Foreign Passports (Law Enforcement and Security) Determination 2015

This instrument, the Foreign Passports (Law Enforcement and Security) Determination 2015, performs a narrowly targeted administrative function. It names specific office-holders and classes of officers as “competent authorities” for a number of statutory triggers in the Foreign Passports (Law Enforcement and Security) Act 2005 (the Act) and identifies a set of passport offences from the Australian Passports Determination 2015 as relevant “reasons” under the Act. The instrument also provides commencement detail (the whole instrument commenced on 1 October 2015) and establishes that any instruments listed in its Schedules are to be amended or repealed as those Schedule items state (see ss 1-4).

Mechanically, the Determination does not create new criminal offences, civil remedies, fees or direct obligations for members of the public. Instead it confers status: it specifies which persons and offices are to be regarded, for particular paragraphs and subsections of the Act, as competent authorities (see ss 6-9). Those specifications determine who may exercise or be relied on for functions, notifications, certifications or advice the Act assigns to a “competent authority.” Where the Determination refers to other instruments (the Australian Passports Determination 2015 in s 8) it imports particular offences as relevant reasons under the Act; the Determination does not itself define or create those offences.

The instrument is made under the Act (s 3). It distinguishes between different kinds of competent-authority roles: Australian law‑enforcement matters (s 6), international law‑enforcement cooperation (s 7), and “potential for harmful conduct” reasons (ss 8-9). For example, s 6 specifies the Attorney‑General, the Secretary of the Attorney‑General’s Department and SES employees in that Department as competent authorities for the circumstances referred to in subsection 13(1)(a) and (b) of the Act. Section 7 deals with international cooperation, adding the Australian Federal Police for one of the subparagraphs. Section 8 cross‑refers to particular offences listed in the Australian Passports Determination 2015 as relevant to s 15(1)(a)(v) of the Act. Section 9 further specifies the Department of Immigration and Border Protection and the Australian Federal Police for paragraph (d) of the definition of competent authority in subsection 15(2), and various senior officials including the Director‑General of Security for paragraph (f) of that definition.

Two structural features are worth noting from the instrument itself. First, the commencement table is incorporated in the document and the whole instrument commenced on a single date (1 October 2015), but the instrument also states that any information placed in the table’s third column in published versions is not part of the instrument (s 2(2)). Second, s 4 gives Schedules effect in the usual way , i.e. the instrument can amend or repeal other instruments by Schedule , but the text of the Schedules is not provided in the body excerpt supplied here. The Determination is therefore a designation and housekeeping instrument: it allocates competence to named offices and classes of officers for the application of particular paragraphs and subsections of the Act and links particular passport offences into the Act’s “potential for harmful conduct” rationale.

The Determination revolves around three core legal concepts contained within its text: (1) specification of competent authorities, (2) incorporation by reference of passport offences as relevant reasons, and (3) administrative effect via Schedules and commencement. Each concept is narrow and technical; the instrument’s substantive legal effect flows from how those designations interact with the enabling Act.

Specification of competent authorities. The Act uses the term “competent authority” and provides different contexts in which a competent authority must be specified. This Determination supplies those specifications for several of the Act’s defined paragraphs and subsections. For Australian law‑enforcement matters, it designates the Attorney‑General, the Secretary of the Attorney‑General’s Department, and SES employees in that Department (s 6). For international law‑enforcement cooperation, it designates the Secretary and SES employees in the Attorney‑General’s Department for one part and expressly adds the Australian Federal Police for another part (s 7(1)-(2)). For “potential for harmful conduct” matters the instrument both imports particular passport offences as a basis for the reason (s 8) and specifies further competent authorities (s 9).

Incorporation of passport offences as reasons. Section 8 specifies that, for subparagraph 15(1)(a)(v) of the Act, the offences mentioned in subsections 13(1) and (2) of the Australian Passports Determination 2015 are “specified.” That means the Determination imports a list of passport-related offences from a separate instrument and identifies them as the kind of conduct the Act contemplates for the specified reason. The Determination therefore performs a linking function between instruments rather than creating new substantive offences or penalties.

Schedules and commencement. Section 2 provides the commencement mechanism and confirms the whole instrument took effect on 1 October 2015. Section 4 states that each instrument specified in a Schedule is amended or repealed as set out in that Schedule. Thus the Determination can effect changes to other instruments’ text by Schedule; the user should inspect the Schedules where any specific amendment or repeal is referenced.

