Chapter 2
Concluded matters
2.1
This chapter considers the responses of legislation proponents to
matters raised previously by the committee. The committee has concluded its
examination of these matters on the basis of the responses received.
2.2
Correspondence relating to these matters is included at Appendix 1.
Australian Citizenship Amendment (Allegiance to Australia) Bill 2015
Portfolio: Immigration and Border
Protection
Introduced: House of Representatives, 24 June 2015
Purpose
2.3
The Australian Citizenship Amendment (Allegiance to Australia)
Bill 2015 (the bill) proposed to amend the Australian
Citizenship Act 2007 (Citizenship Act) to expand the basis on which a dual
citizen's Australian citizenship will cease. The bill included two broad
bases on which the citizenship of dual nationals will cease:
- automatic cessation on the basis of conduct:
-
if the person engages in specified conduct; or
-
if the person fights for, or is in the service of, a declared
terrorist organisation; and
- automatic cessation on the basis of conviction:
-
if the person is convicted of a specified offence.
2.4
The bill also provided that the minister may revoke the citizenship of a
child of a parent whose citizenship has automatically ceased under any of these
new provisions.[1]
2.5
Proposed new section 33AA operated so that a dual
Australian citizen would automatically cease to be an Australian citizen if
they engaged in specified conduct, as defined in the Criminal Code Act 1995
(Criminal Code).
2.6
Under proposed section 35A, a dual Australian
citizen would have ceased to be an Australian citizen if convicted of one of 57
offences under either the Criminal Code or the Crimes Act 1914 (Crimes
Act). In addition to the type of conduct giving rise to automatic cessation of
citizenship under proposed section 33AA, citizenship would also have ceased
following conviction for a range of offences.
2.7
Under subsections 33AA(6) and 35A(6), the Minister for Immigration and
Border Protection was required to give written notice to an Australian citizen
whose conduct or conviction resulted in the cessation of their citizenship, as
soon as the minister became aware of that conduct. The minister was able to
either rescind a notice or exempt the person from the effect of these sections
if he or she considered it in the public interest to do so. The bill provided
that the minister's powers would be personal and non-compellable, and that the
rules of natural justice would not apply.
2.8
The bill would have applied to all Australian
citizens holding dual citizenship, regardless of how the person became an
Australian citizen. Accordingly, the provisions would not render a person
stateless.
2.9
A person who lost their citizenship under the bill
would have been prohibited from ever obtaining Australian citizenship again
unless the minister allowed it.
Background
2.10
The committee first reported on the bill in its Twenty-fifth Report
of the 44th Parliament (previous report) and requested
further information from the Minister for Immigration and Border Protection as
to the compatibility of the bill with Australia's international human rights
obligations.[2]
2.11
On 24 June 2015 the bill was referred to the Parliamentary Joint
Committee on Intelligence and Security (PJCIS) by the Attorney-General.
2.12
On 4 September 2015 the PJCIS handed down its report. The report
contained 27 recommendations, all of which were accepted by the government.
2.13
The committee's previous report seeking further information was tabled
on 11 August 2015. However, no response was received either in relation to the
original bill or the revised bill prior to the passage of the bill by both
Houses of Parliament.
2.14
The amended bill passed both Houses of Parliament on 3 December 2015
and achieved Royal Assent on 11 December 2015. A response to the committee was
received from the Minister for Immigration and Border Protection on
11 January 2016.
2.15
As emphasised in the committee's Guidance Note 1, the committee sees its
human rights scrutiny task as primarily directed at ensuring that the
parliament has the necessary analysis and information to understand the
compatibility or otherwise of legislation before the parliament. In this
instance, the delay between the committee's request to the minister for more
information and the minister's response has prevented the committee from
providing its final remarks before the parliament considered and passed the
bill.
2.16
The following section summarises the provisions of the revised measures
as enacted in the Citizenship Act.
Amendments
2.17
The Australian Citizenship Amendment (Allegiance to Australia)
Act 2015 (the Act) amended the Citizenship Act to expand
the basis on which a dual citizen's Australian citizenship will cease.
2.18
The Citizenship Act now includes two broad bases on which the
citizenship of dual nationals will cease:
- automatic cessation on the basis of conduct under section 33AA:
-
if a person over 14 years of age, engages in specified conduct
with a specified intention; or
-
if a person over 14 years of age, fights for, or is in the
service of, a declared terrorist organisation, and the fighting or service
occurs outside Australia; and
- revocation on the basis of conviction under section 35A:
-
if the person is convicted of a specified offence; and
-
the minister is satisfied that it would be in the public interest
and that the conviction demonstrates a repudiation of allegiance to Australia.
Automatic cessation on the basis of
conduct
2.19
New section 33AA of the Citizenship Act operates so
that a dual Australian citizen aged 14 years or older will automatically cease
to be an Australian citizen if they engage in specified conduct (with a
specified intention) outside Australia, as defined in the Criminal Code such
as:
-
engaging in international
terrorist activities using explosive or lethal devices;[3]
-
engaging in a terrorist act;[4]
-
providing or receiving
training connected with preparation for, engagement in, or assistance in a
terrorist act;[5]
-
directing the activities of a
terrorist organisation;[6]
-
recruiting for a terrorist
organisation;[7]
-
financing terrorism;[8]
-
financing a terrorist;[9] and
-
engaging in foreign incursions
and recruitment.
2.20
The term 'engaging in foreign incursions and recruitment', includes:
-
entering a foreign country with the intention of engaging in
hostile activity, engaging in, or preparing to engage in, hostile activity
(which includes intending to overthrow by force or violence the government of a
foreign country; intimidating the public of a foreign country; and unlawfully
destroying or damaging property belonging to the government of a foreign
country); [10]
-
entering or remaining in an area declared by the Minister for
Foreign Affairs;[11]
-
providing or receiving military training (or being present at a
meeting intending to provide or receive training), in order to prepare for
engaging in hostile activity;[12]
-
giving money, goods or services with the intention of supporting
or promoting the offence of engaging in hostile activity;[13]
-
allowing a building to be used to hold a meeting with the
intention of committing, supporting or promoting military training or the
giving of money or goods to support or promote engagement in hostile activity;[14]
and
-
publishing an advertisement or an item of news (for money or
other consideration) and either being reckless as to whether it is for the
purpose of recruiting persons to serve in any capacity with foreign armed forces;
or the advertisement or news item contains information relating to where
applications or information can be sought regarding serving with the armed
forces in a foreign country; or relating to how a person can travel to another
country in order to serve with the armed forces of a foreign country.[15]
2.21
Section 33AA applies to the conduct listed above, only if the conduct is
engaged with the intention, set out in section 33AA(3), of advancing a
political, religious or ideological cause, and coercing or influencing a
government or intimidating the public or a section of the public.
2.22
However, if when the person engaged in the relevant conduct, the person
was a member of a declared terrorist organisation (or acting on instruction of,
or in cooperation with, a declared terrorist organisation), the person is taken
to have engaged in the conduct with the requisite intention without further
need of proof of intention.[16]
Revocation on the basis of
conviction
2.23
Under new section 35A of the Citizenship Act, a
dual Australian citizen will cease to be an Australian citizen in the following
circumstances:
-
the person has been convicted of one of certain offences, each of
which are drawn from the Criminal Code and the Crimes Act, as specified in
section 35A(1)(a); and
-
the person has been sentenced to a period of imprisonment for at
least six years; and
-
the minister is satisfied that the conduct of the person to which
the conviction or convictions relate demonstrates that the person has
repudiated their allegiance to Australia; and
-
having regard to a range of factors, the minister is satisfied
that it is not in the public interest for the person to remain an Australian
citizen.
2.24
The revised explanatory memorandum to the bill explains that the
specified offences reflect the policy intention that the basis for loss of
citizenship 'must be a terrorism-related offence where the maximum penalty is
at least 10 years imprisonment'. It states that the nature of such offences is
that, on the face of it, a person who commits such an offence has 'repudiated
their allegiance to Australia'. The offences include:
-
international terrorist activities using explosive or lethal
devices;
-
treason;
-
treason—material assisting enemies;
-
espionage;
-
terrorist acts;
-
providing or receiving training connected with terrorist acts;
-
possessing things connected with terrorist acts;
-
collecting or making documents likely to facilitate terrorist
acts;
-
other acts done in preparation for, or planning, terrorist acts;
-
directing the activities of a terrorist organisation;
-
membership of a terrorist organisation;
-
recruiting for a terrorist organisation;
-
training involving a terrorist organisation;
-
getting funds to, from or for a terrorist organisation;
-
providing support to a terrorist organisation;
-
financing terrorism;
-
financing a terrorist;
-
incursions into foreign countries with intention to engage in
hostile activities;
-
entering or remaining in a declared area overseas where terrorist
organisations are engaged in hostile activities;
-
allowing use of buildings, vessels and aircraft to commit foreign
incursions offences;
-
recruiting persons to join organisations engaged in hostile
activities against foreign governments;
-
recruiting persons to serve in or with an armed force in a
foreign country;
-
treachery by overthrow of the Constitution or government, levying
war or assisting in levying war, or instigating an armed invasion;
-
sabotage by destroying, damaging or impairing Australian Defence
Force equipment;
-
incursions into foreign states with intention of engaging in hostile
activities; and
-
preparations for incursions into foreign states for the purpose
of engaging in hostile activities.
2.25
The minister must consider public interest matters before making a
determination to revoke a person's citizenship. These matters include:
-
the severity of the conduct that was the basis of the conviction
or convictions and the sentence or sentences;
-
the degree of threat posed by the person to the Australian
community;
-
the age of the person;
-
if the person is aged under 18—the best interests of the child as
a primary consideration;
-
the person's connection to the other country of which the person
is a national or citizen and the availability of the rights of citizenship of
that country to the person;
-
Australia's international relations; and
-
any other matters of public interest.
Minister to give notice
2.26
Under subsections 33AA(10) and 35A(10) of the Citizenship Act, the
Minister for Immigration and Border Protection must give written notice to an
Australian citizen whose conduct has resulted in the cessation of their
citizenship (section 33AA), or by virtue of conviction of a relevant
offence and ministerial decision has had their citizenship revoked (section
35A). This notice must include the person's rights of review.
2.27
The Citizenship Act provides the minister with the power to rescind any
such notice and exempt a person from the effect of sections 33AA and 35A if he
or she considers it in the public interest to do so. The Citizenship Act
provides that the minister's powers are personal, non-compellable and the rules
of natural justice do not apply.[17]
However, if the minister does decide to consider exercising this power, he or
she must have regard to a number of factors, including, if the person is aged
under 18 years old, the best interests of the child as a primary
consideration.
2.28
The Citizenship Act applies only to Australian
citizens holding dual citizenship, regardless of how the person became an
Australian citizen. Accordingly, its provisions cannot operate to render a
person stateless.
2.29
A person who loses their citizenship under the
Citizenship Act is prohibited from ever obtaining Australian citizenship again
unless the minister makes a determination to exempt the person, or a court
finds that the person either did not engage in the conduct or with the
specified intention, or was not a dual citizen at the time they engaged in the
conduct.
Human rights considerations
2.30
The committee notes at the outset that the recommendations of the PJCIS
were aimed at 'making the [then] bill's scope more limited and procedures more
transparent'.[18]
In doing so, the recommendations rectified several concerns that this committee
raised in relation to the original bill, as set out in its previous report.
2.31
However, the PJCIS was not tasked with scrutinising the bill with
reference to Australia's obligations under international human rights law.
While supportive of the intent and substance of the PJCIS recommendations, this
committee remains concerned that in significant respects, the Citizenship Act
is incompatible with Australia's obligations.
2.32
The committee's initial analysis included requests for further
information from the minister in relation to multiple human rights. However,
the minister's response does not deal with the majority of those requests beyond
a global comment that the bill has been amended as a result of PJCIS
recommendations and the statement of compatibility has been amended
accordingly.
2.33
The committee noted the importance of protecting the security of all
Australians. The committee also recognises the specific importance of
protecting Australians from terrorism and individuals who have engaged in
terrorist conduct.
2.34
In this context, some committee members believe that the deprivation
of citizenship of those who endanger the security of Australians is desirable
as a matter of policy, notwithstanding the incompatibilities with international
human rights law identified in the analysis below.
Report structure
2.35
The following analysis of the measures' compatibility with human rights
consists of three parts:
-
Part 1 considers the new measures' engagement of substantive
human rights (such as the right to freedom of movement) flowing from the loss
of citizenship in the bill. This part of the analysis considers the loss of
citizenship by both conduct and conviction together, as the consequences of
loss of citizenship is the same regardless of the method by which it is lost.
-
Part 2 of the analysis considers the bill's engagement of
procedural or process rights (right to a fair hearing, right to a fair trial
and right to an effective remedy). This part of the analysis considers
provisions providing for the automatic loss of citizenship from conduct,
separately from the loss of citizenship on conviction, as the measures engage
the process and procedural rights in different ways.
-
Part 3 considers how the measures impact on children, in relation
to both the substantive loss of citizenship provisions and the minister's power
to remove the citizenship of a child whose parents have lost their citizenship.
Part 1—Substantive human rights engaged by the bill
Cessation of citizenship
2.36
As set out above, Citizenship Act now contains two new grounds on which
Australian citizenship will cease.
2.37
Prior to the amendments, citizenship could only be lost in very limited
circumstances. The Citizenship Act provided for only a limited form of
renunciation by application (with limits on the minister's power to accept an
application, see section 33). The principal exception to this was section
35 which allowed for automatic cessation of citizenship if a person serves in
the armed forces of a country at war with Australia. This provision has never
been used to deprive a person of citizenship.
Multiple rights
2.38
The committee's original analysis identified that the expanded provision
for the cessation of Australian citizenship engages and may limit the following
human rights and human rights standards:
-
right to freedom of movement;[19]
-
right to a private life;[20]
-
protection of the family;[21]
-
right to take part in public affairs;[22]
-
right to liberty;[23]
-
obligations of non-refoulement;[24]
-
right to equality and non-discrimination;[25]
-
right to a fair hearing and criminal process rights;[26]
-
prohibition against retrospective criminal laws;[27]
-
prohibition against double punishment;[28]
and
-
rights of children.[29]
2.39
The committee's analysis and its questions for the minister focus on the
immediate consequences of loss of citizenship. However, the committee notes
that there are broader economic, social and cultural rights which are also
engaged and may be limited as a consequence of loss of citizenship, including:[30]
-
right to work;[31]
-
right to social security;[32]
-
right to an adequate standard of living;[33]
-
right to health;[34]
and
-
right to education.[35]
Right to freedom of movement (right to leave any country)
2.40
Article 12 of the International Covenant on Civil and Political Rights
(ICCPR) protects freedom of movement. The right to freedom of movement includes
the right to leave any country. The right may be restricted in certain
circumstances.
Compatibility of the measures with
the right to freedom of movement (right to leave any country)
2.41
In its analysis of the original bill, the committee considered that the
automatic loss of an Australian's citizenship engages and limits their right to
freedom of movement, including the right of a person to leave any country. The
statement of compatibility for the bill acknowledged the right is engaged but
concluded that it is not limited because:
....the person is a dual citizen, either a travel document from
the person's other country of nationality, a temporary document issued by
Australia, or some other facility could potentially be used.[36]
2.42
However, as the committee noted, this analysis assumes that the person's
other country of nationality would issue (or has previously issued and would
not cancel) a passport, or that the person is able to apply for alternative
travel documents. For those whose citizenship ceases when they are outside
Australia, and in a country which they do not hold nationality, their right to
leave another country may be particularly limited in the absence of any valid
travel documents.
2.43 The committee also expressed concern over the bill's operation on a
person who is in Australia at the time that their citizenship ceases. A dual
citizen in Australia would be entitled to an ex-citizen visa. This visa would
allow them to remain in Australia but restrict any travel from Australia as a
person who leaves Australia on an ex-citizen visa loses any entitlement to
return to Australia.
2.44
Accordingly, the committee considered that the automatic cessation of
citizenship not only engages but also limits the right to freedom of movement
(right to leave any country).
2.45
The statement of compatibility noted that the objective of the bill, in
providing further grounds for the loss of citizenship, is to ensure the safety
of the Australian community. It did not assess whether the measures are
rationally connected, or proportionate, to this objective.
2.46
The committee noted that the statement of compatibility for the bill did
not provide reasoning or evidence that the measures supported a pressing or
substantial concern, including information about how many people are likely to
be affected by the cessation of citizenship powers and why existing methods of
keeping the community safe and protecting national safety are insufficient.
2.47 The committee also noted that it is not clear that the automatic
cessation of citizenship is rationally connected to its stated objective. The
automatic cessation of citizenship in the original bill applied to a broad
range of activities, many of which did not appear to fall within the
description of 'serious terrorism-related activities'.[37]
2.48
In terms of safeguards, the committee noted that in the first instance,
where cessation of citizenship occurs at the time of the conduct, there may be a
genuine contest as to whether or not that conduct has in fact occurred. An
individual may have their freedom of movement limited, not only in the absence
of a conviction, but prior to or during their attempt to challenge whether the
conduct occurred. How this is reasonable and proportionate was not explained in
the statement of compatibility.
2.49
The committee further noted that it is not clear that the measures, in
automatically depriving a person of citizenship in relation to a broad range of
circumstances, can be said to be proportionate. In order to be proportionate a
limitation on a right must be the least rights restrictive means of achieving a
legitimate objective and must include appropriate safeguards.
2.50
The broad range of conduct to which automatic cessation would apply
indicates that the measure appears significantly broader than necessary. The
committee was also concerned that ministerial power to exempt a person was an
insufficient safeguard.
2.51
The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to:
-
whether there is reasoning or evidence that establishes that the
stated objective addresses a pressing or substantial concern or whether the
proposed changes are otherwise aimed at achieving a legitimate objective. In
particular, how many people are likely to be affected by these measures and why
existing laws and powers are insufficient to protect national security and the
safety of the Australian community;
-
whether there is a rational connection between the limitation and
that objective; and
-
whether the limitation is a reasonable and proportionate measure
for the achievement of that objective. In particular, advice was sought as to
how decisions will be made by the minister or officials to effectively decide
that a person's citizenship has ceased and whether this is the least rights
restrictive approach. In addition, specific advice was sought in relation to
each of the following offences or conduct, as to how each offence operates in
practice and whether it is proportionate that citizenship should cease on the
basis of each offence or conduct:
-
engaging in foreign incursions and recruitment as defined in
Division 119 of the Criminal Code (with specific information given in
relation to each offence provision in Division 119);
-
sections 80.1(2), 80.2, 80.2A, 80.2B, 80.2C, 91.1, 102.6(2),
102.7(2), 103.1, 103.2 of the Criminal Code; and
-
sections 24AB, 27 and 29 of the Crimes Act.
2.52
The committee also sought the minister's advice on these questions
regarding each of the human rights set out in Part 1 of the below analysis
(articles 9, 12, 17, 23, 25 and 26 of the ICCPR and article 10 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR)), as set out
below.
Minister's response
I respectfully refer the Committee to the detailed
information in the Statement of Compatibility in the Explanatory Memorandum
which accompanied the revised Bill, which comprehensively addresses the human
rights set out in articles 12, 13, 14, 15, 17, 23, 24 and 26 of the ICCPR and
Article 3 of the Convention on the Rights of the Child ('CRC').
As a general statement, any measures restricting freedom of
movement in relation to a person in Australia will have a lawful domestic
basis. In circumstances where a person has been convicted and sentenced to
imprisonment for a specified crime/s such that their continued citizenship is
not in the public interest, such measures will be necessary to protect national
security, public order, and the rights and freedoms of the Australian community
at large. This is consistent with the ICCPR, being explicitly contemplated by
Article 12(3) and being proportionate, in the Government's judgement, to the
existing and emerging threats to national security which Australia faces.
With regard to a person who is outside Australia when their
citizenship has ceased, it is the Government's view that, where a person has
objectively demonstrated through their conduct that they have repudiated their
allegiance to Australia, any ties they have to Australia for the purposes of
[Article] 12(4) have been voluntarily severed. Depriving such a person of the
right to enter Australia would not be arbitrary, as it would be based on a
genuine threat to Australia's security posed by a person.
In response to the Committee's questions regarding how
decisions will be made by the Minister that a person's citizenship has ceased,
I offer the following advice:
-
Subsection 33AA provides that if a
person has engaged in a form of conduct with the requisite intention, they will
have acted contrary to their allegiance to Australia and renounced their
citizenship, thus causing it to automatically cease by operation of law.
Subsection 33AA(2) provides a list of relevant conduct which mirrors the
terrorism-related offences listed under the Criminal Code Act 1995
(Cth). Subsection 33AA(3) outlines 'intention' to mean where the person
undertakes one of the listed forms of conduct to advance a political, religious
or ideological cause and to coerce or influence by intimidation an arm of the
Australian Government or a foreign government or the public (or a section of
the public).
-
In considering whether a person
has engaged in conduct with the requisite intention, these terms have the same
meaning as defined under the Criminal Code and draw only on the factual
elements contained in those definitions. As such, conduct will be made out if
there is factual evidence which demonstrates that the person has engaged in one
of the actions listed at subsection 33AA(2) such as engaged in a terrorist act,
recruited for a terrorist organisation or financed a terrorist. Factual
evidence will also be drawn on to identify the expressed motivation of the
person when engaging in the relevant conduct.
-
A similar approach will be adopted
under section 35 where a dual national or citizen has acted contrary to their
allegiance to Australia by fighting for or being in the service of a declared
terrorist organisation and the person's citizenship has ceased automatically by
operation of law. Again, factual evidence will also be drawn upon to identify
whether a person has undertaken combat with regular forces of a country at war
with Australia or has taken up arms for or is in the service of a declared
terrorist organisation.
-
For both these streams, the
Minister will be supported by existing whole-of government and law enforcement
coordination mechanisms that will provide information and intelligence about persons
of interest who may be engaging in relevant conduct or fighting for or in the
service of a declared terrorist organisation for the purposes of the Allegiance
Act.
Upon becoming aware of information indicating that a dual
national or citizen has engaged in conduct or is fighting for or is in the
service of a declared terrorist organisation which has resulted in the
automatic loss of their citizenship, I am required to provide (or make
reasonable attempts to provide) written notice to the person that I have become
aware of such conduct which has caused the person's citizenship to cease. The
notice must also include a basic description of the conduct and the person's
rights of review.
Furthermore and at any time after a person has ceased to be a
citizen under sections 33AA or 35, I may consider whether to make a
determination to rescind the notice and exempt the person from the effect of
the section, thus providing for the person's citizenship to be restored. In considering
whether to make a determination, I must have regard to:
-
the severity of the matters that
were the basis of the notice;
-
the degree of threat posed by the
person to the Australian community;
-
the age of the person;
-
if the person is aged under 18 -
the best interests of the child as a primary consideration;
-
whether the person is being or
likely to be prosecuted in relation to the matters that were the basis of the
notice;
-
the person's connection to the
other country of which the person is a national or citizen and the availability
of the rights of citizenship of that country to the person;
-
Australia's international
relations; and
-
any other matters of public
interest.
The Allegiance Act also requires that natural justice be
applied in instances where I decide to consider exercising my power in relation
to the making of a determination to rescind a notice or not. Where I make such
a determination, I must table a statement to both Houses of Parliament.
Under section 35A and where a dual national or citizen is
convicted of a terrorism-related offence, the courts (through trial processes,
sentencing and conviction of the individual) will have identified the factual
evidence and intention which went to the person's level of engagement and
conduct in committing the terrorism-related offence.
Additional parliamentary scrutiny measures and review rights
have also been incorporated into the Allegiance Act as a result of
recommendations of the PJCIS.
Upon receiving my written notice that their citizenship has
ceased due to their conduct, a person will have the right to seek judicial
review of the basis on which the notice was made. Specifically, the Federal
Court and High Court will have original jurisdiction over matters including
whether or not the requisite conduct was engaged in by the person, whether the
person engaged in that conduct with the requisite intention and whether or not
the person was a dual citizen/national at the time of the conduct. For those
individuals convicted of and sentenced in relation to a terrorism‑related
offence in Australia, I am required to revoke my determination if the
conviction is subsequently overturned or quashed by a court and no further
appeals can be made in relation to the decision.
The Government is also required to publicly report, every six
months, the number of times a notice for loss or revocation of citizenship has
been issued under each of the grounds contained in the Allegiance Act, and
provide a brief statement of reasons. I will also be required to notify the
PJCIS on the issuing of a notice for the loss of citizenship under the
Allegiance Act. The PJCIS will also be required to review, by
1 December 2019, on the operation, effectiveness and implications of
the application of the provisions under the Allegiance Act.
These oversight mechanisms achieve an appropriate balance
between protecting the basic human rights of individuals while ensuring that
dual national[s] and citizens who do not demonstrate their allegiance to
Australia do not retain the privilege and benefits of Australian citizenship.[38]
Committee response
2.53
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.54
The minister directs the committee to the revised explanatory
memorandum's statement of compatibility. While the statement notes that the
right may be 'indirectly' engaged, and has had minor changes to its discussion
of the right to freedom of movement (right to leave a country), these changes
do not address the committee's initial concerns.[39]
2.55
The committee's consideration of the original bill noted that the
statement of compatibility identified the legitimate objective of the bill, in
providing further grounds for the loss of citizenship, as being to ensure the
safety of the Australian community. The committee noted further that the
statement of compatibility did not assess whether the measures were rationally
connected, or proportionate, to this objective.
Legitimate objective
2.56
Under international human rights law, ensuring the safety of the community
would be considered a legitimate objective provided that such an objective is
founded on reasoned and evidence-based explanations of why the measures address
a pressing or substantial concern. As the Attorney-General's Department's
guidance on the preparation of statements of compatibility states, the
'existence of a legitimate objective must be identified clearly with supporting
reasons and, generally, empirical data to demonstrate that [it is] important'.
As such, the committee sought the advice of the minister.
2.57
Unfortunately, the minister's response does not provide any reasoning or
evidence that the measures support a pressing or substantial concern. Instead
the minister's response repeats assertions that depriving a person of their
Australian citizenship is 'in the public interest', and by virtue of that,
'will be necessary to protect national security, public order, and the rights
and freedoms of the Australian community at large'. No evidence is given as to
what threats apply to national security and public order. The revised statement
of compatibility is also silent on this point.
2.58
In order to determine that the bill pursues a legitimate objective, the
committee requires evidence and reasoning as to the nature of the threat to
national security including information about how many people are likely to be
affected by the cessation of citizenship powers and why existing methods of
keeping the community safe and protecting national safety are insufficient.
2.59
In the absence of such evidence the committee is unable to conclude that
the measure seeks a legitimate objective.
Rational connection
2.60
Even if the requirement of a legitimate objective, supported by evidence
and reasoning, were met, in its previous report, the committee raised concerns
as to whether the measures are likely to be effective in achieving the
objective being sought and are proportionate to that objective.
