Australian Passports Act 2005

Australian travel document is defined as an Australian passport or a travel‑related document (s 6(1)). An Australian passport is a passport issued under the Act. The note to the definition confirms that passports must be issued in forms approved by the Minister, which may include diplomatic, official and emergency passports (see also s 53(2)). A travel‑related document is a document issued under s 9, being a document of a kind specified in a Minister’s determination, issued for the purposes of travel. Travel‑related documents are not passports; they may be issued to non‑citizens and, in certain circumstances, on the Minister’s own initiative for removal, deportation, extradition or prisoner transfer (s 9(1A)(b)).

Australian citizen is not defined in the Act but is the class of persons entitled to an Australian passport under s 7(1). The entitlement is subject to the Minister being satisfied of the person’s citizenship and identity (s 8) and to the refusal grounds in Division 2.

Child has a specific meaning: a person who is under 18 and who has never been married (s 6(1)). This definition is critical for the parental‑consent provisions in s 11, because a married person under 18 is not a “child” for the purposes of that section and therefore does not benefit from the protections requiring consent or court order.

Competent authority is defined in relation to each of the refusal/cancellation grounds in ss 12, 13, 14 and 16. The definition varies depending on the ground. For example, for Australian law enforcement matters (s 12), a competent authority is a person who has responsibility for, or powers, functions or duties in relation to the relevant circumstance under a law of the Commonwealth, a State or Territory, or a person specified in a Minister’s determination. For matters relating to potential harmful conduct (s 14), the definition includes officers within the meaning of paras (a), (b) or (c) of the definition of officer, employees of the Commonwealth specified in a Minister’s determination, non‑corporate Commonwealth entities so specified, and any person specified.

Refusal/cancellation request is defined in s 18. It is a request made to the Minister under ss 12(1), 12(1A), 13(1), 14(1) or 16(1) by a competent authority, asking the Minister to refuse to issue an Australian travel document to a person, or to cancel an Australian travel document already issued, or both. Such a request can be made whether or not the person has applied for a document, and, if made under a provision other than s 12(1A), whether or not the person is an Australian citizen (s 18(2)).

Minister’s determination means an instrument made by the Minister under s 57 for the purposes of the Act. These determinations are legislative instruments and are used extensively throughout the Act to specify matters such as kinds of documents, circumstances for issue, methods of identity verification and classes of competent authorities.

Officer means an APS employee in the Department, a member of the diplomatic staff of an Australian mission, a consular officer (but not honorary), an officer of Customs under the Customs Act 1901, a member or special member of the Australian Federal Police, an officer of a State or Territory police force, or a person authorised in writing by the Minister under s 52 (s 6(1)). This broad definition grants a wide range of officials the power to demand surrender of documents and to exercise other enforcement functions.

Personal information has the same meaning as in the Privacy Act 1988 (s 6(1)), which imports the full regulatory framework for handling personal data into the operation of the Act.

Document Verification Service and Face Verification Service are defined by reference to the Identity Verification Services Act 2023, reflecting modern identity‑checking technologies used in the passport application process (s 6(1) and ss 46, 46A).

Australian citizens are the primary population affected. Every Australian citizen is entitled to apply for an Australian passport (s 7(1)), but that entitlement is qualified by the identity and citizenship verification requirement (s 8) and by the refusal grounds in Division 2. Citizens may also be subject to cancellation or suspension of their passport on grounds such as being a reportable offender (s 12(1A) and mandatory cancellation under s 22AA), or because of a refusal/cancellation request based on potential harmful conduct (s 14).

Non‑citizens may be affected by the issue of travel‑related documents under s 9. Such documents can be issued to any person, regardless of citizenship, for the purposes of removal, deportation, extradition or prisoner transfer, or in circumstances specified in a Minister’s determination. Non‑citizens may also be the subject of a refusal/cancellation request under ss 13 (international law enforcement cooperation) or 14 (potential harmful conduct), and the Minister may refuse to issue or may cancel a travel‑related document as a result.

