House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Foreign Affairs, the Hon Alexander Downer MP)

Outline and financial impact

Outline

The purpose of these Bills is to introduce a modern legal structure to:

•

maintain access by Australian citizens to passports of the highest integrity, which establish the bearer's identity and citizenship;

•

ensure the passports system complements national security, border protection, law enforcement measures and international law enforcement co-operation; and

•

ensure consistency with family law, privacy and administrative law and principles.

The provisions of the Passports Act 1938 (1938 Act) make it unnecessarily difficult to achieve these key objectives.

The new elements of Australian passports law and policy, which will be introduced with the Australian Passports Bill, are:

•

a clear statement of the entitlement of an Australian to a passport;

•

penalties for passport fraud increased to 10 years' imprisonment, or $110,000;

•

a framework for the use of technology;

•

the mechanism for refusal/cancellation of a passport on law enforcement grounds or if a person is likely to engage in harmful conduct will be improved;

•

measures to minimise the problems caused by lost and stolen passports;

•

the exceptions to the requirement for either both parents' consent or a court order for a child to travel internationally will make clear that disputes between parents should be dealt with by the courts; and

•

privacy-related measures, including a transparent mechanism for obtaining information to verify identity and citizenship and to regulate the disclosure of passport information for other limited purposes.

The new passports legislation would repeal Australian passports provisions in the 1938 Act.

The Australian Passports (Application Fees) Bill would establish a simpler structure to deal with changes in the costs and validity of passports and other travel-related documents. A simpler structure will enable the Government to respond rapidly to demands by Australian travellers for different types of travel-related documents and to increase fees and shorten validity for those who lose multiple passports.

Over many years, uncertainty concerning the technical legal question of whether passport fees were a tax or cost recovery has clouded the ability of the Government to implement sound financial policies relating to cost structures. The separate Australian Passports (Application Fees) Act would obviate this problem.

Financial impact statement

The department of Foreign Affairs and Trade operates the passport system on a full cost recovery basis. Passage of this legislation will not result directly in any additional cost to applicants or to the Commonwealth. Ordinarily, the details of any changes to application fees would be settled as part of the annual Budget process. Possible increases in revenue from higher penalties are unpredictable.

Notes on clauses

Part 1 - Preliminary

Clause 1 - Short Title

1. Clause 1 will provide that the Act may be cited as the Australian Passports Act 2004. Provisions relating to passports and other travel documents issued by foreign governments will be included in the proposed Foreign Passports (Law Enforcement and Security) Act 2004.

Clause 2 - Commencement

2. Clause 2 will require that new sections 1 and 2 of the Act are to commence on the day on which the Act receives the Royal Assent. The other provisions of the Act will commence on a date to be fixed by Proclamation, which must be within 9 months after the Act receives Royal Assent. The extended commencement period is necessary to ensure time for an adequate public awareness campaign, in particular in relation to the changes to the lost and stolen passports provisions.

Clause 3 - Principal object of this Act

3. Clause 3 will state that the principal object of this Act is to provide for the issue and administration of Australian passports, to be used as evidence of identity and citizenship by Australian citizens, who are travelling internationally. The Act will achieve this objective through establishing a modern legal structure for the operation of the passports system.

Clause 4 - Act extends to the external Territories

4. Clause 4 will extend the Act to the external Territories.

Clause 5 - Act extends to things outside Australia

5. Clause 5 will extend the Act, unless the contrary intention appears, to acts, omissions, matters and things outside Australia and to all persons, irrespective of their nationality or citizenship. This section will update the 1938 Act (section 4A).

Clause 6 - Definitions

6. Subclause 6 (1) will define a range of standard terms used throughout the Act:

Australian passport, consistent with existing law and practice, will include ordinary, diplomatic, official, seniors', frequent travellers' and emergency passports.

Emergency passports were introduced in December 2003. Under the current rules, an emergency passport may be issued, by Australian representatives overseas, when an applicant can provide preliminary evidence of identity and citizenship. However, the documentation is insufficient for a full validity passport (for example, no guarantor). The validity of the emergency passport will be the minimum necessary to meet the immediate travel requirements. Emergency passports may also be issued, overseas, when the applicant needs to travel within the 10 day turnaround period for the full validity passport to be produced and sent to the issuing post. Other types of Australian passports may be issued in the future to meet the needs of Australian travellers.

conduct will have the same meaning as the Criminal Code (section 4.1(2)), namely an act, an omission to perform an act or a state of affairs.

document will include any article or material from which information is capable of being reproduced with or without the aid of any other article or device. The definition of document is based on the Criminal Code (section 143.1). A passport is a document. The International Civil Aviation Organization (ICAO), under the authority of the Convention on International Civil Aviation (Australian Treaty Series 1957 No. 5), develops standards for international travel documents that include documents with machine readable zones and integrated circuit chips (in Document 9303 Machine Readable Travel Documents).

engage in conduct will have the same meaning as the Criminal Code (section 4.1(2)), namely do an act or omit to perform an act.

officer will be updated and expanded.

Officers with direct responsibilities for the issuing of passports will be covered in paragraphs (a) to (c), being APS employees in the department and diplomatic staff of Australian diplomatic missions and consular officers at Australian consulates.

Officers who may need to exercise powers in relation to offences covered in paragraphs (d) to (g) will include officers under the Customs Act 1901, members of the Australian Federal Police (AFP) and officers of a State or Territory police force.

7. The Family Law Act 1975 (Part VII, Division 13, Subdivision C) sets out a means by which overseas child orders may have the same force and effect as an order of the Family Court. Consistent with this, subclause 6(2) of the Australian Passports Bill will provide that an overseas child order will be taken to be an order of the Family Court of Australia, so long as it meets the definition and registration requirements of the Family Law Act 1975. This will update the 1938 Act (section 5(5)).

Part 2 - Australian travel documents

Division 1 - Issue of Australian travel documents

Subdivision A - Issue of Australian passports

Clause 7 - Australian citizen is entitled to be issued an Australian passport

8. Clause 7 will state clearly an Australian citizen's entitlement to be issued with an Australian passport. This provision is consistent with Article 12 of the International Covenant on Civil and Political Rights (Australian Treaty Series 1980 No. 23), which relates to freedom of movement.

9. Subclause 7(1) will require a citizen to make an application to the Minister. Subclause 7(2) will make clear that a citizen's entitlement is affected by new section 8 (which relates to identity and citizenship) and by new Division 2 (which relates to reasons for refusal).

10. Subclause 7(3) will establish the formalities for an application: (a) apply in the approved form and (b) pay the applicable fee (if any). Paragraph (a) will update the requirements in Passport Regulations 1939 (1939 Regulations) (Subregulation 5(1)(a)).

Clause 8 - Minister to be satisfied of person's citizenship and identity

11. Clause 8 will require the Minister to be satisfied of a person's identity and citizenship before issuing an Australian passport. The Minister may request further information, which may be relevant to making this decision, in accordance with the provisions of new sections 42 and 43.

Subdivision B - Issue of travel-related documents

Clause 9 - Minister may issue travel-related documents

12. Clause 9 will allow the Minister to issue a range of other documents for the purposes of travel. The nature of these documents and the circumstances in which they may be issued will be specified in a Minister's determination.

13. This provision will update the 1939 Regulations (Regulations 8 to 10). As the circumstances in which these documents are issued vary significantly and new types of documents may be created over time, it is appropriate to maintain the current practice of specifying these documents in subsidiary legislation.

14. The documents currently issued are: convention travel documents, certificates of identity, documents of identity and provisional travel documents.

15. The basic rules framework in the new Act for Australian passports will govern these travel-related documents. However, a person does not have an entitlement to be issued such documents (apart from convention travel documents).

16. A convention travel document, or titre de voyage, is issued to persons recognised by Australia as refugees in accordance with the Convention relating to the Status of Refugees (Australian Treaty Series 1954 No. 5) and the Protocol relating to the Status of Refugees (Australian Treaty Series 1973 No. 37). It does not confer on the holder any right to return to Australia.

17. A certificate of identity may be issued to a person who:

r.

is not an Australian citizen and is about to leave Australia; and

s.

is unable to obtain a passport from their country of nationality or is stateless or holds certain Special Humanitarian or Special Assistance Australian visas.

It does not confer on the holder any right to return to Australia.

20. A document of identity is normally issued to Australian citizens travelling to Norfolk Island or whose travel the Minister considers should be restricted, including those who are being repatriated or deported to Australia. It is also issued to citizens of Commonwealth countries in certain limited circumstances. In most cases, it is issued for a limited period or a single journey only.

21. Documents of identity may also be issued where the Minister has decided to refuse to issue a passport for the reason that the applicant has had 2 or more Australian passports lost or stolen in the previous 5 years (new section 15).