2.61
In its analysis of the original bill, the committee noted that cessation
of citizenship would apply to a very broad range of activities, many of which
did not appear to fall within the description of 'serious terrorism-related
activities'.[40]
For example, the committee noted that it is not clear that removing citizenship
from a person who has damaged property or who has published an item of news
would be effective to protect national security or the Australian community.
2.62
The minister's response notes that the original measure was amended on
the basis of recommendations proposed by the PJCIS. In particular, a
requirement that any loss of citizenship on the basis of a conviction can only
occur if the person is sentenced to a six year minimum sentence has narrowed
the applicability of the provisions, and the offences of which a person must be
convicted in order to enliven the automatic cessation of citizenship power have
been narrowed. These offences are listed above at paragraph [2.24]. The revised explanatory
memorandum explains that these offences were chosen because they 'prima facie
indicate that a person has acted contrary to his or her allegiance to
Australia'.[41]
2.63
The committee agrees that this revised, narrowed list of offences is
more clearly connected to the objective of the Act. However,
notwithstanding these amendments, the committee remains concerned that the
measures may not be proportionate.
Proportionality
2.64
As an overall proposition, the minister has not provided reasons why the
criminal process of arrest and prosecution ordinarily followed for all crimes,
including the most serious crimes, is not capable of protecting public order
and the Australian community should persons who have engaged in the specified
conduct return to Australia.
2.65
Even if one were to accept that the loss of citizenship may
fulfil this objective in certain circumstances, pursuant to the Citizenship
Act, loss of citizenship, either automatically under section 33AA, or via
conviction under section 35A, ultimately turns on an exercise of ministerial discretion.
In the case of automatic cessation this is because the only exception is an
exercise of ministerial discretion to exempt a person from loss of citizenship.
In the case of cessation after conviction, ministerial discretion is a step
within the process set out in section 35A.
2.66
The committee acknowledges, and welcomes, amendments to the measures as
originally proposed, that provide more detail concerning the factors that the
minister must take into account when determining whether to exempt a person from
the operation of the Citizenship Act.[42]
The committee also welcomes the limited application of the rules of natural
justice to a decision by the minister to make or not make a determination to
exempt a person. Finally, the committee acknowledges the amendments to require
the minister's notice informing a person that their citizenship has been
revoked to include the reasons for the revocation and the person's rights of
review.
2.67
However, the committee reiterates its significant concerns from its
previous report. In particular, the minister's power remains personal,
non-delegable and non‑compellable.[43]
Further, the rules of natural justice are expressly excluded in relation
to the decision not to consider exercising the power to exempt a person.[44]
The committee is not satisfied that this discretionary power is a robust enough
safeguard (for the purposes of international human rights law) to ensure that
individuals do not lose their citizenship and thus freedom of movement in
circumstances that would be unjust.
2.68
Further, the requirement that the minister detail the reasons for
revocation of citizenship is limited. While the committee appreciates that
national security and personal safety may preclude some information, the
committee is concerned that this broad list may operate to deny a person the
ability to comprehend the reasons for their loss of citizenship, and compromise
any ability to challenge the basis for the loss of citizenship before a court.
Further, the minister retains the power to not issue a notice to a person at
all if the minister considers that a notice may prejudice Australian security.
In these cases the committee's concern is only heightened.
2.69
Under the original bill and in the Citizenship Act as now amended, loss
of citizenship is permanent. A person who has lost their citizenship is
ineligible under section 36A to resume citizenship at any time. The revised
statement of compatibility does not explain how this measure is proportionate
to its objective. However, there are three narrow exceptions to the permanent
loss of citizenship:
-
first, if the minister decides to exercise his or her power to
rescind the notice and exempt a person;
-
second, if a court finds that the person did not engage in the
conduct or with the requisite intention, or that the person was not a national
or citizen of another country at the time of the conduct; and
-
third, if a declaration under section 35AA is disallowed by
either House of Parliament and the person's citizenship would not have ceased
if that declaration had not been made.
2.70
The committee considers that these exceptions are insufficient to
conclude that the measure is compatible with human rights. In particular, the
committee has already noted its concerns with the minister's discretionary,
non-compellable power at paragraphs [2.66] to [2.67].
2.71
In relation to the additional parliamentary scrutiny measures and review
mechanisms incorporated into the Citizenship Act, these measures serve to
improve parliamentary oversight of the executive. However, they do not mitigate
the effect that cessation of citizenship would have on an individual's right to
freedom of movement. In particular, six-monthly reports on the number of times
a notice for loss or revocation of citizenship has been issued, notification of
such to the PJCIS, and an intended review of the operation of the new
provisions by the PJCIS by 1 December 2019, do not ameliorate the
limitation on the right to a person's freedom of movement introduced by the new
measures.
2.72
However, certain further amendments have improved the measures as
proposed in the original bill. In particular, the bill expressly excluded
section 39 of the Australian Security Intelligence Organisation Act 1979.
This provision provides that a Commonwealth agency must not take any action
on the basis of any communication from the Australian Security Intelligence
Organisation (ASIO) that does not amount to a security assessment. Accordingly,
the bill would have allowed a Commonwealth agency to act on preliminary ASIO
information that was less certain than a security assessment when determining
whether someone is an Australian citizen or whether in fact they had lost that
citizenship based on conduct outlined by ASIO.
2.73
In practice, this may have allowed, a decision to be made that a person
had lost their citizenship on the basis of supposition and conjecture as to
whether they may have engaged in specified conduct. This could have applied
when the person is not in Australia and not in a practical position to
challenge the lawfulness or correctness of this decision. The committee therefore
welcomes the removal of this provision from the Act.
2.74
Nevertheless, despite improvements from the original bill, the committee
considers that the new measures introduced to the Citizenship Act are
disproportionate to the objective sought to be achieved. The automatic
cessation of citizenship for a broad range of offences, with limited oversight
and legislative safeguards, is not the least rights restrictive means of
achieving the objective of national security.
Right to freedom of movement (right
to enter one's 'own country')
2.75
The right to freedom of movement includes the right to enter one's own
country—including a right to remain in the country, return to it and enter it.
The reference to a person's 'own country' is not necessarily restricted to the
country of one's citizenship—it might also apply when a person has very strong
ties to the country.
2.76
There are few, if any, circumstances in which depriving a person of the
right to enter their own country could be justified. Australia cannot, by
stripping a person of nationality or by expelling them to a third country,
arbitrarily prevent a person from returning to his or her own country.
Compatibility of the measure with
the right to freedom of movement (right to enter one's own country)
2.77
The statement of compatibility to the original bill acknowledged that
the right to enter one's 'own country' could apply to people whose citizenship
has ceased:
While a person whose citizenship has ceased or has been
renounced would no longer be a citizen under Australian law, under
international law Australia may still be considered their 'own country' for the
purposes of Article 12(4). The phrase 'his own country' has been interpreted
broadly by the UN Human Rights Committee and the drafting history of the
provisions supports the interpretation that 'own country' goes beyond mere
nationality.[45]
2.78
The statement of compatibility to the original bill stated that the 'own
country' provisions do not apply to a person whose citizenship has
automatically ceased by their own conduct because, by those very actions, that
person will have repudiated their allegiance to Australia and any ties they may
have to Australia will have been voluntarily severed.[46]
2.79
However, the committee noted that the automatic cessation of citizenship
provisions would not have required a person to specifically repudiate their
citizenship of Australia—rather the provisions were to operate automatically.[47]
Accordingly, the committee considered that the statement of compatibility
provided insufficient information to demonstrate that the 'own country'
provisions do not apply.
2.80
The committee considered that it was clear from the statement of
compatibility to the original bill that the intention was to exclude Australian
citizens who are outside Australia at the time their citizenship ceases, from
being able to return to Australia. This clearly limits the right to return to
one's own country.
2.81
The committee therefore sought the advice of the Minister for
Immigration and Border Protection in the terms set out above at paragraphs [2.51]
and [2.52].
Minister's response
2.82
The minister's response is extracted above in relation to the right to
freedom of movement (right to leave any country) immediately following
paragraph [2.52].
Committee response
2.83
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.84
The minister directs the committee to the revised explanatory
memorandum's statement of compatibility, which repeats the original statement
of compatibility's analysis with minor amendments.[48]
2.85
The minister's response and the revised statement of compatibility do
not directly respond to the committee's questions. The revised statement of
compatibility simply repeats the analysis of the original statement of
compatibility, which the committee had assessed as not addressing the
significant limitations on the right to freedom of movement. In addition, the minister's
response provides insufficient justification on this point, simply asserting
that depriving a person of the right to enter Australia would be 'based on a
genuine threat to Australia's security posed by a person'. Evidence as to the
extent or severity of this threat, and an explanation of how existing powers
are insufficient to deal with this threat, is not provided.
2.86
Despite the amendments to the measures as proposed in the original bill,
the committee considers that the explanatory material and ministerial response
have not justified that the measures pursue a legitimate objective and are
proportionate. This analysis is set out above at paragraphs [2.53] to [2.74].
In this instance, the committee's view is confirmed by the UN Human Rights
Committee's statement that there are few, if any, circumstances in which it
could be reasonable to deprive a person of access to their own country.[49]
Right to a private life
2.87
Article 17 of the ICCPR prohibits arbitrary or unlawful interferences
with an individual's privacy, family, correspondence or home.
2.88
A private life is linked to notions of personal autonomy and human
dignity: it includes the idea that individuals should have an area of
autonomous development; a 'private sphere' free from government intervention
and excessive unsolicited intervention by others. The right to privacy requires
that the state does not arbitrarily interfere with a person's private and home
life.
2.89
This right may be subject to permissible limitations which are provided
by law and are not arbitrary. In order for limitations not to be arbitrary,
they must seek to achieve a legitimate objective and be reasonable, necessary
and proportionate to achieving that objective.
Compatibility of the measure with
the right to a private life
2.90
The statement of compatibility to the original bill made no reference to
the right to a private life. However, the committee considered that there was a
strong argument that the bill engaged and limited the right to a private life.
The term 'private life' has been interpreted broadly, encompassing notions of a
person's identity, which has been said to be linked to a person's nationality.
2.91
The European Court of Human Rights, in interpreting the right to a
private life, has stated:
[T]he concept of 'private life' is a broad term not
susceptible to exhaustive definition. It covers the physical and psychological
integrity of a person. It can therefore embrace multiple aspects of the person's
physical and social identity...the Court has previously stated that it cannot be
ruled out that an arbitrary denial of citizenship might in certain
circumstances raise an issue under [the right to a private life] because of the
impact of such a denial on the private life of the individual.[50]
2.92
The United Kingdom Joint Committee on Human Rights, when examining the
UK's laws enabling the removal of citizenship, stated that 'nationality is part
of a person's identity and therefore, potentially at least, their private
life'.[51]
The UK government acknowledged in its supplementary memorandum on the bill that
gave additional powers to the Secretary of State to strip a person of
citizenship, that 'deprivation of citizenship is capable of engaging [the right
to a private life]'. The UK government referred to the case of Genovese v
Malta cited above and concluded:
...nationality is part of a person's identity and, therefore,
potentially their private life. This applies to all deprivation, not just
deprivation rendering some stateless.[52]
2.93
Accordingly, the committee considered that the deprivation of
citizenship engaged and limited the right to a private life. The committee
therefore wrote to the Minister for Immigration and Border Protection seeking
his advice as to how this limitation is justified in the terms set out above at
paragraphs [2.51] and [2.52].
Minister's response
2.94
The minister's response is extracted above in relation to the right to
freedom of movement (right to leave any country) immediately following
paragraph [2.52].
Committee response
2.95
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.96
The committee notes that the minister's response did not discuss the
right to a private life and referred the committee to the statement of
compatibility for the revised explanatory memorandum.
2.97
However, the revised statement of compatibility still makes no reference
to the right to a private life. Despite the amendments to the measures as
originally proposed introducing a number of safeguards, the committee remains
concerned in relation to the legitimate objective and proportionality of the
measures. This analysis is set out above at paragraphs [2.53] to [2.74].
Protection of the family
2.98
The right to respect for the family is protected by articles 17 and 23
of the ICCPR and article 10 of the ICESCR. Under these articles, the family is
recognised as the natural and fundamental group unit of society and, as such,
is entitled to protection.
2.99
An important element of protection of the family, arising from the
prohibition under article 17 of the ICCPR against unlawful or arbitrary
interference with family, is to ensure family members are not involuntarily
separated from one another. Laws and measures which prevent family members from
being together, impose long periods of separation or forcibly remove children
from their parents, will therefore engage this right.
Compatibility of the measure with
the right to protection of the family
2.100
The statement of compatibility to the original bill acknowledged that it
engaged the right to protection of the family:
The cessation or renunciation of the Australian citizenship
of a parent may engage the right of a child to be cared for by his or her
parents in Article 7(1) and the right to family in Article 23(1). However,
they would only be engaged in circumstances where the actions of the parent
whose citizenship has ceased or been renounced casts serious doubt on their
suitability as a parent, and where the safety and security considerations and
Australia's national security are likely to justify a limitation of the right.
The right to family may also be engaged in circumstances
without children, for example in circumstances where a husband's Australian
citizenship ceases or renounces but his wife's citizenship does not. The
Government has considered this right and has assessed that the security and
safety considerations of Australians and national security outweigh the rights
of the individuals affected.[53]
2.101
In its analysis of the original bill, the committee noted that the
offences and conduct for which citizenship would automatically cease was
extremely broad and did not support the statement that such conduct 'casts
serious doubts on their suitability as a parent'. For example, damaging
property (including graffiti) or travelling to a location declared to be off
limits by the Minister for Foreign Affairs does not necessarily suggest that
such a person is not a suitable parent, or whether it is reasonable and
proportionate to separate that person from their family.
2.102
The committee also noted that the statement of compatibility to the
original bill appeared only to identify the objective of the measure—being
security and safety considerations—and did not assess the question of rational
connection or, importantly, the proportionality of the measures. In particular,
no information was given as to whether due consideration would be given to
maintaining the family unit when decisions are made to deny an ex-citizen re-entry
to Australia or to deport a person from Australia. The committee therefore
sought the advice of the Minister for Immigration and Border Protection in the
terms set out above at paragraphs [2.51] and [2.52].
Minister's response
2.103
Please see the minister's response above in relation to the right to
freedom of movement (right to leave any country) immediately following
paragraph [2.52].
Committee response
2.104
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.105
The committee acknowledges that the original bill was amended in several
significant ways. In particular, as set out above at paragraphs [2.62] to [2.63]
the range of offences under which a person could have their citizenship revoked
has been narrowed.
2.106
The committee notes that the minister directs the committee to the
revised explanatory memorandum's statement of compatibility.
2.107
However, the revised statement of compatibility does not directly
address the committee's questions but simply reasserts that the measure is
proportionate 'in the Government's view'.[54]
2.108
Despite amendments to the measures as originally proposed that
introduced a number of safeguards, the committee remains concerned in relation
to the legitimate objective and proportionality of the measures. This analysis
is set out above at paragraphs [2.53] to [2.74].
Right to take part in public
affairs
2.109
Article 25 of the ICCPR protects the right to take part in public
affairs. Article 25 provides the right to take part in public affairs and
elections, and guarantees the right of citizens to stand for public office, to
vote in elections and to have access to positions in public service. The right
to take part in public affairs applies only to citizens.
Compatibility of the measure with
the right to take part in public affairs
2.110
In its analysis of the original bill, the committee noted that one of
the consequences of losing citizenship is that a person who was previously
entitled to the right to take part in public affairs would be denied that
right. A person would therefore not be entitled to the right to vote, to stand
for public office or to hold positions in the public service. The statement of
compatibility to the original bill made no mention of, and therefore did not
assess, the effect of the cessation of citizenship on the right to take part in
public affairs.
2.111
The committee therefore sought advice from the Minister for Immigration
and Border Protection in the terms set out above at paragraphs [2.51] and [2.52].
Minister's response
2.112
Please see the minister's response above in relation to the right to
freedom of movement (right to leave any country) immediately following
paragraph [2.52].
Committee response
2.113
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.114
The committee notes that the minister's response did not discuss the
right to take part in public affairs; and that the minister referred the
committee to the statement of compatibility in the revised explanatory
memorandum.
2.115
However, the committee notes that the revised statement of compatibility
still makes no reference to the right to take part in public affairs. It is not
clear why this right was not identified or discussed in either the original
statement of compatibility or in the revised explanatory memorandum issued
after the committee's report on the original bill.
2.116
Despite amendments to the measures as originally proposed that
introduced a number of safeguards, the committee remains concerned in relation
to the legitimate objective and proportionality of the measures. This analysis
is set out above at paragraphs [2.53] to [2.74].
Right to equality and
non-discrimination
2.117
The right to equality and non-discrimination is protected by articles 2,
16 and 26 of the ICCPR.
2.118
This is a fundamental human right that is essential to the protection
and respect of all human rights. It provides that everyone is entitled to enjoy
their rights without discrimination of any kind, and that all people are equal
before the law and entitled without discrimination to the equal and
non-discriminatory protection of the law.
2.119
The ICCPR defines 'discrimination' as a distinction based on a personal
attribute (for example, race, sex or religion),[55]
which has either the purpose (called 'direct' discrimination), or the effect
(called 'indirect' discrimination), of adversely affecting human rights.[56]
The UN Human Rights Committee has explained indirect discrimination as 'a rule
or measure that is neutral on its face or without intent to discriminate',
which exclusively or disproportionately affects people with a particular
personal attribute.[57]
Compatibility of the measure with the
right to equality and non-discrimination
2.120
The statement of compatibility to the original bill noted that the right
to equality and non-discrimination is engaged by these measures, but argued
that any limitation on this right was justifiable on the following bases:
Differentiation on the basis of dual nationality is the
consequence of obligations relating to statelessness, and as such represents a
measure of extra protection for those without dual nationality, rather than a
means of possibly selecting those who may be subject to the new provisions.
The broader differentiation at the heart of the cessation and
renunciation amendments, i.e. that by acting against the interests of Australia
by choosing to engage in terrorism, they have evidently repudiated their
allegiance to Australia, thereby renouncing their Australia citizenship, is
proportionate to the seriousness of the conduct.[58]
2.121
However, aside from direct discrimination on the basis of dual
nationality, the committee noted that there was also the possibility of
indirect discrimination on the basis of race or religion.
2.122
International human rights law recognises that a measure may be neutral
on its face but in practice have a disproportionate impact on groups of people
with a particular attribute such as race, colour, sex, language, religion,
political or other status. Where this occurs without justification it is called
indirect discrimination.[59]
Indirect discrimination does not necessarily import any intention to
discriminate and can be an unintended consequence of a measure implemented for
a legitimate purpose. The concept of indirect discrimination in international
human rights law therefore looks beyond the form of a measure and focuses
instead on whether the measure could have a disproportionately negative effect
on particular groups in practice.
2.123
Where a measure impacts on particular groups disproportionately, it
establishes prima facie that there may be indirect discrimination.
Nevertheless, such a disproportionate effect may be justifiable, and thereby
not unlawfully discriminatory. The statement of compatibility to the original
bill recognised this, noting that:
As observed by the Human Rights Committee in General Comment
no. 18, not every differentiation of treatment will constitute discrimination,
if the criteria for such differentiation are reasonable and objective and if
the aim is to achieve a purpose which is legitimate under the Covenant.[60]
2.124
However, the statement of compatibility did not address the issue of
indirect discrimination, and in relation to direct discrimination, simply
stated that the cessation of citizenship was proportionate to the seriousness
of the conduct, without providing any analysis of its proportionality (given
the range of offences it applies to). As it was not clear whether the measures
would impact disproportionality on persons from a particular race or religion,
the committee sought the advice of the Minister for Immigration and Border Protection
in the terms set out above at paragraphs [2.51] and [2.52].
Minister's response
2.125
Please see the minister's response above in relation to the right to
freedom of movement (right to leave any country) immediately following
paragraph [2.52].
Committee response
2.126
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.127
The committee notes that the minister's response did not discuss the
compatibility of the cessation of citizenship measures with the right to
equality and non-discrimination; and that the minister referred the committee
to the revised statement of compatibility. However, while the revised statement
assesses the measures against this right, it does not directly address the
questions asked by this committee.
2.128
The revised statement of compatibility does not address the issue of
indirect discrimination, and does not discuss whether these measures would
impact disproportionality on persons from a particular race or religion.
Despite the reason behind the application to dual nationals alone, the effect
of the Act can be considered to create two classes of citizenship in
Australia, with dual citizenship made more precarious.[61]
The committee considers that such a step should only be taken with careful
consideration of impact on racial and religious groups, and with due
justification.
2.129
In relation to direct discrimination, the revised statement of
compatibility states that the cessation of citizenship provisions are
proportionate to the seriousness of the conduct, without providing any analysis
to support this conclusion.
2.130
Despite amendments to the measures as originally proposed that
introduced a number of safeguards, the committee remains concerned in relation
to the legitimate objective and proportionality of the measures. This analysis
is set out above at paragraphs [2.53] to [2.74].
Right to liberty and obligations of
non-refoulement
2.131
Article 9 of the ICCPR protects the right to liberty—the procedural
guarantee not to be arbitrarily and unlawfully deprived of liberty. This
prohibition against arbitrary detention requires that the state should not
deprive a person of their liberty except in accordance with law. The notion of
'arbitrariness' includes elements of inappropriateness, injustice and lack of
predictability.
2.132
Accordingly, any detention must not only be lawful, it must also be
reasonable, necessary and proportionate in all the circumstances. Detention
that may initially be necessary and reasonable may become arbitrary over time
if the circumstances no longer require the detention. In this respect, regular
review must be available to scrutinise whether the continued detention is
lawful and non-arbitrary. The right to liberty applies to all forms of
deprivations of liberty, including immigration detention.
2.133
Article 9 applies to all forms of deprivations of liberty, including
immigration detention.
2.134
Australia has non-refoulement obligations under the Refugee Convention
for refugees, and under both the ICCPR and the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) for people who
are found not to be refugees.[62] This means that Australia
must not return any person to a country where there is a real risk that they
would face persecution, torture or other serious forms of harm, such as the
death penalty; arbitrary deprivation of life; or cruel, inhuman or degrading
treatment or punishment.[63]
2.135
Non-refoulement obligations are absolute and may not be subject to any
limitations.
2.136
Effective and impartial review by a court or tribunal of decisions to
deport or remove a person, including merits review in the Australian context,
is integral to complying with non-refoulement obligations.[64]
Compatibility of the measures with
the right to liberty and Australia's non‑refoulement obligations
2.137
In its consideration of the original bill, the committee noted that the
right to liberty is engaged by the automatic cancellation of citizenship as it
appears likely that any person whose citizenship has ceased because of having
engaged in, or been convicted of, specified conduct, is likely to have their
ex-citizen visa cancelled on character grounds. Following cancellation of this
visa the ex-citizen would be subject to mandatory immigration detention pending
their deportation.
2.138
As the committee noted, the detention of a non-citizen on cancellation
of their visa and pending their deportation will generally not constitute
arbitrary detention, as it is permissible to detain a person for a reasonable
time pending their deportation. However, as the committee has previously noted,
in the context of a system of mandatory detention in which individual
circumstances are not taken into account, and where there is no right to
periodic judicial review of the detention, there may be situations where a
person's detention could become arbitrary under international human rights law.[65]
It is the blanket and mandatory application of detention to those persons whose
visa has been cancelled, but whom Australia cannot deport, that makes such
detention arbitrary.[66]
2.139
This is most likely to apply in cases where the person cannot be
returned to their country of nationality on protection grounds (due to the
obligation of non-refoulement or where there is no other country willing to
accept the person). This may apply to ex-citizens who have had their
citizenship cancelled on the basis of having engaged in specified conduct and
whose country of dual nationality may be unwilling to allow them entry.
2.140
In its consideration of the original bill, the committee also considered
that the automatic cessation of citizenship powers raises questions as to
whether depriving a person of citizenship, and therefore potentially exposing
them to deportation, is compatible with Australia's non-refoulement obligations,
given the lack of statutory protection and lack of 'independent, effective and
impartial' review of decisions to remove a person.
2.141
The committee noted further that, even if a person can be deported to
their country of dual nationality or a third country, deportation in certain
situations may raise concerns around Australia's of non-refoulement obligations
(see paragraphs [2.134] to [2.136]).
2.142
There is nothing in Australian law that would prevent an unlawful
non-citizen, including ex-citizens, from being removed to a place where they
may face persecution. Rather, section 198 of the Migration Act 1958
(Migration Act) requires an immigration officer to remove an unlawful
non-citizen in a number of circumstances as soon as reasonably practicable.
Section 197C of the Migration Act also provides that, for the purposes of
exercising removal powers under section 198, it is irrelevant whether Australia
has non-refoulement obligations in respect of an unlawful non-citizen.
2.143
The statement of compatibility to the original bill did not identify
that automatic cancellation of citizenship as engaging and potentially limiting
the right to liberty and the obligations of non-refoulement.
2.144
The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to whether the cessation of citizenship
provisions and decisions to remove an ex-citizen will be subject to
sufficiently 'independent, effective and impartial' review so as to comply with
Australia's non-refoulement obligations under the ICCPR and the CAT.
Minister's response
The provisions of the Allegiance Act are compatible with
Australia's non-refoulement obligations.
The Minister's discretionary power to cease a person's
citizenship where the person is in Australia will not result directly in them
being liable for removal from Australia. Any such liability would come only
after the person's lawful status in Australia was rescinded and the person was
detained under the Migration Act 1958 (Migration Act) as an unlawful
non-citizen.
Upon my determination to cease a person's citizenship under
section 35A of the Allegiance Act, the person will be granted an ex-citizen
visa under section 35 of the Migration Act. The ex-citizen visa is a permanent
visa allowing the holder to remain in, but not re-enter Australia. The grant of
this visa is an automatic process. Any action in relation to the cancellation
of this visa on character grounds involves a separate process under the
Migration Act. Whether the person engages one of Australia's non-refoulement
obligations can be considered as part of deciding whether or not a person
should hold a visa. A visa cancellation decision by a delegate of mine will be
subject to merits review, and my personal visa cancellation decisions are
subject to judicial review. I consider both merits and judicial review to be
'independent, effective and impartial', and where relevant, the review may
consider non-refoulement obligations claimed to be owed by Australia.
Should there be cases of individuals convicted of
terrorism-related offences who may also engage Australia's non-refoulement
obligations, such obligations do not extend to an obligation to grant permanent
residency or any particular type of visa in Australia. Rather, for people who
are found to be owed a non-refoulement obligation but are ineligible for the
grant of a visa on character or national security grounds, Australia will put
in place appropriate measures to ensure the protection of the person's human
rights while balancing the protection and security of the Australian community.
Australia does not intend to resile from its non-refoulement obligations.[67]
Committee response
2.145
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.146
The committee welcomes the minister's commitment that Australia does not
and will not resile from its non-refoulement obligations. In particular the
committee acknowledges the minister's intention to ensure that people who are
found to be owed a non-refoulement obligation but are ineligible for the grant
of a visa on character or national security grounds have their rights
protected.
