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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