Part 1. Confidentiality, privacy and police matters
Chapter 1: Confidentiality and freedom of information
1.1 Importance of confidentiality and privacy in consular matters
Protection of information pertaining to consular cases and the privacy of consular clients and their families are afforded the highest priority in managing consular cases. This chapter deals in some detail with the legislative and practical issues involved. Consular officers should have a sound working knowledge of the principles involved.
In discharging their consular duties overseas, officers have a moral and, in some cases, statutory duty to act in accordance with the social values, philosophies and ideals of Australian society, reflected in the legislation dealt with in this chapter. The Department expects that, within the framework of their work, officers will give particular worth to the rights and dignity of the individual.
1.2 Confidentiality of records
All information, statements, documents and conversations between a client and an Australian consular officer in Australia or an overseas mission are confidential to that client and the Government.
Officers must not pass any document or oral communication of the kind described above to any unauthorised person or group (either inside or outside the Department) without the express approval of the Freedom of Information and Privacy Law Section of the Department.
There are exceptions to this general rule, however, under the Freedom of Information Act and the Privacy Act. The Privacy Act is dealt with in Chapter 2. The Freedom of Information Act is dealt with in the following sections.
There is no concept of 'consular client confidentiality' when admissions of possible criminal conduct are made by a consular client. DFAT officers who become aware of information which could be suspected to relate to the commission of a serious criminal offence must follow the procedure set out in Admin. Circ. N543/09 on Australian extraterritorial offences and the responsibility to report.
1.3 Freedom of Information Act
The Freedom of Information Act 1982 extends, so far as possible, access by the Australian community to information in the possession of the Government. It does this by:
- making available to the public certain information about the operations of departments and public authorities
- ensuring that certain information about rules and practices affecting the public is readily available to affected persons
- creating a general right of access to documentary information, subject to exemption provisions in the Act, in the possession of ministers, departments and public authorities. This right is usually exercised by a member of the public making a request under the Act. The Department commonly receives requests from consular clients for the content of their case file.
Consular officers should be familiar with the Act and its implications. They should take this into account in all dealings with the public, both in Australia and overseas, when drafting any document relating to a consular case, including cables, memorandums, CMIS entries, and e-mails. In fact, as the Act applies to all Departmental activities, officers need to bear its provisions in mind when executing all their duties. An introduction to the Freedom of Information Act is in the Department's FOI Circular No P0862 of 11 January 2008.
A security classification does not prevent the availability of a document under the FOI Act. For FOI purposes, security classifications merely indicate an assessment of a document's sensitivity when it is originated. The determining factor is the balance of public interest, in the light of the exceptions and exemptions specified in the Act.
1.4 Managing FOI requests
(See P0862 Freedom of Information: responsibilities for management and processing of FOI requests.) The Department's performance in this area is subject to independent review and legal appeal processes, and to scrutiny by ministers, parliamentarians, the Ombudsman and the media. It should be accorded appropriate priority by branches, state offices and posts.
The Freedom of Information and Privacy Law Section in Domestic Legal Branch manages responses to FOI requests received by the Department.
Decisions on whether to release documents under the Act are made by an SES Band 1 officer designated for each request. They usually have responsibility for the subject matter of the request.
1.5 FOI statutory timeframes
An agency generally has 30 calendar days from the time of receiving the application to provide the applicant with a decision on access to the documents requested. In limited circumstances, when consultation is required with individuals, businesses or state/territory governments, an agency may claim an additional 30 calendar days to complete the request. While it is the Department's practice also to consult foreign governments, when necessary, these do not attract the additional 30 days.
1.6 Requests under the FOI Act
An FOI request must meet certain procedural requirements:
- it must be a request for documents, not general information. The request should clearly describe the requested documents
- it must be made in writing to the Director, Privacy Law Section, at the Department’s mailing address.
- applicants do not have to be Australian citizens, but they are required to specify an address in Australia where notices under the Act may be sent.
Australian overseas missions are not authorised to accept FOI requests from the public. If a post receives a request, they should cable Canberra and forward the original request by bag. The official date of receipt will be the date of receipt in Canberra.
1.7 FOI requests – the process
On receiving an application, the Privacy Law Section will task all relevant branches, posts and state offices to search for relevant documents. The section will also ask posts and state offices to provide copies of any relevant documents in the next available bag. The section asks branches to provide copies of any relevant documents later in the process, given that no time is lost in transit. The section contacts branches by minute to the branch head, and overseas posts and state offices by cable.
Work areas should respond to the section's tasking within three working days by minute to the Director Privacy Law Section or by cable.
Work areas must search all relevant:
- TRIM files, including all relevant open and closed parts, and archived files
- working documents
- electronic documents including cables, emails and database entries, handwritten notes and margin notes.
The tasking will include a document retrieval form. The branch head, or Head of Mission/Head of Post, or another SES staff member at a post or state office must certify that a complete search of all records has been completed. The form will generally also ask for an estimate of the number of relevant pages of documents, and the number of relevant pages which may be sensitive.
Work areas which do not hold relevant documents should provide a nil return.
The Privacy Law Section will then collate responses from all relevant areas of the Department and ask branches to provide copies of any relevant documents. Branches are generally asked to provide hard copies within three working days.
When work areas provide copies of any relevant documents, attention should be drawn, for example in the minute or cable or by margin notes, to any material in the documents which may be sensitive, including that its release may involve the unreasonable disclosure of personal information, or it could reasonably be expected to damage international relations.
When the Privacy Law Section receives copies of any relevant documents, it will collate and schedule those documents, and appoint an SES Band 1 officer as the decision-maker for the request.