2.147
However, notwithstanding the committee's original analysis identifying
that the cancellation of citizenship provisions engage and may limit the right
to liberty, the revised statement of compatibility does not identify or discuss
this right.
2.148
The minister explains that a person whose citizenship ceases under these
provisions and who is in Australia at the time their citizenship ceases,
acquires an ex-citizen visa by operation of law.[68]
This is a permanent visa (though subject to cancellation at any time) allowing
the holder to remain in, but not re-enter Australia. The minister explains
further that ceasing a person's citizenship where the person is in Australia
'will not result directly in them being liable for removal from Australia'
because any action in relation to the cancellation of the ex-citizen visa on
character grounds 'involves a separate process under the Migration Act'. As
part of this process, 'whether the person engages one of Australia's
non-refoulement obligations can be considered'.[69]
2.149
However, the revised statement of compatibility acknowledges that in
circumstances where a person's citizenship is cancelled, the cancellation of an
ex-citizen visa is almost certain:
While the grant of this visa is an automatic process, in the
circumstances under contemplation it is likely that the Minister would at least
consider immediately cancelling this visa on character or national interest
grounds, assuming the relevant criteria were met.[70]
2.150
Following cancellation of this visa, the ex-citizen would be subject to
mandatory immigration detention pending their deportation.
2.151
In the absence of information from the minister justifying this
limitation, the committee's concerns on the measure's impact on the right to
liberty remain.
2.152
Despite the amendments to the measures as originally proposed that
introduced a number of safeguards, the committee remains concerned in relation
to the legitimate objective and proportionality of the measures. This analysis
is set out above at paragraphs [2.53] to [2.74].
2.153
Regarding Australia's obligation of non-refoulement, as the committee
has stated on a number of occasions, the obligation of non-refoulement is
absolute and the right to an effective remedy requires an opportunity (before
removal) for effective, independent and impartial review of the decision to
expel or remove. The committee refers to its previous conclusion
that judicial review of the minister's decision to cancel a visa on character
grounds, as currently provided for under the Migration Act, is
insufficient to meet Australia's non-refoulement obligations.[71]
Part 1 - Conclusion
2.154
The committee's assessment of the cessation of citizenship powers is
that they engage multiple human rights protections under international law as
set out above at paragraph [2.38]. The revised statement of compatibility and
minister's response do not provide sufficient evidence to demonstrate that the
measures are compatible with those rights, and in relation to many rights, do
not provide any justification for the limitations on rights that the committee
has identified. In addition, although many of the amendments introduce stronger
safeguards, the committee considers that these safeguards are insufficient for
the purposes of international human rights law.
2.155
Nevertheless, some committee members reiterate their belief, noted
above at paragraph [2.33] to [2.34], that the deprivation of citizenship of
those who endanger the security of Australians is desirable as a matter of
policy, notwithstanding the incompatibilities with international human rights
law identified in the analysis above.
Part 2 – Procedural and process rights
2.156
Part 2 addresses procedural and process rights in relation to the
cessation or revocation of citizenship under the new measures.
2.157
As discussed above, the enjoyment of a range of rights and entitlements
under Australian law is tied to Australian citizenship. It is therefore of
critical importance that the processes by which citizenship may cease or be
revoked contain sufficient safeguards to ensure that powers are exercised only
in the appropriate circumstances, on information and reasoning that is tested
and reliable.
2.158
The committee previously noted that the proposed provisions for the loss
of citizenship engaged and limited a number of procedural and process rights
including:
-
the right to a fair trial;
-
the right to a fair hearing; and
-
the right to an effective remedy.
2.159
Each measure which removes the citizenship of adults is addressed below
in turn. Particular human rights concerns in relation to loss of a child's
citizenship are set out in Part 3.
Automatic loss of citizenship through conduct
2.160
As noted at [2.19] to [2.22] above, automatic loss of citizenship
through conduct is provided for by new sections 33AA and 35(1) of the
Citizenship Act.
Right to a fair hearing
2.161
The right to a fair hearing is protected by article 14 of the ICCPR. The
right applies to both criminal and civil proceedings, to cases before both
courts and tribunals. The right applies where rights and obligations, including
personal property or other private rights, are to be determined.
2.162
In order to constitute a fair hearing, the hearing must be conducted by
an independent and impartial court or tribunal, before which all parties are
equal, and have a reasonable opportunity to present their case. Ordinarily, the
hearing must be public, but in certain circumstances, a fair hearing may be
conducted in private.
Compatibility of the measure with
the right to a fair hearing
2.163
The statement of compatibility to the original bill stated that the
right to a fair hearing is not limited by the measure as judicial review of
decisions is available.[72]
However, it did not fully explain how this would be sufficient for
compatibility with the right to a fair hearing.
2.164
In its previous report, the committee considered that, given the unusual
construction of sections 33AA and 35(1) regarding the automatic loss of
citizenship on the basis of conduct, it was not clear that the automatic
citizenship involved a reviewable decision under the Administrative
Decisions (Judicial Review) Act 1977 (ADJR Act). The mechanism of
renunciation by conduct was contrasted to renunciation made effective by the
decision of a court or the executive (for example, the mechanism that provides
for renunciation by application in section 33).
2.165
The committee did consider that other forms of relief may be available,
though not provided for in the bill itself, such as declaratory relief that a
person's citizenship has never been lost. However, it observed that any such
review would be attended by significant difficulties.
2.166
First, it is unclear whether, in the absence of a decision, the onus of
proof in such a matter would rest with the respondent or with the plaintiff
(that is, with the person whose citizenship has purportedly been lost). If the
latter, the plaintiff may be placed in the difficult position of having to
prove that they had not engaged in the conduct which led to the automatic loss
of their citizenship. The inherent difficulty in proving a negative for a
plaintiff may seriously limit that person's right to a fair hearing.
2.167
Second, the proceedings would be civil rather than criminal in nature
under Australian domestic law, operating on a the civil standard of proof
rather than the criminal standard of beyond reasonable doubt, as well as
lacking the protections of a criminal proceeding. Yet, the conduct at issue
would be criminal conduct. As discussed below, the application of civil burdens
and standards of proof without the usual protections afforded in a criminal
proceeding also adversely affects the compatibility of the measure with the
right to a fair trial.
2.168
Further, the effect of the operation of sections 33AA and 35(1) is that
a person is considered to have lost their citizenship through conduct. However,
the evidence in relation to that alleged conduct may be in fact contested,
which means that an individual may be treated as a non-citizen before having
the opportunity to challenge or respond to allegations of specified conduct.[73]
2.169
For these reasons, the committee considered that the right to a fair
hearing is engaged and limited in relation to the proposed measure.
2.170
In light of the serious consequences that may result from loss of
citizenship, it is critical that there is clarity and certainty around the
process for challenging any loss of citizenship. In this regard, the onus is on
the legislation proponent to ensure that proposed processes are compatible with
the right to a fair hearing, including that there is procedural fairness and
equality in proceedings.
2.171
However, the statement of compatibility for the original bill did not
provide any information on how judicial review would operate in respect of
proposed sections 33AA and 35(1), including which party will bear the
applicable burden of proof or standard of proof, or address other uncertainties
with respect to the operation of sections 33AA and 35(1).
2.172
The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to whether the availability of judicial
review and the potential for declaratory relief is sufficient for compatibility
with the right to fair hearing in light of the particular construction of
sections 33AA and 35(1) (including with reference to where the burden of proof
falls and the standard of proof applicable to such proceedings).
Minister's response
I respectfully disagree with the views of the Committee and
am of the position that the Allegiance Act does not limit a person's right to a
fair hearing and a fair trial.
As outlined earlier and upon receiving my written notice to
the effect that their Australian citizenship has ceased, a person will have the
right to seek judicial review on the basis of which the notice was made.
Specifically, the Federal Court and High Court will have original jurisdiction
over matters including whether or not the requisite conduct was engaged in by
the person, whether the person engaged in that conduct with the requisite
intention and whether or not the person was a dual citizen at the time of the
conduct.
For those individuals who have been convicted of a
terrorism-related offence, I will also be required to revoke my determination
of cessation of citizenship if the conviction is subsequently overturned or
quashed by a court and no further appeals can be made in relation to the
decision.[74]
Committee response
2.173
The committee thanks the Minister for Immigration and Border Protection
for his response.
2.174
The committee notes the clarification that the Federal Court and High
Court's original jurisdiction, in relation to the minister's written notice
under the Act, is the basis upon which judicial review is considered to be
available in relation to automatic loss of citizenship by conduct.
2.175
The committee also recognises that, following the recommendation of the
PJCIS, notes are provided in the Act to the effect that, once the minister
gives notice under either section 33AA(10) or section 35(5), a person may seek
review of the basis of the notice in the High Court of Australia under section
75 of the Constitution or the Federal Court of Australia under section 39B of
the Judiciary Act. The amendments to the bill as enacted also provide that the
written notice under section 33AA(10) and section 35(5) must set out the person's
rights of review.[75]
2.176
However, beyond stating the availability of these general avenues of
review, which are independent of the Act and unaltered by the Act, the minister's
response does not attempt to address the committee's concerns regarding the
right to a fair hearing and the right to a fair trial in the context of the
provisions as enacted.
2.177
Neither the revised bill nor the minister's response addressed the
difficulties raised in the committee's previous report, including the onus and
standard of proof in relation to a challenge to automatic loss of citizenship
(as set out above at paragraphs [2.165] to [2.169]). Nor does the minister's
response explain how judicial review, likely restricted to errors of law, will
constitute effective review for the purposes of international law. This is
particularly concerning given the complex questions of fact and difficult
questions of evidence that are likely to arise when a minister makes a decision
on whether a person has engaged in conduct constituting a criminal offence,
independent of the criminal trial process. As this committee has explained
previously judicial review is not sufficient to fulfil the international
standard required of 'effective review', where it is only available on a number
of restricted grounds of review that do not relate to whether that decision was
the correct or preferable decision.
2.178
Further, the minister's response relies on review which is available on
the receipt of a written notice. However, this is not the point at which,
pursuant to the Act, citizenship is lost. Therefore, a person loses a set of
critically important rights prior to having any access to a court or tribunal.
Moreover, pursuant to section 33AA(12) and section 35(7), the minister may
determine that a written notice not be given to a person. In the event that a
written notice is not given, it is unclear from the minister's response how
judicial review is available to a person who has, in the minister's view, lost
her citizenship by conduct.
2.179
Accordingly, the committee's assessment of the automatic loss of
citizenship provisions against article 14 of the International Covenant on
Civil and Political is that the provisions do not provide for the determination
of citizenship rights by a fair hearing by an independent and impartial
tribunal and are thereby incompatible with Australia's obligations under
international human rights law.
Right to a fair trial
2.180
In addition to the general right to a fair hearing, where a person is
subject to a criminal charge, or otherwise subject to a penalty that may be
considered criminal, there are additional specific rights (the requirements of
a fair trial) protected by article 14 of the ICCPR.
2.181
Specific guarantees of the right to a fair trial in the determination of
a criminal charge guaranteed by article 14(1) are set out in article 14(2) to
(7). These include the presumption of innocence (article 14(2)), the right not
to be punished twice for the same conduct (article 14(7)) and minimum
guarantees in criminal proceedings, such as the right to not to incriminate
oneself (article 14(3)(g)) and a guarantee against retrospective criminal laws
(article 15(1)).
Compatibility of the measure with
the right to a fair trial
2.182
The statement of compatibility to the original bill argued that the
right to a fair trial is not limited as individuals will have access to
judicial review.
2.183
As noted above at paragraphs [2.164] to [2.169], the committee
considered in its previous report that the courts may be able to engage in
review as to whether alleged conduct leading to the automatic loss of
citizenship has not occurred, with the result that an individual's citizenship
was never lost. However, by engaging in such review, a court would effectively
need to determine whether or not a particular crime has been committed.
2.184
For the reasons set out below, the committee considered that the court
would effectively be determining a criminal charge, and therefore the criminal
process rights contained in article 14 of the ICCPR are engaged by the
automatic loss of citizenship provisions.
2.185
The concept of a 'criminal charge' extends to acts that are criminal in
nature with sanctions that must be regarded as penal or punitive.[76]
2.186
It appears on the face of the Act that the conduct giving rise to
automatic loss of citizenship is criminal in nature; indeed it is defined by
reference to offences in the Criminal Code.
2.187
In any event, the right to fair trial in engaged if a person is subject
to a penalty that is regarded as 'criminal' under international human rights
law.
2.188
As set out in the committee's Guidance Note 2, the first consideration
in determining whether a penalty is 'criminal' under human rights law is
whether the penalty is classified as 'criminal' under Australian domestic law.
In this case it is unclear whether or not the penalty is classified as
'criminal'. However, given the direct references to loss of citizenship
resulting from criminal conduct in the proposed provision, it is arguable that
under Australian domestic law the penalty is classified as criminal in key
respects.
2.189
The second consideration is that, even if the penalty of loss of
citizenship is not classified as criminal under Australian domestic law, it may
still be 'criminal' for the purposes of article 14 on the basis of the nature
and severity of the penalty.
2.190
In relation to the nature of the penalty, the penalty is likely to be
considered criminal for the purposes of human rights law if (a) the purpose of
the penalty is to punish or deter; and (b) the penalty applies to the public in
general (rather than being restricted to people in a specific regulatory or
disciplinary context). In this regard, the statement of compatibility states
that the measure may have a significant deterrent effect and could apply to all
dual citizens and is not limited to a particular regulatory context.
2.191
Even if both (a) and (b) of the above test are not fully satisfied, a
penalty may be considered 'criminal' based upon its severity. In this regard,
the serious consequences that may ultimately flow from the loss of a person's
citizenship may also mean that the penalty is considered 'criminal' for the
purpose of human rights law, thereby engaging the full range of criminal
process rights under article 14.
2.192
The sanction of automatic loss of citizenship may be considered to be a
form of banishment.[77]
Banishment has historically been regarded as one of the most serious forms of
punishment.[78]
The statement of compatibility to the original bill acknowledges that the
ultimate outcome of cessation of citizenship will most likely be removal from
Australia for the individual concerned.[79]
2.193
For these reasons, the committee considered in its previous report that
the right to a fair trial under article 14 was engaged by the bill.
2.194
Any judicial review sought of the loss of citizenship under section 33A
or s35(1) would be a civil matter under Australian domestic law and civil
burdens and standards of proof would therefore apply. That is, the matter would
be decided on the balance of probabilities. On the application of this lower
standard of proof an individual could therefore lose their citizenship despite
reasonable doubt as to whether they had engaged in the purported conduct. On
this basis, the measure would limit the right to be presumed innocent.
2.195
Further, the process of seeking review could only occur after
citizenship has already purportedly been lost. This means that the Australian
government may treat the person as a non-citizen on the basis of conduct
alleged but not proven. The measure would accordingly limit the right to be
presumed innocent. The presumption of innocence generally requires that the
prosecution prove each element of a criminal offence to the criminal standard
of beyond reasonable doubt. However, the statement of compatibility provides no
justification in relation to this limitation on the right to a fair trial.
2.196
Further, in seeking review an individual who had lost their citizenship
would have to bring evidence to the court as to why, for example, a declaration
should be provided in their favour and would not be able to rely on other
criminal process rights such as the protection against self-incrimination.
2.197
Given the limitations placed on the right to fair trial, the committee sought
the advice of the Minister for Immigration and Border Protection as to whether
there is reasoning or evidence that establishes that the stated objective
addresses a pressing or substantial concern or whether the proposed changes are
otherwise aimed at achieving a legitimate objective; whether there is a
rational connection between the limitation and that objective; and whether the
limitation is a reasonable and proportionate measure for the achievement of
that objective.
Minister's response
2.198
Please see the minister's response above in relation to the right to a
fair hearing immediately following paragraph [2.172].
Committee response
2.199
The committee's previous report set out in detail the reasons why the
fair trial protections in article 14 were engaged and limited by the automatic
loss of citizenship by conduct provisions.
2.200
The minister, in responding that the measures do not limit a person's
right to a fair trial, does not specify whether his view is that the measures
do not engage the right to a fair trial (for instance, because he considers
they do not impose a criminal penalty) or whether the measures do not limit the
right to a fair trial. However, elsewhere in his response, the minister states
the view that section 33AA is administrative, not criminal, in nature (see
extract below, following paragraph [2.213].
2.201
With respect to the question of whether the provisions engage the right
to a fair trial, in the absence of any contrary reasoning or information from
the minister, the committee maintains its view, for the reasons set out above
at paragraphs [2.189] to [2.193] that the loss of citizenship ought to be
considered a criminal penalty for the purposes of article 14, and thereby the
fair trial protections in article 14 are engaged.
2.202
As to whether these protections are met, it is evident that judicial
review proceedings pursuant to the original jurisdiction of the High Court and
Federal Court are civil in character and do not involve the protections
required for a fair trial, such as the presumption of innocence or protection
against self-incrimination. The minister has presented no reasoning to the
contrary.
2.203
Accordingly, the committee's assessment of the automatic loss of
citizenship provisions against article 14 of the International Covenant on
Civil and Political is that the provisions do not provide for a fair trial and
are thereby incompatible with Australia's obligations under international human
rights law.
Quality of law
2.204
Human rights standards require that interferences with rights must have
a clear basis in law. This principle includes the requirement that laws must
satisfy the 'quality of law' test, which means that any measures which
interferes with human rights must be sufficiently certain and accessible, such
that people are able to understand when an interference with their rights will
be justified.
Compatibility of the measure with
the quality of law test
2.205
In its consideration of the original bill the committee noted that there
was a high degree of uncertainty as to how the automatic loss of citizenship
provisions would work in practice. This included how an individual could seek
declaratory relief if they believed they had not engaged in conduct that led to
the automatic cessation of their citizenship, and how the courts would
determine the rights and responsibilities of the parties in court proceedings.
2.206
The committee noted that, as a matter of international human rights law,
it is critical that there is clarity and certainty around the processes for
challenging any loss of citizenship. In this regard, the onus is on the
legislation proponent to ensure that the proposed processes are compatible with
the right to a fair hearing and right to a fair trial, including that there is
procedural fairness and equality in proceedings. For the purposes of the
quality of law test, it is insufficient for the legislation proponent to simply
assert that the courts would manage these uncertainties in accordance with
established practice and principles. Instead the proposed legislation should be
clear as to how the provisions would operate in practice and how the rights of
individuals to due process and the rule of law would be protected by the bill.
2.207
The committee therefore sought the advice of the minister as to whether
the provisions providing for automatic loss of citizenship for certain conduct
are sufficiently certain.
Minister's response
2.208
The minister's response did not address this question.
Committee response
2.209
The committee acknowledges that the bill was amended in significant ways
to clarify how the automatic loss of citizenship provisions would work in
practice. However, notwithstanding the introduction or clarification of review
mechanisms and additional parliamentary safeguards, the entire process of
revocation relies on an administrative determination that a person has engaged
in the specified conduct. Who makes this determination and how such a
determination is made is not entirely clear. As such, the committee maintains
serious concerns surrounding the clarity and quality of the provisions.
2.210
The committee's assessment of the cessation of citizenship powers
against the quality of law test raises questions as to whether the provisions
providing for automatic loss of citizenship for certain conduct are
sufficiently certain. In the absence of any information from the Minister for
Immigration and Border Protection the committee must conclude that the measures
are likely to be incompatible with the quality of law test.
Prohibition on double punishment
2.211
The right to a fair trial includes specific procedural guarantees.
Article 14, paragraph 7 of the ICCPR, provides that no one shall be liable to
be tried or punished again for an offence of which they have already been
finally convicted or acquitted in accordance with the law.
Compatibility of the measure with
the prohibition on double punishment
2.212
In the committee's consideration of the original bill, the committee
noted its concern that the provisions that provide for automatic loss of
citizenship on the basis of defined conduct may be considered punitive for the
purposes of international human rights law. That is because the loss of
citizenship is a punishment for the conduct engaged in, notwithstanding the
absence of a court process to determine guilt beyond reasonable doubt. The practical
effect of this is that loss of citizenship may occur before or during a
criminal trial for specific offences that relate to that conduct. Potentially,
citizenship could also be lost in the context of a trial at which a person is
ultimately acquitted (because of the differing standards of proof), meaning a
person could effectively be tried twice for the same conduct (which is also
prohibited by article 14(7) of the ICCPR).
2.213
An individual subjected to both the automatic loss of citizenship and a
criminal conviction and punishment for the same conduct will effectively suffer
double punishment. The statement of compatibility did not address how these
measures were compatible with the prohibition on double punishment and the
committee therefore sought the advice of the Minister for Immigration and
Border Protection.
Minister's response
I respectfully disagree with the views of the Committee that
in considering the terrorism-related conduct of a person who is offshore,
including if they are fighting for or in the service of a declared terrorist
organisation, such provisions are of a criminal nature and therefore act as a
double punishment.
Section 33AA of the Allegiance Act is administrative in
nature and applies consequences that arise automatically in response to a
person acting inconsistently with their allegiance to Australia. As explained
earlier and in considering whether a person has engaged in terrorism-related
conduct for the purposes of section 33AA, these terms have the same meaning as
defined under the Criminal Code and draw only on the factual elements contained
in those definitions. As such, conduct will be made out if there is factual
evidence which demonstrates that the person has engaged in one of the actions
listed at subsection 33AA(2) such as engaged in a terrorist act, recruited for
a terrorist organisation or financed a terrorist. Factual evidence will also be
drawn on to identify the expressed motivation of the person when engaging in
the relevant conduct.
In addition, the Allegiance Act also provides for a person's
right to seek judicial review of the basis on which the notice was made and
which provides a further safeguard in the application of these provisions.
Specifically, the Federal Court and High Court will have original jurisdiction
over matters including whether or not the requisite conduct was engaged in by
the person, whether the person engaged in that conduct with the requisite
intention and whether or not the person was a dual citizen at the time of the
conduct.[80]
Committee response
2.214
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.215
The committee acknowledges the minister's advice that new section 33AA
of the Citizenship Act is 'administrative in nature', rather than criminal, and
therefore does not engage the prohibition against double punishment. However,
the committee reiterates the view set out above at paragraphs [2.189] to [2.193]
that the consequences of section 33AA—automatic loss of citizenship—are
sufficiently serious to be properly characterised as criminal for the purposes
of article 14.
2.216
The committee acknowledges that, relative to the measures as originally
proposed, the measures included in the Citizenship Act contain more safeguards
relevant to their compatibility with the prohibition against double punishment.
Under section 33AA(7) of the Citizenship Act, automatic loss of citizenship is
limited to conduct offshore, or conduct within Australia but where the person
has left Australia and had not been tried for any offence related to the
conduct. The committee notes that in these cases the prospect of criminal
conviction may be low, and as such, loss of citizenship would not be a 'second'
punishment. However, even so, the person would remain liable to trial and
conviction for the conduct that led to the revocation of their citizenship,
leaving them at risk of being punished for the same conduct twice.
2.217
In any case, the revised statement of compatibility and the minister's
response do not examine the imposition of this additional penalty on a person.
2.218
The committee's assessment of the automatic loss of citizenship
through conduct provisions against article 14(7) of the International Covenant
on Civil and Political Rights (prohibition against double punishment) is that,
while amendments have reduced the scope for double punishment, there remains
the possibility for double punishment, that is, effective banishment through
loss of citizenship in addition to a penalty received pursuant to a criminal
conviction. As such, the committee considers that the measures are incompatible
with Australia's obligations under international human rights law.
Right to an effective remedy
2.219
Article 2 of the ICCPR requires state parties to ensure access to an
effective remedy for violations of human rights. State parties are required to
establish appropriate judicial and administrative mechanisms for addressing
claims of human rights violations under domestic law. Where public officials
have committed violations of rights, state parties may not relieve perpetrators
from personal responsibility through amnesties or legal immunities and
indemnities.
2.220
State parties are required to make reparation to individuals whose
rights have been violated. Reparation can involve restitution, rehabilitation
and measures of satisfaction—such as public apologies, public memorials,
guarantees of non-repetition and changes in relevant laws and practices—as well
as bringing to justice the perpetrators of human rights violations.
2.221
Effective remedies should be appropriately adapted to take account of
the special vulnerability of certain categories of person including, and
particularly, children.
Compatibility of the measure with
the right to an effective remedy
2.222
The automatic loss of citizenship by conduct provisions under section
33AA of the Citizenship Act engage and may limit the right to an effective
remedy as they operate automatically and may apply in circumstances where the
individual concerned contests whether the conduct actually occurred.
2.223
In its analysis of the original bill, the committee noted that a person,
who contests that they did not engage in the conduct causing the automatic loss
of citizenship, may apply to the federal courts to seek declaratory relief.
However, as set out above at paragraphs [2.164] to [2.169], there is
significant uncertainty as to how an application for declaratory relief
regarding the automatic loss of citizenship would operate in practice. This
uncertainty raises concerns about the efficacy of any judicial process to
ensure that a person who wrongfully lost their citizenship is able to seek
effective review and redress.
2.224
The committee also noted that an Australian who loses their citizenship
outside of Australia may face significant practical hurdles in seeking access
to courts to seek declaratory relief. These include difficulty in obtaining the
necessary visas to travel to Australia to appear before the courts and the
ability to seek and obtain necessary documentary evidence to present to the
courts.
2.225
The statement of compatibility for the bill did not assess the effect of
the cessation of citizenship on the right to an effective remedy.
2.226
The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to whether the proposed changes are aimed
at achieving a legitimate objective; whether there is a rational connection
between the limitation and that objective; and whether the limitation is a
reasonable and proportionate measure for the achievement of that objective.
Minister's response
I respectfully disagree with the views of the Committee and
am of the position that the Allegiance Act does not limit a person's right to a
fair hearing and a fair trial.
As outlined earlier and upon receiving my written notice to
the effect that their Australian citizenship has ceased, a person will have the
right to seek judicial review on the basis of which the notice was made.
Specifically, the Federal Court and High Court will have original jurisdiction
over matters including whether or not the requisite conduct was engaged in by
the person, whether the person engaged in that conduct with the requisite
intention and whether or not the person was a dual citizen at the time of the
conduct.
For those individuals who have been convicted of a
terrorism-related offence, I will also be required to revoke my determination
of cessation of citizenship if the conviction is subsequently overturned or
quashed by a court and no further appeals can be made in relation to the
decision.[81]
Committee response
2.227
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.228
The minister directs this committee to the revised explanatory
memorandum's statement of compatibility. However, the revised statement
of compatibility does not identify that the right to an effective remedy is
engaged by the Act, and therefore does not attempt to justify the limitation.