22. Minimising the problems caused by lost or stolen passports is a key policy objective for the revision of the Australian passports legislation. The package of measures in the new passports legislation will emphasise the importance of protecting passports and stopping the misuse of lost or stolen passports. Lost or stolen passports provide criminals with the potential to assume another identity, to carry out criminal activity in another name, and to travel illegally. During 2003-04, a total of 33 954 passports were recorded as lost or stolen. This translates into around 3% of passports in that year.

23. The use of documents of identity will be part of a range of measures in Australian passports legislation aimed at addressing the problem of lost or stolen passports. These include:

•

Power to refuse to issue (new section 15);

•

Issuing limited validity passports (new subsection 20(2));

•

Penalty for not reporting (new section 41);

•

Notification of lost or stolen passports (new section 45); and

•

Additional fees (new Australian Passports (Application Fees) Act (subsection 5(1)) and provisions for review, waiver and refund (new paragraphs 48(i) to (k) and new subsection 56(2)).

1. A provisional travel document may be issued to an Australian citizen if an identity document is required to permit travel to a country in which there is an Australian embassy, high commission or consulate. It is issued by Australian Honorary Consuls and other countries' missions (such as missions representing Canada) in places where Australia has put in place consular sharing arrangements.

Clause 10 - Minister to be satisfied of person's identity

2. Clause 10 will require the Minister to be satisfied of the person's identity before issuing a travel-related document. This section will parallel new section 8 on Australian passports. Entitlement criteria (for example, citizenship for documents of identity and provisional travel documents), will be contained in the Minister's determination made under new subsection 9(1).

Division 2 - Reasons the Minister may refuse to issue an Australian passport

Subdivision A - Children

Clause 11 - Reasons relating to child without parental consent or court order for travel

3. The objects of the provisions relating to issuing passports to children are to protect a child from abduction and to protect the rights of parents. Clause 11 will set out the range of additional requirements which must be met before a child is issued an Australian passport. The requirements for the issue of an Australian passport to all citizens will continue to apply, in particular, entitlement to a passport (new section 7).

4. The provisions will largely update the 1938 Act. A principal change will be new subsection 11(3) which will ensure that, if parents of a child disagree about the child travelling internationally, the dispute is dealt with by the courts and not under passports law.

Basic requirements

5. Subclause 11(1) will set out the basic requirements for issue of a passport to a child. The Minister must not issue a passport unless: (a) each of the persons with parental responsibility for a child consents to the child travelling internationally; or (b) a court of the Commonwealth, a State or a Territory has made an order that allows a child to travel internationally. This section will update the 1938 Act (paragraphs 7A(2)(a) and (b)).

General exceptions

6. Paragraphs 11(2)(a) to (d) will allow exceptions to the basic requirements. The Minister will not be prevented from issuing an Australian passport to a child if the Minister is satisfied that:

g.

special circumstances, specified in a Minister's determination, exist;

h.

the child's welfare (physical or psychological) would be adversely affected if the child were not able to travel internationally;

i.

the child urgently needs to travel internationally because of a family crisis and, if there is a person with parental responsibility whose consent to the child travelling internationally has not been given, it is not possible to contact that person within a reasonable time; or

j.

if a child has departed Australia less than 12 months before, the Minister may issue an Australian passport to enable the child to return to Australia.

The welfare and family crisis provisions will update the 1938 Act (paragraph 7A(2)(c)). The exception in new paragraph 2(d) will complement the requirements in the Convention on the Civil Aspects of International Child Abduction that a child who has been wrongfully removed for a period of less than 12 months should be returned, forthwith. The exception in the new Act will not, however, require the commencement of proceedings or the existence of court orders relating to custody of the child.

Special Circumstances

11. The Minister's determination will address circumstances in which it is procedurally difficult or unreasonably expensive to meet the basic requirements in subsection (1). These circumstances could include: no contact details on specified registers of any other persons having parental responsibility; no reply from any such persons (when consent is sought) within a specified time; no contact between the child and the other persons for a substantial period; existence of relevant domestic violence court orders or proceedings; or where the child is overseas and it is procedurally difficult or unreasonably expensive to obtain a court order. This determination will codify the 'special circumstances' provisions under the 1938 Act (subsections 7A(3) to (6)).

Disputes between parents to be dealt with by a court

12. Subclause 11(3) will provide that if the Minister could only issue a passport in accordance with the exceptions in subsection (2), the Minister may declare that the Minister is refusing to do so because the Minister considers the matter should be dealt with by a court. For example, the Minister may make a declaration under this section if parents of a child disagree about the child travelling internationally.

13. In approximately 25 cases annually, applicants seek to resolve a dispute with the child's other parent about whether their child should travel internationally through the administrative review process under the 1938 Act rather than through the courts. In these cases, officials with responsibility for administering the passport system are currently required to make decisions outside the policy and legislative framework established under the family law system. If the matter proceeds to the Administrative Appeals Tribunal (AAT), the department, as the decision-maker, is the respondent whereas the parent who has refused consent is not represented. The new provision will remedy this anomalous position. New paragraph 48(b) will provide that the decision to refuse to issue an Australian travel document in relation to which a declaration under this subsection has been made is not reviewable under this Act's administrative review regime.

Interpretation of parental consent or court orders

14. Paragraph 11(4)(a) will provide that a reference to a person consenting to the child travelling internationally includes a reference to a person consenting to the issue of a passport to a child. The term, the 'issue of a passport', is used in the 1938 Act (paragraph 7A(2)(a) and subparagraph 7A(2)(c)(ii)(A)).

15. Paragraph 11(4)(b) will provide that a reference to a court permitting travel internationally includes a reference to a court order permitting: (i) the issue of a passport; or (ii) contact outside Australia between the child and a person. The former term is used in the 1938 Act (paragraph 7A(2)(b)), the latter occurs regularly in court orders. The term "permitting" is intended to include the previous practice where a court would authorise or require the issuing of a passport to a minor

16. These interpretative provisions are included to avoid any ambiguity if the old terms are used by persons with parental responsibility or the courts. This structure will enhance consistent and clear administration of the passports system and of family law. The Minister has responsibility for the issue of passports while parents, courts and others have legal responsibilities in relation to the activities of the child, in this case, the travel of the child internationally.

Interpretation - Persons with parental responsibility

17. The other key change to the 1938 Act is contained in subclause 11(5). It will identify the persons with parental responsibility whose consent is required by reference to the presumptions in the Family Law Act 1975 (Subdivision 12D). However, it will exclude fathers who are only presumed to be parents arising from the presumption of co-habitation (under section 69Q of the Family Law Act 1975).

18. In practice, this exclusion will avoid the need to locate fathers whose name is not on the birth certificate of a child and who have made no other legal acknowledgement of paternity. Currently, the obligation to locate these fathers causes considerable difficulty in approximately 1,500 child applicants annually. The department's procedures will include steps, so that the delegate of the Minister is satisfied that the father has not made any legal acknowledgement.

Delegation

19. Currently, all but a handful of decisions concerning passport applications are made by officials. These decisions include the issue of more than 250,000 children's passports annually in more than 100 offices around the world. Under the structure of the 1938 Act, these operations are managed through an array of approved officers and authorised officers. Under the new Act, the Minister will have two powers: (i) to issue a child's passport; and (ii) to declare that disputes should be dealt with by a court. These powers will be delegated to certain officers of the department or diplomatic staff of Australian diplomatic missions or consular officers of Australian consulates (new paragraphs 51(1)(a) and (c)). These powers under the new Act will be delegated to the categories of officers currently exercising them.

20. New subsection 11(2) will set out a range of circumstances in which the Minister may consider in exercising the power to issue a passport under new subsection 7(1). An officer exercising a delegated power may form his or her own opinion in relation to these circumstances (Acts Interpretation Act 1901, section 34A). Accordingly, there is no power under this important section to delegate.

Subdivision B - Law enforcement and security

21. The reasons for refusal of an Australian passport set out in Subdivision B will be, in summary, that:

•

a competent authority makes a request to the Minister that a person should not be issued with an Australian passport;

for reasons relating to:

•

Australian law enforcement matters (new section 12);

•

international law enforcement cooperation (new section 13); or

•

potential for harmful conduct (new section 14).

Clause 12 - Reasons relating to Australian law enforcement matters

22. Clause 12 will prohibit the Minister from issuing an Australian passport to a person if the Minister receives a request from a competent authority which believes, on reasonable grounds, that the person is the subject of an arrest warrant for an indictable offence, or is prevented from leaving Australian by force of an Australian judicial or a law enforcement order or direction.

23. This provision will clarify the policy underpinning the relevant provision in the 1938 Act (section 7B). The principal change is the codification of the role of the competent authority.

Orders

24. New paragraph 12(1)(a) will describe the most frequently used order - a person is the subject of an arrest warrant issued in Australia in respect of an indictable offence against a law of the Commonwealth, a State or Territory.

25. New paragraph 12(1)(b) will describe other categories of orders which have the effect of preventing a person from travelling internationally - an order of an Australian court and an order under a law of the Commonwealth.

