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 this kind 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.
There are exceptions under the Freedom of Information Act and the Privacy Act. The Privacy Act is dealt with in Chapter 2.
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 (defined as over five years imprisonment) must follow the procedure set out in Admin. Circular AC0072/17 on Australian extraterritorial offences and the responsibility to report.
1.3 Freedom of Information Act
The Freedom of Information Act 1982 (“FOI Act”) facilitates 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 FOI Act, in the possession of ministers, departments and public authorities. The Department commonly receives requests from consular clients for the content of their case file.
Consular officers should be familiar with the FOI 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, CIS entries, and e-mails. In fact, as the FOI 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 Admin Circular P0862; see also N723/13.
A security classification does not prevent the availability of a document under the FOI Act. For FOI purposes, security classifications 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 FOI Act.
Public enquiries regarding the FOI process, including making requests and contact details should be directed to the website – http://www.dfat.gov.au/foi.
As the Australian community has a right to access information held by 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).
Words capable of being defamatory may be contained in printed material, in the form of written statements, or spoken. A statement may be defamatory 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 applying to the Commonwealth which came into effect on 1 January 2006. Each State and Territory has enacted the uniform defamation laws, with some minor variations. In the ACT, the law of defamation generally follows the NSW laws which are the basis of the uniform laws.
Consular officers should exercise care in providing reports in consular cases, in particular when making references to clients in the course of their work, and are required to provide full reports on consular cases to the Department, including, in some instances, descriptions of clients. Consular officers should be mindful of the potential to make statements about their clients which could be considered defamatory. Even where the client is not named, where other information in the communication identifies them, this will be sufficient. Furthermore, what is meant to be said will be irrelevant, and different imputations may be conveyed.
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 the report.
1.5 Defences against defamation
Where a consular officer has published defamatory material, 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.
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, i.e. 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. consular officers) must have had a duty to make the communication to the person to whom they reported, and they must not have been malicious.
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 (i.e. can something negative be inferred)? Could the imputations 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 in the performance of their functions. They should record facts rather than judgments. Consular officers must 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 report 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 the original source.
Advice on defamation and the availability of defences against defamation should be sought from General Litigation and Corporate Law (GCL) when necessary.
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.
To ensure DFAT complies with its privacy obligations, all requests from the AFP or State and Territory Police for consular-related information held by DFAT must be made in writing using the Request for Disclosure of Personal Information Form for a Law Enforcement Related Activity [Word 22 KB]. This forum states that either:
- Where posts have accredited AFPLOs who request information relating to a current or past consular client, or an Australian national who is, may be or was previously based overseas (e.g. Smartraveller registration details), AFPLOs must make the request in writing using the Request for Disclosure of Personal Information Form for a Law Enforcement Related Activity [Word 22 KB]. The form should be directed to an SES officer at post or can be referred to Canberra at firstname.lastname@example.org.
- Where the SES officer also forms a reasonable belief that the disclosure of information to the AFP would be reasonably necessary, the request information must be disclosed to the AFP in writing, the disclosure must be recorded, and the SES officer should note that in his/her assessment, the requirements of APP 6.2(b) or 6.2(e) (as appropriate) have been met. There is no requirement to cable this information to Canberra, but the disclosure must be recorded either in the Case File or in records maintained by Conops.
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 DFAT disclosing personal details to a person or organization 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 and can disclose information in accordance with the Act.
When signed, the consular officer should record all information in the contact section of the case file on CIS. 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 CIS. It is also good practice to record any particular comments clients might have in respect to the privacy consent in the CIS 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 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. Additional guidance on managing difficult or complex cases should be sought from the Head of Mission/Post or the Director, Sanctions and Transnational Crime Section (TNC).
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.
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 What are Australian extraterritorial offences?
Some criminal offences under Australian law apply to Australian citizens, permanent residents and companies when committed overseas. We consider that a ‘serious’ offence is one which carries a penalty of five years or more in prison. These offences include, but are not limited to, those associated with:
- corruption, including the bribery of foreign public officials;
- transnational organised crime, such as drug trafficking, money laundering, people smuggling, human trafficking, wildlife smuggling and cybercrime;
- 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;
- engaging in hostile activities in foreign countries, recruiting persons to engage in hostile activities in foreign countries and entering or remaining in ‘declared areas’;
- breach of United Nations Security Council sanctions or Australian autonomous sanctions;
- international peace and security, such as war crimes, crimes against humanity, genocide and proliferation of weapons of mass destruction;
- passport fraud offences under the Australian Passports Act 2005; and
- offences against Commonwealth officials.
