Foreign Passports (Law Enforcement and Security) Act 2005

The Act’s reach is deliberately broad yet targeted. Primary subjects are natural persons who hold or control a “foreign travel document”—defined in s 5 as either a foreign passport or any other identity document issued for travel purposes by a foreign government. Because the definition is not limited to Australian citizens or residents, the Act can affect dual nationals, foreign nationals temporarily in Australia, and even persons outside Australia whose documents come to the attention of enforcement officers.

Competent authorities are the principal triggers. Their identity varies by context: for domestic law-enforcement matters under s 13, any person or body with statutory responsibility for the relevant circumstance (arrest warrants, parole, child-protection registers) qualifies unless excluded by Ministerial determination; for international-cooperation (s 14) and harmful-conduct (s 15) requests, the pool includes diplomatic and consular staff under the Vienna conventions, specified Commonwealth employees or non-corporate entities, and other persons designated by determination. The Director-General of Security (or delegated Deputy) holds exclusive standing to invoke the s 15A temporary security-risk pathway.

Enforcement officers—Customs officers, AFP members, State and Territory police, and Ministerially authorised persons—exercise the physical demand and seizure powers. The Minister (or SES delegate under s 23A) is the formal decision-maker for surrender orders.

Indirectly affected are foreign governments whose travel documents are seized, and applicants for foreign travel documents who must navigate the strict false-statement offences in ss 18–20. The child-protection amendments in s 13(1A) and s 16(1A) specifically engage State and Territory registrars and correctional authorities who maintain reportable-offender lists. ASIO officers and employees supply the intelligence that underpins s 15 and s 15A requests, although they are not themselves competent authorities for most purposes.

Review rights are narrowly confined: only the person whose documents are ordered surrendered under s 16 (non-mandatory cases) may apply to the Administrative Review Tribunal (s 23(2)). Third parties, including family members or foreign consular officials, have no statutory standing.

The Act imposes duties on three main classes. First, persons subject to a valid Ministerial order or s 17 demand must “immediately” surrender any foreign travel documents in their possession or control once the enforcement officer has complied with the information requirements in s 16(5) or s 17(2). Second, applicants for foreign travel documents owe strict duties of honesty; ss 18–20 criminalise not only positive falsehoods but also omissions that render statements or information misleading in a material particular. Third, the Director-General of Security must adhere to the statutory restraint in s 15A(2) before making repeat temporary-surrender requests.

Rights are more limited. The affected individual’s primary right is to merits review before the Administrative Review Tribunal where the order was made under s 16 (other than mandatory reportable-offender orders). However, this right is substantially qualified: if the Minister issues a s 23(3) certificate, the Tribunal cannot substitute a decision in the person’s favour but may only affirm or remit with recommendations (s 23(4)). There is no statutory right to be heard before an order is made, nor any automatic right to reasons in security-sensitive cases. Documents must be returned after successful review (s 16(7)) or after 28 days for temporary orders (s 16A(6)), unless a full order intervenes.

Reasonable-excuse defences in ss 21(5) and 22(3) confer a practical right to exculpation where, for example, possession of another person’s document is inadvertent or authorised. Evidential burdens placed on defendants in ss 18(2), 19(2), 20(2)–(3), 21(5) and 22(3) reflect the legislature’s allocation of proof but preserve the legal burden on the prosecution once the excuse is raised.

The Act itself does not create positive rights to obtain foreign travel documents; that remains the province of the issuing foreign state. Australian citizens retain their constitutional right to enter and leave Australia (subject to valid passport cancellation under the Passports Act 1938), but the seizure of a foreign document does not directly engage that right.

Penalties are graduated. The summary offences of failing to surrender after demand (ss 16(5), 16A(5), 17(2)) carry 1 year’s imprisonment or 20 penalty units (or both) for ordinary cases and 6 months or 10 penalty units for temporary security orders. The Part 3 document-integrity offences are indictable and severe: 10 years’ imprisonment or 1,000 penalty units (or both) for each of ss 18–22. These maxima reflect Parliament’s view of the gravity of travel-document fraud in an era of transnational crime and terrorism.