2.229
The committee acknowledges that, relative to the measures as originally
proposed, the measures as introduced to the Citizenship Act contain more
significant safeguards that are relevant to the assessment of their
compatibility with the right to an effective remedy. In particular, the
Citizenship Act makes clear that citizenship is taken never to have been lost
if the facts on which a loss of citizenship was based were subsequently found
to have been incorrect. Additionally, the Citizenship Act gives the minister
the power to annul a revocation decision if the relevant conviction is later
overturned on appeal or quashed, with the result that the person's citizenship
is taken never to have been lost. The committee welcomes these amendments.
2.230
The committee notes the minister's explanation that a person has the
right to challenge the revocation of citizenship in the Federal Court or High
Court. The committee notes first that this amendment merely clarified a right
that likely existed under the constitution. Second, the committee reiterates
its longstanding position that judicial review in and of itself is insufficient
to constitute an effective remedy.
2.231
Further, the committee remains concerned that the practical difficulties
of challenging a decision persist. In its analysis of the original bill, the
committee noted that the automatic cessation provisions would enable government
officials to take action, including declining consular assistance,
notwithstanding that the minister had not yet issued a notice, and in the
absence of a criminal conviction. This has not been remedied. Section 33AA(10)
requires the minister only to 'make reasonable attempts to give written notice'
to the person concerned, and in cases where the minister considers that giving
notice could prejudice the security, defence or international relations of
Australia, or Australian law enforcement operations, the minister need not give
notice.[82]
In these cases, the person may not be aware that their citizenship has been
revoked, and will therefore not be able to seek judicial review of that
revocation.
2.232
The committee's assessment of the automatic cessation of citizenship
powers against article 2 of the International Covenant on Civil and Political
Rights (right to an effective remedy) is that the measure is incompatible with
Australia's obligations under international human rights law. The revised
statement of compatibility does not identify that this right is engaged and
therefore does not sufficiently justify it for the purposes of international
human rights law.
Loss of citizenship on conviction
2.233
As noted at paragraph [2.23], under section 35A, a dual Australian
citizen will cease to be an Australian citizen if they are convicted of any one
of 57 offences and the minister is satisfied that revocation of the person's
citizenship is in the public interest. The loss of citizenship following
conviction engages the prohibition on double punishment.
2.234
In addition, the provisions apply to individuals who are convicted
following the day after the Act received Royal Assent (on 12 December 2015)
even if the conduct that is the subject of that conviction occurred prior to
that date. Accordingly, the committee's analysis of the original bill noted
that the provisions engage the prohibition on retrospective criminal laws.
Prohibition on double punishment
2.235
The prohibition on double punishment is outlined at paragraph [2.212]
above.
Compatibility of the measure with
the prohibition on double punishment
2.236
As outlined at paragraphs [2.214] to [2.217], the act of removing
someone's citizenship may be considered punitive for the purposes of
international human rights law. Provisions that automatically impose a loss of
citizenship following conviction for certain offences may be considered to
impose an additional punishment to that imposed by the court in accordance with
the Criminal Code. However, statement of compatibility to the bill did not
address how these measures are nevertheless compatible with the prohibition on
double punishment.
2.237
The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to whether the measures are compatible
with article 14(7) of the International Covenant on Civil and Political Rights
(prohibition on double punishment).
Minister's response
2.238
The minister did not address this question.
Committee response
2.239
In the absence of further information from the minister, the committee
reiterates its analysis above at paragraphs [2.214] to [2.217] concluding that
automatic loss of citizenship due to 'renunciation by conduct' under section
33AA of the Citizenship Act is of a criminal nature for the purposes of
international human right law.
2.240
The committee notes that revocation of citizenship on conviction under
section 35A is materially distinct from the loss of citizenship due to
'renunciation by conduct' under section 33AA. The committee also acknowledges
that following the amendments to the measures as originally proposed, the
Citizenship Act does no longer provide for automatic loss of citizenship
on conviction, but requires the minister to determine whether citizenship
should be revoked.
2.241
However, the committee notes that the introduction of the requirement
for a ministerial determination does not mitigate the severity of the
punishment or the seriousness. Indeed, the committee notes the harshness of the
punishment, and the likely consequence of expulsion from Australia. Loss of
citizenship following conviction for certain offences imposes an additional
punishment to that imposed by the court in accordance with the Criminal Code.
The retrospective operation of the measures serves to compound the infringement
on the prohibition on double punishment.
2.242
The committee's assessment of the loss of citizenship on conviction
provisions against article 14(7) of the International Covenant on Civil and
Political Rights (prohibition against double punishment) is that the measure is
incompatible with Australia's obligations under international human rights law.
The removal of an Australian's citizenship, in circumstances which may
ultimately lead to their effective banishment is a penalty that comes in
addition to a penalty delivered by a court on conviction of a certain offence
and thus breaches the prohibition against double punishment.
Prohibition against retrospective
criminal laws
2.243
Article 15 of the ICCPR prohibits retrospective criminal laws. This
prohibition supports long-recognised criminal law principles that there can be
no crime or punishment without law. Laws which set out offences need to be
sufficiently clear to ensure people know what conduct is prohibited.
2.244
This is an absolute right, which means that it can never be justifiably
limited.
2.245
Article 15 requires that laws must not impose criminal liability for
acts that were not criminal offences at the time they were committed. Laws must
not impose greater punishments than those which would have been available at
the time the acts were done. Further, if, after an offence is committed, a
lighter penalty is introduced into the law, the lighter penalty should apply to
the offender.
Compatibility of the measure with
the prohibition on retrospective criminal laws
2.246
In its consideration of the original bill, the committee noted its
concern that the automatic loss of citizenship on conviction measure under
proposed section 35A may be incompatible with the prohibition on retrospective
criminal laws. The committee noted further that as part of the bill's referral
to the PJCIS, the Attorney-General asked that committee to consider whether
proposed section 35A 'should apply retrospectively with respect to convictions
prior to the commencement of the [measure]'.[83]
2.247
The committee also noted that this issue was not identified or addressed
in the statement of compatibility, and therefore sought the advice of the
Minister for Immigration and Border Protection as to whether the measures are
compatible with article 15 of the ICCPR (prohibition on retrospective criminal
laws).
Minister's response
A recommendation of the PJCIS was the inclusion of amendments
to provide for conviction-based provisions to apply retrospectively for
relevant offences that had occurred prior to the commencement of the Allegiance
Act. In supporting retrospectivity in relation to convictions, the PJCIS
stated:
'...the Parliament has introduced
legislation with retrospective effect in special circumstances, and these laws
have been held to be legally valid. The Committee notes the Bill's purpose is
to ensure the safety and security of Australia and its people and to ensure the
community of Australian citizens is limited to those who continue to retain an
allegiance to Australia. ...on balance the Committee determined these to be
special circumstances. The Committee formed the view that past
terrorist-related conduct, to which persons have been convicted under
Australian law, is conduct that all members of the Australian community would
view as repugnant and a deliberate step outside of the values that define our
society. ...In addition, the Minister's decision would include a current
assessment of whether the person's past conviction reveals that they have
breached their allegiance to Australia and whether it is contrary to the public
interest for them to remain a citizen.'
The application provisions of the Allegiance Act provide for
section 35A to apply to dual nationals or citizens who, in addition to being
currently convicted of a specified offence with a sentence of at least 6 years
imprisonment, may also apply to dual nationals or citizens who have been
convicted of a specified offence with a sentence of ten years or more and which
conviction has been handed down within the last ten years. The Government
accepted this amendment was necessary to ensure coverage of people recently
convicted of and sentenced in relation to very serious terrorism-related
offences which show a clear repudiation of allegiance to Australia.[84]
Committee response
2.248
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.249
The committee notes the minister's statement that section 35A was
amended on the recommendation of the PJCIS so that it would apply
retrospectively only to convictions for relevant offences for which a person
had been sentenced to ten years imprisonment or more by a court.[85]
2.250
Retrospective laws compromise basic rule of law values. Lord Bingham has
summarised the general dangers inherent in retrospective criminal laws as
follows:
Difficult questions can sometimes arise on the retrospective
effect of new statutes, but on this point the law is and has long been clear:
you cannot be punished for something which was not criminal when you did it,
and you cannot be punished more severely than you could have been punished at
the time of the offence.[86]
2.251
The revised statement of compatibility contends that section 35A 'does
not create a criminal offence' but 'allows for the imposition of a civil
consequence' in respect of a conviction and penalty that occurred prior to the
commencement of the measure. It also places emphasis on the fact that cessation
is not automatic.
Cessation of citizenship on this basis is not automatic and
remains at the discretion of the Minister, having regard to the remainder of
section 35A, in particular noting the Minister's required satisfaction that the
conduct that led to the conviction demonstrates the person's repudiation of
their allegiance to Australia, and that it not be in the public interest for
the person to remain an Australian citizen.[87]
2.252
However, while cessation of citizenship remains at the discretion of the
minister, the committee notes that the revised statement of compatibility
indicates that it is very unlikely that the minister will determine not to
revoke citizenship in such circumstances. Further, as noted above at paragraphs
[2.214] to [2.217], the severity and seriousness of the consequences of the
loss of citizenship means that it is appropriately considered a criminal
punishment and not simply administrative in nature.
2.253
International human rights law is clear on the compatibility of
retrospective criminal laws: they are prohibited in all circumstances except
where an act was 'criminal according to the general principles of law
recognised by the community of nations'.[88]
This proviso has been interpreted to mean that legality is upheld so long as
the conduct in question is considered 'fundamentally criminal' by the community
of nations,[89]
such as crimes against humanity or war crimes.[90]
2.254
As noted above, while the list of relevant offences has been narrowed,
it still includes conduct that does not fall within the exception to the prohibition
on retrospective criminal laws—for example, it includes the broadly expressed
offence of 'engaging in foreign incursions and recruitment'. Therefore, the
committee considers that this limitation cannot be justifiable under
international human rights law.
2.255
Further, even were the committee to accept that the limitation may be
justifiable under article 15(2) of the ICCPR, the revised statement of
compatibility and the minister's response do not provide sufficient evidence
and reasoning to establish any such justification.
2.256
For example, the revised explanatory memorandum's discussion on
proportionality is perfunctory in reaching the conclusion that the
retrospective application is appropriate as 'a person should be subject to
revocation of citizenship on the basis of past conduct where that conduct
involves a high degree of criminality'.[91]
No evidence is provided as to the number of people who may be subject to having
their citizenship cancelled, or otherwise why retrospective application is
otherwise appropriate.
2.257
Likewise, the revised statement of compatibility's discussion on the
retrospective application of the measure focuses solely on the objective of the
bill and justifies the measure by reference to the recommendation of the PJCIS.
It states:
the purpose of the provision is to ensure the safety and
security of Australia, and to ensure that the community of Australian citizens
comprises persons who have an allegiance to Australia. The retrospective
application accords with the recommendations of the PJCIS.[92]
2.258
The committee's assessment of the loss of citizenship on conviction
provisions against article 15 of the International Covenant on Civil and
Political Rights (prohibition against retrospective laws) is that the provision
is incompatible with Australia's obligations under international human rights
law. The proposed amendment is criminal in nature and punishes a person more
severely than the person could have been punished at the time of the offence.
Part 3—Children
2.259
The preceding analysis of the human rights compatibility of the measures
in sections 33AA, 35 and 35A of the Citizenship Act in Parts 1 and 2
applies equally to children. This Part considers specific, additional human
rights obligations with respect to children—which under international human
rights law means all people aged under 18 years.
2.260
Section 33AA operates so that a dual Australian citizen
aged 14 or older will automatically cease to be an Australian citizen if they
engage in specified conduct, as defined in the Criminal Code.
2.261
Likewise, section 35(1) applies to a dual Australian
citizen aged 14 or over if that person serves in the armed forces of a country
at war with Australia or 'fights for or is in the service of' a declared
terrorist organisation outside Australia.
2.262
For section 35A, there is no age limit specified to its
application (as statement of compatibility recognises).[93] The offences listed in section 35A as a basis for cessation of
citizenship apply to children aged over 10 years of age. Children aged
10 to 14 would only be convicted, and thus subject to automatic loss of
citizenship, if they knew that the conduct was wrong in accordance with the
standards and procedures of domestic criminal law.
2.263
Under section 36A a person, including a child, who
citizenship ceased under sections 33AA, 35 or 35A, is prevented from resuming
Australian citizenship.
2.264
The statement of compatibility states that the application of the new
loss of citizenship provisions to children is justified on the grounds that
there are documented cases of children fighting with extremist organisations
overseas and being otherwise involved in terrorist activities.[94]
Automatic loss of citizenship and loss of citizenship following conviction
Obligation to consider the best
interests of the child
2.265
Under the Convention on the Rights of the Child (CRC), state parties are
required to ensure that, in all actions concerning children, the best interests
of the child is a primary consideration.[95]
2.266
This principle requires active measures to protect children's rights and
promote their survival, growth and wellbeing, as well as measures to support
and assist parents and others who have day-to-day responsibility for ensuring
recognition of children's rights. It requires legislative, administrative and
judicial bodies and institutions to systematically consider how children's
rights and interests are or will be affected directly or indirectly by their
decisions and actions.
Compatibility of the measures with
the obligation to consider the best interests of the child
2.267
The statement of compatibility to the original bill explained that the
automatic loss of citizenship for conduct engages the obligation to consider
the best interests of the child, but that 'the protection of the Australian
community and Australia's national security outweighs the best interests of the
child'.[96]
2.268
In its previous report, the committee pointed out that this statement
misapprehended the nature of the obligation to consider the best interests of
the child and that the procedure for automatic loss of citizenship set out in
the bill did not appear to provide for a consideration of the best interests of
the child.
2.269
The only way that an individual child's circumstances would be taken
into account under the original bill was if the minister decided to exempt a
child from the operation of the provisions: a power that was entirely
discretionary and not subject to the rules of natural justice. As a result, the
committee considered that this provision is not a sufficient safeguard for the
purposes of international human rights law.
2.270
The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to whether there is reasoning or evidence
that establishes that the stated objective addresses a pressing or substantial
concern or whether the proposed changes are otherwise aimed at achieving a
legitimate objective; whether there is a rational connection between the
limitation and that objective; and whether the limitation is a reasonable and
proportionate measure for the achievement of that objective.
2.271
The committee also sought the minister's advice on these questions in
relation to the rights contained in articles 7, 8 and 12 of the CRC (right to a
nationality and right of the child to be heard), as set out below.
Minister's response
The Allegiance Act does not apply to a child under 10 years
of age. Further, and in accordance with a recommendation of the Parliamentary
Joint Committee on Intelligence and Security, a child's citizenship will not be
revoked following the revocation of their parent's citizenship where the parent
has been convicted of a terrorism-related offence. Where the Allegiance Act may
apply to a child between the ages of 10 to 14, it does so in conformity with
established norms in the Criminal Code.
Furthermore, there are a number of safeguards built into the
Allegiance Act which include:
-
Providing written notice to the
child (including their parents or legal guardians) of the conduct which has
caused their citizenship to cease. The notice must also include a basic
description of the conduct and the person's rights of review;
-
Providing the Minister with a
discretionary power to determine whether to rescind the notice and exempt the
child from the effect of the section, thus providing for their citizenship to
be restored. In considering whether to make a determination, the Minister must
have regard to, among other matters, the best interests of the child as a
primary consideration; and
-
Providing for natural justice in
instances where the Minister decides to consider exercising their power in
relation to the making of a determination to rescind a notice or not. Where the
Minister makes such a determination, they must table a statement to both Houses
of Parliament.[97]
Committee response
2.272
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.273
As set out above at paragraphs [2.19] to [2.29], the bill was
significantly amended after the committee's initial consideration. Those
amendments have significantly reduced the extent to which the bill would apply
to children.
2.274
In relation to automatic loss of citizenship on the grounds of conduct
the Citizenship Act now provides that a child may only lose their citizenship
by conduct if they are aged 14 years or over. In relation to those children
aged between 14 and 18, as a matter of international law, any loss of
citizenship must follow a process in which the best interests of the child is a
primary obligation. The Committee on the Rights of the Child has said that the
CRC:
seeks to ensure that the right is guaranteed in all decisions
and actions concerning children. This means that every action relating to a
child or children has to take into account their best interests as a primary
consideration. The word “action” does not only include decisions, but also all
acts, conduct, proposals, services, procedures and other measures. [98]
2.275
It remains the case that the procedure for automatic loss of citizenship
set out in the Citizenship Act does not provide for a consideration of the best
interests of the child, as the provision applies automatically to specified
conduct. The provision does not take into account each child's capacity for
reasoning and understanding in accordance with their emotional and intellectual
maturity. It does not take into account the child's culpability for the conduct
in accordance with normative standards of Australian law. It does not take into
account whether the loss of citizenship would be in the best interests of the
child given their particular circumstances.
2.276
The Citizenship Act now provides that if the minister decides to exempt
a child from the application of the automatic loss of citizenship provisions,
the minister must consider the best interests of the child as a primary
obligation. However, the minister is under no obligation at law to consider
exempting a child and at that point there is no obligation under Australian
domestic law to consider the best interests of the child. The minister's power
remains personal, non-delegable and non-compellable.[99]
Further, the rules of natural justice do not apply to a decision by the
minister not to consider whether to exempt a person, including a child, from
the operation of the Citizenship Act.[100]
The minister's discretionary power, as conferred by the Citizenship Act, is an
insufficient safeguard for the purposes of international human rights law.
2.277
In relation to the loss of citizenship following conviction for a
terrorist related offence, as set out at paragraphs [2.23] to [2.25], under
section 35A, a person, including a child, who is convicted of a specified
offence may have their citizenship revoked, if the minister is
satisfied that the person has repudiated their allegiance to Australia and the
minister is satisfied that it is not in the public interest for the person to
remain an Australian citizen.
2.278
In determining whether or not it is in the public interest for a child
who has been convicted of a relevant offence to remain an Australian citizen,
the minister must have regard to the best interest of the child as a primary
consideration amongst a list of other considerations. Accordingly, the only
obligation is 'to have regard' to the best interests of the child as a primary
obligation.
2.279
The committee notes that the obligation under international law is to
actively consider and take into account the best interests of the child in
every decision affecting a child.
2.280
Moreover, the minister's decision is not subject to merits review which
would enable a child to challenge a decision that their loss of citizenship was
in the public interest. While the minister must give reasons for revoking
citizenship, there is no specific requirement to outline in those reasons how
the minister has taken the best interests of the child into account.
2.281
The minister's response notes that the citizenship revocation provisions
'apply to a child between the ages of 10 to 14, ... in conformity with
established norms in the Criminal Code.' However, the Criminal Code considers
the criminal culpability of the child in relation to specific offence. It does
not consider whether the child should lose their citizenship as a result of
their conduct and whether the conduct is so serious as to warrant a loss of
citizenship. This consideration falls squarely within the minister's powers
under the new section 35A, which as set out above, is not subject to merits
review.
Right to nationality
2.282
Every child has the right to acquire a nationality under article 7 of
the CRC and article 24(3) of the ICCPR.[101] Accordingly, Australia is
required to adopt measures, to ensure that every child has a nationality when
born. Article 8 of the CRC provides that children have the right to preserve
their identity, including their nationality, without unlawful interference.
Compatibility of the measure
with the right to nationality
2.283
The statement of compatibility acknowledges that the automatic loss of
citizenship for conduct provision engages and limits the right of a child to
preserve his or her nationality. The statement of compatibility states that the
provisions are lawful as a matter of domestic law and that the loss of
nationality 'would in all the circumstances be reasonable, proportionate and
necessary'.[102]
2.284
Whether or not the provisions are lawful under Australian domestic law
is not determinative of whether the provisions comply with Australia's
obligations under international law.
2.285
The committee's usual expectation where a measure may limit a human
right is that the accompanying statement of compatibility provide a reasoned
and evidence-based explanation of how the measure supports a legitimate
objective for the purposes of international human rights law.
Minister's response
2.286
Please see the minister's response above in relation to the obligation
to consider the best interests of the child immediately following paragraph [2.271].
Committee response
2.287
The minister's response does not specifically address the right of a
child to have and retain their nationality as protected by articles 7 and 8 of
the CRC. The revised explanatory memorandum does not provide further
information in relation to these rights.
2.288
The right of a child to preserve their identity maybe subject to lawful
interference. In order to be lawful, the interference must be set out in law
and be in the best interests of the child.[103]
2.289
The measures in the bill are lawful as a matter of Australian domestic
law. For the reasons set out above at paragraphs [2.272]-[2.281], the committee
has concluded that the loss of citizenship provisions are not constructed in a
manner consistent with Australia's obligations to consider the best interests
of the child. Accordingly, the provisions appear inconsistent with article 8 of
the CRC.
Right of the child to be heard in
judicial and administrative proceedings
2.290
Article 12 of the CRC provides that state parties shall assure to a
child capable of forming his or her own views the right to express those views
freely in all matters affecting the child. The views of the child must be given
due weight in accordance with the age and maturity of the child.
2.291
In particular, this right requires that the child is provided the
opportunity to be heard in any judicial and administrative proceedings
affecting them, either directly, or through a representative or an appropriate
body, in a manner consistent with the procedural rules of national law.
Compatibility of the measures with
the right of the child to be heard
2.292
The statement of compatibility to the original bill acknowledged that
the measures in the original bill engage the right of the child to be heard.
The statement of compatibility to the original bill focused on the minister's
power to exempt a person from the application of the loss of citizenship
provisions but did not address the automatic nature of the provisions
themselves. As the provisions create an automatic loss of citizenship flowing
from certain conduct there is no opportunity for a child to express their views
and be heard before losing citizenship, which is inconsistent with
article 12.
2.293
In relation to the ministerial exemption power, the statement of
compatibility to the original bill states that the limitation is 'necessary and
proportionate in the circumstances, given the serious conduct on the part of a
child'.[104]
2.294
No analysis or evidence is provided to support the statement that the
limitation on the right to be heard is necessary and proportionate. As set out
above at [2.285], the committee's usual expectation where a measure may limit a
human right is that the accompanying statement of compatibility provide an analysis
of how the limitation is justifiable under international human rights law.
Minister's response
2.295
Please see the minister's response above in relation to the obligation
to consider the best interests of the child immediately following paragraph [2.271].
Committee response
2.296
The minister's response does not specifically address the right of the
child to be heard in judicial and administrative proceedings. The revised
explanatory memorandum notes that the power to revoke a child's citizenship
upon conviction is discretionary and not automatic and that the minister will
consider the best interests of the child in making a determination.
2.297
As the minister has not specifically addressed the committee's original
question, no further information is provided as to how a provision that creates
an automatic loss of citizenship flowing from certain conduct provides the
necessary opportunity for a child to express their views and be heard before
losing citizenship as required by article 12 of the CRC.
2.298
Similarly in relation to the minister's discretionary power to revoke a
child's citizenship following conviction of certain terrorist related offences,
there is no mechanisms for the child to express their views prior to the
minister making a decision and no requirement for the minister to hear a
child's submissions and given them due weight prior to making a determination.
As set out above neither procedure provides merits review which would enable a
child to test the substance of the claims in detail regarding the decision to
revoke citizenship.
2.299
The committee's assessment of the loss of citizenship provisions
against articles 3, 8 and 12 of the Convention on the Rights of the Child is
that the provision is incompatible with Australia's obligations under
international human rights law.
Discretionary power to remove the citizenship of a child whose parent has
automatically lost their citizenship
2.300
Item 6 of the original bill would have amended the Citizenship Act to
provide that, where a person ceases to be an Australian citizen at a particular
time under sections 33, 33AA, 34, 34A, 35, or 35A and the person is a responsible
parent of a child under the age of 18, the minister may revoke the child's
citizenship (with specified exceptions).
2.301
Although serious consequences flow from loss of Australian citizenship,
affecting the enjoyment of many human rights, no separate analysis was provided
of the human rights engaged and limited by this measure.
2.302
The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to the justification, including reasoning
and evidence, for why such limitations were a reasonable and proportionate
measure for the achievement of the bill's objectives. In particular, advice was
sought as to how decisions will be made by the minister or officials to remove
a child's citizenship and whether this is the least rights restrictive
approach.
Minister's response
2.303
Please see the minister's response above in relation to the obligation
to consider the best interests of the child immediately following paragraph [2.271].
Committee response
2.304
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.305
As outlined in the minister's response, the bill was subsequently
amended so that a child's citizenship will not be revoked following the
revocation of their parent's citizenship where the parent has been convicted of
a terrorism-related offence or lost their citizenship automatically as a result
of conduct.
2.306
Accordingly, the committee's concerns about the compatibility with
human rights of the proposed discretionary power to remove the
citizenship of a child whose parent has automatically lost their citizenship
have been addressed by removing those amendments from the bill.
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
Portfolio:
Attorney-General
Introduced:
Senate, 12 November 2015
Purpose
2.307
The Counter-Terrorism Legislation Amendment Bill (No. 1) 2015 (the bill)
seeks to make amendments to a number of Acts: the Criminal Code Act 1995 (the
Criminal Code), the Crimes Act 1914 (the Crimes Act), the Surveillance
Devices Act 2004 (the SD Act), the Telecommunications (Interception and
Access) Act 1979 (TIA Act), the Australian Security Intelligence
Organisation Act 1979 (the ASIO Act), the Classification (Publication,
Films and Computer Games) Act 1995, the National Security Information
(Criminal and Civil Proceedings) Act 2004 (the NSI Act), the Taxation
Administration Act 1953, the Administrative Appeals Tribunal Act 1975
and the Public Interest Disclosure Act 2013.
2.308
Key amendments in the bill are set out below.
2.309
Schedule 2 seeks to amend the Criminal Code to enable control orders to
be imposed on persons aged 14 and 15 years of age.
2.310
Schedule 5 seeks to amend the Criminal Code to define the meaning of
'imminent' for the purposes of obtaining a PDO.
2.311
Schedule 8 seeks to amend the Crimes Act to establish regimes to monitor
the compliance of individuals subject to a control order through search
warrants, surveillance device warrants and telecommunications interception
warrants.
2.312
Schedule 9 seeks to amend the TIA Act to grant agencies the power to
obtain telecommunications interception warrants to monitor a person subject to
a control order, to monitor their compliance with that control order, and to
permit the chief officer of a specified agency to defer public reporting on the
use of that warrant in certain circumstances.
2.313
Schedule 10 seeks to amend the SD Act to allow law enforcement officers
to apply to an issuing authority for a surveillance device warrant for the
purposes of monitoring compliance with a control order.
2.314
Schedule 15 seeks to amend the NSI Act to broaden protections for
national security information in control order proceedings, and to allow an
issuing court to consider information in these proceedings which is not
disclosed to the subject of the control order or their legal representative.
2.315
Measures raising human rights concerns or issues are set out below.
