Explanatory Memorandum
(Circulated by authority of the Minister for Foreign Affairs, the Hon Alexander Downer MP)Schedule 1 - Consequential Amendments
Items 1 to 7 - Other portfolios' legislation
89. These Items will set out the amendments to other legislation which refers to the Passports Act 1938 to change the reference to the Australian Passports Act 2004.
Items 8 to 31 - Foreign Passports (Law Enforcement and Security) Act 2004
90. These Items set out the consequential amendments to the 1938 Act to establish the Foreign Passports (Law Enforcement and Security) Act 2004 complementing relevant provisions in the Anti-Terrorism Bill No. 2. The resulting structure will provide two separate pieces of legislation to deal with Australian and foreign passports.
91. The Anti-Terrorism Bill (No. 2) 2004 will amend the 1938 Act to create powers to demand, confiscate and seize foreign travel documents to ensure that those suspected of serious offences or likely to engage in harmful conduct are prevented from leaving Australia on a foreign travel document. The Anti-Terrorism Bill (No. 2) 2004 will also insert new offences for making false statements in relation to foreign travel document applications, giving false information in relation to foreign travel document applications, providing false documents in relation to foreign travel document applications, improper use or possession of a foreign travel document, making, possessing or using false foreign travel documents, failure to surrender a suspicious foreign travel document, and failure to surrender a foreign travel document when required to do so.
92. Item 9 will provide that short title of the 1938 Act will be Foreign Passports (Law Enforcement and Security) Act 2004 (section 1).
93. Items 10 to 24 will repeal all provisions relating to Australian passports or travel-related documents from the newly named Act.
94. Items 25 to 28 will provide that the definition of competent authority in proposed subsections 14(2) and 15(2) will be amended to ensure the definition of Australian overseas representatives parallels that in the new Australian Passports Act. The new definition describes these people by reference to the Vienna Conventions on Diplomatic and Consular Relations (Australian Treaty Series 1968 No. 3). The change is necessary as the original definition was inserted into the 1938 Act before Australia acceded to these Conventions in 1973.
95. Item 29 will insert section 23A which would enable the Minister to delegate the power to order the surrender of foreign travel documents in relation to Australian law enforcement matters (under new section 13) to an SES employee of the Commonwealth. Under the Acts Interpretation Act 1901 (section 17AA), the term SES employee as the same meaning as in the Public Service Act 1999.
96. This power would be most relevant in relation to arrest warrants and other court orders. In this case, the principal decision concerning the person's ability to travel internationally has been made by the courts or the competent authorities enforcing the court's orders. 10,000 arrest warrants are held by the department to enforce the equivalent provision relating to Australians in the current 1938 Act. Accordingly, it is not appropriate to refer every matter to the Minister.
97. Subsection 23A(2) will require that any delegate exercising powers or functions under the Act comply with any directions of the Minister.