Children are specially protected. Section 11 prohibits the Minister from issuing an Australian travel document to a child unless each person with parental responsibility consents, or a court order permits the child to have a document or to travel internationally. Exceptions exist for special circumstances, welfare concerns, family crises, and return to Australia (s 11(2)). The definition of parental responsibility is detailed and cross‑references the Family Law Act 1975 and the Family Court Act 1997 (WA) (s 11(5)). Registered overseas child orders under the Family Law Act 1975 are given equivalent force (s 6(2)).

Reportable offenders - persons listed on a State or Territory child protection offender register who have reporting obligations - are a specific class affected by s 12(1A). A competent authority may make a refusal/cancellation request in relation to such a person if they are an Australian citizen. If such a request is made, the Minister must not issue an Australian passport to the person (s 12(2)) and must cancel any existing Australian passport (s 22AA). The Minister may, however, issue a travel‑related document (s 12(2)).

Debtors to the Commonwealth who have received financial assistance while overseas (e.g. consular loans or repatriation expenses) can be the subject of a refusal/cancellation request under s 16. An officer may also demand surrender of an Australian travel document from a person whom the officer suspects on reasonable grounds owes such a debt (s 25).

Competent authorities include a wide range of bodies and officials: ASIO, the Director‑General of Security, the Australian Federal Police, State and Territory police, prosecution authorities, corrective services agencies, and any person or entity specified in a Minister’s determination. These authorities are empowered to make refusal/cancellation requests, and in some cases (ASIO) to request suspension of all travel documents for 28 days (s 22A).

Officers include not only departmental staff but also diplomatic and consular staff, Customs officers, and police at all levels. They have powers to demand surrender of documents that are suspicious, cancelled, invalid, suspended or held by debtors (ss 23-25). They also have powers to seize unattended documents (s 26).

Applicants and document holders are subject to obligations to provide truthful information, to report loss or theft, and to surrender documents on demand. Failure to comply may result in criminal prosecution.

Duty of the Minister to verify citizenship and identity (s 8). Before issuing an Australian passport, the Minister must be satisfied that the applicant is an Australian citizen and of the applicant’s identity. The Minister may request personal information to this end (ss 42, 43) and may specify methods and technologies for verification (s 47). For travel‑related documents, the Minister must be satisfied of the person’s identity (s 10).

Right of an Australian citizen to apply and be considered. Section 7(1) gives an Australian citizen an entitlement to be issued with an Australian passport upon application. This is not an absolute right; it is subject to s 8 and Division 2. Nonetheless, it establishes a statutory expectation that a passport will issue unless one of the specified grounds for refusal is engaged.

Parental consent requirements (s 11). The Minister must not issue an Australian travel document to a child without the consent of all persons with parental responsibility, or a court order. This imposes a positive duty on the Minister to ascertain consent. The exceptions (s 11(2)) allow the Minister to issue in special circumstances, for welfare reasons, for urgent family crisis, or to facilitate a child’s return to Australia. If the Minister refuses to issue a child a document and does not exercise the discretion under the exceptions, the Minister may declare that the matter should be dealt with by a court (s 11(3)).

Mandatory refusal for certain Australian law enforcement matters (s 12(2)). If a competent authority makes a refusal/cancellation request under s 12(1) (arrest warrant or prevention from travel) or s 12(1A) (reportable offender), the Minister must not issue an Australian passport to the person. The Minister may, however, issue a travel‑related document. This is a mandatory prohibition, not a discretion.

Discretionary refusal and cancellation for grounds under ss 13 (international law enforcement cooperation), 14 (potential harmful conduct), 15 (repeated loss or thefts - two or more lost or stolen in five years), 16 (financial assistance debt) and 17 (concurrently valid or suspended document). The Minister may refuse to issue or may cancel the document. For s 17, the Minister must not issue if another document is still valid or suspended, except in circumstances specified in a Minister’s determination (s 17(2)).

Right to have processing continued - but the Minister may stop processing if fraud or dishonesty is suspected (s 19A). If the Minister suspects on reasonable grounds that a statement, information or document in connection with an application is false or misleading, the Minister may refuse to process the application. The application fee is not refundable (s 19A(2)). The person must make a fresh application if they still wish to obtain a document.