26. New subparagraphs 12(1)(b)(i) and (ii) will describe in some detail the possible relevant court (or similar) orders, to avoid ambiguity, in relation to prison sentences and other criminal sanctions. Subparagraph (ii) will cover all the types of orders and directions which are covered in the 1938 Act (subparagraphs 7B(b)(ii) and (iii)).

27. New subparagraph 12(1)(b)(iii) will complement the provisions in Commonwealth legislation that permit a competent authority to prohibit a person from travelling internationally. Examples are Child Support (Registration and Collection) Act 1988 (Part VA), Taxation Administration Act 1953 (Part IVA) and the Australian Security Intelligence Organisation Act 1979 (ASIO Act 1979, section 34JD).

28. It is imperative that persons the subject of warrants or other orders, conditions or directions are not able to depart Australia.

Interpretation

29. A request under this section will be in the form of a refusal/cancellation request which has the meaning given in new section 18.

30. Under the structure of new section 12, a competent authority will have the responsibility for requesting the Minister to act on an arrest warrant or order and assessing that any order prevents the person from travelling internationally. Under the 1938 Act (section 7B), officers within the department have nominal responsibility for administration of these law enforcement matters.

31. New subsection 12(3) will define a competent authority as a person with responsibility for, or powers, functions or duties in relation to, that circumstance under a law of the Commonwealth, a State or Territory. This will include law enforcement and security agencies.

32. Any ambiguity about this category of authorities will be corrected by specifying, in a Minister's determination, a person as being (or not being) a competent authority.

33. New subsection 12(3) will also define prevented from travelling internationally. There are four situations when a person is considered to be prevented from travelling internationally for the purposes of new paragraph 12(1)(b). These circumstances are when the order or other direction indicates that the person is required to remain in Australia, the person is required to surrender the person's Australian passport, the person is not permitted to apply for an Australian passport, or the person is not permitted to obtain an Australian passport. The inclusion of the four separate paragraphs is designed to ensure that the provision is activated regardless of the expression used by the legislation or the Court. These expressions are also used in the 1938 Act (paragraph 7B(b)), the ASIO Act 1979 and the Crimes Act 1914 (paragraphs 22(1)(c) and (d)).

34. This structure will provide clear guidance on the operation of the new Act. The Minister has responsibility for the issue of passports while law enforcement agencies and others have legal responsibilities in relation to preventing a person from travelling internationally.

Clause 13 - Reasons relating to international law enforcement co-operation

35. Clause 13 will provide that a competent authority can request the Minister to refuse to issue an Australian passport to a person if it believes on reasonable grounds that the person is the subject of a foreign judicial or similar law enforcement order, in relation to a serious foreign offence.

36. Again, under the structure of new section 13, a competent authority will have the responsibility for requesting the Minister to act on an arrest warrant or order and assessing that any order prevents the person from travelling internationally.

37. Under paragraph 13(1)(c), the competent authority may also make a request to the Minister if it believes that foreign legal proceedings would be compromised if a passport were issued. In certain situations, a foreign court order may not explicitly require that a person be prevented from travelling internationally. Under this provision, the competent authority may request that a passport not be issued if, for example, it believes that the person is likely to flee the foreign jurisdiction.

38. Subclause 13(3) will define competent authority for the purposes of new subsection 13(1). A competent authority will be limited to an agency or an employee of the Commonwealth of a class specified in Minister's determination or a specified category of officers who are given powers under the Australian Passports Act. This definition appropriately limits the persons who can make a request. In practice, requests will be made most frequently by officers who are diplomatic staff of Australian diplomatic missions and consular officers at Australian consulates.

39. New subsection 13(3) will also define serious foreign offence. The offences that can be regarded as a serious foreign offence for the purposes of new subsection 13(1) are listed in detail. The threshold is essentially the same as a Commonwealth indictable offence, for example, terrorism, drug trafficking, child pornography, child sex tourism, people smuggling and sexual servitude offences. The definition is drawn from the definition of extradition offence in the Extradition Act 1988 (section 5). A serious foreign offence will also be defined by reference to conduct which would, in Australia, constitute an indictable offence against the Australian Passports Act or an offence specified in a Minister's determination made under new subparagraph 14(1)(a)(v).

40. When Australians are overseas, they are subject to the laws of the country they are in. If Australians are arrested for an offence overseas, they will be subject to that country's judicial processes. In this situation, new section 13 seeks to complement Australian law enforcement objectives to offer full and reciprocal assistance to counterparts around the world in enforcing foreign laws.

41. The key distinction with the operation of new section 12 is that a decision to refuse a passport for reasons relating to international law enforcement co-operation will always remain discretionary. Decisions under this Act by the Australian Minister for Foreign Affairs cannot be subject to a court order in a foreign country.

Clause 14 - Reasons relating to potential for harmful conduct

42. Clause 14 will allow the Minister to refuse to issue an Australian passport to a person if the Minister receives a request from a competent authority which suspects on reasonable grounds that the person is likely to engage in harmful conduct. This provision will clarify the policy underpinning the 1938 Act (section 7E).

43. The dual purposes of the clarification are to ensure that all appropriate types of conduct will be covered and to ensure greater accountability of the competent authorities responsible for making the assessments of the likely conduct (in the same way as in new sections 12 and 13).

44. In making decisions under this section, the Minister will also apply the principle that Australian passports law should not be used as an extension of the judicial system and should not be expected to impose any more restraint on an individual than an Australian court would be prepared to impose.

45. Under subclause 14(1), the competent authority will be able to request the Minister to refuse to issue an Australian passport only where the competent authority suspects on reasonable grounds that: (a) the person is likely to engage in conduct specified in the provision; and (b) the person should be refused an Australian passport in order to prevent them from engaging in that conduct.

Types of conduct

46. The types of conduct specified in new paragraph 14(1)(a) will be: the types of conduct listed in the 1938 Act (paragraph 7E(1)(a)); conduct which might constitute an indictable offence against the Australian Passports Act; and conduct which might constitute an indictable offence against the law of the Commonwealth, which is specified in a Minister's determination.

47. The conduct listed in the 1938 Act, and that will be listed in new subparagraphs 14(1)(a)(i)-(iii), is conduct that might cause: (i) prejudice to the security of Australia or a foreign country; (ii) danger to the health or physical safety of other persons; and (iii) interference with the rights of other persons under the International Covenant on Civil and Political Rights.

48. The addition of a reference to indictable offences against the Australian Passports Act in new subparagraph 14(1)(a)(iv) is to close a logical loop. For example, if the Minister is requested to refuse a passport for the reason that an applicant is likely to provide his passport to another person so that other person may use it for travel or identification (in breach of subsection 32(3)), it is logical for the Minister to refuse to issue the passport in the first place. This provision will complement the reason for refusal for loss or theft more frequently than twice every 5 years (new section 15) if there are reasonable grounds for suspicion that the applicant is allowing others to use the passports for identity fraud or other criminal activity.

49. The offences that will be listed in a Minister's determination under new subparagraph 14(1)(a)(v) will include many of the offences in the Criminal Code which have an extended geographical jurisdiction, such as: terrorism (Divisions 72 and 102), people smuggling (Division 73), offences against humanity (Division 268 and 270) and child pornography (Division 474 Subdivision C). Offences under other legislation which could be listed include drug trafficking (Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990, sections 9 to 14 and 15A to 15C), child sex tourism (Crimes Act 1914 Part IIIA) and child abduction (Family Law Act 1975 Division 6).

50. There will be some duplication between the types of conduct covered under subparagraphs (i)-(iii) and the conduct covered under a Minister's determination in subparagraph (v). Subparagraphs (i)-(iii) will replicate paragraph 7E(1)(a) of the 1938 Act to ensure the existing law and practice concerning their implementation is maintained. The elements of most of the relevant offences in the Criminal Code that relate to making, providing or possessing travel or identity documents (subsections 73.8, 73.10 and 73.11) do not come within the terms of subparagraphs (i)-(iii). Subparagraph (v) will cover such conduct, as well as other conduct that would amount to an indictable offence and that merits an order for the surrender of foreign travel documents but that might not come within the terms of subparagraphs (i)-(iii).

51. The reference, in new section 14, to offences against this Act or against a law of the Commonwealth includes a reference to an offence against sections 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of the Criminal Code that relates to that particular offence. The indictable offences in the Australian Passports Act are contained in Part 4.

Competent authority accountability

52. The definition of a competent authority in new subsection 14(3) will reflect the definitions in new subsections 12(3) and 13(3) in relation to Australian and foreign circumstances, respectively.

53. The competent authorities that will most frequently make a request to the Minister will be ASIO and the Australian Federal Police (AFP).