1.8 Contact point for FOI
Enquiries from the public about FOI, such as requests for access to documents or enquiries about FOI processes, should be referred to the Privacy Law Section (tel 02 6261 1111 or email FPL@dfat.gov.au). The section manages all contact between the Department and the applicant throughout the FOI process.
1.9 Freedom of information and defamation
As the Australian community has a right to access information held by the the Government, consular officers should be aware of the concept of defamation. Under Australian law, defamation is a communication from one person to another which lowers or harms the reputation of a third person, who is able to be identified.
In general, defamation is established when there are three elements present:
- the matter must have been communicated to at least one third party (known as publication)
- the matter complained of is capable of being defamatory (the meaning of the words)
- the matter must be capable of identifying the plaintiff (identification).
A defamation may be contained in printed material, written statements or spoken. A statement may be defamatory, either because of what is expressly said or because of what is imputed (or inferred). The standard used to determine if something is defamatory is that of ordinary members of the community, applying current community standards.
There are currently uniform defamation laws which apply to the Commonwealth for material published after 1 January 2006. However, defamation laws vary in some respects between each of the Australian states and the Northern Territory. In the ACT, the law of defamation generally follows the NSW laws which are the basis of the uniform laws.
This handbook stresses the need for consular officers to provide the Department with full reports on consular cases, including, in some instances, descriptions of clients. However, consular officers should be mindful of the potential to make statements about their clients which could be considered defamatory. This is because under the FOI Act, the material may be able to be disclosed to the person who is the subject of the report.
Consular officers have a duty to report events frankly and fully when reporting consular cases and they should aim to report cases based on the facts. When a consular officer needs to report on another individual's assessment of a consular client's behaviour, they should try to identify the maker of that statement when possible. For example, if a member of the local police force makes a statement about the behaviour of a consular client, this statement/description should be attributed to the police officer in consular reporting
1.10 Defences against defamation
It may be very difficult or impossible to avoid making a defamatory statement. In this case, there may be a defence available for the defamation. Defences may include: honest opinion (formerly known as fair comment), justification/truth, qualified privilege, or other defences. Whether a particular defence is available will depend on the case. Consular officers should seek advice from the General Litigation, Corporate and Commercial Law Section in this instance.
The defence of honest opinion or fair comment requires that the matter in question is a comment, that the factual basis of the comment is true, stated or indicated and is distinct from the comment, that the comment is on a matter of public interest, and that the comment is fair, ie. a fair minded person could honestly hold that opinion on the basis of the facts, and is not brought about by malice.
The defence of justification/truth applies when you can prove that the material published was substantially true. However, matters which could appear to be defamatory in effect, however true, must only be communicated to persons properly authorised to receive the information in the course of their official duties.
The defence of qualified privilege may be available when the person making the defamatory communication and the person receiving it have a mutual or reciprocal duty or interest in making or receiving it. However, the person (i.e. Departmental officers) must have had a duty to make the communication to the person to whom they reported, and they must not have been malicious.
When the Department and its officers are granting access to documents under the FOI Act and when this access is required to be given to the Australian community, or an authorised officer under the FOI Act believes this access is required, the FOI Act can provide protection from action for defamation.
However, the FOI Act does not protect against defamation actions when a Departmental officer defames a person or persons in the ordinary course of their duty as an officer.
This may, in turn, mean that the Commonwealth (the Department) is found to be vicariously liable for the publication of the defamatory statements – to the extent that the Department is liable for the publication.
The FOI Act can only potentially protect against defamation when the information is provided in response to a request under the FOI Act. Therefore, consular officers should not volunteer additional information, especially when this might be seen to be defamatory. A better approach would be to advise those requesting information that this may be provided to them if they make a request under the FOI Act.
Before recording the details of a consular case, consular officers should consider the following:
- the context – have particular individuals been identified? Are there any possible imputations (ie. can something negative be inferred)? Could they be seen as defamatory? Consular officers should put themselves in the position of the person about whom the statement is being made
- whether any editing or clarification may be required
- whether identification of particular individuals is necessary.
Consular officers should record all relevant information on the performance of their functions. They should record facts rather than their judgments. Consular officers must therefore exercise great care in making written or oral statements about individuals, and when possible avoid gratuitous or colourful expressions.
Consular officers should ensure that what is recorded in a consular case is relevant; has supporting evidence, could not be seen as malicious, and reflects the performance of official functions. Consular officers are then more likely to have a defence to any claim of defamation, on the basis that their records were made properly and accurately for a legitimate purpose. Consular officers should also ensure that possibly defamatory reports describing their clients are clearly attributed to their original source.
Chapter 2: The Privacy Act
The Privacy Act 1988 (the Act) imposes legal requirements on the ways in which government departments and agencies may collect, store, use and disclose personal information about an individual with whom departments and agencies have dealings.
The Privacy Amendment (Enhancing Privacy Protections) Act 2012 (Privacy Amendment Act) introduces a number of reforms to the Privacy Act, which commenced on 12 March 2014. The Privacy Amendment Act introduced the Australian Privacy Principles (APPs), which apply to both agencies and organisations (referred to as APP entities in the amended Privacy Act) and replaced the National Privacy Principles and Information Privacy Principles which previously applied. The APPs outline the obligations of APP entities with regard to the handling of personal information.
The requirements of the Act have important implications for consular work. Consular officers need to familiarise themselves with all its provisions, especially those concerning disclosure. The Department takes its privacy obligations seriously. All staff (including those at Posts – A-based, LES and Honorary Consuls) should be aware of their obligations under the Privacy Act when handling personal information. These obligations are legal requirements, and breaches can result in the Department being liable for compensation. Unauthorised access use or disclosure of personal information can also be a breach of the staff Code of Conduct, not to mention the detrimental affect it could have for the client.