Obligation to surrender documents on demand by an officer in specified circumstances (ss 23-25). Failure to surrender is an offence. The officer must inform the person that the officer is authorised to demand the document and that it may be an offence not to comply. For suspended documents surrendered under s 24A, the document must be returned at the end of the suspension period unless cancelled (s 24A(3)).

Right to report loss or theft - and a corresponding duty. Section 41 creates an offence for failing to report the loss or theft of an Australian travel document as soon as practicable after knowing of it. The penalty is imprisonment for one year or 20 penalty units, or both.

Right to review. Part 5 Division 3 sets out a regime of reviewable decisions. These include decisions to refuse to issue or to cancel a document (with certain exclusions), decisions to refuse to process an application, and decisions to demand surrender (s 48). A person affected by a reviewable decision made by a delegate may apply to the Minister for review within 28 days (s 49). After the Minister’s review (or if the decision was made by the Minister originally), application may be made to the Administrative Review Tribunal (s 50). However, in cases involving international relations or criminal intelligence, the Minister may certify the decision, limiting the Tribunal to affirming or remitting the decision (s 50(3)). Moreover, the Minister is not required to notify a person of a refusal or cancellation made at the request of ASIO or the AFP where a security certificate or investigation certificate is in force (s 48A).

Property rights. An Australian travel document remains the property of the Commonwealth at all times (s 54). This reinforces the power of officers to demand its return and the limitation on the holder’s rights over the document.

Offences under Part 4 carry severe penalties. The most serious offences (e.g. making false or misleading statements, giving false or misleading information, producing false or misleading documents, improper use or possession of a document, possessing false Australian travel documents, selling documents, damaging or interfering with a document, dishonestly obtaining a document, making or providing false documents, bringing or sending documents across borders, issuing a passport contrary to the Act, and abuse of public office) all attract a maximum penalty of 10 years imprisonment or 1,000 penalty units, or both (ss 29-40). For example, making a false statement in connection with an application (s 29) carries that maximum; the defence of materiality (s 29(2)) places an evidential burden on the defendant.

Failure to notify loss or theft (s 41) carries a lower penalty: imprisonment for one year or 20 penalty units, or both.

Offences in Part 3 (failure to surrender on demand) also carry penalties. For suspicious, cancelled, invalid or debtor‑related demands, the penalty is one year imprisonment or 20 penalty units (ss 23, 24, 25). For suspended documents, the penalty is six months imprisonment or 10 penalty units (s 24A).

Penalty units are defined by the Crimes Act 1914. As at 2024, one penalty unit is $313. Therefore, 1,000 penalty units equates to $313,000.

Extended geographical jurisdiction (Category D) applies to all offences (s 28). This means the offences apply to conduct anywhere in the world, and to all persons regardless of nationality, subject to the principles of international law.

Enforcement powers are vested in officers (defined broadly) who may demand surrender. Customs officers have additional powers to seize documents that are not in a person’s possession or control and to search containers (s 26). The Minister may also cancel documents (s 22) or suspend them for security reasons (s 22A). Suspension is for 28 days and may be renewed only with fresh information obtained after the suspension ends (s 22A(3)). The Director‑General of Security may request suspension, and may delegate that power to a Deputy Director‑General of Security (s 22A(4)-(5)).

Mandatory cancellation is required under s 22AA for Australian passports when a refusal/cancellation request is made under s 12(1A) (reportable offenders). No discretion is given.

Family Law Act 1975. The Act heavily cross‑references the Family Law Act, particularly in s 11 (parental responsibility). Presumptions of parentage under Subdivision D of Division 12 of Part VII of the Family Law Act are adopted (with the exception of s 69Q) for determining who has parental responsibility (s 11(5)(a)). Overseas child orders registered under s 70G of the Family Law Act are given the same force as orders of the Federal Circuit and Family Court of Australia (Division 1) (s 6(2)). Parenting orders and other orders affecting parental responsibility are directly relevant to whether a child may obtain a travel document.