While not all forced marriages are serious extraterritorial offences under Australian law (due to the penalties involved), DFAT officers should nonetheless report any information which they suspect relates to any forced marriage (see 3.5 below).
3.2 Role of overseas posts – reporting procedure
In accordance with the Australian Public Service Values, the Code of Conduct and the DFAT Child Protection Framework, if consular officers become aware of information which they suspect relates to the possible commission of a serious extraterritorial offence, they must report it to Canberra. If in doubt as to the ‘seriousness’ of any alleged offence, consular officers should contact the TNC for advice.
Initial reporting requirements
Consular officers who become aware of information which they suspect could relate to the possible or attempted commission of a serious offence under Australian law must observe the following procedures:
- report the matter immediately to an SES officer at post (usually HOM/HOP, DHOM or SAO), or for posts with no SES officer, the most senior officer;
- where the HOM/HOP, DHOM or SAO considers appropriate, post must cable all information that relates to the matter to Canberra (marked for the attention of Director, TNC by HOM/HOP, DHOM or SAO-approved cable;
- any cable must use the ODIN topic LEGAL\Allegations. To the extent possible, reporting should be limited to an unclassified level, using the Dissemination Limiting Marker ‘Sensitive: Legal’; and
- if the information being reported has been obtained through a consular client, and relates to child sex offences, consular officers must follow the process and manage children’s issues as set out in Chapter 11 of this Handbook. For all other extraterritorial offences, consular offices must include the LEGAL\Allegations ODIN topic in conjunction with the relevant CONSULAR ODIN topics.
Posts should be aware that the AFP is included in the distribution of cables using the LEGAL\Allegations topic. To avoid unintentional disclosure of personal information to other agencies, posts may wish to consider reporting consular issues (such as welfare and related issues) separately.
Officers should include reference in the report to the following, to the extent possible:
- the source of the information and, where appropriate, any comment regarding the credibility of the source;
- any chronology associated with the alleged conduct;
- the names and personal details of the parties involved, both Australian and foreign (including, where available, passport information);
- any sensitivities, including the potential safety of an informant and DFAT officer put at risk; and
- any other relevant information.
Subsequent reporting requirements
The obligation to report is ongoing. Where posts have already reported information which they suspect relates to the possible or attempted commission of a serious extraterritorial offence, they should subsequently report the following, in accordance with the procedure outlined above:
- any new information posts become aware of which relates to the offence initially reported, including any information suggesting that the alleged offence is more or less serious than originally reported;
- any information relating to the possible or attempted commission by the same Australian citizen or permanent resident of another serious extraterritorial offence; and
- any information regarding the status of any Australian citizen or permanent resident that relates to the offence(s) for which that person has been charged, including developments relating to charges laid by foreign law enforcement authorities, bail status, dismissal of any charges or plans for a return to Australia following either completion of sentence or withdrawal of any charges.
Role of posts following initial and subsequent reporting
TNC in Canberra will pass to the AFP any information it receives which relates to the possible or attempted commission of a serious extraterritorial offence, taking into account privacy considerations.
Having reported the information, DFAT officers at post should not investigate the matter further to avoid prejudicing any potential investigation or action by law enforcement authorities. Posts should only report information of which they become aware. On occasion, however, TNC may ask posts to seek further information or clarification from host government authorities on the nature of any alleged offences reported, if those reports were initially brought to post’s attention by host governments. Subsequent information or clarification does not entail an assessment of the veracity of the alleged conduct or a determination of whether an offence has actually been committed, which are matters more appropriately determined by law enforcement and judicial authorities.
Liaison with the Australian Federal Police at post in relation to reporting an offence
At posts with accredited AFP liaison officers (AFPLO), the HOM/HOP, DHOM or SAO may wish to consult the AFPLO in preparing the cable report to Canberra. In doing so, the SES officer should take into account privacy considerations (see 34.3 below), seeking guidance from Director, TNC as necessary.
Where AFP officers at post have been informed of the allegations, the reporting cable should refer to that fact.
Where information about an alleged extraterritorial offence is initially brought to post’s attention by AFPLOs, posts should relay this information via an information-only cable to Canberra using the LEGAL\Allegations topic.
It is the responsibility of the AFP and other relevant Australian agencies to conduct investigations into allegations of Australian extraterritorial offences. AFPLOs will liaise directly with local law enforcement authorities where necessary.