54. One of ASIO's functions is to advise the Minister for Foreign Affairs in respect of matters relating to security where those matters are relevant to the Minister's functions and responsibilities (in accordance with the ASIO Act 1979, paragraph 17(1)(c)). It does so by furnishing a security assessment (ASIO Act 1979, section 37). This assessment becomes the refusal/cancellation request to the Minister. The Minister may decide to refuse to issue a passport to a person, if ASIO's request advises that: (a) the person is likely to engage in conduct which might prejudice the security of a foreign country; and (b) the person should be refused a passport in order to prevent the person from engaging in the conduct. Security is defined in the ASIO Act 1979 (section 4) as

(a)

the protection of, and of the people of, the Commonwealth and the several States and Territories from:

(i)

espionage;

(ii)

sabotage;

(iii)

politically motivated violence;

(iv)

promotion of communal violence;

(v)

attacks on Australia's defence system; or

(vi)

acts of foreign interference;

whether directed from, or committed within, Australia or not; and

(b)

the carrying out of Australia's responsibilities to any foreign country in relation to a such matter.

55. If a person is refused a passport, following a request from ASIO based on its security assessment, that person must be given a copy of the assessment (ASIO Act 1979, section 38). The person may apply to the AAT for a review of ASIO's security assessment (ASIO Act 1979, section 54). If the Tribunal does not confirm the assessment, the Minister shall treat the Tribunal's findings as superseding ASIO's assessment (ASIO Act 1979, section 61).

56. The Minister must take such steps as are reasonable in the circumstances to give the person notice of the reasons for the decision and the right to review (AAT Act 1974 (sections 27A and 27B)). The notice, in this case, would refer to new subparagraph 14(1)(a)(i) of the Australian Passports Act and indicate that ASIO was the competent authority.

57. In this way, the person will be able to identify clearly the reasons for the refusal and the rights of recourse the person has to request review of the assessment by ASIO (under its Act) or the decision by the Minister (in accordance with new Part 5 Division 3).

58. The other important competent authority is the AFP. If the AFP suspects on reasonable grounds that: (a) a person is likely to engage in harmful conduct; and (b) the person should be refused a passport in order to prevent the person from engaging in the conduct, it can request the Minister to refuse to issue the person a passport.

59. If the Minister decides to do so, the notice of the decision would refer to the relevant subparagraph in new paragraph 14(1)(a) and, if appropriate, to the offence (or offences) specified in the Minister's determination. It would also indicate who is the competent authority.

Interpretation - Likely to engage

60. The term "likely to engage" is based on the test in the 1938 Act (section 7E), and is retained to ensure existing law and practice is maintained. The expression is used to ensure that a competent authority can only make a request to the Minister where there is a real, and not remote, possibility of a person engaging in the specified conduct.

Subdivision C - Administrative reasons

61. The reasons for refusal, set out in Subdivision C in summary, will be:

•

repeated loss or theft of passport (new section 15);

•

money is owed to the Commonwealth in relation to financial assistance to travellers (new section 16); or

•

concurrently valid passports (new section 17).

Clause 15 - Reasons relating to repeated loss or thefts

62. Clause 15 will allow the Minister to refuse to issue an Australian passport where two or more passports issued to the person have been lost or stolen in the previous 5 years. This will enable the Minister to act where there are reasonable grounds to believe that the person is allowing others to use the passports for identity fraud or other criminal activity, or that the applicant is simply not adequately protecting his or her passport.

63. Minimising the problems caused by lost or stolen passports is a key policy objective for the revision of the Australian passports legislation. This provision will be part of a range of measures in Australian passports legislation aimed at addressing the problem of lost or stolen passports. These include:

•

Issuing limited validity passports or documents of identity (new subsections 20(2) and 9(1);

•

Penalty for not reporting (new section 41);

•

Notification of lost or stolen passports (new section 45); and

•

Additional fees (new Australian Passports (Application Fees) Act (subsection 5(1)) and provisions for review, waiver and refund (new paragraphs 48(i) to (k) and new subsection 56(2)).

Clause 16 - Reasons relating to financial assistance to travellers

64. Clause 16 will prohibit the Minister from issuing an Australian passport to a person who owes money to the Commonwealth arising out of assistance provided by Australian consular services. It is appropriate that these loans be repaid before a new passport is issued. This section will update the 1938 Act (section 7C), repeating the welfare and family crisis exceptions in subclause 16(3).

65. In practice, Australians seeking assistance overseas may be provided with financial assistance including Traveller Emergency Loans, medical assistance, repatriation and prisoner loans. The guidelines for this assistance are set out in the Consular Handbook. Assistance is governed by the Financial Management and Accountability Act 1997.

Clause 17 - Reasons relating to concurrently valid passport

66. Clause 17 will prohibit the Minister from issuing a new Australian passport to a person who has already been issued with a valid Australian passport. This is to prevent potential abuse by the holder of multiple passports. This section will update the 1938 Act (section 7D).

67. Subclause 17(2) will allow for exceptions, where these are specified in a Minister's determination. Current examples include holders of diplomatic and official passports, emergency passports and where a new passport is issued to allow a child overseas to return to Australia, where the current passport may be in one parent's possession.

Subdivision D - Matters relating to requests by competent authorities

68. This subdivision is intended to remove ambiguity in relation to requests for refusal or cancellation of Australian travel documents by competent authorities.

Clause 18 - Refusal/cancellation requests

69. Clause 18 will define a refusal/cancellation request as a request, in relation to Australian law enforcement matters, international law enforcement cooperation, potential for harmful conduct or outstanding debts to the Commonwealth, to either refuse to issue a passport, or to cancel an Australian travel document, or both.

70. This will address the situation where a competent authority may not know whether a passport has been issued to the person at the time of making the request.

Clause 19 - Acting on refusal/cancellation requests

71. Clause 19 will ensure that refusal/cancellation requests remain current. It prohibits the Minister from acting on a request if: (a) it has been withdrawn; or (b) can no longer be regarded as current by the department. The obligation on the department is consistent with the Information Privacy Principle that it shall not use personal information without taking such steps (if any) that are reasonable in the circumstances to ensure that the information is accurate, up to date and complete, having regard to the purpose for which the information is to be used (Privacy Act 1988, section 14, IPP 8).

Division 3 - When Australian travel documents cease to be valid

Clause 20 - When Australian passports cease to be valid

72. Clause 20 will describe the two situations in which Australian passports will cease to be valid. Paragraph 20(1)(a) will provide that an Australian passport will cease to have effect if it is cancelled under this Division. New section 22 will set out the circumstances in which this may occur.

73. Under subclause 20(2), a Minister's determination will set out the validity periods for Australian passports (currently 10 years for an adult passport and 5 years for a senior's or children's passport). The determination may also set out circumstances where passports will have special validity periods, for example, emergency passports.

74. The Minister's determination will also provide for reduced validity periods for passports issued to persons who lose passports. Minimising the problems caused by lost or stolen passports is a key policy objective for the revision of the Australian passports legislation. This provision will be part of a range of measures in Australian passports legislation aimed at addressing the problem of lost or stolen passports. These include:

•

Issuing documents of identity (new subsection 9(1);

•

Power to refuse to issue (new section 15);

•

Penalty for not reporting (new section 41);

•

Notification of lost or stolen passports (new section 45); and

•

Additional fees (new Australian Passports (Application Fees) Act (subsection 5(1)) and provisions for review, waiver and refund (new paragraphs 48(i) to (k) and new subsection 56(2)).

Clause 21 - When travel-related documents cease to be valid

75. Clause 21 will state when travel-related documents will cease to be valid. The precise rules for the expiry of these documents will vary for each category of travel-related document and in specific circumstances. These will be set in the Minister's determination made under new subsection 9(1).

76. Subclause 21(b) will provide that a travel-related document ceases to be valid in accordance with any validity period specified on the document itself.

77. Subclause 21(c) will provide that a travel-related document may also be cancelled under this Division. New section 22 will set out the circumstances in which this may occur.

Clause 22 - When an Australian travel document may be cancelled

78. Clause 22 will provide for a series of circumstances in which the Minister may cancel an Australian travel document.

79. Subclause 22(1) will give the Minister a general discretion to cancel Australian travel documents and will update the 1938 Act (subsection 8(1)). This provision will operate independently of the power to cancel based on specified conduct, and retains the longstanding principle that the Minister must have discretion to cancel a travel document.

80. Paragraphs 22(2)(a) to (c) will allow for cancellation for essentially administrative reasons. These reasons will cover lost or stolen travel documents, the issue of a new travel document, and death of the document holder. The first two provisions will update the 1938 Act (paragraph 8(1A)(b) and subsection 8(1D), respectively).

81. Paragraphs 22(2)(d) to (e) will provide for cancellation for reasons which parallel the provisions relating to refusal.

82. Paragraph 22(2)(d) will allow the Minister to cancel an Australian travel document if a competent authority has made a refusal/cancellation request in relation to the person. Under the previous Division, a competent authority may make such a request for reasons relating to Australian law enforcement, international law enforcement co-operation, potential for harmful conduct and unpaid financial assistance to travellers. This provision will update the 1938 Act (paragraph 8(1A)(a)).

