listed purposes. Item 1 seeks to amend section 46 of the Passports Act, to expand the purposes for which such personal information can be disclosed to include participating in a specified service or kind of service to share or match information relating to the identity of a person. The committee notes that there are no limits in the primary legislation as to what type of personal information may be shared or who this information may be shared with. The only limit is that the purpose must relate to a service that shares or matches information relating to the identity of a person.

2.4 The committee's view is that significant matters, such as authorising the disclosure of personal information, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the statement of compatibility gives a detailed justification as to why it is necessary to disclose personal information to identity-matching services. However, it does not provide any justification for leaving the detail of the kinds of information that may be disclosed, the persons to whom such information may be disclosed, and the services to which information may be disclosed, to delegated legislation.

2.5 The committee requests the minister's detailed advice as to why it is considered necessary and appropriate to leave to delegated legislation the details of the kind of personal information that may be disclosed, to whom such information may be disclosed, and the services to which such information may be disclosed.

Minister's response

2.6 The minister advised:

Section 46 of the Australian Passports Act 2005 (the Act) lists particular purposes for which personal information may be disclosed under the Act. Section 46 further provides that the kind of personal information disclosed for these purposes, and the persons to whom it may be disclosed, are to be specified in a Minister's determination.
Section 46 currently lists five purposes for which personal information may be disclosed:

(a) confirming or verifying information relating to an applicant for an Australian travel document or a person to whom an Australian travel document has been issued

(b) facilitating or otherwise assisting the international travel of a person to whom an Australian travel document has been issued

(c) law enforcement

(d) the operation of family law and related matters

(e) the purposes of a law of the Commonwealth specified in Minister's determination.

The Australian Passports Determination 2015 (the Determination) specifies in section 23 the kinds of information that may be disclosed for each of these purposes, the persons to whom it may be disclosed and, with regard to paragraph 46(e) of the Act, laws in respect of which it may be disclosed.
The matters regulated in section 23 are matters of administration and detail and are subject to frequent technical changes, such as changes to the titles of the agencies and office-holders to whom different disclosures may be made. In enacting the Act, Parliament considered it appropriate that these matters be regulated through delegated legislation.

The Australian Passports Amendment (Identity-matching Services) Bill 2018 (the Bill) will amend the Act to add a new purpose for disclosing information, namely to participate in a service to share or match information relating to the identity of an individual. It is appropriate, and consistent with the general operation of the Act, that this new purpose be inserted into the list in section 46, and that, by normal operation of that section, details about the kinds of information that may be disclosed, the persons to whom it may be disclosed, and the services or kinds of service by which such disclosures may be made, be specified in the Determination.

Committee comment

2.7 The committee thanks the minister for this response. The committee notes the minister's advice that section 23 of the Australian Passports Determination 2015, made pursuant to section 46 of the Passports Act, regulates matters that are of administration and detail and are subject to frequent technical changes, such as changes to the titles of the agencies and office-holders to whom different disclosures may be made. The committee further notes the minister's view that it is appropriate, and consistent with the general operation of the Act, that this new purpose be inserted into the list in section 46, and that, by normal operation of that section, details about the kinds of information that may be disclosed, the persons to whom it may be disclosed, and the services or kinds of service by which such disclosures may be made, be specified in the Determination.

2.8 The committee appreciates the importance of flexibility in this area of frequent technological change. However, the committee remains concerned that the proposed new provision is broadly expressed, permitting disclosure of personal information for 'a service...to share or match information relating to the identity of a person', and there would be no limits in the primary legislation as to what type of personal information may be shared or who this information may be shared with.

2.9 The committee reiterates its view that significant matters, such as authorising the disclosure of personal information, should be included in primary legislation rather than delegated legislation, unless a sound justification for the use of delegated legislation is provided. The committee notes that a legislative instrument, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in seeking proposed changes in the form of an amending bill.

2.10 The committee draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the question of the appropriateness of authorising the disclosure of personal information in broad terms in delegated rather than primary legislation.

2.11 The committee also draws this matter to the attention of the Senate Standing Committee on Regulations and Ordinances for information.

---

[1] See correspondence relating to Scrutiny Digest No. 3 of 2018 available at: www.aph.gov.au/senate_scrutiny_digest

[2] Schedule 1, item 1. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[3] Section 57 of the Australian Passports Act 2005 currently provides that a minister's determination is to be done by way of a legislative instrument (and therefore subject to disallowance).