Family Court Act 1997 (WA). Presumptions of parentage under that Act (except s 189) are also adopted for Western Australian orders (s 11(5)(aa)).

Australian Security Intelligence Organisation Act 1979. The Director‑General of Security’s power to request suspension (s 22A) is rooted in that Act. The Minister may be exempted from notifying a person of a refusal or cancellation if ASIO or the Director‑General made the request and a certificate under s 38(2)(a) of the ASIO Act is in force (s 48A(2)).

Australian Federal Police Act 1979. The Minister administering the AFP Act may issue a certificate that notifying a person of a refusal/cancellation decision would adversely affect a current investigation into certain serious offences (s 48A(3)-(4)). Those offences include terrorism, foreign incursions, and sanctions offences.

Charter of the United Nations Act 1945. The AFP certificate provision in s 48A(4)(d) specifically references Part 4 of that Act (sanctions) and Part 5 as it relates to Al‑Qaida sanctions.

Crimes Act 1914. Sections 4G and 4J are referenced in the notes to Part 4: offences punishable by more than one year imprisonment are indictable, but may be tried summarily in certain circumstances.

Customs Act 1901. The definition of officer includes an officer of Customs within the meaning of that Act (s 6(1)), and Customs officers have specific seizure powers under s 26.

Privacy Act 1988. The definition of personal information adopts the meaning from the Privacy Act (s 6(1)). Section 42 provides that disclosure of personal information in response to a request or direction under that section is taken to be authorised by law for the purposes of Australian Privacy Principle 6.2(b) and similar State provisions.

Identity Verification Services Act 2023. The Act incorporates the Definitions of Document Verification Service and Face Verification Service from that Act (s 6(1)). The Minister may participate in those services (s 46(1)(da)) and may use computer programs to disclose personal information for those services (s 46A).

Australian Passports (Application Fees) Act 2005. Fees are imposed by that Act, and the Minister may determine circumstances for waiver or refund under s 56.

Administrative Review Tribunal Act 2024. The review provisions in ss 48-50 are tied to the ART Act. Section 48 notes that notification of decisions and review rights must be given under s 266 of the ART Act, subject to the exceptions in s 48A. Section 50(3) limits the Tribunal’s powers when the Minister has certified that the decision involved matters of international relations or criminal intelligence.

Regulations. The Governor‑General may make regulations under s 58, prescribing penalties not exceeding 20 penalty units for breaches.

The source text of the Act, as provided, includes references to the Identity Verification Services Act 2023, which was enacted after the original 2005 Act. This indicates that the Act has been amended to incorporate the Document Verification Service and Face Verification Service as mechanisms for identity verification. These amendments aim to improve the integrity of the passport application process, reduce identity fraud, and align with national identity‑verification infrastructure.

The provisions concerning reportable offenders (s 12(1A) and s 22AA) were added to address child protection concerns, specifically to prevent convicted child sex offenders from obtaining Australian passports and travelling internationally. The mandatory refusal and cancellation provisions leave no discretion, reflecting a policy of strict prevention.

The suspension power under s 22A, exercisable on the request of the Director‑General of Security, was likely introduced or strengthened in response to national security concerns, particularly the risk of persons leaving Australia to engage in conduct prejudicial to security. The 28‑day limit and the requirement for fresh information before renewal show an attempt to balance security with individual rights.

The expanded definition of competent authority and the broad ground of “potential for harmful conduct” under s 14 reflect a trend toward giving authorities flexibility to act on intelligence‑based suspicions without requiring a conviction or formal charge.

The inclusion of automated disclosure via computer programs (s 46A) facilitates efficient identity verification without manual intervention, a change driven by technological modernisation.

The Act contains several provisions that have attracted criticism or may be the subject of legal challenge.

Section 14 - potential for harmful conduct. This ground allows the Minister to refuse or cancel a document based on a competent authority’s reasonable suspicion that the person would be likely to engage in conduct that might prejudice security, endanger health or safety, or interfere with rights under the International Covenant on Civil and Political Rights. The threshold is low (reasonable suspicion) and the conduct need only be “likely”. This has been controversial for its breadth and potential for use on the basis of undisclosed intelligence.