2.1 Summary of the 13 Australian Privacy Principles
The Australian Privacy Principles (APPs) are legally binding principles that set out standards, rights and obligations in relation to handling, holding, accessing and correcting personal information. They apply to most Australian Government agencies and certain private sector organisations – collectively referred to as APP entities.
Australian Privacy Principle 6 is most relevant to consular work because of the limits it places on the disclosure to others of personal information about a consular client. A new requirement exists in Australian Privacy Principle 5 where the department is now required to take reasonable steps to notify individuals of the collection of personal information (see part 2.3)
The Australian Privacy Principles are:
- Australian Privacy Principle 1—open and transparent management of personal information
- Australian Privacy Principle 2—anonymity and pseudonymity
- Australian Privacy Principle 3—collection of solicited personal information
- Australian Privacy Principle 4—dealing with unsolicited personal information
- Australian Privacy Principle 5—notification of the collection of personal information
- Australian Privacy Principle 6—use or disclosure of personal information
- Australian Privacy Principle 7—direct marketing
- Australian Privacy Principle 8—cross‑border disclosure of personal information
- Australian Privacy Principle 9—adoption, use or disclosure of government related identifiers
- Australian Privacy Principle 10—quality of personal information
- Australian Privacy Principle 11—security of personal information
- Australian Privacy Principle 12—access to personal information Australian Privacy Principle 13—correction of personal information
2.2 Australian Privacy Principle 6
Australian Privacy Principle 6 of the Act places limits on use and disclosure of personal information as follows:
Regarding use or disclosure
6.1 If an APP entity holds personal information about an individual that was collected for a particular purpose (the primary purpose), the entity must not use or disclose the information for another purpose (the secondary purpose) unless:
- the individual has consented to the use or disclosure of the information; or
- subclause 6.2 or 6.3 applies in relation to the use or disclosure of the information.
Note: Australian Privacy Principle 8 sets out requirements for the disclosure of personal information to a person who is not in Australia or an external Territory.
6.2 This subclause applies in relation to the use or disclosure of personal information about an individual if:
- the individual would reasonably expect the APP entity to use or disclose the information for the secondary purpose and the secondary purpose is:
- if the information is sensitive information—directly related to the primary purpose; or
- if the information is not sensitive information—related to the primary purpose; or
- the use or disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order; or
- a permitted general situation exists in relation to the use or disclosure of the information by the APP entity; or
- the APP entity is an organisation and a permitted health situation exists in relation to the use or disclosure of the information by the entity; or
- the APP entity reasonably believes that the use or disclosure of the information is reasonably necessary for one or more enforcement related activities conducted by, or on behalf of, an enforcement body.
6.3 This subclause applies in relation to the disclosure of personal information about an individual by an APP entity that is an agency if:
- the agency is not an enforcement body; and
- the information is biometric information or biometric templates; and
- the recipient of the information is an enforcement body; and
- the disclosure is conducted in accordance with the guidelines made by the Commissioner for the purposes of this paragraph.
The Privacy Act requires consular officers to obtain consent (APP 6.1(a)) from an individual requiring consular assistance before personal information can be passed to their next of kin or relatives. To disclose personal information where the client does not consent, one of the exceptions in APP 6.2 or 6.3, listed above, must apply. In the absence of any applicable exception the Department cannot disclose any information about an individual without their consent.
It is therefore important for consular officers to obtain consent from clients as soon as possible. The form, 'Consent to the Disclosure and Use of Personal Information', described below should be used for this when possible.
2.3 Australian Privacy Principle 5
Because DFAT collects personal information about individuals, we must take reasonable steps either to notify the individual of certain matters or to ensure the individual is aware of those matters.
APP 5 states that notification needs to take place either before, or at the time an APP entity collects personal information. If this is not practicable, reasonable steps must be taken as soon as practicable after collection. This requirement is largely met by the introduction of limited disclosures on emails and phone recordings as well as the provision of a Consular Privacy Collection Statement.
2.4 Gaining consent to use and disclose personal information
A 'Consent to the Disclosure and Use of Personal Information' form (2.5) is to be completed by all consular clients as soon as possible after contact with a consular officer. The form asks clients to:
- consent to the disclosure of personal information to any persons, bodies or agencies reasonably deemed necessary by DFAT to ensure that the client's consular needs are met and for the administration of the Australian Passports Act 2005
- consent to DFAT disclosing personal details to a next of kin or personal representatives, details of which are to be provided on the form
- decide if they wish to limit the information being disclosed, by nominating information they do not wish disclosed.
- acknowledge that DFAT handles personal information in accordance with the Privacy Act.
When signed, the consular officer should record all information in the contact section of the case file on CMIS/CMLIS. If the client does not agree to give consent or limits consent in some way, these details are to be recorded in the comments under the Contact section of the case file on CMIS/CMLIS. It is also good practice to record any particular comments clients might have in respect to the privacy consent in the CMIS/CMLIS chronology.
Where possible, consular officers should also make available copies of the Consular Privacy Collection Statement.
2.5 Consent to the disclosure and use of personal information
2.6 Permitted General Situations
The information handling requirements imposed by some APPs do not apply if a ‘permitted general situation’ (PGS) exists. The PGSs are set out in subsection 16A(1) of the Privacy Act. There are seven permitted general situations listed in s 16A:
- lessening or preventing a serious threat to the life, health or safety of any individual, or to public health or safety (see APPs 3.4(b), 6.2(c), 8.2(d) and 9.2(d))
- taking appropriate action in relation to suspected unlawful activity or serious misconduct (see APPs 3.4(b), 6.2(c), 8.2(d) and 9.2(d))
- locating a person reported as missing (see APPs 3.4(c), 6.2(c) and 8.2(d))
- asserting a legal or equitable claim (see APPs 3.4(c) and 6.2(c))
- conducting an alternative dispute resolution process (see APPs 3.4(b) and 6.2(c))
- performing diplomatic or consular functions (see APP 3.4(b), 6.2(c) and 8.2(d))
- conducting specified Defence Force activities (see APP 3.4(b), 6.2(c) and 8.2(d))
For the most part DFAT would rely on the PGS 6 internally to be known as the Consular Exception. This permitted general situation applies when an agency reasonably believes that the collection, use or disclosure of personal information is necessary for the agency’s diplomatic or consular functions or activities (s 16A, Item 6).
