Bills Digest no. 4 2015–16
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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.
Mary Anne Neilsen
Law and Bills Digest Section
10 August 2015
Contents
Purpose of
the Bill
Structure of
the Bill
Background
Committee
consideration
Policy
position of non-government parties/independents
Position of
major interest groups
Financial
implications
Statement of
Compatibility with Human Rights
Key issues
and provisions
Other
provisions
Date introduced: 4 June 2015
House: House of Representatives
Portfolio: Foreign Affairs
Commencement: Schedule 1 commences 28 days after
Royal Assent with the exception of item 121 (a consequential amendment) which
commences immediately after section 99 of the Biosecurity Act 2015.
Schedule 2 commences the day after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal
Assent, they become Acts, which can be found at the ComLaw website.
The Passports Legislation Amendment (Integrity) Bill 2015 (the
Bill) is the result of a review of the passports legislation ten years after it
was enacted.
In particular, the Bill amends the Australian Passports
Act 2005 to:
- provide
that a travel-related document may be issued to a person on the Minister's own
initiative, to facilitate a lawful extradition, deportation, removal or
prisoner transfer
-
align the definition of ‘parental responsibility’ more
closely to that in the Family Law Act 1975 to provide more certainty as
to who is required to consent to a child having an Australian travel document
- provide
that the Minister may refuse to process a passport application if there are
reasonable grounds to suspect fraud or dishonesty in the application and
- make
minor amendments to existing offence provisions and create a new offence
criminalising the making or providing of false Australian travel documents.
The Bill also makes minor amendments to the Foreign
Passports (Law Enforcement and Security) Act 2005 (Foreign Passports Act)
and consequential amendments to a number of other Acts. It also repeals the Australian
Passports (Transitionals and Consequentials) Act 2005.
The Bill consists of two Schedules. Part 1 of Schedule 1
sets out the substantive amendments to the Australian Passports Act and
the Foreign Passports Act. Parts 2 and 3 of Schedule 1 contain consequential
amendments to a number of other Acts. Schedule 2 repeals the Australian
Passports (Transitionals and Consequentials) Act 2005.[1]
The Passports Act sets out the regime for the issue
and administration of Australian travel documents to be used as evidence of
identity and citizenship by Australian citizens who are travelling
internationally. The last major overhaul of passports legislation occurred in
2005 when the previous Passports Act 1938 was split into two separate
Acts—one setting out the regime for Australian passports and the other dealing
with foreign passports. The new Passports Act as enacted in 2005
contained provisions creating new offences, widening the scope of old offences,
and significantly increasing penalties for those offences. The new Foreign
Passports Act included provisions to empower a ‘competent authority’ such
as an Australian law enforcement agency to demand, confiscate and seize foreign
passports. It also created offences for foreign travel documents.[2]
The 2005 legislative changes were part of the Government’s stance on national
security and law enforcement, particularly the need to prevent identity fraud.[3]
The Explanatory Memorandum states that the Bill follows a
routine review of the passports legislation ten years after it was enacted.[4]
At the time of writing, the Bill had not been referred to a
parliamentary committee.
Senate Standing Committee for the
Scrutiny of Bills
The Senate Standing
Committee for the Scrutiny of Bills Committee (Scrutiny of Bills Committee) has
considered the Bill, commenting on a number of provisions and requesting a
further response from the Minister in relation to one provision to do with the
Minister’s broad discretionary power.[5]
Further information is provided below in the Key issues and provisions
section.
The Australian Labor Party supports the Bill. The Shadow
Minister for Foreign Affairs, Tanya Plibersek, in her second reading speech
supporting the Bill, noted that the security and efficiency of Australia’s
passport regime depends on continually reviewing and keeping legislation up to
date with both international obligations and domestic laws.[6]
At the time of writing this Bills Digest the position of
the Australian Greens and independents is not known.
To date there has been no reported comment on the Bill.