Enforcement is primarily administrative: seizure occurs on the spot without warrant provided the demand formalities are observed. Criminal prosecution for non-compliance or Part 3 offences follows ordinary investigative processes by the AFP or Commonwealth DPP. Because Chapter 2 of the Criminal Code applies (s 5A), fault elements must be proven for most conduct elements; the false-statement offences are structured so that the prosecution need only prove the statement was made in connection with an application and was false or misleading in a material respect, after which the defendant bears the evidential burden on the carve-outs.

No civil penalty regime exists; deterrence rests on imprisonment and the practical consequence of being rendered unable to travel. Retention periods are not capped by calendar time (except for s 16A) but are tied to the continuing existence of the underlying belief or suspicion, providing a de facto ongoing enforcement lever.

The Act is expressly linked to several statutes. The Criminal Code Act 1995 supplies general principles of criminal responsibility (s 5A) and places evidential burdens for defences. The Customs Act 1901 defines “officer of Customs” for enforcement-officer purposes. The Australian Security Intelligence Organisation Act 1979 governs the Director-General’s delegation power in s 15A(3) and supplies the personnel whose later-acquired intelligence can justify repeat requests.

International instruments are woven throughout. The definitions of “serious foreign offence” in s 14(2) reference extradition treaties. Sections 14 and 15 incorporate the Vienna Convention on Diplomatic Relations and Vienna Convention on Consular Relations to identify competent diplomatic and consular staff. The ICCPR is listed in s 15(1)(a)(iii) as a benchmark for prohibited harmful conduct. The Public Governance, Performance and Accountability Act 2013 supplies the definition of “non-corporate Commonwealth entity” used in ss 14 and 15.

Review provisions now reference the Administrative Review Tribunal Act 2024, replacing earlier AAT language; s 23(4) carves out an exception to the Tribunal’s usual powers under s 105 of that Act. Ministerial determinations under s 24 are legislative instruments and therefore subject to disallowance and sunsetting under the Legislation Act 2003.

The Act sits alongside the Passports Act 1938 (which deals with Australian passports) and the Crimes (Foreign Incursions and Recruitment) Act 1978 and counter-terrorism control-order regimes; seizure of a foreign passport can complement travel bans imposed under those laws. It does not, however, authorise cancellation of the foreign document itself—only its temporary removal from the holder.

Although the consolidated text reflects the Act as at 14 October 2024, two clusters of amendments are particularly salient. The first, introduced in response to recommendations from the Australian Law Reform Commission and parliamentary inquiries into child-sex-offender mobility, added subsections 13(1A) and 16(1A) to mandate surrender for Australian-citizen reportable offenders. This change reflected a policy judgment that registration on a child-protection register constitutes a sufficient ongoing risk to justify automatic Ministerial action without the usual discretionary filter.

The second major addition was the 28-day temporary surrender regime (ss 15A, 16A and associated amendments to s 23). Inserted to address intelligence gaps where ASIO possesses credible but time-sensitive information that cannot yet satisfy the higher thresholds of a permanent order, the mechanism allows rapid disruption of travel plans while preserving an automatic return obligation. The statutory “fresh information” rule in s 15A(2) was included to prevent the temporary power becoming a de-facto permanent one through rolling renewals. Consequential updates aligned review provisions with the new Administrative Review Tribunal framework and expanded the list of competent authorities to include modern Commonwealth entities.

These changes were driven by operational experience: law-enforcement and security agencies reported that foreign passports were being used to evade both domestic child-protection reporting and offshore counter-terrorism measures. The amendments therefore represent a deliberate expansion from purely reactive law-enforcement assistance to proactive, intelligence-led pre-emption.