The terms ‘diplomatic’ and ‘consular’ are not defined in the Privacy Act. An agency can rely on this permitted general situation only if it has diplomatic or consular functions or powers, conferred either by legislation or an executive instrument (such as the Administrative Arrangements Order). The following are given as examples of when this permitted general situation might apply:
- Diplomatic functions or activities: where an agency collects, uses or discloses personal information to grant a diplomatic visa to a foreign national accredited as a member of the diplomatic staff of a mission to Australia.
- Consular functions or activities: where an agency collects, uses or discloses personal information to: ◦assist Australian citizens who are in distress overseas, including where an Australian individual is detained or is the victim of crime, or where assistance is required with repatriation in the case of death or serious illness, or to provide assistance in response to a crisis or emergency overseas.
- Provide information to the next of kin of an Australian individual who is overseas where, for example, the individual is seriously injured or is suffering serious physical or mental illness, and the agency considers that there are likely to be significant, serious or undesirable consequences for the individual or their next of kin if it does not disclose the personal information.
PGS 3 which relates to the collection, use or disclosure of personal information to locate a person who has been reported as missing, is covered in detail in Chapter 2.11.
The Consular Exception is quite broad by definition however for the purposes of managing its use within DFAT; it will be administered in a similar fashion to the previous Public Interest Determination for consular work. That is to say that the disclosure of personal information applies when an individual's consent is refused or cannot be obtained, or when an individual's capacity to provide informed consent is under question due to a physical, psychiatric or drug-induced incapacity, and would impede the Department's ability to meet its consular obligations to Australians overseas. There is still a requirement to notify the individual that we have disclosed the information (at an appropriate time).
DFAT Policy allows the Consular Exception to be used to disclose limited personal information in the following circumstances:
- hospitalisation/possible psychiatric illness
- welfare/whereabouts are unknown (although PGS 3 could be applied here).
Before a decision is made to disclose information under the Consular Exception, some basic criteria must be satisfied:
Q1. Can the proposed disclosure be made under an existing exception in APP 6 (other than APP 6.2(c)), APP 8 if dealing with an overseas recipient (other than APP 8.2(d)) or under the Person Reported as Missing Rule (PGS3)?
If so, the alternate APP must be used. For example 6.2(b) the use or disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order.
All disclosures under the Consular Exception must be documented on the relevant files (either case files or Privacy disclosure files).
2.7 Consular Exception – Definitions
For the purposes of implementation of the Consular Exception, the Department abides by the following definitions of the terms next of kin and publicly available information.
The permitted general situation as set out in subsection 16A(1) Item 6 of the Privacy Act. This permitted general situation applies when an agency reasonably believes that the collection, use or disclosure of personal information is necessary for the agency’s diplomatic or consular functions or activities.
Next of Kin:
In the first instance, next of kin is interpreted as the person nominated by the person overseas receiving consular assistance. The next of kin may or may not be a member of that person's family.
When a person overseas is unable personally to nominate someone to whom information may be disclosed, the Department will check to see whether the person exercised the option to nominate a contact in their passport or passport application, and if so, use that source.
Failing that, the Department will try to make contact with immediate family members in the following order of precedence: spouses, children or parents, and siblings.
Depending on the information available to the Department in these cases, the Department will need to judge whom best to contact in a particular family circumstance. For example, it would be inappropriate to contact an estranged spouse or minor child. The Department should aim to identify a family member capable of acting as a contact point within the family who shows a responsible interest in the welfare of the person overseas.
Publicly available information
Publicly available information is defined as personal information published or broadcast in or by the media about a person who is the subject of consular interest. The Department should take care not to add any new context which might subtly alter the meaning of information already published.
2.8 Application of the Consular Exception
Hospitalisation/possible psychiatric illness
Under the terms of the Consular Exception, the Department, on its own initiative, may disclose to a person's next of kin, personal information about them when travelling overseas if we believe on reasonable grounds that:
- there is a serious threat to the health of an Australian overseas
- the individual concerned is unable because of the nature of his or her illness to give informed consent to the disclosure
- disclosure is necessary to reduce a threat to the life or health of the individual, or
- disclosure is necessary for humanitarian reasons relevant to the individual or family.
An example of a person's inability to give informed consent might be when the person is unconscious or hospitalised in a serious condition and unable to understand information or indicate preferences, or when the person might be suffering from a mental illness or a psychotic reaction to drugs.
It may, for example, be necessary to disclose information to the next of kin so they can furnish treating doctors overseas with information about the person's medical history or prior treatment when this is necessary to prevent inappropriate treatment being administered.
Generally, if a person has refused consent to disclose information, it cannot be disclosed. However, if an appropriately qualified medical practitioner has assessed that the person refusing consent is incapable of providing or refusing informed consent, then a disclosure may be considered. When possible, the medical practitioner should be qualified in the appropriate specialty and their assessment of the person's incapacity to provide informed consent should be in writing. When the doctor's assessment cannot be obtained in writing, a record should be kept of their assessment, name, position, address and the date of the assessment.
If it is clear that a temporarily incapacitated person, whose medical condition is neither life-threatening nor dependent on medical information held in Australia, can recover sufficiently to make an informed decision soon, then alerting the next of kin should be deferred until after that person has been consulted and provided consent.