Background
2.316
The committee has previously considered three bills in relation to
counter‑terrorism and national security, namely the National Security
Legislation Amendment Bill (No. 1) 2014,[105]
the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (the
Foreign Fighters Bill),[106]
and the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014.[107]
2.317
The committee first reported on the bill in its Thirty-second Report
of the 44th Parliament, and requested further information
from the Attorney-General as to the compatibility of the bill with Australia's
international human rights obligations.[108]
National security and human rights
2.318
As noted in its previous analysis of national security legislation, the
committee recognises the importance of ensuring that national security and law
enforcement agencies have the necessary powers to protect the security of all
Australians. Moreover, the committee recognises the specific importance of
protecting Australians from terrorism. The Australian government and the parliament
have the responsibility to ensure that laws and operational frameworks support
the protection of life and security of the person. In addition, Australia has
specific international obligations to detect, arrest and punish terrorists.
2.319
The bill contains 17 schedules of amendments. The analysis below relates
to six of those schedules focusing on the most serious human rights issues.
Accordingly, the committee has concluded that 11 of the schedules in the bill
do not require further explanation or are otherwise likely to be compatible
with human rights.
2.320
In relation to the remaining six schedules, much of the analysis below
is targeted at ensuring that, while law enforcement agencies and intelligence
agencies have appropriate and effective powers, those powers are not broader
than is necessary and are subject to appropriate safeguards. The procedural
guarantees provided for by international human rights law recognises that human
error and mistakes are possible, and such safeguards seek to minimise the harm
caused by any such errors and provide redress where appropriate. Such
safeguards are not intended to thwart legitimate efforts to ensure the safety
of Australians.
Schedule 2—Extending control orders to
14 and 15 year olds
2.321
The bill proposes
to amend the control orders regime
under Division 104 of the Criminal Code to
allow for control orders to be imposed on children aged 14 or 15 years of
age. Currently, control orders may only be imposed on adults and children aged
16 or 17 years of age.
2.322
The committee has previously considered the control orders regime as
part of its consideration of the Counter-Terrorism Legislation Amendment
(Foreign Fighters) Bill 2014,[109]
and the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014.[110]
The bill's expansion of the control orders regime to
children aged 14 and 15 years of age raises the threshold question of whether
the existing control orders regime is compatible with human rights.
2.323
The control orders
regime grants the courts power to
impose a control
order on a person at the request
of the Australian Federal Police (AFP), with the Attorney‑General's consent.
The terms of a control
order may impose a number
of obligations, prohibitions and restrictions on the person
subject to the order.
These include:
-
requiring a person
to stay in a certain
place at certain
times;
-
preventing a person from going to certain
places;
-
preventing a person from talking to or associating with certain
people;
-
preventing a person from leaving Australia;
-
requiring a person
to wear a tracking
device;
-
prohibiting access or use of specified
types of telecommunications, including the internet and telephones;
-
preventing a person from possessing or using specified articles
or substances; and
-
preventing a person from
carrying out specified activities, including in relation to their work or
occupation.
2.324
The steps for the issue
of a control order are:
-
a senior AFP member must obtain the Attorney-General's
written consent to seek a control order on prescribed grounds;
-
once consent is granted, the AFP member
must seek an interim
control order from an
issuing court, which must be
satisfied on the balance of
probabilities:
- that making the order would substantially assist in preventing a
terrorist act; or
- that the person has provided training to, received training from or
participated in training with a listed terrorist organisation; or
-
that the person has engaged in a hostile activity in a foreign country;
or
-
that the person has been convicted in Australia of an offence relating
to terrorism, a terrorist organisation or a terrorist act; or
-
that the person has been convicted in a foreign country for an
equivalent offence; or
-
that making the order would substantially assist in preventing the
provision of support for or the facilitation of a terrorist act; or
-
that the person has provided support for or otherwise facilitated the
engagement in a hostile activity in a foreign country; and
-
the court must also be satisfied on the balance of probabilities
that each of the obligations, prohibitions and restrictions to be imposed on
the person by the order is reasonably necessary, and reasonably appropriate and
adapted, for the purpose of:
-
protecting the public from a terrorist act; or
-
preventing the provision of support for or the facilitation of a
terrorist act; or
-
preventing the provision of support for or the facilitation of the
engagement in a hostile activity in a foreign country; and
-
the AFP must subsequently seek the court's confirmation of the order, with a confirmed order able to last up to 12 months.
2.325
The control orders regime
clearly imposes a range of limitations on personal liberty and engages and limits multiple human rights.
2.326
Schedule 2 also provides for
an issuing court to appoint a lawyer as an advocate to act on behalf of a child
between the ages of 14 and 17 who is subject to an interim control order. This
measure engages and limits article 12 of the Convention on the Rights of the
Child (CRC). This issue deals with a discrete part of the control orders regime
and will be dealt with separately below.
Multiple rights
2.327
The control orders regime, and the amendments to that regime proposed by
the bill, engage and limit a number of human rights, including:
-
right to equality and non-discrimination;[111]
-
right to liberty;[112]
-
right to freedom of movement;[113]
-
right to a fair trial and the presumption of innocence;[114]
-
right to privacy;[115]
-
right to freedom of expression;[116]
-
right to freedom of association;[117]
-
right to the protection of the family;[118]
-
prohibition on torture and cruel, inhuman or degrading treatment;[119]
-
right to work;[120]
and
-
right to social security and an adequate standard of living.[121]
2.328
The proposed expansion of the control orders regime to children aged 14
and 15 years of age also engages the obligation to consider the best interests
of the child and a range of rights set out in the CRC which are consistent with
the rights outlined above.[122]
Compatibility of the measure with multiple rights - summary
Threshold assessment of
control orders—legitimate objective
2.329
The statement of compatibility focuses primarily on the proposed change
to the age threshold for control orders rather than dealing more broadly with
the human rights implications of the control orders regime.
2.330
The committee has previously concluded that the control orders regime pursues
a legitimate objective
of providing law enforcement agencies with the necessary
tools to respond
proactively to the evolving nature
of the threat presented
by those wishing to undertake terrorist acts in Australia.[123]
Threshold assessment of control orders—rational
connection
2.331
There may be doubt as to
whether control orders are rationally connected to their stated objective as
they may not necessarily be the most effective tool to prevent terrorist acts.[124]
2.332
Notwithstanding these doubts, set out in full in the committee's
previous report, the committee notes the government's advice that the terrorism
threat has subsequently evolved and that control orders have now been used four
times since the committee last considered counter‑terrorism legislation
in late 2014. In addition, the current the Independent National Security
Legislation Monitor (INSLM) is currently conducting an inquiry into control
orders—originally due to report in February 2016—and is expected to report
soon.
Threshold
assessment of control orders—proportionality
2.333
In terms of proportionality there may be questions as to whether control
orders are the least rights restrictive response to terrorist threats, and
whether control orders contain sufficient safeguards to appropriately protect
Australia's human rights obligations.
2.334
For example, there is no requirement that the conditions of a control
order be the least rights restrictive measures to protect the public, as
recommended by a 2013 review of counter-terrorism legislation prepared for the
Council of Australian Governments (COAG).[125]
2.335
A least rights restrictive approach would not mean that public
protection would become a secondary consideration in the issuance of a control
order. It would simply require a decision-maker to take into account any
possible less invasive means of achieving public protection. In the absence of
such requirements it is difficult to characterise the control orders regime as
the least rights restrictive approach for protecting national security, and to
assess the proposed measures as a proportionate way to achieve their stated
objective.
Attorney-General's response
Control orders are an important element of Australia's
counter-terrorism strategy and have been a protective and preventative measure
available to law enforcement since 2005. The Government supports recommendation
26 of the COAG Review of Counter-Terrorism Legislation (COAG Review),
which recommended the retention of control orders (with additional safeguards
and protections).
The proposed amendments in Schedule 2 of the Bill extend the
regime to 14 and 15 year olds, and also include additional safeguards in
recognition of the lower age. These additional safeguards are also extended to
16 and 17-year-olds-who are already covered by the regime but without the
additional safeguards.
Accordingly, the human rights compatibility statement for
these amendments focuses on the extension of the existing regime to 14 to
15-year-olds.
As noted above, the PJCIS has completed its inquiry into the
Bill, which included consideration of Part One of the Independent National
Security Legislation Monitor's (INSLM) January 2016 report on control order
safeguards. The Government is presently considering the reports of the INSLM
and the PJCIS.[126]
Committee response
2.336
The committee thanks the Attorney-General for his response.
2.337
The committee has noted, in relation to its previous considerations of
amendments to the control order regime, that the control orders regime was
legislated prior to the establishment of the committee. This means that the
control order regime has not previously been subject to a human rights
compatibility assessment in accordance with the terms of the Human Rights
(Parliamentary Scrutiny) Act 2011.[127]
2.338
In this respect, in March 2015, the committee recommended that a
statement of compatibility be prepared for the control order regime which sets
out in detail how the necessarily coercive powers provided for by control
orders are necessary and proportionate having regard to the availability and
efficacy of existing ordinary criminal just processes (e.g. arrest, charge and
remand).
2.339
As set out in the committee's initial analysis, there is doubt as to
whether control orders are the most effective tool to prevent terrorist acts.
For example, the former INSLM has stated:
The effectiveness, appropriateness and necessity of COs
[control orders] are all reduced or made less likely if it is feasible that
comparatively early in the course of offending a person may be charged with a
terrorism offence. Australia's inchoate or precursor terrorism offences under
the [Criminal] Code are striking in that they criminalise conduct at a much
earlier point than has traditionally been the case.[128]
2.340
The particular character of terrorism laws has also been recognised in
Australian domestic courts which have noted, for example:
Preparatory acts are not often made into criminal offences.
The particular nature of terrorism has resulted in a special, and in many ways
unique, legislative regime. It was, in my opinion, the clear intention of
Parliament to create offences where an offender has not decided precisely what
he or she intends to do. A policy judgment has been made that the prevention of
terrorism requires criminal responsibility to arise at an earlier stage than is
usually the case for other kinds of criminal conduct, eg well before an agreement
has been reached for a conspiracy charge.[129]
2.341
In terms of the evidence required for a control order, the former INSLM
has also noted:
...the kind and cogency of evidence in support of an
application for a CO [control order] converges very closely to the kind and
cogency of evidence to justify the laying of charges so as to commence a
prosecution...Nothing was obtained in private hearings [primarily with law
enforcement and intelligence agencies investigating these issues] suggesting to
the contrary.[130]
2.342
The committee notes the government's advice set out in the Explanatory
Memorandum to the bill, that the terrorism threat has subsequently evolved and
that control orders have now been used four times since the committee
considered counter-terrorism legislation in late 2014. Accordingly, while there
may be some doubt that control orders are an effective tool to respond to
terrorism, above and beyond Australia's traditional criminal justice response, the
committee acknowledges that there have been significant recent developments in
the counter-terrorism space in recent times.
2.343
Nevertheless, the amendments to the control order regime proposed in the
bill are being brought before the parliament while the current INSLM is
conducting an inquiry into control orders and has yet to release his findings.
The current INSLM has noted in respect of his specific inquiry into the
efficacy of the safeguards that apply to the control order regime that:
The case for control orders is weakened if control orders are
of little utility without such far reaching surveillance [proposed in the
current bill].[131]
2.344
Without the current INSLM's completed full assessment of the necessity
of control orders it is difficult for the committee to assess whether the
terrorism threat in Australia has evolved significantly to render the former
INSLM's assessment of control orders no longer valid.
2.345
In terms of proportionality, there may be questions as to whether
control orders are the least rights restrictive response to terrorist threats,
and whether control orders contain sufficient safeguards to appropriately
protect Australia's human rights obligations.
2.346
For example, amendments introduced by the Counter-Terrorism Legislation
Amendment Bill (No. 1) 2014 allow control orders to be sought in circumstances
where there is not necessarily an imminent threat to personal safety. In the
absence of an imminent threat it is difficult to justify as proportionate the
imposition of a significant limitation on personal liberty without criminal
charge.
2.347
In addition, the issuing criteria for a control order set out in section
104.4 of the Criminal Code requires that each proposed condition of a control
order must be reasonably necessary, and reasonably appropriate and adapted, to
the purpose of protecting the public from the threat of a terrorist act.
However, there is no requirement that the conditions be the least rights
restrictive measures to protect the public, as recommended by a 2013 review of
counter-terrorism legislation prepared for the Council of Australian Governments
(COAG).
2.348
A least rights restrictive approach would not mean that public
protection would become a secondary consideration in the issuance of a control
order. It would simply require a decision-maker to take into account any
possible less invasive means of achieving public protection. In the absence of
such requirements, it is difficult to characterise the control orders regime as
the least rights restrictive approach for protecting national security, and to
assess the proposed measures as a proportionate way to achieve their stated
objective.
2.349
The committee considers the control order regime engages and limits a
range of human rights. As noted above, the control order regime has not been
subject to a foundational assessment of human rights nor has a standalone
statement of compatibility been provided for the control order regime. The
committee therefore reiterates its recommendation that a statement of
compatibility be prepared for the control order regime, that sets out in detail
how the coercive powers provided for by control orders impose only a necessary
and proportionate limitation on human rights having regard to the availability
and efficacy of existing ordinary criminal just processes (e.g. arrest, charge
and remand).
Applying control orders to 14
and 15 year olds—legitimate objective
2.350
Turning to the specific amendments in Schedule 2, which would allow the
AFP to seek a control order for children aged 14 or 15 years of age, the
statement of compatibility does not explicitly set out the legitimate objective
of these measures.
2.351
To be capable of justifying a proposed limitation of human rights, a
legislation proponent must provide a reasoned and evidence-based explanation as
to how the measures address a pressing or substantial concern. Neither the statement
of compatibility nor the explanatory memorandum explain in detail how the
current criminal law does not adequately provide for the protection against
terrorist acts by 14 and 15 year olds.
Applying control orders to 14
and 15 year olds—rational connection
2.352
In addition, as outlined above, it is not clear from the statement of
compatibility how the measures are rationally connected to a legitimate
objective.
Applying control orders to 14
and 15 year olds—proportionality and safeguards
2.353
In terms of proportionality, the bill makes a number of significant
legislative changes to control orders applying to children aged 14 to 17 years
of age.
2.354
The committee considers that many of these provisions provide safeguards
for the purposes of international human rights law (and relative to the control
orders regime that applies to adults).
2.355
However, for the reasons set out below, it has not been fully explained
in the statement of compatibility whether these safeguards will fully ensure
that the control orders regime will impose only proportionate limitations on
the multiple human rights identified above.
Applying control orders to 14
and 15 year olds—proportionality and best interests of the child considerations
2.356
In relation to the requirement for a court to consider the best
interests of the child when assessing each of the proposed obligations,
prohibitions and restrictions under a control order, the statement of
compatibility explains:
...the issuing court will be required to consider the child's
best interests as a primary consideration. New subsection 104.4(2A) treats the
child's best interests as "a primary" consideration.[132]
2.357
However, the court is not required to consider the child's best
interests when initially considering whether, on the balance of probabilities,
a control order is necessary in accordance with the legislative criteria. In
addition, while the court must consider the best interests of the child in
determining each of the proposed obligations, prohibitions and restrictions
under the control order, the word 'primary' (as in a 'primary consideration')
is not included in the proposed provision or referred to in the explanatory
memorandum to the bill. However, the CRC requires that the best interests of
the child be 'a primary consideration' and not just 'a consideration'.
Accordingly, it is unclear how this provision is consistent with Australia's
obligations under the CRC.
Applying control orders
to 14 and 15 year olds—proportionality and the right to liberty
2.358
The statement of compatibility states that a child will not be separated
from their family or be denied access to school;[133]
however, there is nothing in the legislation that would prevent this.
2.359
In addition, a control order may include a requirement that a person be
confined to a particular place and subject to a curfew of up to 12 hours in a
24 hour period. This would appear to meet the definition of detention (or
deprivation of liberty) under international human rights law, which is much
broader than being placed in prison.[134]
2.360
In terms of the proportionality of such detention, the UK courts have
found that curfews of 18 hours per day amount to disproportionate deprivations
of liberty, and that curfews of 12 to 14 hours may not be disproportionate.[135]
2.361
The European Court of Human Rights and the House of Lords have held that
control order conditions must be considered cumulatively, such that a nine hour
curfew combined with other stringent measures may effectively amount to a
deprivation of liberty.[136]
2.362
The statement of compatibility has not fully explained whether the
detention that may be imposed as part of a control order under this bill is
proportionate.
2.363
The issues outlined above raise questions as to the proportionality of
Schedule 2, which could have been explained more fully in the statement of compatibility.
2.364
As set out above, the amendments engage and limit multiple human rights.
The committee therefore sought the advice of the Attorney-General as to the
legitimate objective, the rational connection, and the proportionality of the
measure.
Attorney-General's response
Legitimate objective
The availability of control orders as a measure to manage and
mitigate the risk or threat of certain activities being undertaken by young
people at risk of engaging in violent extremism is reasoned and supported by
evidence.
Recent counter terrorism operations have unfortunately shown
that people as young as 14 years of age can pose a significant risk to national
security through their involvement in planning and supporting terrorist acts.
In this context, it is important that our law enforcement and
national security agencies are well equipped to respond to, and prevent,
terrorist acts. This is the case even where the threats are posed by people
under the age of 18 years.
The Australian Federal Police (AFP) submission to the PJCIS,
dated 15 December 2015, discusses the operational context for the proposed
amendments:
Recent events have clearly
demonstrated the vulnerability of young people to ideologies espousing violent
extremism. Law enforcement and intelligence partners have observed both the
attraction of terrorist groups to minors, as well as the 'grooming' of minors
by adults. With the internet providing easy access to propaganda and
recruiters, both domestic and international, through social media, young people
are at risk of falling prey to terrorist groups who promise a sense of purpose,
belonging and excitement. Worryingly, law enforcement is also observing that
adults are increasingly looking to use young people to evade law enforcement
surveillance and/or attention.[137]
Control orders provide significant
benefits to the community by placing limits and controls on the behaviour of a
person identified as being a risk to the safety and security of the community.
The amendments in the Bill that propose targeted monitoring of individuals the
subject of a control order (discussed later) will contribute to these benefits
by facilitating the monitoring of such individuals.
Control orders can also assist the
person subject to the control order by ensuring individuals who have engaged in
conduct or activities of concern can remain in the community and largely
continue with their ordinary lives (for example, attend school, work, and
places to participate in cultural and religious practices), while being
required to discontinue or minimise activities which may enable or encourage
them to participate in terrorist activity. Maintaining connection to society
through participation in ordinary activities is of benefit to the individual,
both in relation to their personal interests and from a remedial perspective.
The vulnerability of young people
to violent extremism demands proportionate, targeted measures to divert them
from extremist behaviour. It is appropriate and important that all possible
measures are available to avoid a young person engaging with the formal
criminal justice system to mitigate the threat posed by violent extremism.
Consequently, the ability to use control orders to influence a person's
movements and associations, thereby reducing the risk of future terrorist
activity, addresses a substantial concern and the regime is aimed and targeted
at achieving a legitimate objective.
Rationally connected
The proposed expansion of the
scheme to cover 14 and 15-year-olds is rationally connected to the legitimate
objective of managing and mitigating the risk posed by a young person where
laying charges is not justified, appropriate or possible.
The overriding need to protect the
community from harm means that law enforcement must identify emerging threats
and constantly balance the need to investigate and collect evidence while a
terrorist threat develops, against the need to protect the community from the
impact should the threat be realised.
In the current fluid and evolving
terrorism threat environment, police may have sufficient intelligence to
establish serious concern regarding the threat posed by an individual or group,
but may not have sufficient evidence to commence criminal prosecution. In these
circumstances other mechanisms, including control orders, provide a mechanism
to manage the threat in the short to medium term. Control orders should be
considered as a tool that can be used
in conjunction with and complementary to other options, including criminal
prosecution and countering violent extremism programs.
Proportionate
The control order regime,
including its extension to 14 and 15 year old persons of security concern, is
reasonable and proportionate to achieve the objectives mentioned above.
While a control order can be
sought where there is a threat, there is no requirement that the threat be
imminent. However, a control order can only be issued if the court is satisfied
that each of the requested obligations, restrictions and prohibitions is
reasonably necessary and reasonably adapted and appropriate to protecting the
public from a terrorist act or preventing support or facilitation of a domestic
terrorist act or hostile activities overseas.
A control order is a preventative
measure, and is not intended to be punitive or used as a substitute for
prosecution. Where a person poses a significant risk to the community and there
is sufficient evidence to charge a person with an offence, criminal prosecution
will be pursued.
Best interests of the child
consideration
Subsection 104.4(1) of the Criminal
Code Act 1995 (Criminal Code) provides the test for making an interim
control order. When deciding whether to impose a control order on a young
person, the issuing court must be satisfied on the balance of probabilities
that, for example, the order will substantially assist in preventing a
terrorist act or the person has engaged in particular conduct, such as
participating in training with a listed terrorist organisation. In addition,
the court must be satisfied on the balance of probabilities that each of the
obligations, prohibitions and restrictions to be imposed on a person by the
order are reasonably necessary, and reasonably appropriate and adapted for the
purposes of protecting the public from a terrorist attack, preventing the
provision of support for or the facilitation of a terrorist attack or
preventing the provision of support for or the facilitation of the engagement
in a hostile activity in a foreign country.
Proposed subsection 104.4(2) of
the Criminal Code specifies matters the court must consider when determining
what is "reasonably necessary, and reasonably appropriate and
adapted". These matters are the impact of the particular obligation,
prohibition or restriction on the person's circumstances (including the
person's financial and personal circumstances), and if the person is 14 to 17
years of age-the best interests of the person. Given the impact of the
obligation, prohibition or restriction on the person's circumstances (including
the person's financial and personal circumstances), and if the person is 14 to
17 years of age-the best interests of the person, are both listed as factors
the court must consider, it is clear that such considerations are important and
should carry weight over other possible considerations (with the exception of
national security or protecting the community from terrorism). This is why the
Explanatory Memorandum referred to the best interests of the person as a
'primary' consideration. However, it is appropriate that the court has the
ability to consider any possible relevant factor and determine what weight it
should be given.
The report expresses concern that
the regime would not prevent an order being made that separates a child from
their family or requires them not to attend a particular school (paragraph
1.77). While that is technically correct, in practice the court would not make
an order including such restrictions unless they were in the best interests of
the child, and it was reasonably necessary and reasonable appropriate to do so.
It is difficult to contemplate a scenario in which that could occur,
particularly given the requirement for the court to consider the impact on the
child's personal circumstances and the child's best interests.
The report also considers whether
the ability of the court to impose a curfew on a person amounts to a
deprivation of liberty (paragraphs 1.78 to 1.81). In this context it is
important to note that the Bill does not change the 'curfew' provision in any
way. Indeed that provision was amended in 2014 to implement a Council of
Australian Governments' Review of Counter-Terrorism Legislation recommendation
to clarify the maximum period of a curfew on the face of the legislation.
Accordingly, while a court could impose a curfew of up to 12 hours, the court
could only do so if satisfied that such a restriction would be in the best
interests of the child, and was reasonably necessary and reasonable appropriate
and adapted to mitigating the risk of terrorism or foreign fighting or the
support or facilitation of terrorism or foreign fighting.
Recommendation one of the PJCIS
report considers the best interests of the child consideration. The Government
is presently considering the PJCIS report and its recommendations.[138]
Committee response
2.365
The committee thanks the Attorney-General for his response.
2.366
The committee considers that the measures are in pursuit of the
legitimate objective of managing and mitigating the risk or threat of certain
activities being undertaken by young people at risk of engaging in violent
extremism.
2.367
In terms of whether the measures are rationally connected to that
objective, the committee reiterates its analysis at paragraphs [2.339] to [2.344]
that there is some doubt as to the efficacy of control orders in combating
terrorism above and beyond standard criminal justice processes. The response
refers to recent events as having clearly demonstrated the vulnerability of
young people to ideologies espousing violent extremism. However, no information
is provided in the response as to whether control orders, if available, would
have been effective to significantly reduce the risk of a specific terrorist
act planned or carried out by a child less than 16 years of age. In addition,
no information is provided as to whether other measures were, or would have
been, available to mitigate any risk of a terrorist act occurring, whether
those measures were taken, and whether or how far they were successful.
2.368
In terms of whether the measures are proportionate, the issuing criteria
for a control order set out in section 104.4 of the Criminal Code requires that
each proposed condition of a control order must be reasonably necessary, and
reasonably appropriate and adapted, to the purpose of protecting the public
from the threat of a terrorist act. However, there is no requirement that the
conditions be the least rights restrictive measures necessary to protect the
public.
2.369
In addition, there is no requirement that the court consider whether
there are other criminal justice alternatives that may achieve the protection
of the public but impose less restrictions on a person subject to the control
order.
2.370
Further, the committee notes its analysis at paragraphs [2.345] to [2.348]
that there is some doubt as to whether the control order regime imposes
restrictions in a least rights restrictive manner or whether there are
sufficient safeguards.
2.371
In the case of children, it is unclear why it is not possible to target
the individuals that are encouraging the child to be involved in a terrorist
act rather than the child. If it is because those individuals are outside of
Australia's jurisdiction, it would be possible to limit the imposition of a
control order on a child to circumstances where it was not possible to control
the individuals seeking to influence the child.
Best interests of the child
2.372
In terms of the best interests of the child, the Attorney-General's
response provides a detailed summary of how the control order regime would work
in relation to children. However, the response does not specifically engage
with many of the concerns raised by the committee in its initial analysis.
2.373
Effectively, the control order application process (referred in the
Criminal Code as the interim Control Order) consists of three steps:
-
a senior AFP member drafts the control order;
-
the senior AFP member seeks the Attorney-General's written consent to
request the control order; and, if granted, then
-
the senior AFP member requests the court to grant the control order.
2.374
In relation to the first step, the AFP member is not required to turn
his or her mind to the best interests of the child. The legislative criteria
for the AFP to commence the control order application process is that the AFP
member must consider on reasonable grounds that the order would substantially
assist in preventing a terrorist act (broadly defined) or suspects on
reasonable grounds certain other matters. The senior AFP officer is not
required to turn his or her mind to the best interests of the child
2.375
In relation to the second step, the AFP must provide the
Attorney-General with information about the person's age if they are less than
18, a statement of fact as to why the order should be made and an explanation
as to why each of the obligations, prohibitions and restrictions should be
imposed on the person. The AFP are not required to consider the best interests
of the child nor explain how they have considered the best interests of the
child as a primary consideration in drafting the control order. The
Attorney-General is not required to be satisfied that the control order terms
have taken into account the best interests of the child as a primary
consideration.
2.376
In relation to the third step, a court is not required to consider the
child's best interests when initially considering whether, on the balance of
probabilities, a control order is necessary in accordance with the legislative
criteria. In the case of an imminent threat to life it would appear entirely
appropriate that the legislative criteria focus primarily on national security
issues. However, control orders may now be obtained in circumstances removed
from imminent threats and in circumstances where it may be more appropriate to
lay charges for a precursor offence.