Section 48A - non‑notification. The ability of the Minister to refuse or cancel a document without notifying the person, where a certificate is in force under the ASIO Act or the AFP Act, raises due process concerns. A person may be unaware that their passport has been cancelled until they attempt to travel. The certificate can be renewed every 12 months (s 48A(6A)). This provision has been criticised as undermining natural justice, though it is defended on national security grounds.

Section 50(3) - limited Tribunal review. When the Minister certifies that a decision involved matters of international relations or criminal intelligence, the Administrative Review Tribunal may only affirm or remit the decision. The Tribunal cannot substitute its own decision or grant the document. This limits the effectiveness of merits review and has been a point of contention for those seeking to challenge security‑based passport decisions.

Reportable offender provisions. The mandatory cancellation of a passport for reportable offenders (s 22AA) and the prohibition on issuing a new passport (s 12(2)) apply even if the offender has completed their sentence and no longer poses a risk. There is no mechanism for individual assessment. This has been challenged as potentially disproportionate, though it has been upheld in principle as a preventive measure.

Definition of child. The exclusion of married persons under 18 from the definition of “child” means that a married minor does not benefit from the parental‑consent protections of s 11. This could leave a married 16‑year‑old able to obtain a passport without any parental or court oversight, which may be an unintended consequence.

Repeated loss or theft. Section 15 allows refusal if two or more documents have been lost or stolen in five years. This does not distinguish between genuine loss and negligence, potentially penalising victims of theft.

The “child” definition trap. A person under 18 who has ever been married is not a child for the purposes of s 11. This means the parental‑consent requirement does not apply. Practitioners should verify the marital status of minor applicants, as a married minor may be treated as an adult for passport purposes.

Application fee forfeiture on fraud suspicion. If the Minister refuses to process an application under s 19A because of suspected false or misleading statements, the fee is not refundable (s 19A(2)). This applies even if the applicant later provides correct information and re‑applies.

Reportable offender passport cancellation is mandatory. Unlike other cancellation grounds where the Minister has discretion, s 22AA compels cancellation upon a refusal/cancellation request under s 12(1A). There is no opportunity for the person to argue that they no longer pose a risk.

Non‑citizens can be refused a travel‑related document under ss 13 and 14, and the Minister’s decision can be based on suspicion rather than proof. A person who is not an Australian citizen may find themselves stranded abroad if their travel‑related document is cancelled and they cannot obtain another.

Suspended documents must be surrendered. s 24A requires surrender of a suspended document. Failure is an offence. The document must be returned after the suspension ends, but if cancellation occurs in the meantime, it is not returned (s 24A(3)). A person who refuses to surrender a suspended document may be prosecuted.

Debt‑based surrender without court order. s 25 allows an officer to demand surrender of an Australian travel document if the officer suspects on reasonable grounds that the person owes a Commonwealth debt for consular assistance. There is no requirement for a court order or judgment. The person may be forced to hand over their passport at the border, effectively preventing travel until the debt is paid.

Name and signature can be refused. s 53(4) gives the Minister power to refuse any name or signature that the Minister considers unacceptable, inappropriate or offensive. This is a discretionary power that could affect transgender persons, Indigenous persons, or others whose chosen name does not appear on official documents. The default rule (s 53(5)) requires the name to be the most recent name on the birth certificate, citizenship notice, marriage certificate, or relationship register. Only the surname can be changed through marriage or relationship registration (s 53(6)), unless a subsequent name change is registered.

Lost or stolen documents must be reported. s 41 makes it an offence to fail to report the loss or theft as soon as practicable after the person knows of it. The penalty is one year imprisonment. A person who delays reporting in the hope of finding the document later could be prosecuted.

Documents remain Commonwealth property. s 54 means that even after issue, the passport belongs to the Commonwealth. This gives legal backing to demands for surrender and cancellation, as the holder has no property right in the document.