When determining whether or not to proceed with disclosures of this kind, it is important that the Department bear in mind the sensitive nature of health records and that the disclosed information should be kept to the minimum necessary to achieve the purpose of the disclosure.
In response to enquiries from relatives, the Department may confirm, clarify and correct information in the media about a person who has been arrested or imprisoned, even when that person has not consented to the release of information. This disclosure may not occur at the Department's initiative, ie. The relatives must make the initial contact.
The Department may not disclose any additional personal information unless this disclosure is permitted by APP6.
In response to requests from the news media, consent of the person involved is required before the Department can confirm, clarify and correct information about an arrest or imprisonment. A person may authorise a family member or another person to make decisions and consent to disclosures on their behalf.
The Privacy Act does not affectthe release of information that does not identify a living person.
For the most part, the welfare/whereabouts enquiries can be met by the Privacy (Persons Reported as Missing) Rule 2014 (see part 2.11) not the Consular Exception. In all welfare/whereabouts enquiries where the client has been located, the first preference is for a person to consent to the disclosure of personal information. If the person does not consent, they should be asked whether they consent to the disclosure of certain limited information to help alleviate the anxiety of their next of kin.
If a person refuses consent, under the Person Reported as Missing rule (or in limited circumstances, the Consular Exception) the Department may exercise the option to disclose to the next of kin that contact has been made and the person has refused to consent to have information disclosed. The person must be informed if the Department intends to exercise this option.
There is no requirement for the Department to disclose this information and there could be compelling reasons (eg. the inquiring person is abusive/hostile towards the person overseas) for not disclosing even these limited details. The specifics of each case should be considered carefully, with serious consideration given to a person's right to refuse to have information passed to anyone.
In order to achieve the best possible consular result, consular officers may, following a person's initial refusal to consent to disclosure, later try to persuade the person to agree to disclose limited information that is sufficient to ameliorate the family concerns. This approach assumes that a person may be more likely to agree to disclose certain pieces of information rather than to give the Department a blanket authorisation to convey personal information to their next of kin.
Cross-border disclosure of personal information (APP8)
An agency may not disclose personal information to an overseas recipient unless there is consent or a permitted general situation is applied. DFAT can release information where we reasonably believe that the disclosure is necessary for the agency's diplomatic or consular functions or activities by exercising the Consular Exception (s 16A(1), Item 6).
For example, this permitted general situation may apply where an agency discloses personal information to an overseas recipient to assist an Australian citizen who is in distress overseas, such as where an Australian individual is detained or is the victim of crime, where assistance is required with repatriation in the case of death or serious illness, or to provide assistance in response to a crisis or emergency overseas.
2.9 Conditions applying to the Department's implementation of the Consular Exception
The First Assistant Secretary, Consular and Crisis Management Division, Assistant Secretary, Consular Branch, and two Directors, Consular Operations Section, are authorised senior officers for making decisions under the Consular Exception:
- all requests for information under terms of the Consular Exception must be referred to one of those officers for decision
- the Department will not rely on the provisions of the Consular Exception if a disclosure can be made under other exceptions in APP6, APP8 or the Persons Reported as Missing Rule
2.10 The importance of informed consent
In all cases when the disclosure of personal information is an issue, consular officers should do their utmost to obtain the informed consent of the person in question. When informed consent cannot be obtained, the guidance of authorised senior officers must be sought on possible application of the Consular Exception or the Persons Reported as Missing Rule. In the absence of informed consent, consular officers may not disclose any information about the person to the next of kin or to others until approval from an authorised senior officer is received.
2.11 Privacy in the case of missing persons
The Privacy (Persons Reported as Missing) Rule 2014 regulates how DFAT (and other APP entities) may collect sensitive information, or use or disclose personal information, where the entity reasonably believes that the collection, use or disclosure is reasonably necessary to assist a locating body to locate a 'person reported as missing'.
In summary personal information (including sensitive information) may only be collected, used or disclosed if the APP entity reasonable believes that the collection, use or disclosure:
- is reasonably necessary to assist the locating body to locate the person reported as missing, and
- would not pose a serious threat to the life, health or safety of any individual
In relation to disclosure, under the Persons Reported As Missing Rule, DFAT must make a written note of the disclosure. There are a number of elements that must be satisfied for an individual to be considered as a 'person reported as missing' for the purposes of this Rule:
- the individual must have been reported as missing to a locating body. The report may be made to any locating body. An official missing person report to a police force of a State or Territory is not required for the purposes of the Rule (although, as a locating body, the existence of a report to a police force of a State or Territory may satisfy the definition of 'person reported as missing');
- the individual's whereabouts must be unknown to the locating body who receives the report. Another individual or entity may know the whereabouts of the individual, however this does not mean that the individual is not a 'person reported as missing';
- the individual must be sought because there are serious concerns for their safety and welfare or for the purpose of re-uniting them with their family. The terms 'family' and 'child' (used in the definition of 'family') are defined in the Rule;
- the individual must not be sought in relation to a legal matter or for the purpose of genealogical research. These matters are excluded because the Commissioner considers them to be outside of the scope of PGS 3. An APP entity may be able to rely on other exceptions to APP 3 and APP 6 to collect, use or disclose personal information for these purposes.
A locating body means:
- the Australian Federal Police
- a police force or service of a State or Territory
- the Salvation Army Family Tracing Service
- the Australian Red Cross Tracing Service
- International Social Service Australia
- a Link-Up Service of a State or Territory, or
- the Department of Foreign Affairs and Trade.