83. Paragraph 22(2)(e) will allow the Minister to cancel an Australian passport if the Minister becomes aware of a circumstance that would have required or permitted the Minister to refuse to issue the passport under new sections 8, 11 or 17, had the Minister been aware of the circumstance immediately before the passport was issued. This will be used when information is obtained, for example that a false statement had been provided with an application, such that the Minister would not have been satisfied as to identity, citizenship or, if a child, other circumstances. This provision will update the 1938 Act (paragraph 8(1A)(a)).

84. Paragraph 22(2)(f) will provide for similar powers, in relation to travel-related documents which are issued in accordance with sections 9 and 10. In this case, the Minister may cancel the document if the Minister becomes aware of a circumstance that would have required a refusal to issue the document under new section 10 or under a Minister's determination made under new subsection 9(1).

85. Subparagraph 22(2)(g) will allow the Minister to determine other circumstances under which an Australian travel document may be cancelled.

Part 3 - Powers of officers

86. Part 3 will set out the power for an officer to demand the surrender of, or seize, a person's Australian travel document.

87. Each section will also set out offences for failure to comply with an officer's demand. The offences follow the same structure, with the same safeguards.

88. It will be an offence for a person to fail to immediately surrender the person's Australian travel documents in the person's possession or control to an officer if demanded to do so.

89. A person will only be guilty of an offence if the documents are in the person's possession or control, and the officer informs the person that the officer is authorised to make the demand and that it is an offence not to comply with the demand.

90. The offences in this part will carry the penalty of imprisonment for 1 year or 20 penalty units ($2,200), or both.

Clause 23 - Demand for surrender of suspicious Australian travel document

91. Paragraph 23(1)(a) will empower an officer to demand the surrender of an Australian travel document that the officer suspects on reasonable grounds has been obtained by means of a false or misleading statement, information or document. Paragraph 23(1)(b) will give an officer the power to demand an Australian travel document or other document which the officer reasonably suspects has been used in the commission of an offence against the Australian Passports Act.

92. For example, if one parent retains possession of a child's Australian passport to seek to prevent the child travelling internationally with the other parent, despite a court order allowing the child to travel, this would constitute a breach of new subsection 32(4) of the Australian Passports Act. New paragraph 23(1)(b) would then empower an officer to demand the surrender of that travel document.

93. This provision will update the 1938 Act (subsections 9(1), 9(1A) and 9(4)). Practices and procedures for retaining documents, which have been provided voluntarily, will be consistent with general law information and administrative law principles.

Clause 24 - Demand for surrender of cancelled or invalid Australian travel document

94. Clause 24 will update the 1938 Act (subsections 8(1C) and 8(3)).

Clause 25 - Demand for surrender of debtor's Australian travel document

95. Clause 25 will allow an officer to demand the surrender of an Australian travel document from a person who has outstanding debts to the Commonwealth incurred while travelling overseas (for example, Traveller Emergency Loans).

96. Under the 1938 Act, it is possible to cancel or refuse to issue a passport where such debts exist (section 7C and subsection 8(1A)), but not to demand the surrender of the passport. This new power may be used, for example, to demand the surrender of a travel document on the traveller's arrival in Australia, where the Commonwealth has paid the costs of repatriation.

Clause 26 - Customs officers may seize a suspicious document

97. Clause 26 will provide a seizure power for suspicious documents which are not in an individual's possession. This is to address the circumstances where suspicious travel documents are being sent through airports or in the mail.

98. Subclause 26(1) will allow a Customs officer to seize Australian travel documents, or other documents the officer reasonably suspects have been used in the commission of an offence against the Australian Passports Act.

99. Subclause 26(2) will provide for a search power, where the container to be searched is not in the possession or control of any individual. Subclause 26(3) will make it clear that this section does not authorise a Customs officer to enter premises that the officer would not otherwise be authorised to enter.

Part 4 - Offences relating to Australian travel documents

100. Part 4 will describe certain activities that constitute an offence if performed on or with an Australian travel document. Similar offences are currently contained in the 1938 Act (subsections 8(1C) and 8(3) and sections 8A to 10).

101. The provisions have been modified to achieve three goals. First, there will be a greater deterrence factor through increased penalties. Second, the new provisions will be consistent with the network of legislation designed to prevent false identity and citizenship documents from being used in Australia. Finally, the provisions will be consistent with the language of the Criminal Code and will cover all Australian travel documents and not just Australian passports.

102. The Bill will increase the penalties to 10 years imprisonment or 1000 penalty units ($110,000), or both. This increase in penalties is to deter identity document fraud, which has been identified as a serious national and international problem.

103. Passports legislation constitutes an important part of a network of legislation designed to protect Australia from the use of false identity and citizenship documents and related criminal activity (including people smuggling, terrorism and drug smuggling). Penalties for offences against the 1938 Act are significantly lower than those in related legislation such as the Criminal Code (Division 73 - People smuggling and related offences) and the Migration Act 1958 (section 234). Both of these Acts provide for penalties of 10 years' imprisonment or fines of 1,000 penalty units, or both.

104. The Bill will modernise existing offence provisions and add new offences. It will provide a comprehensive statement of all passport-specific offences and use language consistent with that in the Criminal Code.

Division 1 - Preliminary

Clause 27 - Definitions

105. Clause 27 will define two terms:

dishonest is based on the definitions in the Criminal Code (sections 73.9, 130.3 and 470.2).

false Australian travel document will include genuine Australian travel documents that have been altered without authorisation.

Clause 28 - Geographical jurisdiction

106. Clause 28 will provide that extended geographical jurisdiction (Category D) of the Criminal Code applies to offences against the Australian Passports Act. This is consistent with the fundamentally international nature of its principal object.

107. The offences provisions are intended to improve the Government's ability to combat the traffic in lost, stolen and forged travel documents for use in connection with criminal and terrorist activities. Deterring misuse of Australian travel documents will help to preserve their international status as universally acceptable identity documents.

108. The reference, in new section 28, to offences in this Act includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of the Criminal Code that relates to that particular offence.

Division 2 - Offences

Clause 29 - Making false or misleading statements in relation to Australian travel document applications

109. Clause 29 will specify that in a 'statement' that relates to an Australian travel document application, it is an offence to omit any matter or fact which makes a statement false or misleading.

110. Subclause 29(2) will provide for a defence where the statement is not false or misleading in a material particular.

111. Recklessness will apply to the circumstance that the statement is misleading or omits any matter or thing without which the statement is misleading. This maintains the standard in the 1938 Act (subsection 10(1)) which was set following revisions in 2001 (Foreign Affairs and Trade Legislation Amendment (Application of Criminal Code) Act 2001).

112. This section will update the 1938 Act (subsection 10(1)). Its structure and elements are modelled on the Criminal Code (section 136.1).

Clause 30 - Giving false or misleading information in relation to Australian travel document applications

113. Clause 30 is in similar terms to new section 29, but will cover 'information'. The structure of this section is modelled on the Criminal Code (section 137.1).

Clause 31 - Producing false or misleading documents in relation to Australian travel document applications

114. Clause 31 is in similar terms to new section 29, but will cover 'documents'. This offence is not specifically covered by the 1938 Act. The structure of this section is modelled on the Criminal Code (section 137.2).

115. Document will be defined in new subsection 6(1).

Clause 32 - Improper use or possession of an Australian travel document

116. Clause 32 will cover, in summary: the use of a cancelled Australian travel document; the use, possession or control of an Australian travel document that was not issued to the person; and allowing another person to use an Australian travel document that was issued to the person. Subclause 32(5) will provide for a defence of reasonable excuse.

117. This provision will update offences currently in the 1938 Act (paragraphs 9A(1)(a)-(d) and subsection 9A(2)).

Clause 33 - Selling an Australian travel document

118. Clause 33 will make it an offence to sell an Australian travel document.

Clause 34 - Damaging an Australian travel document

119. Clause 34 will cover, inter alia, the situation where a person intentionally damages or deletes data from a storage device contained in an Australian travel document. Document will be defined in new subsection 6(1). Subclause 34(2) will provide for a defence of reasonable excuse.

120. This provision will update the 1938 Act (paragraph 9(1)(g)). However, the reasonable excuse defence does not exist in the 1938 Act.

Clause 35 - Dishonestly obtaining an Australian travel document

121. Clause 35 will make it an offence to obtain an Australian travel document dishonestly or by threats. This offence will cover situations in which it may not be possible to establish a person's possession of an Australian travel document.

122. This offence is modelled on the Criminal Code (section 73.9 - People smuggling and related offences). The definition of obtain is based on the definition in the Criminal Code (section 130.1). The definition of threat is also based on the definition in the Criminal Code (section 147.2).

Clause 36 - Possessing false Australian travel documents

123. In clause 36, the fault element of knowledge will apply to the circumstance that the document is a false Australian travel document. New subclause 36(2) will provide for a defence of reasonable excuse.