Extended jurisdiction for offences. The application of Category D geographical jurisdiction (s 28) means that an Australian citizen who commits an offence under the Act while overseas can be prosecuted in Australia. Conversely, a foreign national who commits an offence overseas against an Australian travel document may also be prosecuted if they enter Australia.

For individuals applying for a passport:

• Ensure all statements and information provided in the application are true and not misleading. The defences for false statements require the statement not to be false or misleading in a material particular (ss 29-31), but it is safer to be accurate in all respects.
• Provide identity documents that are genuine and current. The Minister may request additional personal information (s 42).
• If you have lost two or more passports in the last five years, be aware that the Minister may refuse a new application (s 15). Take extra care to safeguard your passport.
• If your passport is lost or stolen, report it to an officer as soon as practicable. Keep a record of the report.
• If you owe a debt to the Commonwealth for consular assistance, pay it promptly to avoid risk of passport surrender or refusal.
• For parents applying for a child’s passport: obtain written consent from all persons with parental responsibility (including separated parents). If consent cannot be obtained, seek a court order under the Family Law Act 1975 permitting the child to have a passport or to travel internationally. Provide that order with the application.
• If you are a reportable offender under a State or Territory child protection register, do not apply for an Australian passport; it will be refused or cancelled.

For practitioners advising clients:

• When acting for a client whose passport has been refused or cancelled, review whether the decision is a reviewable decision (s 48). If it is, and it was made by a delegate, apply to the Minister for review within 28 days (s 49). Apply to the Administrative Review Tribunal if the decision was made by the Minister or affirmed on internal review.
• Be alert to the exception in s 48A: if the decision was made on grounds of potential harmful conduct (s 14) and a certificate is in force, the client may not have been notified. Challenge the certificate if possible under the relevant legislation (ASIO Act or AFP Act).
• If the Minister certifies under s 50(2) that the decision involved matters of international relations or criminal intelligence, the Tribunal’s powers are limited. Consider judicial review in the Federal Court on jurisdictional error grounds.
• For children’s passport matters, advise clients on the need for consent or court orders. The Act’s definition of parental responsibility is complex; ensure you identify all persons who may have parental responsibility under parenting orders or law.
• For reportable offenders, note that the mandatory cancellation and refusal provisions leave no room for discretionary relief. Consider constitutional or human rights arguments if appropriate.
• For debt‑related passport issues, advise the client to repay the debt or negotiate a repayment plan to have the refusal/cancellation request withdrawn.

For competent authorities making refusal/cancellation requests:

• Ensure you have the necessary belief or suspicion on reasonable grounds. For s 12, the belief must be that an arrest warrant exists or the person is prevented from travelling. For s 14, the suspicion must be that the person would likely engage in conduct that might prejudice security or safety.
• Requests should be made in accordance with s 18. Remember that requests under s 12(1A) (reportable offenders) trigger mandatory refusal and cancellation.
• Monitor the currency of requests: the Minister must not act on a request that has been withdrawn or is no longer current in accordance with the Department’s usual administrative practices (s 19).

For officers exercising powers:

• Before demanding surrender of a document under ss 23-25, inform the person that you are authorised to make the demand and that it may be an offence not to comply. Failure to give this information means the offence of non‑compliance is not made out.
• For demands based on suspicion (suspicious document or debt), ensure reasonable grounds exist.
• For suspended documents surrendered under s 24A, return the document at the end of the suspension period unless it has been cancelled.
• When requesting personal information under s 42, comply with the Privacy Act 1988 and any specified methods or forms under a Minister’s determination.

General compliance:

• All processing of personal information must be in accordance with the Australian Privacy Principles. Section 42(3) deems certain disclosures authorised by law, but s 42(4) preserves any prohibition under other Commonwealth, State or Territory laws.
• Use of methods and technologies for identity verification (s 47) must comply with any Minister’s determination specifying the nature of personal information and the purposes for which it may be used.
• For participation in the Document Verification Service or Face Verification Service, the Minister may arrange for computer programs to disclose information (s 46A). Ensure any such arrangements are properly documented and under the Minister’s control.