The Explanatory Memorandum states that passage of Bill
will not result in any additional cost, either to the Commonwealth or to
applicants applying for passports or travel-related documents.[7]
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[8]
Parliamentary Joint Committee on
Human Rights
The Committee considers that the Bill does not require
additional comment.[9]
Terminology
At the outset it is useful to clarify the meaning of some of
the terms used in the Passports Act.
- ‘Australian
passport’ means a passport issued under the Passports Act and issued only
to Australian citizens
- ‘travel-related
document’ means a document issued under section 9, and issued to non
Australians (for example refugees and stateless persons) and to Australian
citizens when it is unnecessary or undesirable to issue an Australian passport[10]
and
- ‘Australian
travel document’ means either an ‘Australian passport’ or a ‘travel-related
document’.
The Bill contains a number of amendments to the Passports
Act that replace the term ‘Australian passport’ with the broader term ‘Australian
travel document’ in order to encompass all documents issued for travel—that is,
both Australian passports and travel-related documents.
Issue of travel-related documents
by the Minister
Section 9 of the Passports Act deals with the issue
of travel-related documents by the Minister for Foreign Affairs (the Minister).
It provides that the Minister may issue a travel-related document to a person
on application by or on behalf of that person.
Item 4 amends section 9 to provide that in
addition, the Minister may issue a travel document on his/her own initiative
provided certain circumstances apply. These circumstances, set out in proposed
subparagraphs 9A(b)(i) to 9A(b)(iv) are to:
- remove,
deport or extradite the person from Australia
- facilitate
the deportation of the person to Australia
- extradite
the person to Australia or
- effect
an international prison transfer.
The rationale for this amendment is that a person should
not be able to delay or obstruct a lawful expulsion to or from Australia by
refusing consent to the issue of a travel document. The Explanatory Memorandum
provides examples of where the provision would be needed.
In the case of a lawful extradition, the person being
extradited is usually a fugitive with motivation to avoid being returned to
Australia to face criminal allegations. Their extradition should not be
frustrated by their refusal to consent to the issue of a travel-related
document for the purposes of facilitating that travel.
In addition, there are a small number of cases each year
where non-citizens are unable to obtain travel documents from their country of
origin to facilitate their lawful removal from Australia. In these cases the
Minister may, under the new subsection 9(1A), decide to issue these people with
an Australian travel-related document to facilitate their removal.[11]
A decision by the Minister to initiate travel documents to
facilitate a lawful extradition, deportation, removal or prisoner transfer is not
reviewable (item 52). The Statement of Compatibility argues that merits
review would be inappropriate on the basis that the decisions are procedural
and that the underlying decisions (that is, a decision that a person be
extradited or deported et cetera) are reviewable decisions.[12]
The Scrutiny of Bills Committee noted this lack of review
rights. However in light of the detailed explanation provided in the Statement
of Compatibility, the Committee chose to leave the question of whether the
proposed approach is appropriate to the consideration of the Senate as a whole.[13]
Parental consent and the issue of
passports
Section 11 of the Passports Act deals with issuing
passports to children. It currently provides that the Minister must not issue
an Australian passport to a child unless each person who has parental
responsibility for the child consents to the child travelling internationally
or there is an Australian court order that permits the child to travel
internationally.[14]
Currently under subsection 11(5) a person has ‘parental responsibility’ for a
child if:
- the
person is the child’s parent and has not had their parental responsibility
removed by a court
- under
a parenting order issued under the Family Law Act:
- the
child is to live with the person
- the
child is to spend time with the person, or
- the
person is responsible for the child’s long‑term or day‑to‑day
care, welfare and development or
- the
person is entitled to guardianship or custody of, or access to, the child under
Australian law.