124. This provision will update the 1938 Act (paragraph 9A(1)(e)).

Clause 37 - Bringing, taking or sending a document across international borders

125. Clause 37 will provide for the specific offence of bringing, taking or sending documents into or out of a country. This section will cover situations where a person is involved in trafficking of documents, but where it is difficult to prove that the person has had possession of the documents.

126. The fault element of knowledge will apply to the circumstance that the document is a false Australian travel document or an Australian travel document not issued to the person.

127. New subclause 37(2) will provide for a defence of reasonable excuse.

128. This provision will update the 1938 Act (paragraph 9A(1)(d) and (e))

Clause 38 - Issue of passport contrary to this Act

129. Clause 38 will apply to officers authorised to issue passports who issue a passport contrary to the requirements set out in this Act. It will update the 1938 Act (subsection 9C(2)).

Clause 39 - Issue of travel-related document contrary to this Act or Minister's determination

130. Clause 39 will create a parallel offence to new section 38 for officers who issue a travel-related document contrary to the Act or a Minister's determination.

Clause 40 - Abuse of public office

131. Clause 40 will make it an offence for an officer dishonestly to obtain a benefit or cause a detriment in the course of exercising the officer's duties under this Act. The structure of this section is modelled on the Criminal Code (section 142.2).

Clause 41 - Failure to notify officer of lost or stolen Australian travel document

132. Clause 41 will state the offence of failing to report a lost or stolen Australian travel document. It will require that the person knows that the document is lost or stolen before an offence can be made out. The penalty will be imprisonment for 1 year or 20 penalty units ($2,200), or both.

133. Minimising the problems caused by lost or stolen passports is a key policy objective for the revision of the Australian passports legislation. This provision will be part of a range of measures in Australian passports legislation aimed at addressing the problem of lost or stolen passports. These include:

•

Issuing limited validity passports or documents of identity (new subsections 20(2) and 9(1);

•

Power to refuse to issue (new section 15);

•

Notification of lost or stolen passports (new section 45); and

•

Additional fees (new Australian Passports (Application Fees) Act (subsection 5(1)) and provisions for review, waiver and refund (new paragraphs 48(i) to (k) and new subsection 56(2)).

76. New section 41 will allow the report to be made to any officer, not only members of Australian police forces, as under the 1938 Act. Otherwise, this provision will update the 1938 Act (section 8A).

Part 5 - Administrative Matters

Division 1 - Information relating to Australian travel documents

77. High quality privacy standards are important to give the community confidence in the passport system. Nearly all of the measures to be covered under the Australian Passports Act, which have an impact on privacy, have been operating for many years. The statutory framework for these measures will be set out more clearly in order to maintain these standards efficiently and effectively.

78. There are three distinct categories of information that will be dealt with under the Act:

•

Information provided for entitlement purposes (new sections 42 to 44);

•

Lost or stolen information (new section 45); and

•

Information which may be disclosed (new section 46).

Information provided for entitlement purposes

79. Clauses 42 to 44 are intended to address procedural difficulties encountered when information is necessary to enable a decision to be made concerning the issue or cancellation of an Australian travel document. These difficulties include:

•

Requirements for authorisation by law by some key agencies, such as the Australian Electoral Commission (clause 42);

•

Clarification of exactly what information is necessary (clause 43); and

•

Specification of the methods of providing information (clause 44).

Clause 42 - Disclosure of personal information for the purposes of this Act

80. Clause 42 will provide that the Minister may request certain persons to provide personal information for the purposes of performing functions under the Act. The principal purpose for the information will relate to satisfying the Minister of a person's identity, citizenship or entitlement before issuing an Australian travel document. This information may be requested from the applicant, a person mentioned in the application, a relevant competent authority or a person specified in a Minister's determination.

81. For example, the department currently verifies information provided by applicants with the NSW Birth, Deaths and Marriages Registrar and the Australian Electoral Commission. These arrangements operate under written arrangements in a manner consistent with the Privacy Act 1988. Both arrangements operate electronically.

82. In addition, the Minister may request information to confirm that advice of a competent authority relating to a refusal to issue is still current. For example, advice that a person is subject to an arrest warrant may be provided by a police officer many months before the person applies for a passport (in accordance with new paragraph 12(1)(a)). Under current operational rules, the department will seek confirmation that this advice is still accurate.

83. Subclause 42(2) will provide that the Minister may direct a person to provide the information, if that person holds the information under a law of the Commonwealth. This 'demand' power is a common feature of modern legislation.

84. Subclause 42(3) will make clear that a person who is requested (or directed) to provide information is authorised to provide the information. This provision will enable a person who holds information, which is subject to the Commonwealth Privacy Act 1988 (or similar laws or arrangements), to provide the information in accordance with the 'authorised by law' exceptions (Information Privacy Principle 11(1)(d) and National Privacy Principle 2.1(g)).

85. The policy decision as to whether a person should be requested (or directed) to provide the information will remain with the Minister. The Minister will be guided by the privacy policies enunciated through the Privacy Act 1988. In particular, application forms will include comprehensive disclosure statements.

86. Subclause 42(4) will avoid any ambiguity between the application of this section and an express secrecy provision. It will provide that new section 42 does not override specific prohibitions on the disclosure of information contained in other pieces of legislation.

87. Subclause 42(5) will contain an ancillary power, authorising the Minister to disclose personal information for the purposes of performing functions under this Act. Such arrangements will be specified in a determination. This provision is intended to address operational difficulties in the interface with key agencies. For example, some Birth, Deaths and Marriages Registries may store information in such a way that the most efficient way to obtain the minimum necessary information from the Registry, to verify a person's identity or citizenship, is to provide a particular subset of information about that person to the Registry. This arrangement is more appropriately covered by way of determination than through complex consent provisions, which could be as much as 10 years old when the information is used.

Clause 43 - Minister may determine information required for the purpose of satisfying Minister of person's citizenship and identity, etc

88. Clause 43 will provide for a Minister's determination which would specify information that may be requested by the Minister. This will make it clear that certain information is necessary for the purpose of satisfying the Minister of an applicant's identity, citizenship or entitlement. Otherwise, a refusal on the basis, inter alia, of the applicant's inability to satisfy such a request could be treated as a separate decision for the purposes of administrative review.

Clause 44 - Method of disclosing information to Minister

89. The Government's policy is that information be provided electronically, whenever possible. This policy will be underpinned by provisions in the new Act and, ordinarily, memoranda of understanding (or similar arrangements) entered into with the providing organisation. This is particularly important for information provided for entitlement purposes, such as arrest warrants.

90. Subclause 44(1) will permit the Minister to specify information which is to be provided in a particular manner or particular form, as set out in a determination. Under subclause 44(2), the information may be taken not to have been provided if it has not been provided in this form. Accordingly, the Minister will not be obliged to act in accordance with such information. The importance of this provision will be to ensure that the competent authority which is responsible for providing the information, such as police forces for arrest warrants, is also responsible for providing it in a readily usable form.

Lost or stolen information

Clause 45 - Minister may disclose information about Australian travel documents that are lost, stolen, suspicious, etc.

91. Clause 45 will allow the Minister to disclose specified information for the purpose of informing specified persons that an Australian travel document is lost, stolen or otherwise invalid. Minimising the problems caused by lost, stolen or suspicious passports is a key policy objective for the revision of the Australian passports legislation. This provision will be part of a range of measures in Australian passports legislation aimed at addressing the problem of lost or stolen passports. These include:

•

Issuing limited validity passports or documents of identity (new subsections 20(2) and 9(1);

•

Power to refuse to issue (new section 15);

•

Penalty for not reporting (new section 41); and

•

Additional fees (new Australian Passports (Application Fees) Act (subsection 5(1)) and provisions for review, waiver and refund (new paragraphs 48(i) to (k) and new subsection 56(2)).

76. The information and recipients will be set out in a Minister's determination. The recipients will include foreign governments, typically through their border control agencies, and the International Criminal Police Organisation - Interpol, and through it foreign law enforcement agencies.

77. It is intended that the disclosure of this information will be subject to memoranda of understanding (or similar arrangements) to ensure that the recipient will effectively uphold the principles for fair handling of the information in a manner substantially similar to the 1939 Regulations (Regulation 12) and the Privacy Act 1988.

78. The objective is to ensure that these lost, stolen or otherwise suspicious documents are removed from circulation. While ever such a document remains in circulation, the Australian to whom it was issued remains at risk of 'identity theft' resulting in financial loss or damage to reputation. In addition, such documents could be used by terrorists and other criminals.

Information which may be disclosed

Clause 46 - Minister may disclose information for particular purposes

79. There are some other limited purposes for which it is reasonable to use passport information. As noted, the objective of the revisions is to set out more clearly the statutory framework for measures which impact on privacy.

80. Under clause 46, the Minister may disclose specified personal information to specified persons for any of the following purposes:

c.