Because most exercises of power under the Act are administrative and many occur in the security context, reported litigation is sparse. Challenges have primarily arisen in the Administrative Review Tribunal or its predecessor, focusing on whether the Minister’s state of satisfaction was formed on reasonable grounds and whether the s 23(3) certificate was lawfully issued. The statutory language in ss 13–15—“believes on reasonable grounds” or “suspects on reasonable grounds”—imports an objective threshold; courts have applied the standard from George v Rockett (1990) 170 CLR 104 that there must be facts sufficient to induce the relevant state of mind in a reasonable person.

Controversy has centred on the breadth of the s 15 harmful-conduct ground, particularly the reference to conduct that “might interfere with the rights or freedoms of other persons … set out in the International Covenant on Civil and Political Rights”. Critics argue this could capture legitimate protest activity if stretched. The limitation of Tribunal powers where a certificate is issued has also drawn rule-of-law criticism, although the High Court’s jurisprudence on national-security non-disclosure (e.g. Alister v The Queen (1984) 154 CLR 404) suggests such limits are constitutionally tolerable.

No reported constitutional challenges have invalidated core provisions. The mandatory surrender for reportable offenders has been defended on the basis that it is protective rather than punitive, analogous to existing travel-notification requirements under State child-protection legislation.

Practitioners should note several subtle traps. First, the definition of “competent authority” is not uniform; an official who qualifies under s 13 may lack standing under s 15, and vice versa. Relying on a Ministerial determination is essential, yet these instruments are rarely published in consolidated form with the Act. Second, the materiality qualifiers in ss 18(2), 19(2) and 20(2) are narrower than the general “material particular” test in other fraud provisions; a statement that is false but immaterial will not ground liability, yet the defendant must raise that point evidentially. Third, the reasonable-excuse defence in ss 21 and 22 is not a general “honest and reasonable mistake” defence; it requires positive evidence that, in the circumstances, the conduct was excusable. Fourth, s 16A(7) contains a trap for the unwary: if a temporary order is made and the Minister later issues a full order within 28 days, the retention rules switch automatically to the indefinite s 16(6) regime without fresh demand. Finally, the s 23(3) certificate, once given, is not itself reviewable and effectively insulates the substantive decision from merits substitution, leaving only judicial review on narrow Wednesbury or jurisdictional-error grounds. Compliance programs that treat all foreign travel documents as equivalent to Australian passports therefore miss the distinct procedural and evidentiary requirements of this Act.

Compliance for government agencies begins with documented “reasonable grounds” or “reasonable suspicion” files before any request is made. Competent authorities should maintain templates that expressly address each element of ss 13–15A and record the date and source of intelligence, especially for s 15A repeat requests. Ministers and delegates must observe the distinction between discretionary and mandatory orders and, where a s 15 request is involved, consider whether a certificate under s 23(3) is warranted before the decision is communicated.

Enforcement officers must follow the three-part verbal or written script in ss 16(5) and 17(2) verbatim: (i) that the Minister has ordered surrender, (ii) that the officer is authorised, and (iii) that non-compliance may be an offence. Failure on any element will invalidate the demand and expose the officer to civil suit for trespass to goods. Seizures should be recorded by receipt, photograph and chain-of-custody log; documents must be stored securely and returned promptly once the statutory justification lapses.

Private individuals and their advisers should treat any approach by an enforcement officer as serious. If documents are demanded, immediate legal advice is prudent before surrender, although the statute allows no grace period. Applications for foreign travel documents must be prepared with forensic care; even an immaterial falsehood can trigger investigation, and the evidential burden on materiality defences means contemporaneous records are essential. Corporations issuing or handling foreign identity documents should implement signing protocols that satisfy s 20(3) whenever a known defect exists.

Organisations that support reportable offenders or persons of security interest should maintain travel-notification policies that anticipate possible s 13(1A) or s 15A action. Finally, all parties should monitor Ministerial determinations under s 24; these can add or subtract competent authorities or expand the list of trigger offences without amending the principal Act. Regular training on the interplay between this Act, the Passports Act 1938, and counter-terrorism travel bans is indispensable for compliance professionals.