Items 6 to 11 amend section 11 in several
ways, the most significant of those amendments being:
- to
replace the words ‘Australian passport’ with ‘Australian travel document’ (items
6,7,9 and 10). This amendment is to clarify that the provision deals with any
Australian travel document issued to a child
- to
remove references to ‘consents to the child travelling overseas’ and replace it
with references to ‘consents to the child having an Australian travel document’
(items 6,8). ‘Consent to travel overseas’ is an inaccurate term, as
permission to travel overseas is dealt with under the Family Law Act and
not under the Passports Act. Items 6 and 8 will clarify the
Department of Foreign Affairs and Trade’s role in issuing travel documents so
that the consent relates to a child having a travel document, rather than the consent
being for a child to travel internationally and
- to
change the meaning of ‘parental responsibility’ so that it is more closely
aligned with the meaning of the definition contained in the Family Law Act
(items 14–16).[15]
As a result of
these amendments, new section 11 would provide:
The Minister must not issue an Australian travel document
to a child unless:
- each
person who has parental responsibility for the child consents to the child
having an Australian travel document or
- there
is an Australian court order that permits:
- the
child to have an Australian travel document, or
- the
child to travel internationally, or
- to
live or spend time with another person who is outside Australia.
Under amended subsection 11(5) a person would have ‘parental
responsibility’ for a child if:
- the
person is the child’s parent and has not had their parental responsibility
removed by a court or
- under
a parenting order[16]
issued under the Family Law Act:
- the
child is to live with the person or
- the
person has parental responsibility for the child or
- the
person has guardianship or custody of, or has parental responsibility for the
child under Australian law.
The effect of this amended definition of ‘parental
responsibility’ will be that those persons who have a court order to ‘spend
time with’ or enable ‘access to’ a child but who do not have parental
responsibility, will no longer be required to consent to a child having Australian
travel documents such as a passport. The Explanatory Memorandum explains that the
practical implementation of the current provision has been confusing and
problematic for a small number of applicants each year. This includes, for
example, applicants with sole parental responsibility under a court order who
are currently required to seek consent from persons who ‘spend time with’ or
have ‘access to’ a child, but who do not otherwise have parental
responsibility.[17]
It is of note that these amendments apply only in relation
to consent for obtaining travel documents for a child. They do not remove the
requirement contained in the Family Law Act for a person seeking to take a child overseas to obtain the
consent in writing of all persons in whose favour a court order is made in
relation to the child, or all other parties to proceedings for the making of a
parenting order in relation to the child. [18]
In other words, these amendments do not remove the legal requirement for a
person travelling overseas with a child to seek consent to the child's travel
from all persons who have court-awarded ‘access to’ or ‘spend time with’ orders
for the child.
Fraudulent travel documents
It is an offence under the Passports Act to provide
false or misleading information, statements or documents in relation to an
application for an Australian travel document (sections 29, 30 and 31).
Item 34 inserts new section 19A and provides
that the Minister may refuse to process an application for an Australian travel
document if there are reasonable grounds to suspect there is false or
misleading information in statements, documents or information given in
relation to the application. This would be a reviewable decision (item 58).
If the Minister refuses to process the application on these grounds this does
not preclude a person making a fresh application for a travel document, providing
all the eligibility requirements are met (proposed subsection 19A(3)).
Nor does this provision limit the offences in sections 29, 30 and 31 to do with
false and misleading statements and documents (proposed subsection 19A(4).
In other words, this new provision may be used instead of or in addition to, a
criminal prosecution for these offences.
Offences
The Australian Passports Act includes a number of
offences relating to fraud, both in the travel document application process and
the subsequent use of Australian travel documents. These offences include:
- making
or giving false statements in an Australian travel document application
(sections 29 and 30)
- presenting
false or misleading documents in an Australian travel document application (section
31)
- improperly
using or possessing an Australian travel document (section 32)
- selling,
damaging, altering or dishonestly obtaining an Australian travel document
(sections 33 to 35) and
- failing
to report a lost or stolen Australian travel document (section 41).
Items 41 to 48 make a number of minor amendments to
improve the clarity and drafting of these offence provisions. Amendments
include:
- re-numbering
some provisions and
- clarifying
that some offence provisions apply to the Australian travel documents
themselves as well as to applications for Australian travel documents (items
41-46).