When DFAT may use or disclose personal information about a person reported as missing
Use or disclosure of personal information about a person reported as missing is permitted only if:
- the use or disclosure of the information is in response to a request from a locating body
- the APP entity reasonably believes that the use or disclosure is reasonably necessary to assist the locating body to locate a person reported as missing
- in the case of a disclosure, the recipient of the information is a locating body
- it is unreasonable or impracticable to obtain the consent of the person reported as missing to the use or disclosure of the information
- the information that is used or disclosed is limited to the extent reasonably necessary to make contact with, or to offer proof of life of, the person reported as missing
- the use or disclosure is not contrary to any wish expressed by the person reported as missing of which the APP entity is aware, and
- section 7 [of the Rule] does not apply in relation to the use or disclosure.
As a locating body, DFAT should allow the person reported as missing to indicate how much personal information (if any) they wish to be disclosed to the individual who reported them as missing. Where the person reported as missing has not been located, DFAT should not disclose any personal information collected from an APP entity to the individual who reported the person as missing, unless an exception in APP 6.2 or 6.3 applies (for example the Consular Exception).
The existence of an exception does not compel the locating body to use or disclose the personal information. Before using or disclosing the personal information of a person reported as missing, the locating body could consider the known wishes of the individual.
Chapter 3: Managing allegations of serious criminal conduct overseas – extraterritorial offences and extradition
This chapter provides guidance for consular officers on managing and reporting information which could reasonably be suspected to relate to an offence under Australian law (also A/C N543/09 Australian extraterritorial offences and the responsibility to report). Additional guidance on managing difficult or complex cases involving extraterritorial offences should be sought from the Head of Mission or the Director, Sanctions and Transnational Crime Section (STC).
This chapter also gives an overview of DFAT's role in extradition and mutual assistance in criminal matters. The Attorney-General's Department (AGD) is the lead agency in these matters. Full details on how to manage extradition requests are described in A/C P0982.
This chapter provides guidance in the context that a prospective or current consular client is: (1) alleged to have committed, or has attempted or threatened to commit, an Australian extraterritorial offence; (2) a victim of an Australian extraterritorial offence; or (3) a friend or relative of a victim or alleged perpetrator of an Australian extraterritorial offence.
3.1 Managing allegations of criminal conduct - extraterritorial offences and the responsibility to report
Some offences under Australian law apply extraterritorially, meaning that the laws apply to Australian citizens, permanent residents and companies when the offences are committed overseas. These offences include, but are not limited to, those associated with:
- bribery of foreign public officials;
- transnational organised crime, such as drug trafficking, money laundering, people smuggling and human trafficking;
- child sex offences;
- slavery and slavery-like practices, such as forced marriage, servitude and forced labour;
- female genital mutilation;
- terrorism, such as participation in terrorist acts, membership of a terrorist organisation, providing support to a terrorist organisation or financing terrorism;
- breach of United Nations Security Council or Australian autonomous sanctions;
- international peace and security, such as war crimes, crimes against humanity, genocide, proliferation of weapons of mass destruction and foreign incursions and recruitment; and
- offences against Commonwealth officials.
3.2 Role of overseas posts – reporting procedures
In accordance with the DFAT Code of Conduct for Overseas Service and the “APS Values and Code of Conduct in practice: A guide to official conduct for APS employees and agency heads”, if officers become aware of information which they suspect relates to the possible commission of a serious criminal offence under Australian law, they must report it in accordance with the procedure set out below. In the consular context overseas, this means that consular officers are expected to report any information that relates to the possible or attempted commission of a serious extraterritorial offence.
As a matter of law, a ‘serious’ offence generally signifies a crime which attracts a maximum prison sentence of five years or more under Australian law. All of the extraterritorial offences listed in section 3.1 above except forced marriage (where there are no aggravating circumstances) meet this threshold. From a policy perspective it has been decided that any information relating to the possible or attempted commission of a forced marriage offence should also be reported.
Officers must observe the following procedures in reporting information related to the possible commission of any serious extraterritorial offence:
- Report the matter immediately to the Head of Mission.
- Where the Head of Mission considers appropriate, post will then cable all information that relates to the matter to Canberra (attention Director, Sanctions and Transnational Crime Section copied to the Senior Legal Adviser) by Head of Mission - approved cable.
- Cables should be sent using the ODIN topic Legal; Subtopic: Allegations. In most cases the information being reported in the cable will have been obtained through a consular client. Accordingly, posts should also include the ODIN topic: Consular; Subtopic: Case Management.
- At posts with accredited Australian Federal Police Liaison Officers, the Head of Mission may wish to consult them on preparing the report to be cabled to Canberra. In doing so, the Head of Mission should take into account privacy considerations (see section 3.3 below).
- As far as possible, limit reporting to an unclassified level, with a handling of 'legal-in-confidence'.
- Any national security related or sensitive information should be cabled separately by classified cable.
- Consular officers should not investigate the matter further.
While there are no requirements for the format of the report, officers should, to the extent possible, include reference to the following:
- source of the information and any comment on the credibility of the source
- chronology of the alleged conduct
- names and personal details of the parties involved, both Australian and foreign
- any other relevant information.
The obligation to report is ongoing. Where a consular officer has already cabled the Director, Sanctions and Transnational Crime Section (STC) but later becomes aware of more information relating to the possible commission of an offence, the officer must cable that further information to the Director, STC.
Where appropriate, the Sanctions and Transnational Crime Section will pass to the Australian Federal Police (AFP) any information that could relate to an Australian extraterritorial offence, taking into account its obligations with respect to privacy (see section 3.3, below). It is the responsibility of the Sanctions and Transnational Crime Section to ensure that any information on possible criminal activity that is politically sensitive is treated in accordance with the National Guidelines for Referring Politically Sensitive Matters to the Australian Federal Police.
It is the responsibility of the Australian Federal Police and other Australian law enforcement agencies to conduct investigations into allegations of Australian extraterritorial offences.