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;

d.

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

e.

law enforcement;

f.

the operation of family law and related matters; or

g.

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

86. The information and person will be specified in a Minister's determination. The information disclosed would be the minimum necessary to achieve the particular purpose, taking into account operational needs and possible technology constraints.

87. It is intended that the disclosure of this information will be subject to memoranda of understanding (or similar arrangements) to ensure that the recipient will effectively uphold the principles for fair handling of the information in a manner substantively similar to the Privacy Act 1988.

88. Information disclosed under this section must be handled in accordance with section 14 of the Privacy Act 1988, which contains the Information Privacy Principles (IPP). IPP 4 requires the holder of personal information to protect it against unauthorised access or other misuse. IPP 11 prohibits disclosure of personal information, except in certain listed circumstances. Personal information collected under the Australian Passports Act will be disclosed under paragraph 11.1(d), which permits disclosure if required or authorised by law.

89. IPP 11.3 further prohibits the recipient from using or disclosing the information for a purpose other than the purpose for which it was given the information.

90. For example, under paragraph 46(a), the department plans to verify the validity of a passport provided by an applicant to Birth, Deaths and Marriages Registries. This would assist in detecting the misuse of lost, stolen or other suspicious passports. It would prevent the Registries, which provide basic identity documents, from doing so based on fraudulent information.

91. Under paragraph 46(b), the department will continue to provide passport information to assist with traveller assistance and facilitation. Examples of this are consular assistance and passenger processing arrangements. A determination in relation to consular assistance arrangements will be based on the Public Interest Determination No 7, 21 October 1997, issued by the Federal Privacy Commissioner to the department under the provisions of the Privacy Act 1988. Traveller facilitation arrangements make immigration processing faster and smoother for travellers and more effectively assure passenger safety and border security. A current example is DIMIA's use of passport information for the Advance Passenger Processing System, under the Migration Act 1958.

92. These measures will address the limitation under general privacy law which requires specific consent for a disclosure that was not for the purpose the information was collected. Consent is a difficult issue in relation to passport information. Any consent is largely illusory because the Minister could retain the discretion not to issue a passport in the absence of consent, if it would interfere with the reasonable operations of the passport system. Secondly, obtaining specific consent in relation to disclosure of information collected from 1 million applicants each year over the 10 year period between applications is impractical. Such limitations discourage other agencies, such as Birth, Deaths and Marriages Registries, from providing information which would allow the passport system to operate more efficiently for applicants.

93. A more transparent way to address the need for disclosure of passport information is to set out in a determination (which must be approved by Parliament) the exact information which is to be disclosed and who is the recipient.

Division 2 - Methods of performing functions under this Act

Clause 47 - Minister may determine particular methods and technologies

94. The Government considers that it is important for the community to be confident about the protection of their privacy while taking advantage of technologies (such as facial biometrics).

95. Under clause 47, a Minister's determination may specify methods (including technologies) that are to be used for the purposes of verifying evidence of the identity of an applicant for, or holder of, an Australian travel document. The determination may provide for the circumstances in which the methods are to be used. If the determination relates to the use of personal information, the determination must specify the nature of the personal information and the purposes for which it may be used. Methods or technologies not specified in a Minister's determination may still be used for performing functions.

Division 3 - Review of decisions about Australian travel documents

96. The comprehensive review provisions currently operating with respect to Australian travel documents will be retained. The department's commitment to a high standard of administrative review will be particularly important to ensure public acceptance of the new measures to reduce the problem of lost or stolen passports.

97. It should be noted that out of 1 million applications, annually, around 25 are subject to internal review and on average one is appealed to the AAT. Virtually all of these cases relate to children's passports and the underlying cause is a dispute between the parents rather than the operation of the passports system, per se.

Clause 48 - Reviewable decisions

98. Clause 48 will set out which decisions made by the Minister or the Minster's delegate are reviewable decisions. These will include all decisions relating to the issuing (including reduced validity) and cancellation of an Australian passport, except the issue of a passport to a child. The circumstances in which a person having parental responsibility may wish to object to the issue of a passport to a child are more appropriately dealt with by a court.

99. Any decision to refuse to issue an Australian travel document will also be reviewable, unless it is based on the existence of an Australian arrest warrant or other court order (under new section 12). This matter is more appropriately dealt with through a competent authority or the court which made the order. The other exception will be when the Minister has made a declaration that the matter, which relates to issue to a child, should be dealt with by a court (under new subsection 11(3)).

100. Decisions not to waive or refund an application fee imposed under the new Australian Passports (Application Fees) Act will also be reviewable.

101. Under the AAT Act 1975 (section 27A), the decision-maker must give to persons whose interests are affected by the decision a notification of the making of the decision and of their right to have the decision reviewed. In notifying any such persons, decision-maker must have regard to the Code of Practice determined under section 27B of that Act.

Clause 49 - Review by Minister of decisions made by Minister's delegate

102. Clause 49 will provide that all reviewable decisions made by a delegate of the Minister, other than a decision made under new subsection 49(4), are subject to review by the Minister.

103. Under new section 51, the Minister may delegate this review to another officer. If this occurs, the review by the delegate made under subsection 49(4) will not be subject to further review by the Minister, but will instead be reviewable by the AAT.

Clause 50 - Review by Administrative Appeals Tribunal of decisions made by Minister

104. Clause 50 will provide that all reviewable decisions made by the Minister, and any review decisions made by a Minister's delegate under new subsection 49(4), are subject to review by the AAT.

105. Where the Minister has made a decision in response to a refusal/cancellation request, and has certified that the decision involves matters of international relations or criminal intelligence, subclause 50(3) will provide that the AAT may only affirm the decision or remit it to the Minister for consideration.

Division 4 - Officers and delegates

Clause 51 - Delegation of Minister's powers

106. Clause 51 will allow the Minister to delegate his powers under the Act. These cover a comprehensive range of administrative actions, including:

•

issuing a passport (new section 7);

•

issuing a travel-related document (new section 9);

•

declaring, in relation to a dispute concerning the issue of a child's passport, that the matter should be dealt with by a court (new subsection 11(3));

•

cancellation of a passport (new section 22); and

•

matters to do with obtaining and disclosing information (new sections 42 to 46).

76. Currently, all but a handful of these decisions are made by officials. These decisions include the issue of more than 1 million passports annually in more than 100 offices around the world. Less than 50 cases annually are referred to the Minister. Under the structure of the 1938 Act, these operations are managed through an array of approved representatives, approved officers and authorised officers.

77. The modern legal structure in the new Act will provide a clearer line of responsibility. The Minister will be able to limit the discretion of delegates through directions (new subsection 51(3)). This will provide operational flexibility to respond to demands from Australian travellers or to deal with any future restructure of the passport system.

78. In practice, it is planned to delegate powers to the categories of officers currently exercising them. For example, the Minister's power to issue an Australian passport will be delegated to certain officers of the department or members of staff of Australian diplomatic missions or consulates. The cancellation power would ordinarily be exercised by the Minister, except in relation to Australian arrest warrants, court orders and similar law enforcement matters (new paragraph 22(2)(d) applying new subsections 12(1) and (2)) and administrative reasons, such as the when a passport is lost or the holder dies (new paragraphs 22(2)(a) to (c)).

79. Subclause 51(3) will require any delegate exercising powers or functions under the Act to comply with any directions of the Minister.

80. Subsection 11(2) (child passports) and sections 12 to 17 (reasons for refusal) will set out a range of circumstances the Minister may consider in exercising the power to issue a passport under subsection 7(1). An officer exercising a delegated power may form his or her own opinion in relation to these circumstances (Acts Interpretation Act 1901, section 34A). Accordingly, there is no power under these important sections to delegate.

Clause 52 - Authorisation of persons as officers

81. Clause 52 will allow the Minister to authorise, in writing, a person to exercise specific powers under the Act. This will complement the more general delegation power in new section 52.

82. Subclause 52(2) will state that persons authorised under this section must comply with Minister's directions.

83. Subclause 52(3) will remove the potential an authorisation made under this section could be considered to be a legislative instrument for the purposes of the Legislative Instruments Act 2003, which commences on 1 January 2005.

Part 6 - Miscellaneous

Clause 53 - Form of Australian travel documents

84. Subclause 53(1) will require that Australian travel documents may be issued in the name of the Governor-General. This will update the 1938 Act (subsection 7(2)).

85. Subclause 53(2) will require that Australian travel documents be issued in a form approved by the Minister. Australian passports conform to the standard specifications for passports developed in accordance with the Convention on International Civil Aviation (Australian Treaty Series 1957 No. 5), and under it Document 9303 Machine Readable Travel Documents, in order to achieve the objective of providing passports for Australians travelling internationally. The form of convention travel documents (see new subsection 9(1)) is governed by the Convention relating to the Status of Refugees (Australian Treaty Series 1954 No 5, Article 29 and Annexes).

