This article will outline provisions for disclosing identifying information as per the Migration Act 1958. The Migration Act sets out the rules for disclosing identifying information. Identifying information is defined in the Migration Act as information that identifies or could reasonably be expected to identify a person.
The Migration Act allows for the disclosure of identifying information in a number of circumstances, including
- To facilitate the return of a person to a foreign country
- To facilitate the assessment of a person’s claim for protection
- To facilitate the investigation of a crime
- To facilitate the enforcement of the law
- To protect Australia’s security
Read on to know more about the legal provisions about disclosing identity information.
336E: Disclosing Identifying Information
Section 336E sets out the rules for disclosing identifying information. Identifying information is defined in the Act as information that identifies or could reasonably be expected to identify a person. Section 336E of disclosing identity information prohibits disclosing identifying information unless it is a permitted disclosure. A permitted disclosure is made for one of the following purposes:
- Data-matching
- Administering or managing the storage of identifying information
- Enforcing the criminal law
- Complying with a law of the Commonwealth or a State or Territory
- Participating in an investigation by the Information Commissioner or the Ombudsman
- Facilitating or expediting the exercise of powers or performance of functions of the Migration Agents Registration Authority
- Extradition (the transfer of a person accused or convicted of a crime from one country to another for the purposes of trial or a severe sentence)
- Providing or obtaining international assistance in criminal matters
- Inquiring into the operation of provisions of the Migration Act relating to identification tests or personal identifiers
- With the written consent of the person to whom the identifying information relates
- Authorised by the Migration Act
Section 336E of disclosing identity information also specifies that disclosure of identifying information relating to a personal identifier of a prescribed type is not a permitted disclosure. This is if it is made for the purpose of investigating or prosecuting an offence. The penalties for breaching section 336E are imprisonment for up to 2 years or a fine of up to 120 penalty units.
336F: Authorising Disclosure of Identifying Information to Foreign Countries Etc.
Section 336F sets out the rules for disclosing identity information to foreign countries and bodies. The section allows the Secretary or the Australian Border Force Commissioner to authorise:
- A specified officer; or
- Any officer included in a specified class of officers;
to disclose identifying information to one or more of the following:
- A specified foreign country
- A specified body of a foreign country
- A specified international organisation
- A prescribed body of a foreign country, of the Commonwealth or of a State or Territory
- A prescribed international organisation
The section specifies that the disclosure must be for one or more of the following purposes:
- To facilitate the return of a person to a foreign country
- To facilitate the assessment of a person’s claim for protection
- To facilitate the investigation of a crime
- To facilitate the enforcement of the law
- To protect Australia’s security
The section also specifies that the disclosure must not be made if the person to whom the identifying information relates is:
- An applicant for a protection visa; or
- An unauthorised maritime arrival who has made a claim for protection.
However, the section does allow for disclosure if:
- The person has requested or agreed to return to the foreign country; or
- The person’s application for a protection visa has been refused and finally determined.
336FA: Disclosure of Certain Personal Identifiers to Selected Individuals
Section 336FA of disclosing identity information allows an officer to disclose certain personal identifiers to selected individuals. The disclosure’s purpose is to obtain the individual’s help to identify, authenticate the identity of, or locate a person. The personal identifiers that can be disclosed under this section are:
- Measurements of a person’s height and weight
- Photographs or other images of a person’s face and shoulders
- Audio or video recordings of a person (other than video recordings under Section 261AJ)
- Signatures
The disclosure must be made to an individual who the ABF officer has reason to believe can help. The officer must also be satisfied that it is reasonably necessary to make the disclosure to the individual in order to obtain that help. The information must only be disclosed to the extent necessary in order to obtain that help. For example:
- A migration officer might disclose a person’s photograph to a witness who might be able to identify the person
- An officer may also disclose a person’s signature to a bank employee. This is for the purposes of confirming whether the person has an account with the bank.
The section also allows an officer to disclose the personal identifier to more than one individual at the same time. This is the case as long as the requirements of the section are met in relation to each one of those individuals.
33FB: Disclosure of Other Relevant Information to Selected Individuals
Section 336FB of disclosing identity information allows an officer to disclose personal information about a person to an individual. This is the case if:
- The officer is also disclosing a personal identifier of the person; and
- Section 336FA authorises the disclosure of the personal identifier
An officer can disclose personal information about the person together with the personal identifier if the following requirements are met:
- The personal information is relevant to the purpose of obtaining the individual’s help.
- The disclosure is reasonably necessary to obtain the individual’s help.
- The disclosure is only made to the extent necessary to obtain the individual’s help.
The section does not allow the officer to disclose personal information that is identifying information. Additionally, the section also allows the officer to disclose personal information to more than one individual at the same time. This applies as long as the requirements of Section 336FA are met in relation to each one of those individuals.
Section 336FC: Disclosure of Certain Personal Identifiers to the General Public
Section 336FC of disclosing identity information allows the Secretary or Commissioner to disclose certain personal identifiers to the general public. This disclosure is for the purpose of obtaining the public’s help to identify, authenticate the identity of, or locate, a person. The personal identifiers that can be disclosed under Section 336FC of disclosing identifying information are:
- Measurements of a person’s height and weight
- Photographs or other images of a person’s face and shoulders
- Audio or video recordings of a person (other than video recordings under section 261AJ)
- Signatures
The disclosure must be authorised by the Secretary or Australian Border Force Commissioner. Moreover, the disclosure must be for the purpose of obtaining the public’s help to identify, authenticate the identity of, or locate, the person.
The information must only be disclosed to the extent necessary to obtain that help. The section also requires the Secretary or Australian Border Force Commissioner to consider the following factors before authorising disclosure:
- Whether other reasonable steps have been taken to identify, authenticate the identity of, or locate, the person
- Whether the person has been informed of the proposed disclosure and has had an opportunity to provide their views on the disclosure
- The sensitivity of the personal identifier that is to be disclosed
- Whether it is reasonably necessary to disclose the personal identifier in order to identify, authenticate the identity of, or locate, the person
What if the Secretary or Australian Border Force Commissioner authorises disclosure of a personal identifier under this section? If this is the case the authority covers all disclosures of the identifier made for the purpose mentioned in Section 336FC (1)(b).
Section 336FD: Disclosure of Other Relevant Information to the General Public
Section 336FD of disclosing identity information allows a person to disclose personal information about another person to the general public. This is true if the disclosure is for the purpose of obtaining the public’s help to identify, authenticate the identity of, or locate, the person. The section applies if the following requirements are met:
- The person disclosing the information is disclosing a personal identifier of the person to whom the information relates.
- The disclosure of the personal identifier is authorised by section 336FC.
- Personal information is disclosed together with the personal identifier.
- The disclosure of personal information is for the purpose of obtaining the public’s help to identify, authenticate the identity of, or locate, the person to whom the information relates.
The section does not apply to personal information that is identifying information.
Seeking Legal Advice About Disclosing Identity Information
Personal identity information should remain confidential unless it is necessary to disclose them in legal matters. That’s why we at JB Solicitors believe that proper legal representation is needed if such matters arise in legal proceedings.
We are a law firm that has expertise in immigration law along with a team of experienced immigration lawyers. Our team can help protect your privacy if you are concerned about the disclosure of your identifying information.
Contact us today if you need help understanding disclosing identity information and other immigration law matters.