3.3 Privacy Act considerations
The fact that information exists suggesting an Australian may have committed an Australian extraterritorial offence does not diminish that person’s entitlement to appropriate consular assistance and privacy. Disclosure of personal information to the Australian Federal Police in the context of admissions by, or allegations against, a person involved in the commission or threatened commission of an Australian extraterritorial offence may be permitted on the basis described in Australian Privacy Principle (APP) 6.2(e):
the APP entity reasonably believes that the use or disclosure of the information is reasonably necessary for one or more enforcement related activities conducted by, or on behalf of, an enforcement body. Whether APP 6.2(e) is met is an assessment for the Director, Sanctions and Transnational Crime and the Head of Mission, when considering whether to disclose information to the Australian Federal Police. The Director of the Sanctions and Transnational Crime Section will ensure that disclosure to the Australian Federal Police of personal information provided by a consular client will only take place if it is ‘reasonably necessary for one or more enforcement related activities conducted by, or on behalf of, an enforcement body.’ This involves an assessment as to whether the public interest outweighs the privacy interests of the person whose information is to be disclosed. Generally, the more serious the offence, the greater the public interest in providing the information to the Australian Federal Police. Heads of Mission should also make this assessment before disclosing personal information directly to Australian Federal Police Liaison Officers. The requirement of APP 6.2(e) will normally be met where the person is currently the subject of an AFP investigation and/or the AFP requests information about a specific person.
Implications for consular case management
In the event an Australian provides a consular officer with information indicating that the person may have committed an Australian extraterritorial offence, and subject to overriding safety or other considerations, that officer must inform the person that:
- Australian law may apply to such conduct;
- the Australian Government cannot condone illegal conduct under any circumstances;
- the person should seek independent legal advice; and
- APS officers have a duty to report the possible commission of Australian extraterritorial offences to Australian authorities.
In cases where it is considered appropriate to disclose information to Australian authorities, the Head of Mission may need to make arrangements to avoid the appearance of conflict between the post's consular role and its responsibility to report information suggesting a breach of Australian law. Where practical, posts should assign the management of any follow-up related to the allegations to different officers, including enquiries from the Australian Federal Police, formal mutual legal assistance or extradition requests, and the provision of consular assistance.
3.4 Special considerations for allegations of child sex offences
Allegations involving the sexual exploitation of children are of utmost concern and should be treated seriously and dealt with quickly. Many Australian child sex offences (not only ‘child sex tourism’) apply extraterritorially. From a consular perspective, any information concerning any sexual activity involving a child should be reported in accordance with these guidelines and the provisions of the Privacy Act (see section 3.3 above).
The Australian Government is committed to protecting children from sexual exploitation by Australians who travel or live overseas. The role of overseas posts, in addition to reporting, as outlined in section 3.2 above, and providing normal consular assistance, is to:
- provide information to foreign governments and Australians overseas on the scope and purpose of Australia's child sex offences legislation;
- maintain a dialogue with host governments, ensuring Australia's firm stance against the sexual exploitation of children is fully understood;
- facilitate communication between individuals and the Australian Federal Police in relation to specific child sex allegations against Australians overseas; and
- facilitate communication between host governments and the Australian Federal Police when child sex allegations are made through the diplomatic channel.
When allegations are made by a child, the post should also ensure the child's welfare and health are handled appropriately and sensitively. This might involve contacting parents, adult guardians, local welfare agencies and health professionals, in line with the principle of ‘the best interests of the child’ contained in the United Nations Convention on the Rights of the Child.
Consular assistance should be provided immediately if the child is Australian.
3.5 Additional information about forced marriage
A forced marriage is a marriage in which one or both parties do not (or cannot, for example because they are a minor) consent to the marriage as a result of coercion, threats, or deception. It can involve either adults or minors. Coercion can include physical, psychological, financial, sexual and/or emotional pressure.
An arranged marriage is distinct from a forced marriage. In an arranged marriage, while the families of both parties play a dominant role in arranging the marriage, the parties have the right to accept or decline the marriage arrangement. Accordingly, this practice is not criminalised.
In 2013, Commonwealth criminal legislation came into force creating two new offences targeting forced marriage: causing another person to enter into a forced marriage, and being a party to a forced marriage. The latter offence does not apply to a victim.
The new offences apply extraterritorially in certain circumstances. That is, the offences only apply where there is some connection between the offence and Australia: where the conduct, or a result of the conduct, occurs partly or wholly in Australia, or on board an Australian aircraft or ship; or where the offender is an Australian citizen, resident or body corporate incorporated in Australia.
When an officer at post becomes aware of information relating to a possible forced marriage involving an Australian perpetrator, this information should be immediately reported to Canberra in accordance with the procedures outlined in section 3.2.
Posts should also:
- facilitate communication between individuals and the Australian Federal Police in relation to specific forced marriage allegations; and
- facilitate communication between host governments and the Australian Federal Police, if appropriate, when forced marriage allegations are made through diplomatic channels.
Consular assistance should be provided immediately if the victim is Australian.
When allegations are made by a child, the post should also ensure the child's welfare and health are handled appropriately and sensitively. This might involve contacting parents, adult guardians, local welfare agencies, non-governmetal organisations and health professionals, in line with the principle of ‘the best interests of the child’ contained in the United Nations Convention on the Rights of the Child. Officers should also consult Chapter 4.24 (Welfare-Forced Marriage) and Chapter 11.5 Managing Allegations of Child Abuse.
3.6 Additional information about female genital mutilation
Female genital mutilation (FGM, also known as female genital cutting) refers to procedures that intentionally alter or cause injury to the female genital organs for non-medical reasons. FGM is mostly carried out on young girls sometime between infancy and 15 years of age. It has been recognised as a violent and harmful practice and a violation of the rights of girls and women.