2.377
The court may issue the control order if it is satisfied on the balance
of probabilities that each of the obligations, prohibitions and restrictions in
the draft control order are reasonably necessary and reasonably appropriate and
adapted, for the purposes of protecting the public from terrorist acts,
preventing support for or the facilitation of a terrorist act or preventing the
provision of support for or the facilitation of the engagement in a hostile
activity in a foreign country.
2.378
Accordingly, the legislation requires the court to explicitly focus on
whether the control order terms are necessarily appropriate for the purposes of
protecting the public from a broad range of potential acts related to
terrorism. As part of that process, under the bill, a court would be required
to take into account the best interests of the child. While the court must take
the best interests of the child into account, the court is not required to be
satisfied that the terms of the control order are in the best interests of the
child, nor that the control order terms are the least rights restrictive terms
that would protect the public. In taking the child's interests into account,
the court is not required to weigh those interests up as a primary
consideration.
2.379
The CRC requires that the best interests of the child be 'a primary
consideration' and not just 'a consideration'. The Attorney-General's response
states that it is clear from the drafting of the legislation that the best
interests of the child consideration are 'are important; and 'should carry
weight over other possible considerations'. In the absence of the word primary
being included in the provision, it is unclear how this provision is consistent
with Australia's obligations under the CRC.
2.380
The PJCIS has recommended that these provisions be amended so that it is
clear that a court must, in determining whether each of the proposed
obligations, prohibitions and restrictions under the control order are
necessary and appropriate, consider the best interests of the child as a
primary consideration and the safety and security of the community as a
paramount consideration.
2.381
The requirement under international law that the best interests of the
child be a primary consideration, does not mean that the best interests of the
child will always prevail over all other considerations. However, in all
actions concerning a child, their best interests must be given high priority.
The Committee on the Rights of the Child has stated:
The expression "primary consideration" means that
the child's best interests may not be considered on the same level as all other
considerations. This strong position is justified by the special situation of
the child: dependency, maturity, legal status and, often, voicelessness.
Children have less possibility than adults to make a strong case for their own
interests and those involved in decisions affecting them must be explicitly
aware of their interests. If the interests of children are not highlighted,
they tend to be overlooked.
....
However, since article 3, paragraph 1, covers a wide range of
situations, the Committee recognizes the need for a degree of flexibility in
its application. The best interests of the child – once assessed and determined
– might conflict with other interests or rights (e.g. of other children, the
public, parents, etc.). ...If harmonization is not possible, authorities and
decision-makers will have to analyse and weigh the rights of all those
concerned, bearing in mind that the right of the child to have his or her best interests
taken as a primary consideration means that the child's interests have high
priority and not just one of several considerations. Therefore, a larger weight
must be attached to what serves the child best.[139]
Best interests of the child –
separation from family and education
2.382
The Attorney-General's response states that, while theoretically
possible, a court would not make an order that separates a child from their
family or requires them not to attend a particular school unless they were in the
best interests of the child and it was reasonably necessary and reasonably
appropriate to do so. However, the primary consideration of the court is
whether it is satisfied on the balance of probabilities that each of the
obligations, prohibitions and restrictions to be imposed on the person by the
order is reasonably necessary, and reasonably appropriate and adapted for the
purposes of protecting the public from a broad range of activities associated
with terrorism. As part of those considerations the court must take into
account the best interests of the child.
2.383
The court is not required to be satisfied that each of the obligations
prohibitions and restrictions to be imposed on the child are explicitly in
their best interests nor is the court required to take into account the best
interests of the child as a primary consideration. Accordingly, a child subject
to a control order may be separated from their family and required to change
schools if the court is satisfied that such actions are reasonably necessary,
and reasonably appropriate and adapted for the purposes of protecting the
public from a broad range of activities associated with terrorism.
Best interests of the child –
arbitrary detention
2.384
As set out in the committee's initial analysis, a control order may include
a requirement that a person be confined to a particular place and subject to a
curfew of up to 12 hours in a 24 hour period. This would appear to meet the
definition of detention (or deprivation of liberty) under international human
rights law, which is much broader than being placed in prison. The United
Nations Human Rights Committee has explained:
Examples of deprivation of liberty include police custody,
arraigo, remand detention, imprisonment after conviction, house arrest,
administrative detention, involuntary hospitalization, institutional custody of
children and confinement to a restricted area of an airport as well as being
involuntarily transported.[140]
2.385
In terms of the proportionality of such detention, the UK courts have
found that curfews of 18 hours per day amount to disproportionate deprivations
of liberty, and that curfews of 12 to 14 hours may not be disproportionate.[141]
2.386
The European Court of Human Rights and the House of Lords have held that
control order conditions must be considered cumulatively, such that a nine hour
curfew combined with other stringent measures may effectively amount to a
deprivation of liberty.[142]
2.387
In assessing what constitutes a deprivation of liberty, the issue is the
length of the period for which the individual is confined to their residence.
Other restrictions imposed under a control order, which contribute to the
controlee's social isolation, may also be taken into account along with the
period of the curfew.[143]
2.388
The Attorney-General's response states:
Accordingly, while a court could impose a curfew of up to 12
hours, the court could only do so if satisfied that such a restriction would be
in the best interests of the child, and was reasonably necessary and reasonable
appropriate and adapted to mitigating the risk of terrorism or foreign fighting
or the support or facilitation of terrorism or foreign fighting.
2.389
However, as set out above, the primary consideration of the court is
whether it is satisfied on the balance of probabilities that each of the
obligations, prohibitions and restrictions to be imposed on the person by the
order is reasonably necessary, and reasonably appropriate and adapted for the
purposes of protecting the public from a broad range of activities associated
with terrorism.
2.390
The court is not required to be satisfied that that the curfew is in the
best interests of the child but rather that the curfew is necessary and
appropriate to protect Australians from a range of behaviours broadly related
to terrorism taking into account the best interests of the child.
Accordingly, a court may issue a control order that includes a curfew in
circumstances where it is not explicitly satisfied that such a restriction
would be in the best interests of the child.
2.391
The Attorney-General's response does not explicitly respond to the
jurisprudence outlined in the committee's initial analysis and repeated above.
The issuing of a control order may constitute arbitrary detention where the
control order includes a curfew of sufficient length to be so restrictive as to
amount to a deprivation of liberty. This is because the detention would be
ordered on the lower civil standard of proof and not the criminal standard of
proof beyond reasonable doubt.
2.392
The committee has assessed the amendments to lower the age at which a
person may be subject to a control order to 14 years of age against multiple
human rights in the International Covenant on Civil and Political
Rights, the International Covenant on Economic, Social and Cultural Rights and
the Convention on the Rights of the Child.
2.393
As set out above, the amendments engage and limit multiple human
rights.
2.394
Notwithstanding the legal advice provided to the committee, some
committee members consider that the amendments are compatible with
international human rights law.
2.395
Other committee members consider that the amendments enable
the imposition of control orders in a manner incompatible with multiple human
rights.
Schedule 2—Court-appointed advocate for children
2.396
Item 46 of Schedule 1 to the bill would insert a new section 104.28AA in
the Criminal Code to provide for an issuing court to appoint a lawyer as an
advocate to act on behalf of a child between the ages of 14 and 17 who has been
made subject to an interim control order.
2.397
The court-appointed advocate would not be acting as the child's legal
representative and, as such, is not obliged to act on the instructions or
wishes of the child.
2.398
The committee previously considered that the introduction of court‑appointed
advocates for children engages and limits the right of the child to be heard in
judicial and administrative proceedings.
Right of the child to be heard
in judicial and administrative proceedings
2.399
Article 12 of the CRC provides that state parties shall assure to a
child capable of forming his or her own views the right to express those views
freely in all matters affecting the child. The views of the child must be given
due weight in accordance with the age and maturity of the child.
2.400
In particular, this right requires that the child is provided the
opportunity to be heard in any judicial and administrative proceedings
affecting them, either directly or through a representative or an appropriate
body, in a manner consistent with the procedural rules of national law.
Compatibility of the measure with
the right of the child to be heard in judicial and administrative proceedings
2.401
The court-appointed advocate is not required to take into account the
wishes of the child or act on their instructions during any court proceedings,
and is able to act independently and make recommendations as to a specific
course of action which may be explicitly in opposition to the wishes of the
child.
2.402
Further, the court-appointed advocate is authorised to disclose to the
court any information provided to the advocate by the child, if the advocate
believes that the disclosure is in the best interests of the child. This
disclosure is authorised even in situations where it may be against the wishes
of the child.[144]
2.403
Further, the recommendations of the advocate are not required to take
into account a consideration of the age of the child, or an individual
assessment of their maturity. The primary obligation under the CRC is to
support decision making by minors consistent with their maturity and capacity.
The children affected by these amendments would be between the ages of 14 and
17, and likely to have strong or well-formed opinions regarding how their
situation is handled before the courts.
2.404
The statement of compatibility does not address this right.
2.405
The committee therefore sought the advice of the Attorney-General as to
the legitimate objective, the rational connection, and the proportionality of
the measure.
Attorney-General's response
Background
As noted in the report, the court appointed advocate model is
based on the Family Court's independent children's lawyer (ICL) model
(paragraph 1.99). While the court appointed advocate is not the young person's
legal representative, nothing in Division 104 or elsewhere prohibits a young
person (or any other person the subject of a control order) from engaging an
independent legal representative.
Legitimate objective, rationally connected and
proportionate
The court appointed advocate model in the Bill seeks to
achieve the following outcomes:
-
ensure the controls imposed by the
control order and the consequences of failing to comply with them is fully
explained to the child by an independent person (noting that interim control
orders are generally obtained on an ex parte basis, such that the young person
would not likely have legal representation at the time of service). The AFP
will continue to be required to provide this and other information to the child
at the time of service
-
ensure there is an independent
person who can provide the court with an assessment about what is in the
child's best interests, and
-
ensure, particularly in
circumstances where the child does not have separate legal representation, that
there is a legally qualified person from whom the child can seek advice, and
who can adduce evidence and make submissions for the child during proceedings.
On 14 December 2015, the PJCIS requested the Department to
review the submissions made by bodies such as the Law Council of Australia and
the Gilbert and Tobin Centre of Pubic Law and respond to the issues raised. On
15 January 2016, the Department provided the PJCIS with a supplementary
submission which sought to address each of those sets of issues. A number of
the submissions discuss the court appointed advocate model and the PJCIS has
asked the Department to consider whether an alternate model is feasible. The
Department has advised the PJCIS that an alternate model may help address the
concerns raised in those submissions, although any alternate model would be
subject to agreement by the States and Territories under the requirements of
the 2004 Inter-Governmental Agreement on Counter-Terrorism Laws.
Recommendation two of the PJCIS report considers the court
appointed advocate model. The Government is presently considering the PJCIS
report and its recommendations.[145]
Committee response
2.406
The committee thanks the Attorney-General for his response.
2.407
The response explains that there are three key objectives to be sought
by the court appointed advocates for children regime. In relation to the second
and third points in the Attorney-General's response, the committee's initial
analysis noted that under the bill, court appointed advocates would not be required
to take into account the age of the child, or an individual assessment of their
maturity. The primary obligation under the CRC is to support decision making by
minors consistent with their maturity and capacity. The children affected by
these amendments would be between the ages of 14 and 17, and likely to have
strong or well-formed opinions regarding how their situation is handled before
the courts.
2.408
The response notes that a child may also engage their own independent
legal representative.[146]
However, the ability of the court-appointed advocate to make recommendations
against the wishes of the child nevertheless engages the right of the child to
be heard in judicial and administrative proceedings.
2.409
The current INSLM has raised similar concerns regarding the court
appointed advocate regime in schedule 2 of the bill:
That procedure is adapted from sections 68L and 68LA of the
Family Law Act 1975 which principally apply in custody cases. In those cases
there will be a choice as to the best arrangements for custody and access
involving an assessment of the suitability of the potential custodians –
usually parents or close relatives. A child may well have emotional attachments
that cloud his or her attitude or may be too young to be able to form a
sensible view. Furthermore, a child is not a party to family law proceedings.
It is a large step to move from that context to one where the proceeding is
against the child and the choice is whether or not to impose an intrusive
control order with criminal liability for breach. It is also odd, to say the
least, that the parents who ordinarily would have the custody and control of
the young person have no responsibilities in relation to control orders.[147]
2.410
The PJCIS has recommended that the bill be amended to expressly provide
that the young person has the right to legal representation in control order
regimes and that the bill be amended to remove the role of the court appointed
advocate. The committee supports these amendments provided that the child has
an active role in choosing the legal representative that will represent them in
control order proceedings.
2.411
The committee has assessed amendments allowing for the
court-appointed advocate for children against article 12 of the Convention on
the Rights of the Child (right of the child to be heard in judicial and
administrative proceedings).
2.412
As set out above, the amendments engage and limit the right of the
child to be heard in judicial and administrative proceedings. The committee in
principle supports the recommendations of the PJCIS that bill be amended to
expressly provide that young person has the right to legal representation in
control order regimes and that the bill be amended to remove the role of the
court appointed advocate.
Schedule 5—'Imminent' test and preventative detention orders
2.413
Currently, a preventative detention order (PDO) can be applied for if it
is suspected, on reasonable grounds, that a person will engage in a terrorist
act, possesses something in connection with preparing for or engaging in a
terrorist act, or has done an act in preparation for planning a terrorist act.[148]
The terrorist act must be one that is imminent and expected to occur, in any
event, at some time in the next 14 days.[149]
2.414
Schedule 5 of the bill seeks to change the current test of 'imminent'
for the grant of (PDOs), by providing a new definition of 'imminent terrorist
act' as one that it is suspected, on reasonable grounds, is capable of being
carried out, and could occur, within the next 14 days.
2.415
As PDOs allow for the detention of a person for up to 48 hours, and the
amendments would broaden the basis on which a PDO can be made, the bill engages
and limits the right to liberty.
Right to liberty
2.416
Article 9 of the ICCPR protects the right to liberty—the procedural
guarantee not to be arbitrarily and unlawfully deprived of liberty. The
prohibition against arbitrary detention requires that the state should not
deprive a person of their liberty except in accordance with law. The notion of
'arbitrariness' includes elements of inappropriateness, injustice and lack of
predictability.
2.417
Accordingly, any detention must not only be lawful, it must also be
reasonable, necessary and proportionate in all the circumstances. Detention
that may initially be necessary and reasonable may become arbitrary over time
if the circumstances no longer require the detention. In this respect, regular
review must be available to scrutinise whether the continued detention is
lawful and non-arbitrary.
Compatibility of the measure with
the right to liberty
2.418
The statement of compatibility states that the change to the imminent
test engages but does 'not impact upon the right' to liberty.
2.419
However, the proposed amendments would lower the threshold on which a
PDO can be sought, so that instead of an event being 'expected to occur' within
the next 14 days it need only be 'capable of being carried out' and 'could
occur' within the next 14 days. In this regard, the measure limits the right to
liberty, and accordingly it is necessary to understand whether the measure
pursues a legitimate objective, is rationally connected to that objective and
is a proportionate way to achieve that objective.
2.420
First, the statement of compatibility states that the legitimate
objective of the PDO regime as a whole is to prevent an imminent terrorist act
occurring and preserve evidence of, or relating to, a recent terrorist act.[150]
However, the statement of compatibility does not provide an explanation of the
legitimate objective for lowering the threshold as to when an act is considered
to be 'imminent'.
2.421
The committee considered that it has also not been fully explained how
the amendments lowering the threshold of what is considered to be imminent is
rationally connected to that objective.
2.422
The committee further considered that it is not clear from the
information provided in the statement of compatibility that these amendments
are proportionate to their objective.
2.423
The committee therefore sought the advice of the Attorney-General as to
the legitimate objective, the rational connection, and the proportionality of
the measure.
Attorney-General's response
Background
Preventative detention orders (PDOs) are protective tools
that are designed to achieve the following legitimate objectives:
-
prevent an imminent terrorist act
from occurring, or
-
preserve evidence of, or relating
to, a recent terrorist act.
Legitimate objective, rationally connected and
proportionate
Currently, the issuing authority must be satisfied there are
reasonable grounds to suspect that a terrorist act is imminent and is expected
to occur, in any event, at some time in the next 14 days. The problem with this
test is that even where police have grounds to suspect a person has the
capacity to carry out a terrorist act at any time, neither the AFP nor the
issuing authority may have information as to the time that has been selected to
carry out that act - if indeed a time has been selected. For example, if a
terrorist is prepared and waiting for a signal or instruction to carry out
their act, the AFP may not be able to identify when that signal or instruction
will be sent. Indeed the terrorist themselves may not know. Under the existing
test, the AFP may not be able to seek a preventative detention order without
information as to the expected timing. Accordingly, there is an operational gap
in ability to deal with terrorist acts that are not planned to occur on a
particular date, even where the preparations for that terrorist act may be in
their final stages, or complete. The legitimate objective of the amendments is
to address this gap so that the objectives of the preventative detention order
regime can be realised.
As the AFP noted in their submission to the PJCIS, if the
point in time that an incident will take place is not known, the issuing
authority may not be satisfied the act is expected to occur sometime in the
next 14 days. The proposed amendment addresses this issue by placing the
emphasis on the capacity for an act to be carried out in the next 14 days. If a
terrorist act is capable of being carried out, and could occur, within 14 days,
that terrorist act will meet the definition of an 'imminent terrorist act'.
Accordingly, the proposed amendment ensures the AFP has the ability to apply
for a PDQ to safeguard the public against such risks where they are identified.
The inclusion of a 14-day timeframe in which the act could occur retains the
imminence requirement, but focusses on the capability of a person to commit a
terrorist act, as opposed to the specific time in which the terrorist act is
expected to occur. Accordingly, the amendments are rationally connected and
proportionate to the objective of preventing imminent terrorist acts and the need
to ensure the utility of the preventative detention order regime to achieve
that objective.
Furthermore, existing requirements that the AFP member and
issuing authority must be satisfied of under existing subsection 105.4(4)
ensure the PDO regime remains a proportionate, protective tool to counter
immediate threats to national security. To obtain a PDO, an AFP member must
demonstrate that the order will "substantially assist in preventing a
terrorist act occurring" (paragraph 105.4(4)(c)) and that detention is
"reasonably necessary" for the purpose of preventing the terrorist
act (paragraph 105.4(4)(d)). The issuing authority must be similarly satisfied
of both requirements.
These proportionality requirements ensure that law
enforcement agencies must make a case for why the significant limitations on an
individual's freedoms under a PDO are justified in each instance. Viewing the
proposed amendment to subsection 105.4(5) in the context of the PDO framework
as a whole demonstrates that the safeguards in place protect against the
inappropriate use of the regime.
Recommendation fifteen of the PJCIS report considers the
threshold for obtaining a PDO. The Government is presently considering the
PJCIS report and its recommendations.[151]
Committee response
2.424
The committee thanks the Attorney-General for his response.
Threshold assessment of
preventative detention orders
2.425
The committee has noted, in relation to its previous considerations of
amendments to the preventative detention order (PDO) regime, that the PDO
regime was legislated prior to the establishment of the committee. This means
that that the regime has not previously been subject to a human rights
compatibility assessment in accordance with the terms of the Human Rights
(Parliamentary Scrutiny) Act 2011.[152]
2.426
Preventative detention orders are administrative orders, made, in the
first instance, by a senior AFP member, which authorise an individual to be
detained without charge, and without a necessary intention to charge the
subject with any offence. PDOs raise human rights concerns as they permit a
person's detention by the executive without charge or arrest.
2.427
In particular, there has been some debate as to the effectiveness of the
PDO regime. In 2013, the Council of Australian
Governments Review of Counter-Terrorism Legislation (the COAG review)
extensively reviewed the PDO regime. It concluded that the PDO scheme 'is, as
presently structured, neither effective nor necessary'. The review recommended
that the PDO scheme be repealed entirely.[153]
2.428
The finding of the COAG review expanded on the concerns raised in 2012
by the former INSLM, who was highly critical of the efficacy and
proportionality of PDOs taking into account their particular character and the
extent of their use. The former INSLM noted:
The combination of non-criminal detention, a lack of
contribution to CT [(counter-terrorism)] investigation and the complete lack of
any occasion so far considered appropriate for their use is enough to undermine
any claim that PDOs constitute a proportionate interference with liberty.[154]
2.429
The former INSLM noted that the case for extraordinary powers for
policing of terrorism related offences, above the traditional powers and
approaches to the investigation and prosecution of criminal behaviour, had not
been established:
There has been no material or argument demonstrating that the
traditional criminal justice response to the prevention and prosecution of
serious crime through arrest, charge and remand is ill-suited or ill-equipped
to deal with terrorism. Nor has this review shown that the traditional methods
used by police to collect and preserve evidence, eg search warrants, do not
suffice for the investigation and prosecution of terrorist suspects. There is,
by now, enough experience in Australia of police operations in the detection
and investigation, and support for prosecution, of terrorist offences. There is
therefore substantial weight to be given to the lack of a demonstrated
functional purpose for PDOs as a matter of practical experience.[155]
2.430
The former INSLM therefore recommended that the PDO regime be repealed.[156]
2.431
Notwithstanding this evidence, the committee has previously noted the
government's advice, that the terrorism threat has subsequently evolved; and,
as such, this evidence may be outdated in the current security environment. The
current INSLM is scheduled to conduct a review of the PDO regime.
2.432
In light of this information, in March 2015, the committee recommended
that a statement of compatibility be prepared for the PDO regime which sets out
in detail how the PDO regime is necessary and proportionate having regard to
the availability and efficacy of existing ordinary criminal justice processes
(e.g. arrest, charge and remand).
2.433
Since the committee's establishment there have been a number of
amendments to the PDO regime and statements of compatibility have been prepared
for those individual amendments but not for the regime as a whole. It is
imperative that this regime be fully justified in the context of Australia's
international human rights obligations not to subject individuals to arbitrary
detention.
2.434
The proposed amendments would lower the threshold on which a PDO can be
sought, so that instead of an event being 'expected to occur' within the next
14 days it need only be 'capable of being carried out' and 'could occur' within
the next 14 days.
Assessment of the proposed amendments to Preventative
Detention Orders
2.435
The Attorney-General's response states that the problem with the current
test is that even where police have grounds to suspect a person has the
capacity to carry out a terrorist act at any time, neither the AFP nor the
issuing authority may have information as to the time that has been selected to
carry out that act. The response states that if a terrorist is prepared and
waiting for a signal or instruction to carry out their act, the AFP may not be
able to identify when that signal or instruction will be sent and this would
prevent the AFP from obtaining a PDO.
2.436
However, in the example given, it is unclear why that individual cannot
be charged with the offence of planning or preparing for a terrorist act.[157]
The very act of an individual preparing to wait for a signal or instruction
would be a criminal offence under Australian law.
2.437
Terrorist laws are unique in Australia as they criminalise conduct that
is so early in the preparation of an offence that it would not ordinarily meet
the definition of an offence. This has been recognised in Australian domestic
courts which have noted, for example:
Preparatory acts are not often made into criminal offences.
The particular nature of terrorism has resulted in a special, and in many ways
unique, legislative regime. It was, in my opinion, the clear intention of
Parliament to create offences where an offender has not decided precisely what
he or she intends to do. A policy judgment has been made that the prevention of
terrorism requires criminal responsibility to arise at an earlier stage than is
usually the case for other kinds of criminal conduct, eg well before an
agreement has been reached for a conspiracy charge.[158]
2.438
As a safeguard, the response notes that to obtain a PDO, an AFP member
must demonstrate that the order will 'substantially assist in preventing a
terrorist act occurring' (paragraph 105.4(4)(c)) and that detention is
'reasonably necessary' for the purpose of preventing the terrorist act
(paragraph 105.4(4)(d)). However, it should be noted that the definition of
terrorist act is very broad and goes beyond harm to the individual. A terrorist
act includes an action or threat of action that seriously disrupts an
electronic system such as a telecommunication system or financial system.
Accordingly, a PDO may be obtained where the AFP believes that the PDO would
substantially assist in preventing a threat of serious disruption to a
telecommunication system and the detention is reasonably necessary.
2.439
In addition, there is no requirement for the officer to be satisfied
that the PDO is the only way to stop the threat or to be satisfied that the
ordinary process of arrest and charge are not available.
2.440
PDOs are administrative orders, made, in the first instance, by a senior
AFP member, which authorise an individual to be detained without charge, and
without a necessary intention to charge the subject with any offence. In order
for such a regime to be justified for the purposes of international human
rights law it must be in circumstances where there is a real and imminent
threat to life where there is no alternative available under the criminal law
to protect the community. It is not consistent with human rights law that
powers of this nature be exercised if there is not a high risk of a terrorist
attack.
2.441
Accordingly, it is not clear that the amendments are rationally
connected to the legitimate objective of protecting national security and that
the measures only impose a proportionate limitation on the right to liberty.
2.442
The PJCIS has recommended that:
The Committee recommends that clause 105.4(5) of the Counter
Terrorism Legislation Amendment Bill (No. 1) 2015 be amended to replace the
term 'imminent terrorist act' with 'terrorist act' in the threshold test for
preventative detention orders (PDOs).[159]
2.443
This recommendation, if implemented, would further weaken the nexus
between PDOs and imminent threats to life. For the reasons outlined above, this
would not be compatible with international human rights law.
2.444
The committee considers the preventative detention order (PDO) regime
engages and limits the right to liberty. As noted above, the PDO has not been
subject to a foundational assessment of human rights nor has a standalone
statement of compatibility been provided for the PDO regime. The committee
therefore reiterates its recommendation that a statement of compatibility be
prepared for the PDO regime, that sets out in detail how the necessarily
coercive powers only a necessary and proportionate limitation on human rights
having regard to the availability and efficacy of existing ordinary criminal
just processes (e.g. arrest, charge and remand).
2.445
The committee has assessed the amendments to lower the threshold of
when an attack is considered to be 'imminent' for the purposes of a
preventative detention order against article 9 of the International Covenant on
Civil and Political Rights (right to liberty).
2.446
As set out above, the amendments engage and limit the right to
liberty. The committee considers that the amendments may be incompatible with
the right to liberty.
Schedules 8 to 10—Monitoring compliance with control orders
2.447
Schedule 8 seeks to establish a regime of monitoring warrants to permit
a police constable to enter, by consent or by monitoring warrant, premises
connected to a person subject to a control order. A person subject to a control
order may also, by consent or monitoring warrant, be subject to a search of
their person including a frisk search. A search must be for a prescribed
purpose including protecting the public from a terrorist act or determining
whether a control order is (or has been) complied with.
2.448
Schedule 9 seeks to amend the TIA Act to allow law enforcement agencies
to obtain warrants for the purposes of monitoring compliance with a control
order. It would allow telecommunications interception information to be used in
any proceedings associated with that control order. The power to use
telecommunications interception for monitoring purposes is a covert power.
2.449
Schedule 10 seeks to amend the SD Act to allow law enforcement agencies
to obtain warrants to monitor a person who is subject to a control order to
detect breaches of the order. The amendments would allow surveillance device
information to be used in any proceedings associated with that control order.