Item 49 is a more substantive amendment. It repeals
section 36 and replaces it with a new section 36 making it an offence to
make or provide false Australian travel documents with the intent that these
documents will be used as though they were genuine.[19]
The maximum penalty for these offences is imprisonment for 10 years or 1,000
penalty units, or both.[20]
There is a defence of reasonable excuse in relation to an offence of providing
false Australian travel documents and a note in the Bill confirms that the
defendant would bear an evidential burden in relation to proving such a
defence.[21]
The Explanatory Memorandum explains that there are no
circumstances in which the making, creation or production of a false Australian
travel document could be reasonably excused. However, the provision of a false
travel document by one person to another person is subject to a reasonable
excuse exception, as it is foreseeable that a person may not realise that the
document in their possession is false.[22]
The reversal of the burden of proof is justified on the grounds that the
reasonable excuse that must be proven is particularly within the knowledge of
the person concerned.[23]
The Scrutiny of Bills Committee in general considers that
the defence of reasonable excuse is too open-ended and that this will often
make it inappropriate to require a defendant to prove a set of circumstances
considered to establish the reasonableness of their actions. However in this particular
case, in light of the explanation provided in the Explanatory Memorandum and the
Statement of Compatibility, the Committee has chosen to leave it to the Senate as
a whole to decide whether the evidential burden is appropriate.[24]
Names on travel documents
Section 53 of the Passports Act deals with
the form of Australian travel documents and includes requirements relating to
the name that must appear on the particular travel document. Item 61 inserts
new subsection 53(4)) allowing the Minister (or delegate) to refuse
any name or signature of a person that would appear on the person’s Australian
travel document, on the basis that the Minister considers the name to be
unacceptable, inappropriate or offensive. Such a decision is reviewable (items
59). The Explanatory Memorandum provides a long list of
examples of unacceptable, inappropriate or offensive names.[25]
The justification given in the statement of compatibility for this power of
refusal is:
Given that passports are documents which are
presented to officials in other countries as evidence of a person’s identity
and citizenship, a restriction on the use of unacceptable or offensive names
and signatures is reasonable and necessary. Examples of unacceptable names
include names which are or contain: an expletive; a racial or ethnic slur or
implication; an obscene or offensive term; a political statement or slogan; the
name of, or reference to, a public institution or public office; a term that
could mislead people into believing that the bearer has been awarded or
conferred a title, award or decoration; or a string of words that would not
commonly be recognised as a name.
The Scrutiny of Bills Committee has questioned this
provision, stating that it confers a broad discretionary power on the Minister.
Although the rationale for the power may be accepted, the Committee argues that
the exercise of the power could mean that a person may not use their lawful
name for travel purposes. The Committee has therefore sought
the Minister’s advice as to whether consideration has been given to drafting
the power so that it is more constrained by, for example, including a
non-exhaustive list of examples of what may constitute an unacceptable,
inappropriate or offensive name or signature in the legislation itself. The
Committee has also asked whether the exercise of this power will be subject to merits
review by the Administrative Appeals Tribunal.[26]
Part 2 of Schedule 1 to the Bill contains consequential
amendments to a number of other pieces of legislation. The main amendment is to
replace the term ‘passport’ with the more expansive term ‘Australian travel
document’.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. The Australian Passports (Transitionals and
Consequentials) Act 2005 was part of the 2005 amendments referred to in the
Background section of this Bills Digest. Amongst other things, this Bill
removed reference to Australian passports from the Passports Act and
renamed that Act as the Foreign Passports (Law Enforcement and Security) Act
2005. Being transitional and consequential it may now be repealed.
[2]. For
further information on the 2005 changes see: M Donaldson, Australian
Passports Bill 2004, Bills digest, 75-77, 2004-05, Parliamentary
Library, Canberra, 2004 and J Norberry, Anti-terrorism
Bill (No. 2) 2004, Bills digest, 6, 2004-05, Parliamentary Library,
Canberra, 2004, both accessed 4 August 2015. There was also a third Act, the Australian
Passports (Application Fees) Bill 2005. Its purpose was to provide for the
Minister for Foreign Affairs to make a determination in relation to application
fees.
