Bills Digest no. 52 2005–06
Migration and Ombudsman Legislation Amendment Bill 2005
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Migration and Ombudsman
Legislation Amendment Bill 2005
Date
Introduced: 15 September 2005
House: Senate
Portfolio: Immigration and Multicultural and Indigenous Affairs
Commencement: Sections
1 to 3 and Schedules 1, Schedule 2 Part 1, Schedules 3 and 4 commence
on date of Royal Assent. Schedule 2 part 2 items commence at various
times depending on events under the Postal Industry Ombudsman Act 2005.
The bill amends the Migration Act 1958 (the
Migration Act) to:
-
introduce 90 day processing time limits for the determination of
Protection Visa applications and for the completion of reviews by
the Refugee Review Tribunal (the RRT)
-
permit disclosure of identifying information to individuals or the
public to assist with identifying or locating a person who is otherwise
unable to be identified or located, and
-
enable the Ombudsman to contact an immigration detainee where that
person has not made a complaint to the Ombudsman.
The bill amends the Ombudsman Act 1976 (the Ombudsman Act) to:
-
allow the Ombudsman to use the title ‘Immigration Ombudsman’ when
performing functions in relation to immigration and detention
-
make it explicit that the Ombudsman can perform functions
and exercise powers under other Commonwealth or ACT legislation
-
enable an agency or person to provide information to the Ombudsman
notwithstanding any law that would otherwise prevent them doing so,
and
-
clarify that the actions of contractors and subcontractors, in exercising
powers or performing functions for or on behalf of Australian Government
agencies, will be taken to be the actions of the relevant agency.
The bill also amends the Migration Act and the Migration Legislation
Amendment Act (No. 1) 2001 to make technical amendments as a consequence
of the commencement of the Legislative Instruments Act 2003 (‘Legislative
Instruments Act’).
On 17 June 2005 the Prime Minister announced
that the Migration Act would be amended to require all primary protection
visa applications to be determined within three months of the receipt
of the application.(1) Likewise, reviews by the RRT will be
completed within three months. For further background, refer to the Bills Digest
on the Migration Amendment (Detention Arrangements) Bill 2005.
On 14 July 2005, the Minister for Immigration and Multicultural and Indigenous
Affairs announced
the government’s decision that the Commonwealth Ombudsman, Professor John McMillan,
should have a strengthened role in immigration and detention matters.(2)
The government has requested that the Ombudsman complete investigations
into 200 potential wrongful detention cases referred to Mr Mick Palmer,
former Australian Federal Police commissioner, and Mr Neil Comrie, former
Victoria Police Chief Commissioner. The proposed amendments are intended
to assist the Ombudsman in completing these investigations.
The Ombudsman is currently investigating;
-
the case of Vivian Alvarez Solon, an Australian citizen wrongly
deported to the Philippines in 2001
-
two hundred detainees later found to be lawful, including 56 detained
for more than three weeks, and
-
all people detained for more than two years.(3)
The Commonwealth Ombudsman Professor John McMillan has statutory powers
similar to a Royal Commission conferred by the Ombudsman
Act 1976 (Cth). When conducting investigations he can:
-
provide protection and immunity for witnesses (s.9)
-
require witnesses to attend and give evidence on oath (s.13)
-
protect witnesses against any civil or criminal liability resulting
from any evidence given (s.9)
-
require the production of relevant documents from any person (s.9),
and
-
enter premises (s.14).
Part 4A of the Migration Act provides a scheme with protections for personal
identifiers collected in a wide range of circumstances, including specific
obligations on officers about the handling of this kind of information.
In particular, section 336E makes it an offence to disclose ‘identifying
information’ (defined in section 336A to include any personal identifier,
or a derivative or result of the analysis of a personal identifier) if
the disclosure is not a ‘permitted disclosure’. Subsection 336E(2) provides
that permitted disclosures include, for example, disclosures that are
for the purpose of:
-
data matching
-
administering the storage of identifying information
-
modifying identifying information to enable it to be matched with
other identifying information, to correct errors or comply with appropriate
standards
-
disclosure to foreign countries in the circumstances authorised under
section 336F of the Migration Act
-
making a non-citizen’s information available to them, or
-
action under an arrangement with a Commonwealth, State or Territory
agency.