It is TNC’s responsibility 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 AFP. These guidelines require that all matters of a politically sensitive nature, not limited to fraud and requiring the assistance of the AFP, should be raised with the Minister for Justice by the relevant minister or department when referring the matter to the AFP. This enables the government to be informed at the earliest juncture of potentially politically contentious matters that may require AFP investigation. TNC can assist with queries on this issue.
3.3 Privacy Act considerations
The fact that information exists suggesting an Australian may have committed a serious extraterritorial offence does not diminish that person’s entitlement to appropriate consular assistance and privacy. At the same time, neither the provision of consular assistance to Australians nor the Privacy Act 1988 extends to protecting consular clients from the consequences of actions prohibited under Australian or foreign law.
Disclosure of personal information to the AFP in the context of admissions by, or allegations against, a person involved in the possible or commission of a serious extraterritorial offence may be permitted on the basis described in Australian Privacy Principle (APP) 6.2(e):
- the APP entity [i.e. DFAT] 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 [i.e. AFP].
Whether APP 6.2(e) is met will usually be an assessment for Director, TNC and/or the SES officer at post, as appropriate. SES officers at post will make the assessment when considering whether to disclose information to an AFPLO at post. Director, TNC will make the assessment whether to disclose information to the AFP when there is no AFP presence at post or in circumstances where the SES officer at post has decided not to disclose information to the AFPLO at post.
A decision to disclose personal information to the AFP will involve an assessment as to whether disclosure is ‘reasonably necessary’ for an enforcement related activity. Enforcement related activities include (amongst others) the prevention, detection, investigation, prosecution or punishment of criminal offences, or breaches of law imposing a penalty or sanction. A decision to disclose must be based on a ‘reasonable belief’, that is, not merely a genuine or subjective belief. In all cases, the requirements 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.
If a disclosure occurs in Canberra, Director, TNC will ensure that the personal information disclosed will be limited to that ‘reasonably necessary’ for AFP’s enforcement related activities. This will in most cases exclude information of a consular nature, such as the welfare status of the consular client.
SES officers at post should also make this assessment before disclosing personal information directly to AFPLOs, seeking guidance from Canberra as necessary.
Where personal information is disclosed to the AFP, a written note of the disclosure must be created and maintained. TNC will maintain written notes of disclosures made in Canberra. Posts must maintain a separate note of any disclosure made to AFPLOs.
Implications for consular case management
In the event that an Australian provides a consular officer with information indicating that they may have committed an extraterritorial offence under Australian law, and subject to any overriding safety or other considerations, the officer must inform the person that:
- Australian criminal 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 SES officer at post 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 action related to the allegations (including enquiries from the AFP and formal mutual legal assistance or extradition requests) to a different officer to the officer providing 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. Any information involving child sex offences or related criminal allegations should be treated in accordance with these guidelines and the provisions of the Privacy Act.
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 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;
- 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 AFP in relation to specific child sex allegations against Australians overseas where requested to do so by the AFP; and
- facilitate communication between host governments and the AFP when child sex allegations are made through the diplomatic channel.
It is mandatory for all DFAT staff to report immediately any suspected or alleged case of child exploitation, abuse or harm. All reports should be made to email@example.com. Consular officers must follow the reporting process and manage children’s issues as set out in Chapter 11 of this Handbook.
When allegations are made by a child, posts 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 Special considerations for allegations of forced marriage
A forced marriage is a marriage in which one or both parties do not (or, in the case of a child or a person with a disability, cannot) consent to the marriage and duress is involved. Forced marriage can involve either adults or minors. Duress can include physical, psychological, financial, sexual and/or emotional pressure. While not all forced marriages are ‘serious’ offences under the laws of each Australian jurisdiction due to the penalties involved, DFAT treats all allegations of forced marriage as sufficiently serious to trigger the reporting requirements outlined in 3.2 above.
An arranged marriage is distinct from a forced marriage as, in an arranged marriage, while the families of both parties play a dominant role in arranging the marriage, the parties generally have the right to accept the marriage arrangement or not. Accordingly, this practice is not criminalised. Where one of the parties does not consent to an arranged marriage, or subsequently withdraws consent following initial agreement, it becomes a forced marriage.
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.
These offences apply extraterritorially in certain circumstances: 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 or victim/potential victim, this information should be immediately reported to Canberra in accordance with the procedures outlined in 3.2 above.