FGM is criminalised in Australia by State and Territory laws. These offences operate extraterritorially to protect Australians from being subjected to FGM outside the relevant jurisdiction, including overseas.
When an officer at post becomes aware of information relating to a possible FGM case involving an Australian perpetrator or victim/potential victim, this information should be immediately reported to Canberra in accordance with the procedures outlined in section 3.2. A perpetrator may include a person who:
- removes a child from the relevant jurisdiction, or makes arrangements for their removal, with the intention of having FGM performed on them (ACT, NT, QLD, SA, TAS, VIC, WA);
- performs FGM on a resident of the jurisdiction outside the jurisdiction (NSW, NT);
- aids, abets, counsels or procures another person to perform FGM on a resident of the jurisdiction outside the jurisdiction.
Consular officers are not expected to become experts in FGM legislation. They should provide any information to the Director of the Sanctions and Transnational Crime Section, who will refer the information to the Australian Federal Police and/or state authorities, as appropriate, in liaison with AGD where necessary.
Consular assistance should be provided immediately if the victim/potential victim is Australian. The post should ensure that the health and welfare of the victim/potential victim are handled appropriately and sensitively. Consular officers should refer to Chapter 4.25 Welfare- Female Genital Mutilation, as well as Chapter 11: Children’s Issues, and in particular Chapter 11.5: Managing Allegations of Child Abuse, for further guidance.
3.7 Allegations involving an Australian Government employee
When an officer at post becomes aware of allegations of criminal conduct involving an Australian Government employee, the officer must report the matter immediately to the Head of Mission/Head of Post who will, in turn, report the matter to the Conduct and Ethics Unit. This unit has a formal arrangement with the Australian Federal Police to refer allegations involving suspected illegal conduct.
The Australian Federal Police or Australian Federal Police Local Office will liaise directly with local law enforcement authorities when necessary.
A/CP1021 Conduct and Ethics Manual provides additional information on reporting allegations that involve unlawful behaviour.
3.8 Extradition and mutual assistance
The Extradition Act 1988 allows one country to send a person to a requesting country to face criminal charges, or serve a sentence for an offence against the law of the requesting country. This ensures a person cannot evade justice simply by crossing borders.
Mutual assistance is the process countries use to provide and obtain formal government-to-government assistance in criminal investigations and prosecutions.
Extradition and mutual assistance in criminal matters are key tools in enforcing Australia's criminal laws and combating transnational crime. It is important that consular officers manage and report on extradition and mutual assistance matters in a timely and comprehensive manner.
Extradition and mutual assistance are handled by the International Crime Cooperation Central Authority in the International Crime Cooperation Division of AGD. AGD advises the Government on extradition and mutual assistance policy, manages casework, and negotiates bilateral treaties on these issues. DFAT has a procedural role in assisting with incoming and outgoing extradition requests, and some mutual assistance requests.
DFAT officers should refer to A/C PO982 for details on handling extradition and mutual assistance requests.
Australia can make an extradition request to any country. Whether that country will accept the request depends on its domestic law. When considering a request made to Australia by another country for extradition of a person to that country, the following objections are assessed before agreement:
- the offence is political
- the person may have been prosecuted on discriminatory grounds (race, religion, nationality, political opinions)
- the person has already been convicted or punished (double jeopardy)
- it is a military offence only
- if transferred, is the prisoner likely to suffer torture or face the death penalty?
There are also treaty requirements to take into account, both mandatory and discretionary. The post’s role is to:
- deliver documents through the diplomatic channel
- seek and provide information on other country’s requirements (where requested by AGD)
- monitor progress of an extradition request
- work with AGD to answer questions and clarifications from the country
- monitor media interest in country, and refer media enquiries to AGD
- provide consular assistance to Australian citizens who are detained in extradition custody.
Requests to the government of the receiving state to detain and arrange for extradition of persons wanted in Australia on criminal charges must be handled by staff of the mission who do not normally do consular work and not by consular officers. If the detained person is an Australian citizen, consular officers are obliged to render the usual assistance to detained persons. It is most important that consular officers do not appear to have a conflict of interest in extradition matters.
AGD will advise the relevant post if an Australian citizen is being extradited to that country.
3.9 Extradition or mutual assistance requests from a foreign government
Staff should treat all extradition and mutual assistance requests in the strictest confidence to avoid compromising any investigatory or law enforcement action.
When a post or state or territory office receives an extradition or mutual assistance request from a host or accredited government, a foreign embassy or consulate based in Australia, or an international court or tribunal (such as the International Criminal Court) they should cable the request and include in the subject line either 'extradition' or 'mutual assistance', the name of the country making the request and, if known, the name of the person to whom the request relates, using the distribution topic 'Legal/Legal Process' and ensuring AGD and International Legal Branch are both on the distribution list.
A staff member in Canberra receiving an extradition or mutual assistance request should immediately send the original request to the Director of the Sanctions and Transnational Crime Section which will liaise with AGD.
3.10 Media enquiries
Media enquiries about extradition or mutual assistance matters should be referred by email to the Strategic Communications Branch of the AGD on (02) 6141 2500 or at firstname.lastname@example.org.
3.11 Contact details
Consular clients may be provided with the following contact details for the Headquarters of the AFP International Network:
7 days a week email box: International-Reception@afp.gov.au
Telephone hotline: 131 AFP (131 237) (calls from within Australia)
From overseas: +61 02 6131 5926
Questions on applying these guidelines should be referred to the Assistant Secretary, Consular Policy Branch or the Director of the Sanctions and Transnational Crime Section. Questions about the Privacy Act should be referred to the Director, Consular, Passports and Protocol Law Section.