They would also extend the circumstances in which agencies may use less
intrusive surveillance device without a warrant, to include monitoring of a
control order, and allow protected information obtained under a control order
warrant to be used to determine whether the control order has been complied
with. The power to use surveillance devices for monitoring purposes will remain
a covert power.
2.450
The Crimes Act and other Commonwealth legislation confer a range of
investigative powers on law enforcement and intelligence agencies. The
committee considered previously that the significant change proposed by these
measures is the power to search premises, intercept telecommunications and
install surveillance devices for the purposes of monitoring compliance with a
control order in the absence of any evidence (or suspicion) that the order is
not being complied with and/or any specific intelligence around planned
terrorist activities.
2.451
These powers involve serious intrusions into a person's private life,
including the power for law enforcement agencies to search property, conduct
frisk searches, listen into telephone calls, monitor internet usage and install
covert devices that would listen into private conversations between
individuals.
2.452
The powers also involve significant intrusions into the privacy of
individuals unrelated to the person who is subject to a control order,
including people who use computers at the same education facilities as a person
subject to a control order.
2.453
Accordingly, these schedules engage and limit the right to privacy.
Right to privacy
2.454
Article 17 of the ICCPR prohibits arbitrary or unlawful interferences
with an individual's privacy, family, correspondence or home.
2.455
Privacy is linked to notions of personal autonomy and human dignity: it
includes the idea that individuals should have an area of autonomous
development; a 'private sphere' free from government intervention and excessive
unsolicited intervention by others. The right to privacy requires that the
state does not arbitrarily interfere with a person's private and home life.
2.456
However, this right may be subject to permissible limitations which are
provided by law and are not arbitrary. In order for limitations not to be
arbitrary, they must seek to achieve a legitimate objective and be reasonable,
necessary and proportionate to achieving that objective.
Compatibility of the measures with
the right to privacy
2.457
The statement of compatibility states that the measures limit the right
to privacy and concludes that any such limitation is justified.[160]
2.458
The committee previously considered that assisting law enforcement
officers to prevent serious threats to community safety is likely to be a
legitimate objective for the purposes of international human rights law and, as
the monitoring powers may assist in law enforcement efforts, the measures are rationally
connected to that objective.
2.459
In relation to proportionality, the primary expansion in investigative
powers provided for by the measures is in relation to compliance with a control
order.
2.460
The conditions of a control order could include requiring a person to
stay in a certain place at certain times, preventing a person from going to
certain places and preventing a person from possessing or using a telephone or
the internet. A breach of a control order could be relatively minor—for
example, breaching a curfew by 30 minutes or talking innocently on a phone in
breach of an order.
2.461
A monitoring warrant may be obtained not just in relation to the place
that a person subject to a control order is ordinarily resident but also in
relation to premises to which the person has a 'prescribed connection'. This
includes the place where such a person goes to school or university, a place
where they work or undertake voluntary work and even a friend's place. Under
these measures it would therefore be possible, for example, to obtain a
monitoring warrant for a university library to determine whether a person
subject to a control order, who is a student at that university, has used the
library to access the internet in breach of their control order.
2.462
In relation to telephone intercepts, agencies will be able to apply for
telecommunications service warrants (A-party (control order subject) and
B-party (third party)) and named person warrants. An interception warrant may
also authorise access to stored communications and telecommunications data
associated with the service or device.
2.463
Under the bill a surveillance device may be authorised if it would
substantially assist in determining that the control order has been, or is
being, complied with. This would include listening into conversations between
people in the home, car, workplace, or university of a control order subject,
and thus would limit the right to privacy of those third parties. Accordingly,
it appears that the privacy implications of the use of surveillance devices
could extend to innocent third parties in addition to the control order
subject.
2.464
In terms of transparency, the bill would also introduce new deferred
reporting arrangements which, in certain circumstances, will permit delayed
public reporting on the use of telecommunications intercepts and surveillance
devices in relation to a control order.
2.465
If these intrusive powers were used solely in respect of terrorism
offences and not in relation to potentially minor breaches of a control order,
it is likely that the measures in this bill would be compatible with
international human rights law. However, as the powers are much broader, more
information would assist the committee to assess whether these powers impose
only a proportionate limitation on the right to privacy.
2.466
The committee therefore sought the advice of the Attorney-General as to
whether the limitation is a reasonable and proportionate measure for the
achievement of that objective.
Attorney-General's response
Schedule 8—Monitoring compliance with control orders
Background
The former INSLM noted in his 2012 report that the efficacy
of a control order depends largely upon the subject's willingness to respect a
court order, and that in the absence of the ability to effectively monitor a
person's compliance with the terms of a control order, there is no guarantee
that a person will not breach the order or go on to commit a terrorist offence.
These comments acknowledge the limitation of existing
Commonwealth coercive powers such as physical searches, telecommunication
interception and surveillance devices, which are only available for the
purposes of investigating an offence that has already been committed or where
there is information that an offence about to be committed.
The proposed new monitoring powers respond to the former
INSLM's concerns by creating targeted monitoring regimes that apply only to a
person in relation to whom a superior court has already decided the relevant
threshold for issue of a control order have been met and who therefore, by definition,
is of security concern. These targeted regimes will facilitate monitoring of
the person's conduct to mitigate the risk of breaches of control orders and,
consequently, to mitigate the risk of the person engaging in preparatory acts,
planning and terrorist acts.
It is imperative that our law enforcement agencies have
adequate powers to monitor a person's compliance with the conditions of the
control order. Without sufficient powers to monitor compliance, community
safety may be put at risk if the person does not choose to comply with the
conditions of the order and breaches go undetected.
Legitimate objective, rationally connected and
proportionate
Currently, law enforcement agencies can only apply for a
search warrant, or a warrant to use telecommunications interception or a
surveillance device, if it is suspected that an offence has occurred or there
is information indicating an offence is about to occur. These traditional
powers do not fit the changing environment in which we live. The ability to use
search, telecommunications interception and surveillance powers only after an
offence is suspected of being committed undermines the preventative and
protective purposes of control orders. The breach of the conditions of a
control order may mean a person has been able to plan, prepare for, progress,
or provide support to, terrorist plots or related activity, regardless of
whether a terrorist act has occurred.
Physical search, telecommunications interception and
surveillance powers are particularly relevant to monitoring a person's
compliance with obligations, prohibitions and restrictions in relation to:
-
the possession of specified
articles or substances
-
communication or association with
specified individuals
-
access or use of specified
telecommunications or technology, including the internet, and
-
the carrying out of specified
activities.
Clearly, these obligations, prohibitions and restrictions can
be critical to reducing the ability of a person to commit an offence and
separating them from others who may encourage, or be involved in, terrorist
activity. Where a person seeks to conceal their contravention of such
conditions, search, telecommunications interception and surveillance powers are
the most effective and efficient means of detecting breaches.
The Bill strikes an appropriate balance between enabling
search, telecommunications interception and surveillance powers to be used to
monitor compliance with control orders conditions, and ensuring there is
sufficient accountability and oversight of the use of these powers.
However, recommendations nine, ten and eleven of the PJCIS
report consider a number of aspects of the proposed monitoring warrant regime,
including additional safeguards and accountability mechanisms. The Department
is presently considering the PJCIS report and its recommendations.
Schedules 9 and 10—Monitoring compliance with control
orders
The Committee has specifically asked for information to
assist in determining that the limitation on the right to privacy is
proportionate to the objective.
The objective of the proposed new monitoring warrant
framework is to ensure that a person who is subject to a control order is
prevented from engaging in any activity related to terrorist acts and terrorism
offences. The monitoring warrant powers are subject to appropriate restrictions
which guarantee that the use of power is a proportionate limitation on the
right to privacy.
The Bill requires the issuing authority to balance a number
of different considerations, including whether there are any alternative
methods that would be likely to assist the agency, in making the decision to
issue the warrant. The warrants can only be issued once a number of thresholds
are met. These thresholds include a requirement that the issuing authority must
have regard to the possibility that the person:
-
has engaged, is engaging, or will
engage, in a terrorist act
-
has provided, is providing, or
will provide, support for a terrorist act
-
has facilitated, is facilitating,
or will facilitate, a terrorist act
-
has provided, is providing, or
will provide, support for the engagement in a hostile activity in a foreign
country
-
has facilitated, is facilitating,
or will facilitate, the engagement in a hostile activity in a foreign country
-
has contravened, is contravening,
or will contravene, the control order, or
-
will contravene a succeeding
control order.
This threshold is designed to ensure that the issuing
authority has regard to evidence of both a specific risk or propensity of the
person engaging in such conduct or breaching the order, as well as evidence
that there is a general risk or propensity that the person will engage in such
conduct or breach the control order. In making this decision, the issuing
authority may consider a range of information, potentially including:
-
whether there specific or general
evidence indicating that there is a possibility that the person may engage in
the conduct the control order is intended to prevent, or may breach the control
order
-
evidence pre-dating the issuing or
service of the control order, including the grounds on which the control order
was issued, that may indicate such a possibility, notwithstanding the fact that
the control order has subsequently been issued and/or served, and
-
evidence about whether other
persons subject to control orders have engaged in conduct the control order is
intended to prevent, or have breached their control order, to the extent such
evidence may indicate whether there is a possibility of the person in question
may engage in such conduct or breach the extant control order.
In essence, these cumulative factors require the issuing
authority to balance privacy concerns with the extent to which monitoring would
assist in preventing terrorist and related acts. This test constrains the use
of the monitoring warrant powers to ensure that it is only used in
circumstances where it would be reasonable and necessary.
In addition to this proportionately test, B-Party warrants
are subject to further requirements to those that apply to other interception
warrants:
-
the person subject to the control
order must be likely to communicate with the person whose service is to be
intercepted
-
the issuing authority must be
satisfied that the agency has exhausted all other practicable methods of
identifying the telecommunications services used, or likely to be used, by the
person subject to the control order, or that interception of the service used
by the person subject to the control order would not otherwise be practicable,
and
-
the maximum period of 45 days for
B-Party warrants is half that of the period applicable for other interception
warrants, which acknowledges that B-Party interception involves a potential for
greater privacy intrusion of persons who, though in contact with persons of
interest, may not be involved in the commission of an offence.
The option for agencies to defer reporting maintains a level
of transparency that is not at the expense of operational effectiveness. Due to
the generally small number of control orders likely to be in force at any one
time, immediate public reporting may enable an individual to determine or
speculate as to whether they are subject to covert surveillance. However, if
the Minister determines not to include the information in the Annual Report,
then the chief officer of an agency is under a positive obligation to request
the Minister to include the information in the next report if appropriate. All
information must still be reported to the Minister, and the Minister must
decide whether to report.
The Government notes the Committee's observation that the
control order warrants under the SD Act can impact on third parties. The
Government will amend the Statement of Compatibility to ensure this is
appropriately reflected.
Further, recommendations nine to thirteen of the PJCIS report
consider a number of aspects of the proposed monitoring warrant regime,
including telecommunication inception and surveillance device warrants. The
Department is presently considering the PJCIS report and its recommendations.[161]
Committee response
2.467
The committee thanks the Attorney-General for his response.
2.468
The committee welcomes the Attorney-General's commitment to consider the
recommendations of the PJCIS, including whether to incorporate additional
safeguards and accountability mechanisms. The committee believes that
Recommendations 9 to 13 are important safeguards and would welcome their
introduction into the bill. However, the committee must consider the bill as it
currently stands.
2.469 The committee
notes that the current INSLM considered that while 'monitoring compliance seems
a reasonable concept', reading Schedules 8 to 10 'brings home forcibly the
extent of intrusion into life and liberty by the making of a control order'.[162]
According to the current INSLM, these schedules 'blur, if not eliminate, the
line between monitoring and investigation'.[163]
In light of the significant intrusion into a person's right to privacy, the
presence of appropriate and sufficient safeguards is particularly necessary.
2.470 This is all the
more true when it is recalled that control orders are granted following a civil
hearing determined on the civil standard of proof and the subject of the order
need not have been charged, let alone convicted, of any offence. Further, as
noted above, a control order breach can be of a minor kind, including breaching
a curfew by 30 minutes.
Monitoring
warrants
2.471
The bill requires the issuing authority to balance a number of different
considerations when making the decision to issue a monitoring warrant, and that
such a warrant can only be issued once a number of thresholds have been met.
The Attorney-General's response states that these thresholds are designed to
ensure that the issuing authority has regard to evidence of both a general and
a specific risk or propensity of the person engaging in the relevant conduct or
breaching the control order.
2.472 The committee is
concerned that these thresholds are not a sufficient safeguard to ensure that
the intrusive powers of the bill will be used solely in respect of terrorism
offences and not in relation to potentially minor breaches of a control order.
2.473 In particular,
it is unclear how privacy considerations will be 'balanced' against the extent
to which monitoring would assist in preventing terrorist and related acts, as
it is not clear whether the individual circumstances of a person subject to a
control order are required to be considered at all. For example, the minister
notes that 'general' evidence indicating that there is a 'possibility' that a
person may breach their control order, or evidence that 'other persons' subject
to control orders have breached their control orders is sufficient for the
issuing authority to issue a warrant.
2.474 This does not
require any reasonable suspicion that the person subject to the control order
is doing anything suspicious or unlawful, but merely that the exercise of the
powers is reasonably necessary to ensure that the person is not engaged in such
behaviour. It will provide a blanket authorisation for police officers to
conduct searches (including frisks and entering private premises) for the
purpose of monitoring whether a person is complying with their control order—a
significant intrusion into a person's privacy.
2.475 In addition, the
committee is concerned about an issuing authority's reliance on propensity
evidence. Under common law and statute, the admissibility of propensity (or
tendency) evidence is severely limited. At common law, propensity evidence is
admissible only if its probative value is such that there is no rational view
of the evidence that is consistent with the innocence of the accused.[164]
This is a very stringent test. The uniform Evidence Acts contain a similar high
standard: tendency evidence is admissible only if it has significant probative
value which substantially outweighs any prejudicial effect it may have on the
defendant.[165]
In considering the propensity that a person may have towards breaching their
control order, it is not clear whether the issuing authority must satisfy the
same stringent test. If not, a person may be subject to intrusive powers on the
basis of evidence that would be declared inadmissible by a court.
2.476 Finally, as
noted above at paragraph [2.463], monitoring warrants have the potential to
infringe the privacy rights of innocent third parties. The committee welcomes
the Attorney-General's commitment to amending the Statement of Compatibility of
the bill to ensure that this limitation is appropriately reflected. Any such
interference can only be justified where the measure achieves a legitimate
objective, and is both rationally connected to that objective and
proportionate.
B-Party
warrants
2.477 The committee
acknowledges that B-Party warrants are subject to further requirements to those
that apply to other telecommunications interception warrants. In particular, as
the Attorney-General highlights, the person subject to the control order must
be likely to communicate with the person whose service is to be intercepted,
the issuing authority must be satisfied that all other practicable methods of
identifying the telecommunications services used have been exhausted, and the
maximum period is half that of other interception warrants.
2.478
However, given the breadth of control order conditions and that the
purpose of such interception is simply to monitor compliance, the availability
of B-Party warrants remains concerning. B-Party warrants involve a serious
intrusion into a non-suspect person's right to privacy. This interference is
all the more concerning when it is recalled that the measures in the bill could
be applied for minor breaches of a control order. In these cases, the
Attorney-General's response does not provide evidence explaining why the
ability to issue B-Party warrants is appropriate or necessary.
Deferred
reporting arrangements
2.479 The
Attorney-General justifies the deferred reporting arrangements on the basis
that subjects of control orders should not be notified that they are being
surveyed. While this would likely assist operational effectiveness, it is not
clear that the bill is rationally connected with this objective. Given that a
person who is the subject of a control order will be subject to intensive
electronic and other surveillance, limiting their right to privacy, it is
unlikely that such a person will be unaware.
2.480 In any case, the
committee reiterates its concerns over the deferred reporting arrangements.
Transparency is an important safeguard that is relevant to the assessment of
the proportionality of the measures in this bill. In light of the significant
intrusion into a person's right to privacy, limited and after the fact
transparency measures, such as reporting to parliament are insufficient.
2.481 The
committee's assessment of the bill against the right to privacy under article
17 of the International Covenant of Civil and Political Rights is that the
measures may be incompatible. The committee remains concerned that insufficient
safeguards exist to protect the right to privacy. In particular, monitoring
warrants can be issued without any reasonable suspicion that the relevant
person is doing anything suspicious or unlawful; B-Party warrants involve a
significant intrusion into non-suspect's right to privacy; and the deferred
reporting arrangements limit the transparency surrounding the use of such
intrusive measures.
Schedules 9 and 10—Use of information obtained under warrant if interim
control declared void
2.482
Schedules 9 and 10 of the bill seek to include new provisions in the TIA
Act and the SD Act to allow for the use of information intercepted or accessed
under a warrant relating to an interim control order that is subsequently
declared to be void.[166]
This relates to the proposed new interception and surveillance warrants as
described at paragraphs [2.448] to [2.449] above.
2.483
The bill would ensure that, where a warrant was issued on the basis that
an interim control order was in force, and a court subsequently declares that
order to be void, any information obtained under the warrant (while in force)
can be used, recorded or given as evidence. The information can only be used if
the person using it reasonably believes that doing so is necessary to prevent
or reduce the risk of the commission of a terrorist act, serious harm to a
person or serious damage to property, and only for purposes relating to a PDO.[167]
2.484
The committee previously considered that the use of information obtained
under a warrant relating to an interim control order that is subsequently
declared void engages and may limit the right to a fair hearing and fair trial,
in particular the right to equality of arms.
Right to a fair trial and fair
hearing
2.485
The right to a fair trial and fair hearing is protected by article 14 of
the ICCPR. The right applies to both criminal and civil proceedings, and to
cases before both courts and tribunals. The right is concerned with procedural
fairness and encompasses notions of equality in proceedings, the right to a
public hearing and the requirement that hearings are conducted by an
independent and impartial body.
2.486
Specific guarantees of the right to a fair trial in the determination of
a criminal charge guaranteed by article 14(1) are set out in article 14(2) to
(7). These include the presumption of innocence (article 14(2)) and minimum
guarantees in criminal proceedings, such as the right not to incriminate
oneself (article 14(3)(g)) and a guarantee against retrospective criminal laws
(article 15(1)).
Compatibility of the measure with
the right to a fair trial and fair hearing
2.487
The right to a fair trial encompasses the right to equality of arms,
which is an essential component of the right to a fair trial. It requires that
a defendant must not be placed at a substantial disadvantage to the
prosecution.
2.488
Allowing one party in an application for a PDO to rely on evidence or
information obtained under a warrant for an interim control order that is
subsequently declared to be void engages and may limit the rights of a person
subject to that order to equality of arms.
2.489
However, the statement of compatibility has not addressed this right
specifically.
2.490
The committee notes that the stated objective of preventing serious harm
to the public is a legitimate objective for the purposes of international human
rights law. It is also clear that the measures are likely to be rationally
connected to this objective (that is, they are likely to be capable of
achieving that objective). However, further information would assist in
clarifying that the measures are proportionate to that objective.
2.491
The committee therefore sought the advice of the Attorney‑General
as to whether the limitation is a reasonable and proportionate measure for the
achievement of that objective.
Attorney-General's response
The provisions, inserted into the Surveillance Devices Act
2004 (the SD Act) and Telecommunications (Interception and Access) Act
1979 (the TIA Act) are intended to address the unlikely scenario where:
-
an interim control order has been
issued in respect of a person
-
a law enforcement agency has duly
obtained a monitoring warrant in relation to that person
-
under that monitoring warrant, the
agency has obtained information that indicates that the person is likely to
engage in a terrorist act, cause serious harm to a person, or cause serious
damage to property, and
-
before the agency can act on that
information, the interim control order is considered by a court at a
confirmation hearing and declared void ab initio pursuant to subsection
104.14(6) of the Criminal Code on the grounds that, at the time of making the
interim control order, there were no grounds on which to make the order.
As the existence of a valid control order is a condition for
the issuing of a monitoring warrant, the likely effect of a court declaring an
interim control order void ab initio pursuant to subsection 104.14(6) of the
Criminal Code would be that any monitoring warrants predicated on that control
order would also likely be void ab initio.
It is a fundamental principle of the Australian legal system
that courts have a discretion as to whether or not to admit information as
evidence into proceedings, irrespective of the manner in which the information
was obtained. As an example, the Bunning v Cross[168]
discretion places the onus on the accused to prove misconduct in obtaining
certain evidence and to justify the exclusion of the evidence. This provision
is expanded on in Commonwealth statute,[169]
where there is an onus on the party seeking admission of certain evidence to
satisfy the court that the desirability of admitting the evidence outweighs the
undesirability of admitting it, given the manner in which it was obtained. This
fundamental principle reflects the need to balance the public interest in the
full availability of relevant information in the administration of justice
against competing public interests, and demonstrates the role the court plays
in determining admissibility of evidence.
However, the SD Act and TIA Act depart from these fundamental
principles, by imposing strict prohibitions on when material under those Acts
may be used, communicated or admitted into evidence.[170]
Under these Acts, it is a criminal offence for a person to deal in information
obtained under these Acts for any purpose, unless the dealing is expressly
permitted under one or more of the enumerated and exhaustive exceptions to the
general prohibition. These provisions expressly override the discretion of the
judiciary, both at common law and under the Evidence Act 1995, to admit
information into evidence where the public interest in admitting the evidence
outweighs the undesirability of admitting it, given the manner in which it was
obtained. There is also a risk that these specific provisions might be
interpreted, either by a court considering the matter after the fact, or by an
agency considering the question in extremis, to override the general
defence to criminal responsibility under the Criminal Code.
For this reason, the Bill would insert new section 658 to the
SD Act and section 299 to the TIA Act, which would expressly permit agencies to
rely on such information to prevent, or lessen the risk, of a terrorist act,
serious harm to a person, or serious damage to property. These provisions would
also permit such information to be used to apply for, and in connection with, a
preventative detention order.
These amendments do not infringe on the right to a fair trial
and fair hearing as protected by article 14 of the ICCPR. 'Equality of arms'
requires that each party be afforded a reasonable opportunity to present their
case under the conditions that do not place them at a substantial disadvantage
vis-a-vis another party.[171]
This principle essentially denotes equal procedural ability to state the case.
These amendments do not engage the 'equality of arms' principle. This is
because the amendments do not derogate from, or abridge, existing procedural
rights of parties to litigation and would not result in actual disadvantage or
other unfairness to the defendant. That is, the amendments do not impact upon
opportunities to adduce or challenge evidence or present arguments on the
matters at issue.[172]
Accordingly, the provisions are a reasonable and
proportionate limitation on the right to a fair trial and fair hearing in
article 14 of the ICCPR.[173]
Committee response
2.492
The committee thanks the Attorney-General for his response.
2.493
The committee notes that it is a fundamental principle of the Australian
legal system that courts retain a discretion as to whether or not to admit
improperly obtained evidence into proceedings. The right to a fair trial and a
fair hearing does not require a strict exclusionary stance towards improperly
obtained evidence.
2.494
Nonetheless, the committee acknowledges and accepts that the SD Act and
the TIA depart from the fundamental principle concerning admissibility of
improperly obtained evidence by imposing strict prohibitions on when material
under those Acts may be used, communicated or admitted into evidence, and
enumerating a list of exceptions to this general prohibition. In these
circumstances the committee accepts that amending the SD and TIA Act to
expressly permit agencies to rely on evidence indicating that a person is
likely to engage in a terrorist act, cause serious harm to a person, or cause
serious damage to property, and obtained under a monitoring warrant where the
interim control order is subsequently declared void ab initio is likely
compatible with Australia's obligations under international human rights law.
2.495
The restriction of admissible evidence is an important safeguard. That
such evidence will only be admissible if it relates to the commission of a
terrorist act, serious harm to a person or serious damage to property is
significant for it excludes the admission of evidence of minor criminality. In
these cases, the court will not have discretion to admit such evidence into the
proceedings.
2.496 The
committee's assessment of the bill against the right to a fair trial (equality
of arms) under article 14 of the International Covenant of Civil and Political
Rights is that the measures are likely to be compatible. The measures seek to
achieve a legitimate objective, are rationally connected to that objective and
are proportionate.
Schedule 15—Non-disclosure of information to the subjects of control orders
and their legal representatives
2.497
Currently, the NSI Act allows a court to prevent the disclosure of
information in federal criminal and civil proceedings where it would be likely
to prejudice national security (except where this would seriously interfere
with the administration of justice). A range of protections for sensitive
information is available, including allowing such information to be redacted or
summarised, and preventing a witness from being required to give evidence.
2.498
Schedule 15 of the bill would amend the NSI Act to allow a court to make
the new types of orders restricting or preventing the disclosure of information
in control order proceedings such that:
-
the subject of the control order and their legal representative
may be provided with a redacted or summarised form of national security
information (although the court may consider all of the information contained
in the original source document);[174]
-
the subject of the control order and their legal representative
may not be provided with any information contained in the original source
document (although the court may consider all of that information);[175]
or
-
the subject of the control order and their legal representative
may not be provided with evidence from a witness in the proceedings (although
the court may consider all of the information provided by the witness).[176]
2.499
The court may make such orders where it is satisfied that the subject of
the control order has been given sufficient notice of the allegations on which
the control order request was based, even if they have not been given notice of
the information supporting those allegations.[177]
2.500
In addition, currently under the NSI Act a court can hold a closed
hearing to decide whether information potentially prejudicial to national
security may be disclosed (and, if so, in what form); and whether to allow a
witness to be called.[178]
The court has the discretion to exclude non-security cleared persons from the
hearing if their presence would be likely to prejudice national security.
2.501
The bill would further provide that a court may order, on the
application of the Attorney-General, that one or more specified parties to the
control order proceeding and their legal representative cannot be present
during closed hearing proceedings. This would apply even where the legal
representative has security clearance;[179]
and prevent any record of the closed hearing being made available to the legal
representative.[180]
2.502
Excluding the subject of the control order and their legal
representative from accessing information and evidence that supports the making
of a control order, and from hearings to decide whether to restrict such
information, engages and limits the right to a fair hearing.
Right to a fair trial and fair
hearing
2.503
The right to a fair trial and fair hearing is described above at
paragraphs [2.485] to [2.486].
Compatibility of the measure with
the right to a fair trial and fair hearing
2.504
The statement of compatibility acknowledges that the measures in
Schedule 15 limit the right to a fair hearing and particularly the
principle of equality of arms, which requires that all parties have a
reasonable opportunity to present their case under conditions that do not
disadvantage them against other parties to the proceedings.
2.505
The statement of compatibility states that the objective of the measure
is to protect national security information where disclosure may be likely to
prejudice national security.[181]
The committee previously noted that protecting national security is a
legitimate objective for the purposes of international human rights law.