One of the concerns of the Inquiry
into the Circumstances of the Immigration Detention of Cornelia Rau
about the handling of Ms Rau’s case was that DIMIA had been reluctant
to publicly release photographs of Ms Rau in an effort to identify her.
Palmer found that:
The Commonwealth’s Privacy Act 1988 is not intended
to prevent circulation of personal information when it is in the public
interest to disclose that information.
The Inquiry recommended, among other things, that the Department of Immigration
and Multicultural and Indigenous Affairs (‘the Department’) review its
position in relation to privacy in all its public policy operations associated
with immigration detention. The Inquiry recommended that in doing so,
the Department should seek the advice of the Privacy Commissioner and
the Minister, and increase the awareness of departmental staff of the
principles and provisions of the Privacy Act 1988 (‘Privacy
Act’). The Inquiry recommended that the Department revise and strengthen
procedures relating to identifying persons in immigration detention to
ensure that wider options are considered.
The amendments in Schedule 3 of the bill are part of the Government’s
response to the recommendations of the Inquiry. For further background
on the Cornelia Rau incident, readers are directed to the Parliamentary
Library publication ‘The Detention
of Cornelia Rau: legal issues’.
Item 1 would insert new section 65A to introduce a 90 day
period during which the Minister is required to decide applications for
protection visas. Item 3 would insert new section 414A to
require the Refugee Review Tribunal (‘RRT’) to decide applications for
review of protection visa decisions within 90 days.
The commencement of the 90 day period is to be prescribed by regulations
under new paragraph 65A(1)(d). Draft regulations, which have been
published, deal with the commencement dates for various categories of
protection visas. For example, in relation to subclass 785 (Temporary
Protection) visas, the 90 day period would only commence after 30 months
has expired, unless the Minister has specified a shorter period at her
discretion.
Item 2 inserts new section 91Y, which would require the
Secretary of the Department of Immigration and Multicultural and Indigenous
Affairs to report to the Minister, on a four monthly cycle, about protection
visa applications and review applications that take longer than 90 days
to decide. Item 4, new section 440A applies the same obligation
to the Principal Member of the RRT. The Minister can request further
reports to be provided by the Secretary and the Principal Member. The
Minister is required to table such reports before each House of the Parliament
within 15 sitting days after receiving them.
Item 3 inserts new subsection 3(4B) which provides that
the actions of contractors and subcontractors, in exercising powers or
performing functions for or on behalf of Australian Government agencies,
in the provision of goods and or services to the public, will be taken
to be the actions of the relevant agency; and defines ‘Commonwealth service
providers’ (item 6, new section 3BA).
Item 7 makes it explicit that the Ombudsman can perform functions
and exercise powers under other Commonwealth or Australian Capital Territory
legislation.
Item 8 inserts new subsection 4(4) to allow the Ombudsman
to use the title ‘Immigration Ombudsman’ when performing functions in
relation to immigration and detention.
Items 9 and 10 inserts new subsections 7A(1A) to (1E) and
8(2A) to (2E) to enable an agency or person to provide information
to the Ombudsman notwithstanding any law that would otherwise prevent
them doing so. This would be relevant where an official might incriminate
themselves by providing information to the Ombudsman, or breach privacy
laws.(4)
Item 26 amends paragraph 193(3)(b) of the Migration Act
to enable the Ombudsman to contact an immigration detainee even where
that person has not made a complaint to the Ombudsman.
Current subsection 336E(1) of the Migration Act makes it an offence if
any person’s conduct causes identifying information, within the meaning
of section 336A to be disclosed and that disclosure is not authorised.
Item 2 inserts new sections 336FA, 336FB, 336FC, and 336FD
in Division 3 of Part 4A of the Migration Act to authorise the disclosure
of identifying and other necessary information if authorised by the Secretary.
New section 336FA would allow disclosure of certain personal identifiers
to selected individuals (defined as a natural person) to obtain the individual’s
help to identify, or authenticate the identity of, or locate, in connection
with the administration of the Migration Act, a person.
New section 336FC would allow disclosure of identifiers in order
to obtain the public’s help to identify, or authenticate the identity
of, or locate, in connection with the administration of the Migration
Act, a person when other reasonable means of identifying the person have
not been successful.