Operational categories and allocation. The Determination divides competent-authority designations according to the statutory circumstances in which they apply. It uses the Act’s existing paragraph and subsection numbering as the point of reference (for example, paragraph (b) of the definition of competent authority in subsection 13(2), paragraph (b) or (c) of subsection 14(2), paragraph (d) or (f) of subsection 15(2)). Practically, this means the same office-holder or class of office-holders can be competent authority for some kinds of determinations or reasons and not for others; conversely, multiple authorities can be specified for the same Act provision (for example, both the Secretary and SES employees in the Attorney‑General’s Department are specified in ss 6 and 7).

The Determination’s immediate legal subjects are public office-holders and government agencies rather than members of the public. It designates which offices count as competent authorities for parts of the Act; consequently it affects who within government can perform the functions, provide the certifications, or present the reasons that the Act expects a “competent authority” to supply.

Named persons and classes. The instrument names the Attorney‑General (s 6(a)), the Secretary of the Attorney‑General’s Department (ss 6(b), 7(1)(a)), SES employees in the Attorney‑General’s Department (ss 6(c), 7(1)(b)), the Australian Federal Police (s 7(2), s 9(1)(b)), the Department of Immigration and Border Protection (s 9(1)(a)), and senior ASIO officials by reference to the Australian Security Intelligence Organisation Act 1979 (s 9(2)(c)-(d)). Those named offices are the direct objects of the designation: they gain the legal status of “competent authority” for the Act’s specified paragraphs and subsections.

Australian government departments and agencies. The designation matters to the Attorney‑General’s Department, the Australian Federal Police, the Department of Immigration and Border Protection and the Australian Security Intelligence Organisation. Each agency must recognise that certain decisions, certifications or other acts under the Act may legitimately be made or relied upon when performed by the specified office-holders. It therefore affects agency internal administrative arrangements, authorisation chains, recordkeeping and inter-agency cooperation.

Senior Executive Service (SES) employees. The Determination repeatedly uses the class “SES employees in the Attorney‑General’s Department” (see ss 6 and 7). That has practical implications for delegation, because it allows authorised actions to be taken by those senior executive officers without naming individuals. It affects the pool of officers who may lawfully be treated as competent authorities, and it imposes an administrative task on the Attorney‑General’s Department to ensure that SES employees exercising competence do so within whatever delegations, instructions or internal governance the Department has established.

Passport holders and broader public. The instrument does not directly alter legal rights of passport holders or members of the public in the sense of creating new offences or new duties on individuals. However, the determination affects the governmental decision-making environment that can impact passport outcomes under the parent Act. For example, by specifying which agencies or officials are competent authorities for international cooperation or potential harmful conduct reasons, the Determination shapes which agencies can trigger or rely upon processes under the Act that may, in practice, affect individual passport status. The text itself does not set out those passport consequences; it supplies the institutional allocation that determines who can exercise functions that the Act links to passport decisions.

This Determination is a designation instrument and does not itself create prescriptive duties, express rights or direct penalties for members of the public. Instead it allocates institutional competence and imports specified passport offences as relevant “reasons” under the parent Act. Consequently the core duties and rights arising from this Determination are best understood as administrative entitlements and responsibilities within government agencies and the framework of the Act.

Duties for specified authorities. Once an officer or agency is specified as a competent authority for a provision of the Act, that status confers the capacity to perform, certify or provide whatever functions the Act assigns to a “competent authority” in the relevant provision. The Determination itself does not set out the content of those functions; it simply identifies who can discharge them for the specified paragraphs and subsections (see ss 6-9). Any operational duty to act, to provide information, or to issue a certificate therefore derives from the Act and the internal delegation policies of the specified agencies. The Determination makes it clear which bodies are empowered to carry those Act-specified functions for the listed contexts.

Rights to rely on specified authorities. Other agencies, private parties and decision-makers are entitled to treat communications, certifications or decisions from the specified competent authorities as coming from persons who the Act contemplates as competent. The Determination therefore structures legal reliance. For example, if the Act requires an assertion or certification from a competent authority before a passport-related action can be taken, the parties can rely on those named persons or classes being competent for that statutory purpose (see ss 6-9).

Delegation and internal governance. The Determination’s repeated specification of “SES employees in the Attorney‑General’s Department” (ss 6(c), 7(1)(b)) creates flexibility within the Attorney‑General’s Department for senior officers to act as competent authorities without individual identification. That introduces an internal administrative duty for the Department to identify which SES employees are authorised, and to ensure delegations and records exist to show any person relying on a certificate or decision that the person’s exercise of competence was within the authorised class. The Determination does not itself impose an obligation to adopt particular internal practices, but it triggers the need for such practices if the Department intends to rely on the SES pool it identifies.