[3]. M Donaldson, op. cit., p. 2.
[4]. Statement
of Compatibility with Human Rights, p. 29 of the Explanatory
Memorandum, Passports Legislation Amendment (integrity) Bill 2015, accessed
7 August 2015.
[5]. Senate
Standing Committee for the Scrutiny of Bills, Alert
Digest No. 6 of 2015, The Senate, 17 June 2015, pp. 37–40, accessed 1
August 2015.
[6]. T
Plibersek, ‘Second
reading speech: Passports Legislation Amendment (Integrity) Bill 2015,’
House of Representatives, Debates, 25 June 2015, p. 7624, accessed 3
August 2015.
[7]. Explanatory Memorandum, op cit., p. 2.
[8]. The
Statement of Compatibility with Human Rights (Statement of Compatibility) can
be found at pages 29–38 of the Explanatory Memorandum to the Bill.
[9]. Parliamentary
Joint Committee on Human Rights, Twenty-third report of the 44th Parliament, 18
June 2015, accessed 3 August 2015.
[10]. Explanatory Memorandum, op cit., p. 4.
[11]. Explanatory Memorandum, op cit., p. 5.
[12]. Statement
of Compatibility with Human Rights, Explanatory Memorandum, op cit.,
pp 36–37.
[13]. Senate Standing Committee for the Scrutiny of Bills, Alert
Digest No. 6 of 2015, op cit., p.
38.
[14]. Consent
for a child to travel internationally includes permission for the child to have
an Australian passport (subsection 11(4)). A court order permitting a child to
travel internationally includes a reference to an order permitting the issue of
an Australian passport to the child, or contact outside Australia between the
child and another person.
[15]. The
concept of ‘parental responsibility’ was introduced in the Family Law Act
in 1995 and is dealt with in Division 2 of Part VII.. It is defined
in section 61B to mean all the duties, powers, responsibilities and authority
which, by law, parents have in relation to children. Each parent has parental
responsibility (subject to court orders) for a child under 18, and marital
status, divorce or separation in the parental relationship has no impact on
this responsibility (section 61). Ordinary parental responsibility rules can be
altered, and even wholly displaced, by a parenting order made by a court.
[16]. Parenting
orders, defined in section 64B of the Family Law Act, are court orders
that may cover such matters as: who a child will live with, the time a child is
to spend with a person; the allocation of parental responsibility, the form of
consultation to be had on the exercise of shared parental responsibility; and communications
that a child is to have with another person (including parents, grandparents or
relatives). A parenting order may be applied for by either or both of the
child’s parents, the child, a grandparent of the child, or any other person
concerned with the care, welfare or development of the child (section 65C).
[17]. Explanatory Memorandum. op. cit., p. 9.
[18]. Ibid.
[19]. Existing section 36 (possessing false Australian
travel documents) is repealed and reinserted as section 32A (item 47).
[20]. The penalty is consistent with other offences in the Passports
Act.
[21]. Generally, where a burden of proof is placed on a
defendant it is an evidential burden only. An evidential burden requires the
defendant to adduce or point to evidence that suggests a reasonable possibility
that the matter either does exist or does not exist. If the defendant
discharges an evidential burden, the prosecution must then disprove the
relevant matters beyond reasonable doubt. A legal burden (the burden of proving
the existence of the matter) requires a higher standard of proof and the Code
provides that a defendant will have a legal burden of proof only if the law
creating the offence so provides (subsection 13.4 of the Criminal Code).
[22]. Explanatory Memorandum. op. cit., p. 16.
[23]. Statement of Capability with Human Rights, Explanatory
Memorandum. op. cit., p. 34.
[24]. Senate Standing Committee for the Scrutiny of Bills, Alert
Digest No. 6 of 2015, op cit., p. 38.
[25]. Explanatory Memorandum, op. cit., p. 19.
[26]. Senate Standing Committee for the Scrutiny of Bills, Alert
Digest No. 6 of 2015, op cit., p. 39.
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