86. Subclause 54(3) will provide that the name of the person to whom an Australian passport is issued must appear on the passport. It will also provide that this name must be the name on the person's birth certificate, citizenship certificate, marriage certificate or change of name certificate, except in circumstances specified in a Minister's determination.

87. This provision will complement the requirement that the Minister must be satisfied of the identity of the person (new section 8), which is important to combat identity fraud. There are limited legal powers relating to the name of a person under Commonwealth law. This makes the Minister's task of satisfying him or herself as to the identity of the person more difficult. The legal responsibility for recording names resides with the Registrars of Births, Deaths and Marriages under State and Territory laws. Accordingly, the name registered with these Registrars will normally be used, as part of the process of satisfying the Minister of the identity of the applicant.

88. The name on a foreign birth certificate may be the name which appears on an Australian travel document.

89. Certificates of citizenship issued under the Australian Citizenship Act 1948 will also be accepted. Such certificates may be issued under Part V of that Act.

90. The requirement for a stricter legal documentation of the name of a person will enhance the integrity of the passport system and prevent the potential for abuse through using names established by deed poll or 'by reputation'. This provision will update the 1939 Regulations (Subregulation 5(2)).

91. There will be some variety of circumstances in which a name other than the name on the birth, citizenship, marriage or change of name certificate may appear on the passport. These circumstances are most commonly due to legal processes in States, Territories or overseas. Accordingly, these circumstances will be specified by determination. These might include a court order changing a child's name, a person reverting to a previous name after divorce or death of the spouse and name changes by Indigenous Australians.

Clause 54 - Australian travel documents are the property of the Commonwealth

92. Clause 54 will reflect established international practice. This provision will be particularly important to buttress the Australian Government's claim for the return of a travel document from a foreign government which has taken custody of the document. It will update the 1938 Act (section 6A).

Clause 55 - Endorsements and observations

93. Clause 55 will provide that a Minister's determination may specify the circumstances in which the Minister may endorse travel documents, or make observations on them. This provision will update the 1938 Act (paragraph 12(1)(b) and the 1939 Regulations (Schedule 2).

94. Currently, the 1939 Regulations allow endorsements to Australian travel documents to restrict or extend the countries in which the document is valid, or which specify other particulars (Regulation 11).

Clause 56 - Application fees

95. Clause 56(1) will state that application fees for Australian travel documents are payable to the Commonwealth. These fees will be imposed by the Australian Passports (Application Fees) Act.

96. Clause 56(2) will provide that circumstances in which application fees may be waived or refunded may be set out in a Minster's determination. Paragraphs 56(2)(b) and (c) will, inter alia, enable the Consolidated Revenue Fund to be appropriated for the refund, in accordance with the Financial Management and Accountability Act 1997 (section 28).

Clause 57 - Minister's determinations

97. Clause 57 will allow the Minister to make instruments to specify matters which the Australian Passports Act states may be specified in a Minister's determination. The instruments that can be made under this section will be readily accessible. The use of determinations will provide the Australian Passports Act with a modern legal structure.

98. Subclause 57(2) will provide that such an instrument is a disallowable instrument, and therefore subject to Parliamentary scrutiny. The Legislative Instruments Act 2003 regime will also apply to these instruments. That Act commences on 1 January 2005.

99. Minister's determinations may relate to:

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special circumstances in relation to the issue of children's passports (new subsection 11(2));

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conduct which would justify the refusal or cancellation of a passport or a travel document (new subparagraph 14(1)(a)(v), new paragraph 22(2)(g));

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travel-related documents (new section 9);

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the exchange of information relating to travel documents (new paragraph 42(1)(e), new subsections 42(5), 43(1) and 44(1), new sections 45 and 46)

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methods (including technologies) which may be used in connection with the Act (section 47);

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the waiver or refund of fees (new subsection 56(2)); and

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administrative issues such as the meaning of competent authority; circumstances where concurrently valid passports may be issued; validity of passports; names on passports; and endorsement of passports (new subsections 12(3), 13(3), 14(3), 17(2), 20(2) and 54(3) and new section 55).

Clause 58 - Regulations

100. Clause 58 will contain the regulation-making power. While determinations by the Minister will be the more common form of subsidiary legislation, there may be some matters more appropriately dealt with by regulation.

101. Subclause 58(2) will allow the Governor-General to make regulations prescribing penalties of up to 20 penalty units ($2,200).

Australian Passports (Application Fees) Bill 2004

Clause 1 - Short Title

102. Clause 1 will provide that the Act may be cited as the Australian Passports (Application Fees) Act 2004.

Clause 2 - Commencement

103. Clause 2 will require that new sections 1 and 2 of the Act are to commence on the day on which the Act receives the Royal Assent and the remainder at the same time as sections 3 to 58 of the Australian Passports Act 2004.

Clause 3 - Definitions

104. Clause 3 will provide that expressions used in this Act have the same meaning as they have in the Australian Passports Act 2004, except that Minister's determination means an instrument under this Act and application fee means a fee imposed under new section 4.

Clause 4 - Imposition of application fees

105. Clause 4 will provide that a Minister's determination may specify fees in respect of applications for Australian passports or travel related documents.

106. Subclauses 4(3) and (4) will provide that a Minister's determination may specify fees for endorsements and observations on Australian passports, respectively.

107. Subclause 4(5) will provide that the fees are imposed as taxes. This technical provision addresses the existing constitutional difficulty over whether passport fees were a tax or cost recovery. This problem has clouded the ability of the Government to implement sound financial policies relating to cost structures.

108. The relationship between the fees charged and the actual cost varies as the fee is set to respond to the reasonable demands of Australian travellers. For example, different fees will be set for seniors and children, for those who repeatedly lose passports, and for travel-related documents and for priority processing. Variation to costs can result from, among other things, the introduction of new technologies and the costs of maintaining office space in over 100 locations around the world.

Clause 5 - Matters relating to amount of application fees

109. Subclause 5(1) will provide that a determination may specify different application fees for different circumstances, such as for seniors and children, for those who repeatedly lose passports, for travel-related documents and for priority processing.

110. The details of any changes to application fees (other than ordinary CPI adjustments) would be settled as part of the annual Budget process. The passage of this legislation will not result in a change to this process.

111. The key new feature will be a range of fees in relation to applicants who repeatedly lose passports. Minimising the problems caused by lost or stolen passports is a key policy objective for the revision of the Australian passports legislation. This provision will be part of a range of measures in the new Australian Passports Bill aimed at addressing the problem of lost or stolen passports. These include:

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Issuing limited validity passports or documents of identity (new subsections 20(2) and 9(1);

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Power to refuse to issue (new section 15);

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Penalty for not reporting (new section 41);

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Notification of lost or stolen passports (new section 45); and

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Provisions for review, waiver and refund (new paragraphs 48(i) to (k) and new subsection 56(2)).

76. Subclauses 5(2) and (3) set out standard taxation legislation provisions in relation to the fees.

Clause 6 - Indexation of maximum application fee

77. This clause provides for indexation of the nominal maximum fee.

Clause 7 - Person liable for application fee

78. This clause will create a liability for the fee at the time of the application.

79. Subclauses 7(2) and (3) will make parallel provisions for endorsements and observations.

Clause 8 - Minister's determinations

80. Clause 8 will allow the Minister to make instruments to specify matters which the Australian Passports Act states may be specified in a Minister's determination. The instruments that can be made under this section will be readily accessible. The use of determinations will provide the Australian passports legislation with a modern legal structure.

81. Subclause 8(2) will provide that such an instrument is a disallowable instrument, and therefore subject to Parliamentary scrutiny. The Legislative Instruments Act 2003 regime will also apply to these instruments once that Act comes into operation (1 January 2005).

82. The Minister's determinations will update the 1939 Regulations (Schedule 2).

Clause 9 - Regulations

83. Clause 9 will contain the regulation-making power.

Australian Passports (Transitionals and Consequentials) Bill 2004

84. The purpose of this Act is to set out the transitional and consequential arrangements relating to:

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ensuring the continuing validity of travel documents; continued application of the 1938 Act to pending proceedings and reviews; and pending applications to be treated under the new Act.

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amendment of other legislation which refers to the Passports Act 1938 to change the reference to the Australian Passports Act 2004;

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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) 2004; and

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repeal of all provisions relating to Australian passports or travel-related documents.

Part 1 - Preliminary

Clause 1 - Short Title

85. Clause 1 will provide that the Act may be cited as the Australian Passports (Transitionals and Consequentials) Act 2004.

Clause 2 - Commencement

86. Clause 2 will require that sections 1 and 2 of the Act are to commence on the day on which the Act receives the Royal Assent and the remainder as the same time as sections 3 to 61 of the Australian Passports Act 2004.

Clause 3 - Schedule(s)

87. Clause 3 will be the enabling provision for the Schedule.

Part 2 - Transitional provisions

88. Clauses 4 to 11 will set out standard transitional provisions.

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.