Inter-agency responsibilities. By designating the Australian Federal Police and the Department of Immigration and Border Protection as competent authorities for specified paragraphs (s 7(2); s 9(1)), the Determination assigns those agencies the right to be the appropriate point of contact or decision-maker for the Act’s mechanisms in those contexts. Practically, that will oblige those agencies to develop processes to receive and respond to requests, to prepare and sign any required certificates, and to document any exercise of competence that will be used under the Act. Those obligations flow from the operational requirements of the Act, not the Determination itself, but the Determination triggers them by allocating competence.

The Determination contains no penalty provisions, compliance sanctions or criminal offences of its own. Its legal form is administrative and classificatory: it specifies who are “competent authorities” for particular statutory paragraphs and subsections, and it imports particular passport offences listed in another instrument as relevant reasons under the Act (see ss 6-9 and s 8). Any penalties or enforcement mechanisms that arise in matters covered by these designations therefore derive from the Act itself or from the instruments it references, not from the Determination.

Where enforcement follows. The Determination interacts with enforcement only indirectly. By specifying competent authorities and by identifying passport offences as relevant reasons, it shapes whose statements, certifications or determinations are accepted under the Act, which in turn will determine when the Act’s enforcement provisions can be triggered. For example, if the Act allows a particular passport action (such as cancellation, refusal, or some other administrative measure) only upon the certification or advice of a competent authority, the Determination controls which offices can legitimately provide that certification, and thereby which enforcement pathways are available in practice. The Determination itself neither authorises nor executes enforcement; it allocates institutional capacity to do so under the Act.

No fines or criminal penalties in the text. The Determination does not list fines, imprisonment, civil penalties, administrative fines or coercive powers. It does not, on its face, create new grounds for prosecution or civil liability. The only substantive content tied to offences is its specification that offences described in subsections 13(1) and (2) of the Australian Passports Determination 2015 are reasons under subparagraph 15(1)(a)(v) of the Act (s 8). That specification does not convert those offences into additional offences; it designates them as a type of conduct that may be relied upon for Act-related administrative action.

Enforcement actors identified. Although the Determination does not create penalties, it designates agencies that are likely to be active participants in any enforcement process under the Act. The Australian Federal Police and the Department of Immigration and Border Protection are specified as competent authorities for particular contexts (s 9(1)). The Attorney‑General, the Secretary and SES employees in the Attorney‑General’s Department are likewise specified for other parts of the Act (ss 6-7). The inclusion of ASIO senior officers (s 9(2)(c)-(d)) indicates that national security intelligence officials are a recognised source of competence for paragraph (f) of the definition in subsection 15(2). In practice, those agencies and officers will be the ones supplying the statements or certifications that support enforcement under the parent Act.

The Determination is an instrument made under the Foreign Passports (Law Enforcement and Security) Act 2005 (the Act) and is designed to operate in close interaction with that Act and with selected other instruments and Acts it references. The Determination itself explicitly cites the Act as its authority (s 3), imports offences from the Australian Passports Determination 2015 (s 8), and references the Australian Security Intelligence Organisation Act 1979 for the meaning of senior ASIO offices (s 9(2)(c)-(d)). It also provides for the amendment or repeal of instruments listed in its Schedules (s 4). These cross‑references determine the Determination’s legal ecosystem.

Primary dependence on the Act. The Determination’s legal effect is contingent on the Act’s definitions and mechanics. Each specification in the Determination is framed as “For paragraph (b) of the definition of competent authority in subsection 13(2) of the Act, the following persons are specified …” (s 6) or similar formulations in ss 7 and 9. That means the Determination does not operate in a vacuum: its effect is to populate the set of competent authorities that the Act presumes for particular statutory paragraphs. Any change to the Act’s definitions, numbering or substantive requirements would alter how the Determination operates.

Interaction with the Australian Passports Determination 2015. Section 8 explicitly delegates to the Australian Passports Determination 2015 by specifying as reasons the offences mentioned in subsections 13(1) and (2) of that instrument, for the purposes of subparagraph 15(1)(a)(v) of the Act. That is a concrete cross-instrument link: the Determination identifies offences in one administrative instrument as meeting the Act’s “potential for harmful conduct” criterion. It therefore integrates the content of the Australian Passports Determination 2015 into the evidential frame used under the Act.