The types of personal identifiers which are proposed for disclosure are
limited to measurements of a person’s height and weight, photographs or
images of a person’s face and shoulders, audio or video recordings of
a person, and signatures (existing paragraphs (b), (c), (d) or (f) of
the definition of ‘personal identifier’ in subsection 5A(1)). The
disclosure of other kinds of identifiers that may be collected under the
Migration Act, for example fingerprints or iris scans, is not permitted
under these amendments.
This schedule allows the Minister to maintain the ability to remake from
time to time instruments incorporated into the Migration Regulations
1994 (‘the Migration Regulations’) and instruments fixing the number
of visas of a class which may be granted in a year; and make other technical
amendments which are consequential to the Legislative Instruments Act.
- The question raised by this Bill is to what extent these proposed
amendments address the acknowledged problems with DIMIA’s administration
of immigration detention identified by the Palmer report. This Bill
is not a full response. Areas not yet addressed include:
-
the development of a national missing persons policy (recommendation
5.3), and
-
the implementation of a review within 24 hours of every decision
to detain (recommendation 7.4).
Palmer notes that the current Privacy Act exceptions are flexible enough
for the Department to have permitted the release of Ms Rau’s information
legally, but DIMIA staff ‘asked the wrong question.’(5)
Ms Vivian Solon could have confirmed her identity if she had been given
the opportunity by the relevant DIMIA official. Instead the officials
involved acted on a presumption that she was an illegal sex-worker, and
were later criticised by the Senate Foreign Affairs Defence and Trade
Committee.(6)
The Bill does not necessarily address this problem. The Bill gives the
Secretary the discretion to publish photographs in order to find possible
missing persons. However, there is no requirement in this Bill for the
primary decision maker to make compulsory checks of missing person registers
or other relevant databases.
In relation to the 90-day processing times, a decision is not rendered
invalid even if it is made after 90 days. The question arises whether
the requirement to report to Parliament on ‘late’ decisions will provide
enough of a sanction to compel adherence to this time limit.
-
J. Howard (Prime Minister), Immigration detention, media release,
Parliament House, Canberra,17 June 2005,
http://www.pm.gov.au/news/media_releases/media_Release1427.html
accessed 18 September 2005.
-
A Vanstone (Minister for Immigration and Multicultural and Indigenous
Affairs), Report of Palmer Inquiry into Cornelia Rau Matter,
media release, 14 July 2005, http://www.minister.immi.gov.au/media_releases/media05/v05087.htm,
accessed 18 September 2005. See also http://www.comb.gov.au/news_current_issues/media_releases/Media_Release-140705-Immigration%20detention.pdf,
accessed 18 September 2005.
-
Commonwealth Ombudsman, Commonwealth
Ombudsman takes on immigration detention investigations, media
release, Canberra, 14 July 2005.
-
Note that there have been media reports that three DIMIA officials
have been criticised in the draft Ombudsman report into the Vivian
Solon deportation, and that they have sought legal advice. The proposed
amendment would allow such people to provide the information without
fear of self-incrimination. See further J. Topsfield, ‘Immigration
staff may face sack over Alvarez Solon deportation’, The Age,
2 September 2005, p.5. J. Kerr, ‘Ombudsman points finger at Alvarez
officials’, Sydney Morning Herald, 12 September 2005, p. 7.
-
M. Palmer, Report of Palmer Inquiry into Cornelia Rau Matter,
14 July 2005, http://www.minister.immi.gov.au/media_releases/media05/v05087.htm,
accessed 18 September 2005, at p. 115.
-
Senate Foreign Affairs, Defence and Trade Committee, The
removal, search for and discovery of Ms Vivian Solon Interim report,
15 September 2005.
Sue Harris Rimmer
5 October 2005
Bills Digest Service
Information and Research Services
This paper has been prepared to support the work of the Australian Parliament
using information available at the time of production. The views expressed
do not reflect an official position of the Information and Research Service,
nor do they constitute professional legal opinion.
IRS staff are available to discuss the paper's contents
with Senators and Members and their staff but not with members of the
public.
ISSN 1328-8091
© Commonwealth of Australia 2005
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Published by the Parliamentary Library, 2005.
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