Posts should also:
- facilitate communication between individuals and the AFP in relation to specific forced marriage allegations where requested to do so by the AFP; and
- facilitate communication between host governments and the AFP, 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-governmental 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 Special considerations regarding 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 age 15. 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 3.2 above. 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); or
- performs FGM on a resident of the jurisdiction outside the jurisdiction (NSW, NT); or
- 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 Director, TNC who will refer the information to the AFP, 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 Personal information requested by the AFP
The AFP routinely requests information from DFAT in relation to specific cases it is investigating. The information usually relates to a consular client or passport information. The Australian Passports Office has agreed with the AFP separate guidelines to govern requests from the AFP for passport-related information.
To ensure DFAT complies with its privacy obligations, all requests from the AFP, including accredited AFPLO or State and Territory Police for consular-related information held by DFAT must be made in writing using the Request for Disclosure of Personal Information Form for Law Enforcement Related Activity. This form states that either:
- the requesting agency believes that the requested disclosure is ‘reasonably necessary for one or more enforcement related activities conducted by or on behalf of their agency’; or
- that the disclosure is required or authorised by or under an Australian law or a court/tribunal order.
In relation to (i), DFAT also needs to form a reasonable belief that the disclosure of information to the AFP would be reasonably necessary. This form constitutes evidence of a reasonable basis for DFAT’s belief that the requirements of APP 6.2(e) have been met.
The request should be directed to an SES officer at post or referred to Canberra at firstname.lastname@example.org. Where the SES officer forms a reasonable belief that the disclosure of information to the AFP would be reasonably necessary, and the requirements of APP 6.2(b) or 6.2(e) (as appropriate) have been met, the requested information must be disclosed to the AFP in writing. The disclosure must be recorded in the CIS Case File and/or in records maintained by Consular Operations.
Where posts do not have accredited AFPLOs but are requested by the AFP to disclose information, those requests should be directed to Canberra for action.
3.8 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 HOM/HOP who will, in turn, report the matter to the Conducts and Ethics Unit (CEU). The CEU has a formal arrangement with the AFP to refer allegations involving suspected illegal conduct.
The AFP or AFPLO at post will liaise directly with local law enforcement authorities where necessary.
The Conduct and Ethics Manual provides additional information on reporting allegations that involve unlawful behaviour involving an Australian Government employee.
3.9 Extradition and mutual assistance
Extradition is the process by which one country sends a person to another country to face criminal charges, or serve a sentence for an offence already imposed by 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 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 and some mutual assistance requests. TNC can provide legal and other advice on extradition and mutual assistance issues.
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 ODIN topic LEGAL\Legal Process, and ensuring AGD and the Sanctions, Treaties and Transnational Crime Legal Branch (TSB) 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, TNC.
Posts’ 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 host governments;
- monitor media interest in country, and refer media enquiries to AGD; and
- provide consular assistance to Australian citizens who are detained in extradition custody.
To avoid any actual or perceived conflicts of interest, to the extent possible, DFAT officers who do not normally perform consular functions should handle any requests to the government of the receiving state to detain and arrange for extradition of persons wanted in Australia on criminal charges. If the detained person is an Australian citizen, consular officers are obliged to render the usual assistance to detained persons.
In its response to the Joint Standing Committee on Treaties’ Report 91, the Australian Government undertook that AGD would inform DFAT of each extradition of an Australian citizen or permanent resident, and that DFAT would monitor all extradited Australian citizens or permanent residents through the consular network to that extent practically and legally possible. Accordingly, AGD will advise DFAT’s TNC when an Australian citizen or permanent resident is being extradited to a foreign country. TNC will then notify posts, Consular Operations and the bilateral desk.
Media enquiries about extradition or mutual assistance matters should be referred by email to AGD at email@example.com.
3.10 Contact details
Details of the AFP liaison posts overseas and their geographic areas of responsibility are available at: https://www.afp.gov.au/what-we-do/our-work-overseas/afp-across-world
Consular clients may be provided with the following contact details for the AFP Operations Coordination Centre (AOCC):
- 7 days a week email box: AOCC-Operations@afp.gov.au
- Telephone hotline: 131 AFP (131 237) (calls from within Australia)
- From overseas: +61 02 6126 7755
Questions on applying these guidelines should be referred to the Assistant Secretary, Consular Policy Branch or the Director, TNC. Questions about the Privacy Act should be referred to the Director, Consular, Passports and Protocol Law Section.