Reference to ASIO Act for titles and meaning. Section 9(2)(c) and (d) specify the Director‑General of Security and a Deputy Director‑General of Security “within the meaning of the Australian Security Intelligence Organisation Act 1979.” This signals that, where the Determination calls for ASIO senior officers, the definitions and status of those offices are to be read with reference to the ASIO Act. The Determination does not define the offices itself; it relies on the ASIO Act’s definitions.

Schedules amend other instruments. Section 4 provides that each instrument specified in a Schedule to this Determination is amended or repealed as set out in the applicable items in that Schedule. The Schedules therefore create an interaction by changing other instruments. The specific content of those Schedules is not contained in the extract provided here, but the general mechanism is that this Determination can modify the legal content of other instruments by Schedule.

The Determination itself contains limited self-descriptive amendment information. The text provided shows the instrument’s name (s 1), its date of commencement (s 2), its authority under the Act (s 3) and a Schedules mechanism for amending or repealing other instruments (s 4). Aside from those features, no subsequent amendments to this Determination are contained within the text excerpt provided. The commencement table included in s 2 records the original commencement: the whole instrument commenced on 1 October 2015 (s 2(1)). The Determination also includes a note that the commencement table relates only to the instrument as originally made and will not be updated to reflect later amendments (s 2, paragraph following the table). This implies that later amendments, if any, would be recorded separately.

What the text shows about amendment mechanics. Section 4 is the core clause dealing with amendment: it states that each instrument specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned. That is a standard mechanism in subordinate instruments to give effect to consequential or express amendments of other regulations and determinations. The clause therefore indicates the Determination may, in its Schedules, make textual changes to other instruments. The Schedules themselves are the operative place where any amendments are recorded; they are not reproduced in the body text reviewed here.

Commencement and non-binding published notes. Section 2(2) states that any information in column 3 of the commencement table is not part of the instrument and that such information may be inserted or edited in published versions. This has two amendment-related implications. First, it separates editorial or explanatory material from the instrument’s legal content, which is relevant when tracing amendment history in published materials. Second, it suggests that one should consult official legislation registers or gazette notices to confirm the legal text and any amendment history, because some published annotations are not part of the instrument.

No amendments shown in the supplied text. The text supplied does not include later amendment clauses or notes of later amendment, nor does it show any revocation or repeal of the Determination itself. The only temporal information provided is the original commencement date. If any later instruments amended this Determination, those amendments are not recorded in the material provided here.

Practical consequence for users. Anyone relying on this Determination should treat s 4 as the trigger to check Schedules for specific amendments to other instruments. They should also be aware that published explanatory notes or editorial comments in the commencement table are not part of the legal instrument (s 2(2)), and that amendment history is not captured in those non‑legal columns. The Determination provides the mechanism for amendment by Schedule, but the Schedules themselves and any later amending instruments must be inspected to obtain a complete amendment history.

The Determination as supplied contains no reference to litigation, judicial decisions, or case law. It does not cite, adopt, or summarise any court or tribunal authority, and no cases are named in the text. Therefore the Determination’s own text offers no litigation history or precedential guidance.

Implications of the absence of litigation references. Because the instrument is a designation instrument rather than a substantive rule-making instrument imposing direct obligations on private parties, it is unsurprising that the text contains no litigation history. The absence of court citations in the instrument means that any legal interpretation disputes about its operation must be resolved through general administrative and statutory interpretation principles and, where contested, through litigation or dispute resolution channels that are not described in the instrument itself.

Potential areas of dispute suggested by the text. Although the Determination itself records no litigation, its content raises identifiable interpretive and procedural questions that could be the subject of dispute in the future. Examples, based solely on the instrument’s text, include:

• The scope of the class terms the Determination uses, notably “SES employees in the Attorney‑General’s Department” (ss 6(c), 7(1)(b)): disputes could arise over which specific SES officers are lawfully exercising competence under the Determination, and whether internal delegations or authorisations were sufficient.

• The effect of the Determination’s incorporation of offences from the Australian Passports Determination 2015 as “reasons” under the Act (s 8): disputes could focus on whether a particular offence listed in the Australian Passports Determination 2015 properly meets the Act’s criteria in a given case, or whether reliance on such an offence satisfies the Act’s procedural requirements.

• The interplay between multiple competent authorities. The Determination sometimes specifies more than one competent authority for a given statutory context (for example, both the Secretary and SES employees in the Attorney‑General’s Department are specified). This raises potential questions about which authority should be approached in practice and whether concurrent or conflicting certificates from different competent authorities create legal uncertainty.

• The use of external statutory definitions. Section 9(2)(c)-(d) brings in the meanings of Director‑General and Deputy Director‑General of Security from the Australian Security Intelligence Organisation Act 1979. Disputes could arise about the applicability of those definitions or about whether particular persons fit those roles under the ASIO Act.

Several practical pitfalls and interpretive ambiguities are apparent from the text of the Determination and warrant attention by practitioners, agency counsel and compliance officers. These are concrete, text‑based issues that can affect how the Determination operates in administration and in practice.

Vagueness of class descriptions: “SES employees in the Attorney‑General’s Department.” The Determination repeatedly specifies “SES employees in the Attorney‑General’s Department” (ss 6(c), 7(1)(b)). The phrase is broad and refers to a class rather than individual officers. The Determination does not define which SES bands, positions or functions are intended, nor does it require the Department to publish a roster or delegation instrument identifying which SES employees are authorised. This creates an administrative “gotcha”: other agencies, and third parties relying on certificates, will need to confirm that a particular SES officer who signs a certificate is authorised to do so under the Department’s internal delegations, because the Determination alone does not document individual authority.

Multiple competent authorities for similar functions. For some Act paragraphs the Determination specifies multiple competent authorities (for example, both the Secretary and SES employees in the Attorney‑General’s Department are listed for certain matters in ss 6 and 7). That multiplicity can create operational confusion about which office should be approached in a given case, and whether conflicting certificates from different competent authorities are possible. The Determination does not establish a hierarchy among specified authorities; operational guidance must come from internal departmental policy.

Imported offences as “reasons” , check the other instrument. Section 8 imports offences mentioned in subsections 13(1) and (2) of the Australian Passports Determination 2015 as specified reasons under subparagraph 15(1)(a)(v) of the Act. Practitioners must therefore consult the Australian Passports Determination 2015 to identify which offences are in those subsections. The Determination itself does not reproduce the list, so relying on s 8 without checking the referenced instrument is a potential oversight.

Schedules may amend other instruments. Section 4 provides the Determination can amend or repeal instruments specified in its Schedules. The Schedules are the operative vehicles for those amendments; the text excerpt here does not include the Schedules. A gotcha for readers is to assume the Determination stands alone: any downstream amendments to other instruments effected by the Schedules must be checked in the published full Determination to understand broader legal changes.

Compliance with this Determination breaks into two distinct tasks: what the specified agencies must do to make lawful use of the Determination, and what external actors (other agencies, advisers, affected persons) should do when the Determination is engaged. The Determination itself does not impose direct compliance obligations on private persons, but it does create administrative obligations for government entities that rely on or are specified by it.

Actions for specified agencies

• Identify and document authorised officers. Departments and agencies specified as competent authorities should identify which individuals within the classes named (notably SES employees) are authorised to act as competent authorities under the Act as interpreted with this Determination. The Determination uses class descriptions (for example, “SES employees in the Attorney‑General’s Department” at ss 6(c) and 7(1)(b)), so departments should produce internal delegation instruments or registers that show which SES officers may sign certificates, give advice or otherwise perform the Act’s competent-authority functions.

• Adopt internal templates and signatory processes. Because reliance on a competent authority’s certificate or statement may be dispositive for an Act-linked action, agencies should develop standardised templates for any certificates, statements or notifications they provide under the Act. Templates should capture the authority of the signatory and cite the specific Act paragraph under which the officer is acting, to avoid evidential uncertainty.

• Maintain audit trails and recordkeeping. To ensure that an Act-related decision can be defended, agencies should keep contemporaneous records that show: (a) who within the agency provided the certificate or statement, (b) the basis for the assertion (e.g. relevant facts, intelligence or administrative findings), and (c) internal authorisation for the officer’s exercise of competence. The Determination does not require particular record forms; the need for reliable records follows from the fact that it determines who qualifies as a competent authority.

• Coordinate inter-agency processes. Where the Determination designates multiple agencies (Attorney‑General’s Department, AFP, Department of Immigration and Border Protection, ASIO), practical compliance will require clear memoranda of understanding, points of contact, liaison protocols and agreed timelines for providing certificates or responses. The Determination itself provides no coordination mechanism; agencies must build one.