2.506
However, it is unclear why the existing arrangements for protecting
information on national security grounds are insufficient.
2.507
The committee therefore sought the advice of the Attorney-General as to the
legitimate objective of the measure (particularly whether there is evidence
demonstrating that the existing powers under the NSI Act and the Criminal Code
to redact or summarise information or exclude witnesses are insufficient); and
whether the limitation is a reasonable and proportionate measure for the
achievement of that objective (particularly whether it is proportionate to
exclude a security-cleared legal representative from a hearing as to whether
information should be withheld from the subject of a control order; and for
allegations on which a control order request is based to be provided to the
subject of a control order, without a requirement that sufficient information
is provided to allow a real opportunity to rebut those allegations).
Attorney-General's response
Legitimate objective, reasonable and proportionate
The Committee notes at paragraph 1-186 that the main purpose
of the bill appears to be to provide for circumstances where the subject of a
control order and their legal representative may not be provided with any
details at all about the information being relied on, but which can still be
considered by a court, in control order proceedings. However, this is not the
purpose of the amendments.
There are specific provisions in Division 104 of the Criminal
Code which set out what information needs to be provided to the controlee,
subject to national security redactions. As the Committee notes, subsection
104.5(2A) provides that the interim control order must set out a summary of the
grounds on which the order is made, but does not need to include information
that would likely prejudice national security. If the AFP elects to confirm the
interim control order, under section 104.12A the AFP must provide to the
subject of the control order the statement of facts relating to why the order
should or should not be made, and an explanation as to why each of the proposed
obligations, prohibitions or restrictions should be imposed on the person, that
were used in the AFP's application for the interim control order. Paragraph
104.12A(2)(a)(iii) also requires the AFP to serve personally on the person any
other details required to enable the person to understand and respond to the
substance of the facts, matters and circumstances which will form the basis of
the confirmation of the control order.
However, these provisions do not require the AFP to provide
information that the AFP may seek to protect for reasons of national security.
These specific disclosure provisions operate as protections
for the subject of the control order, as they ensure the controlee is provided
with timely access to the information used in support of the control order
application. The provisions operate in addition to any other applicable
procedural rights in federal civil proceedings, such as the normal processes of
discovery, in which a party to a proceeding is entitled to obtain much of the
material relied upon by the other party. At any stage where disclosure
obligations arise, it is up to the AFP to either make a public interest
immunity claim or seek to use the protections under the NSI Act to withhold any
national security information. Wherever the AFP does so, it must satisfy the
court that the nondisclosure of the information is appropriate. Neither the
existing Division 104 Criminal Code provisions, nor the NSI Act provisions, permit
evidence which a court considers ought to be subject to national security
exceptions to be relied upon by the court in making its decision to confirm a
control order.
Under the NSI Act, there are existing provisions that enable
a court to consider, in a closed hearing, whether national security information
may be disclosed and if so, in what form. The court has the discretion to
exclude non-security cleared parties, their non-security cleared legal
representatives and non-security cleared court officials from the hearing where
the court considers that disclosing the relevant information to these persons
would likely prejudice national security. If a party's legal representative is
not security cleared, does not wish to apply for a security clearance, or a
clearance is unable to be obtained in sufficient time before the closed
hearing, then the court may still hold the closed hearing and determine the
matter without the assistance of a legal representative of the party.
Alternatively, the court could decide to appoint a security cleared special
counsel to represent the interests of the party during the closed hearing
(although there has been no need for a security cleared special counsel to be
appointed under the NSI Act to date). However, any information the court
decides should not be disclosed under the NSI Act cannot be used in the
substantive proceeding.
The purpose of the proposed amendments to the NSI Act is it
to provide the court with two further options when the NSI Act has been invoked
in a control order proceeding. First, the option to exclude a respondent's
legal representative, even if they are security cleared, at the closed hearing
to determine if or how the information should be disclosed in the substantive
control order proceeding. Second, it provides the option for the court to still
consider that evidence in the substantive control order proceeding, even if it
cannot be disclosed to the party or their lawyer (whether security cleared or
not). The rationale for these amendments is that the evidence may be so
sensitive that even a security cleared legal representative cannot see the
information.
The AFP's submission to the PJCIS inquiry into the Bill
explains the importance of protecting sensitive information, not only to
maintain the confidentiality and integrity of law enforcement and intelligence
operations and methodologies, but also to maintain the trust with which law
enforcement has been provided this information. It also explains that in the
current threat environment, it is increasingly likely that law enforcement will
need to rely on evidence that is extremely sensitive, such that its disclosure,
even to a security-cleared lawyer, could jeopardise the safety of sources and
the integrity of investigations. There is a substantial risk that the inability
to rely on sensitive information may mean that control orders are unable to be
obtained in relation to a person posing a high risk to the safety of the
community. Accordingly, the purpose of the amendments is aimed at achieving the
legitimate objective of protecting national security information in control
order proceedings, the disclosure of which may be likely to prejudice national
security.
The amendments to the NSI Act will provide the court with the
ability to make three new types of orders to protect national security
information that may result in the court being able to consider information in a control order
proceeding that the person the subject of the control order proceeding (or
their legal representative) may not see. Prior to making one of these new
orders, under paragraph 38J(l)(c), the court must be satisfied that the subject
of the control order proceeding has been provided sufficient notice of the
allegation on which the control order request is based (even if the person has
not been given notice of the information supporting those allegations).
When considering the effect of the proposed amendments to the
NSI Act, it is important to consider the proposed amendments as a whole rather
than considering the sections in isolation. There are several protections built
into the legislation that mitigate any procedural unfairness. Prior to making
one of the new orders, the court must consider whether the order would have a
substantial adverse effect on the substantive control order proceeding
(subsection 38J(5)). This requires the court to contemplate the effect that
withholding the information from the respondent or their legal representative
will have on procedural fairness for the subject of the control order
proceeding. Furthermore, the proposed amendment to subsection 19(4) will
confirm that the court has discretion to later order a stay of a control order
proceeding, if one of the new orders has been made and later in the proceedings
it becomes evident that the order would have a substantial adverse effect on
the substantive control order proceeding.
Importantly, the court also has discretion to decide which
order to make and the form the order should take. For example, if the AFP
proposes to withhold an entire document from the subject of a control order,
but use it in support of the control order application, the court may decide
that only part of the document may be withheld and used, or that the entire
document can be withheld and used but the person must be provided with a summary
of the information it contains. This is often referred to as 'gisting'.
Furthermore, the normal rules of evidence apply to evidence
sought to be introduced under these new orders, in accordance with the express
terms of section 38J and the existing Criminal Code provisions (section
104.28A). The effect of those provisions is that if any material is withheld
from the respondent but used in the proceeding, that material must otherwise be
admissible as evidence under the normal rules of evidence applicable in control
order proceedings. There is also nothing in the new provisions that would
dictate to the court what weight it should give to any evidence that is
withheld (either in full or in part) from the respondent in the substantive
control order proceeding.
Accordingly, the amendments provide an appropriate balance
between the need to protect national security information in control order
proceedings, and procedural fairness to the person to whom the control order
relates. It preserves the independence and discretion of the court and instils
it with the powers needed to mitigate unfairness to the subject of a control
order proceeding. Further, the court retains its inherit discretion to appoint
a special advocate if it is assessed as necessary and appropriate to the
circumstances. The amendments are therefore reasonable and proportionate for
the achievement of the objective of protecting national security information in
control order proceedings.
Recommendations four to six of the PJCIS report consider various
aspects of the proposed amendments to the NSI Act. The Government is presently
considering the PJCIS report and its recommendations.[182]
Committee response
2.508
The committee thanks the Attorney-General for his response.
2.509
In its initial analysis the committee noted that protecting national
security is a legitimate objective for the purposes of international human
rights law.
2.510
However, the committee noted that it would be useful to have additional
evidence and reasoning that explains why the existing NSI Act provisions are
insufficient, and examples as to when information cannot currently be provided
in support of a control order application.
2.511
The NSI Act currently allows the Attorney-General to issue a
non-disclosure certificate or witness exclusion certificate, which requires the
court to hold a closed hearing to determine whether the information should be
excluded, disclosed in full or disclosed only as a summary or statement of the
facts.[183]
This means that the subject of the control order and their legal representative
can already be excluded from a hearing, unless the legal representative has
security clearance.
2.512
In addition, the existing definition of 'information' under the NSI Act
is drafted broadly, and includes 'information of any kind, whether true or false
and whether in a material form or not'; and an opinion and a report of a
conversation, whether or not in the public domain.[184]
This allows scope for different types of information to be prescribed as
protected and sensitive, and on that basis to be withheld from persons subject
to civil proceedings (which includes control order proceedings).
2.513
Further, the Criminal Code also currently allows information to be
withheld from the subject of a control order. Specifically, an interim order
must set out a summary of the grounds on which the order is made, but not if
that information is likely to prejudice national security.[185]
When confirmation of an interim control order is sought, the affected person
must be served with such details as to allow them 'to understand and respond to
the substance of the facts, matters and circumstances which will form the basis
of the confirmation of the order'. However, information is not required to be
served or given if it would prejudice national security (or carry other, broader
risks).[186]
2.514
The Attorney-General's response states that there is a substantial risk
that the inability to rely on sensitive information may mean that control
orders are unable to be obtained in relation to a person posing a high risk to
the safety of the community. This contrasts with information provided by the
current INSLM who has noted that:
It is worth remarking that no information was withheld by the
applicant for a control order from the respondent in any of the four recent
control order cases and that no proposal for an application for a control order
has been abandoned by the Australian Federal Police because of the prospect of
the need to deal with sensitive information. Indeed, it appears that over
recent years there have been no contested NSI Act hearings in any context, as
agreements pursuant to s 22 of the Act have been entered into [agreements
between the defendant and the prosecutor].[187]
2.515
The Attorney-General's response states that in the current threat
environment, it is increasingly likely that law enforcement will need to rely
on evidence that is extremely sensitive, such that its disclosure, even to a
security‑cleared lawyer, could jeopardise the safety of sources and the
integrity of investigations. Without information as to the nature of the information
it is unclear how such information that is to be disclosed to a judge cannot
also be disclosed to a security cleared lawyer—a lawyer cleared by the
intelligence agencies to receive sensitive information—and who is bound by
professional obligations not to disclose such information.
2.516
The idea that it is possible to have criminal trials that comply with
article 14 of the ICCPR in the context of law enforcement agencies claiming
that they have information that is so secret and sensitive that it cannot be
disclosed to a lawyer is highly questionable. In jurisdictions such as Canada and
the United Kingdom, this problem is sought to be addressed by appointing
special advocates who are able to access sensitive information and seek
instructions from an affected person (albeit without disclosing the full
information to the person).
2.517
The Attorney-General's response states that the amendments to the NSI
Act will provide the court with the ability to make additional orders to
protect national security information that may result in the court being able
to consider information in a control
order proceeding that the person the subject of the control order proceeding
(or their legal representative) may not see. Prior to making one of these new
orders, the court must be satisfied that the subject of the control order
proceeding has been provided sufficient notice of the allegation on which the
control order request is based (even if the person has not been given notice of
the information supporting those allegations).
2.518
However, providing a person with 'notice of the allegations' on
which a control order request is based may not give sufficient detail to a
person to be able to dispute the allegations against them. For example, under
the bill it would be sufficient for a person to be told of the allegation that
they had attended 'a terrorist training camp' without any detail of when or
where the camp was held. In the absence of such information, the person may not
be able to provide exonerating evidence (for example an
alibi or alternative explanation for their presence at the camp) to effectively
challenge the allegation.
2.519
The European Court of Human Rights has held
that it is permissible to place restrictions on the right to a fully
adversarial procedure if there are strong national security grounds that
require certain information to be kept secret.[188] However, while information can be withheld from a person,
sufficient information about the allegations against the person must be
provided to enable them to give effective instructions in relation to those
allegations.[189] The UK courts have said in relation to control orders that the
standard of disclosure is relatively high, and 'where detail matters, as it
often will, detail must be met with detail'; and there must be 'a real
opportunity for rebuttal'.[190] A bare allegation without detail of what, when and where an
act is said to have occurred (for example, that a person was involved in 'a
terrorist act'), may not enable a person to lead evidence to refute that
allegation.
2.520
The committee acknowledges that the changes proposed
in the bill preserve the inherent independence and discretion of the
court to consider whether any order to exclude information from the accused and
their lawyer would have a substantial adverse effect on the substantive hearing
in the proceeding. However, in these circumstances, the defendant is at a
distinct disadvantage to the prosecution in making submissions as to the effect
of the non-disclosure of information on the substantive hearing in the
proceedings. Accordingly, the equality of arms in the proceedings is seriously
undermined.
2.521
The Attorney-General notes that the PJCIS has made three recommendations
in relation to this schedule. Those recommendations are:
Recommendation 4 The Committee recommends that the
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015 be amended such that the
minimum standard of information disclosure outlined in proposed paragraph
38J(1)(c) of the National Security Information (Criminal and Civil Proceedings
Act) 2004 reflects the intent of Recommendation 31 of the Council of Australian
Governments Review of Counter-Terrorism Legislation, namely that the subject of
the control order proceeding be provided 'sufficient information about the
allegations against him or her to enable effective instructions to be given in
relation to those allegations'.
Recommendation 5 The Committee recommends that a
system of special advocates be introduced to represent the interests of persons
subject to control order proceedings where the subject and their legal
representative have been excluded under the proposed amendments to the National
Security Information (Criminal and Civil Proceedings) Act 2004 contained in
Schedule 15 of the Counter-Terrorism
Legislation Amendment Bill (No. 1) 2015. Legislation to
introduce a special advocates system should be introduced to the Parliament as
soon as practicable and no later than the end of 2016. The Committee accepts
that there is an increasing need to rely on and protect sensitive national
security information in control order proceedings. Accordingly, the Committee
supports the amendments proposed in Schedule 15 and considers they should
proceed without delay. The Committee notes that this approach does not preclude
the court from exercising its existing discretion to appoint special advocates
on an ad hoc basis.
Recommendation 6 The Committee recommends that the
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015 be amended to require
that, as part of the Attorney-General's annual reporting obligations to the
Parliament under section 47 of the National Security Information (Criminal and
Civil Proceedings) Act 2004, the Attorney-General must also annually report on:
-
the number of orders under
proposed section 38J that were granted by the court, and
-
the control order proceedings to
which the orders granted by the court under proposed section 38J relate.[191]
2.522
The committee supports each recommendation subject to the special
advocates regime being in place before the amendments in schedule 15 come into
force. These amendments would address the committee's concerns as to the
compatibility of schedule 15 of the bill with the right to fair trial.
Crimes Legislation Amendment (Harming Australians) Bill 2015
Portfolio and sponsor:
Attorney-General and Senator Xenophon
Introduced: Senate, 15 October 2015
Purpose
2.523
The Crimes Legislation Amendment (Harming Australians) Bill 2015 (the
bill) sought to amend the Criminal Code Act 1995 (the Criminal Code) to
extend provisions that made it an offence to, outside of Australia, murder,
commit manslaughter or intentionally or recklessly cause serious harm to an
Australian citizen or resident to conduct that occurred at any time before 1 October
2002.
2.524
Measures raising human rights concerns or issues are set out below.
Background
2.525
The Criminal Code Amendment (Offences Against Australians) Act 2002 (the 2002
Act) inserted a new Division 104 (Harming Australians) into the Criminal Code. This established
new offences of murder, manslaughter, and the intentional or reckless
infliction of serious harm on Australian citizens or residents abroad.
The 2002 Act commenced operation on 14 November 2002 but operated
retrospectively, with effect from 1 October 2002.
2.526
Senator Xenophon introduced the Criminal Code Amendment
(Harming Australians) Bill 2013 (the previous bill) on 11 December 2013,
which was substantially similar to the bill, seeking to extend the
retrospective application of the above offences. The committee considered the
previous bill in its Second Report of the 44th Parliament,
and sought further information from the legislation proponent as to whether the
bill was compatible with the prohibition against retrospective criminal laws.[192]
The committee also invited comment from the Attorney-General as the minister
responsible for the Criminal Code, and considered this response in its Fourth
Report of the 44th Parliament.[193]
2.527
The bill included a number of amendments to the previous bill, including
amended penalty provisions, extension of absolute liability to the new
offences, and safeguards relating to double jeopardy. It also provided that in
order for an offence to have occurred under the new laws, the conduct
constituting the offence must have also constituted an offence against the law
of the country in which it occurred, at the time that it occurred.
2.528
The committee first commented on the bill in its Thirtieth Report of
the 44th Parliament (previous report), and requested
further information from the Attorney-General as to whether the bill was
compatible with the right to a fair trial (presumption of innocence) and the
prohibition against retrospective criminal laws.[194]
2.529
The bill passed both Houses of Parliament on 23 November 2015 and
achieved Royal Assent on 30 November 2015, and became the Crimes Legislation
(Harming Australians) Act 2015 (the Act).
Extended application of absolute liability
2.530
The Act amended subsections 115.1(2) and 115.2(2) of the Criminal Code
to apply absolute liability to the new elements of the offence provisions,
concerning the murder or manslaughter of an Australian citizen or resident of
Australia in a foreign country before 1 October 2002. The effect of applying
absolute liability to an element of an offence means that no fault element
needs to be proved as to whether the victim was an Australian citizen or
resident or whether, at the time the conduct was engaged in, the conduct
constituted an offence against a law of a foreign country. In addition, the
defence of mistake of fact is not available to a defendant.
2.531
The committee considers that as the existing application of absolute
liability has been expanded and applied to a new element of the offence, the
Act engages and limits the right to a fair trial (presumption of innocence).
Right to a fair trial
(presumption of innocence)
2.532
The right to a fair trial and fair hearing is protected by article 14 of
the International Covenant on Civil and Political Rights (ICCPR). Article 14(2)
of the ICCPR protects the right to be presumed innocent until proven guilty
according to law. Generally, consistency with the presumption of innocence
requires the prosecution to prove each element of a criminal offence beyond
reasonable doubt.
2.533
As set out in the committee's Guidance Note 2, absolute liability
offences engage the presumption of innocence because they allow for the
imposition of criminal liability without the need to prove fault.[195]
However, absolute liability offences will not necessarily be inconsistent with
the presumption of innocence provided that they are within reasonable limits
which take into account the importance of the objective being sought and
maintain the defendant's right to a defence. In other words, the application of
absolute liability must be reasonable, necessary and proportionate to that aim
of the measure.
Compatibility of the measure with
the right to a fair trial (presumption of innocence)
2.534
As set out above, absolute liability offences engage the presumption of
innocence as they allow for the imposition of criminal liability without the
need to prove fault.
2.535
The statement of compatibility for the bill did not acknowledge that the
presumption of innocence is engaged by these measures.
2.536
The committee therefore sought the advice of the legislation proponents
as to the legitimate objective, rational connection, and proportionality of the
measure in relation to the right to a fair trial.
Attorney-General's response
As the Committee has noted, the Bill will apply absolute
liability to the new elements of the offence provisions, concerning the murder
or manslaughter of an Australian citizen or resident of Australia in a foreign
country before 1 October 2002. Absolute liability currently applies to elements
of the existing offences, which apply to conduct occurring on or after 1 October
2002.
The effect of the Bill's provisions will be that, for a
prosecution under section 115.1 (murder of an Australian citizen or resident of
Australia) in respect of conduct occurring before 1 October 2002, the
prosecution will not need to establish a fault element for the following
elements of the offences:
-
the victim was an Australian
citizen or resident, and
-
at the time the conduct was
engaged in, the conduct constituted an offence against a law of the foreign
country, or the part of the foreign country, in which the conduct was engaged. [196]
For a prosecution of the manslaughter offence in section
115.2 in respect of conduct occurring before 1 October 2002, the prosecution
will not need to establish a fault element for the two elements described above,
as well as the element 'that the conduct caused the death of another person'.
The Committee has noted that the extended application of
absolute liability raises questions as to whether the proposed measures limit a
defendant's right to a fair trial. The Committee has queried whether
-
the measures are aimed at
achieving a legitimate objective
-
there is a rational connection
between the limitation and that objective, and
-
the limitation is a reasonable and
proportionate measure for the achievement of that objective.
The measures are aimed at achieving a legitimate objective.
The purpose of the amendments is to ensure that crimes of murder and
manslaughter of Australians can be prosecuted, whenever and wherever they
occur. The measures in the Bill will ensure that Australia has every legal tool
available to seek justice for Australian victims of the most serious crimes by
applying Australian criminal law to those responsible for these offences where
they occurred before 1 October 2002. The Bill will rectify a gap in our laws
and in doing so, address a significant community concern.
There is a rational connection between this objective and the
extended application of absolute liability. The measures go directly to
achieving the purpose of the Bill. The application of absolute liability is
appropriate and required to ensure the effective operation of the offences.
If recklessness was the requisite fault element applying to
the particular elements above, it is possible the offences would not capture
conduct which should be criminalised, for instance where an offender does not
turn their mind to the possibility that the victim of their conduct is an
Australian citizen or resident, or that their conduct may constitute an offence
in the foreign jurisdiction. These are effectively jurisdictional elements
which provide the circumstances in which the offences will apply, rather than
elements which go to the essence of the offending.
There are safeguards in the Bill which help ensure that the
application of absolute liability is a reasonable and proportionate approach to
achieving the Bill's objective. The prosecution will still need to prove other
elements of the offence beyond a reasonable doubt, including that the defendant
intentionally or recklessly engaged in conduct and that there was a causal
connection between that conduct and the victim's death. The Bill also contains
a safeguard against double jeopardy and applies the existing requirement of
Attorney-General's consent for a prosecution to commence.
Finally, as noted above, absolute liability applies in
respect of the existing murder and manslaughter offences in section 115 of the
Criminal Code. To not apply the same standard for the application of the
offences to conduct occurring before 1 October 2002 would create an undesirable
inconsistency in the law. For these reasons, the application of absolute
liability is an appropriate measure and is necessary to achieve the Bill's
legitimate objective.[197]
Committee response
2.537
The committee thanks the Attorney-General for his response.
2.538
As set out in the response absolute liability applies to two elements of
the offence:
-
the victim was an Australian citizen or resident; and
-
at the time the conduct was engaged in, the conduct constituted
an offence against a law of the foreign country, or the part of the foreign
country, in which the conduct was engaged.
2.539
In relation to the latter, the committee agrees with the analysis by the
Attorney-General that the limitation on the presumption of innocence is
justified. Lack of knowledge of the law is typically not a defence and this
element of the offence is clearly jurisdictional.
2.540
In relation to the element of the offence that the victim was an
Australian, the committee agrees with the analysis provided by the
Attorney-General that the limitation on the presumption of innocence imposed by
absolute liability is for the legitimate objective of ensuring that crimes of
murder and manslaughter of Australians can be prosecuted and the measure is
rationally connected to that objective.
2.541
Further, the committee agrees that the nationality of the victim can be
considered to be jurisdictional, insofar as Australia's jurisdiction over the
offence is reliant on passive personality jurisdiction under international law
(that is, criminal jurisdiction based on the victim's nationality).
2.542
However, the committee notes that passive personality jurisdiction is a
ground of jurisdiction attended by some doubt (and controversy) under
international law. Insofar as it has been accepted, it is in relation to crimes
of terrorism and other international crimes.[198]
Outside of this particular context, it is unusual for countries to apply
extraterritorial criminal jurisdiction solely on the basis that their nationals
are the victim of crimes of murder and manslaughter. It is even more unusual to
do so retrospectively, as this bill does.
2.543
In light of these factors, it would seem reasonable to consider the
victim's nationality as an element of the offence, and require the prosecution
to prove that the accused knew that the victim was Australian or was reckless
to that fact.
2.544
The Attorney-General's response does not provide any reasoning or
evidence as to why it is necessary and appropriate to apply absolute liability
to an ordinary criminal offence in a foreign country, retrospectively applied
to events prior to 1 October 2002, where the accused did not know the
victim was an Australian citizen or resident, did not target the individual
because they were an Australian citizen or resident, and was not reckless to
that fact. No evidence is provided as to how this is the least rights
restrictive approach to achieve the objective of prosecuting the murder and
manslaughter of Australians.
2.545
The response notes that the element of absolute liability applies in
respect of the existing murder and manslaughter offences in section 115 of the
Criminal Code. Maintaining consistency in the law is a desirable objective,
however, in order to justify an interference with the presumption of innocence,
the legitimate objective must be a pressing and substantial concern.
2.546
The committee's assessment of the application of absolute
liability against article 14 of the International Covenant on Civil and
Political Rights (right to a fair trial (presumption of innocence)) is that
applying absolute liability to the element of the offence that the victim was
an Australian citizen or resident may be incompatible with international human
rights law.
Retrospective application of culpability for offences committed overseas
2.547
The Act extends retrospectively the application of subsections 115.1 and
115.2 of the Criminal Code relating to the murder or manslaughter of
Australians overseas. In order for an act to constitute an offence under these
amendments, the act must have been an offence against the law in the country
where it was committed at the time that it was committed.
2.548
The Act also amends the penalty provisions that would apply to the above
offences which occurred before 1 October 2002. The new provisions provide for
the maximum term of imprisonment to be no more than what the maximum would be
under the law of the foreign country. For countries where a non-custodial
penalty would apply to the offence, the Australian maximum penalty would apply.
2.549
The committee considered in its previous report that the retrospective
application of culpability for offences committed overseas in relation to the
nature of the offence and the relevant penalty provisions engages and may limit
the prohibition against retrospective criminal laws.
Prohibition against retrospective
criminal laws (nature of the offence)
2.550
Article 15 of the ICCPR prohibits retrospective criminal laws. This
prohibition supports long-recognised criminal law principles that there can be
no crime or punishment without law. Laws which set out offences need to be
sufficiently clear to ensure people know what conduct is prohibited.
2.551
Article 15 requires that laws must not impose criminal liability for
acts that were not criminal offences at the time they were committed. Criminal
laws must not impose a heavier penalty than that which would have been
available at the time the criminal offence was committed. If, after an offence
is committed, a lighter penalty is introduced into the law, the lighter penalty
should apply to the offender. This includes a right, where an offence is
decriminalised, to the retrospective decriminalisation (if the person is yet to
be penalised).
2.552
Article 15 confers an absolute right and it can never be justifiably
limited.
2.553
The prohibition against retrospective criminal laws does not apply to
conduct which, at the time it was committed, was recognised as an international
crime even if it was not a crime under Australian law. This relates to crimes
such as genocide, war crimes and crimes against humanity.
Compatibility
of the measure with the prohibition against retrospective criminal laws (nature
of the offence)
2.554
The statement of compatibility for the bill acknowledged that the
prohibition against retrospective criminal laws is engaged, and stated that it
is justifiable as 'the conduct which is
being criminalised—murder and manslaughter—is conduct which is universally
known to be conduct which is criminal in nature'.[199]
2.555
However, the committee had stated in its previous analysis that while
murder, manslaughter and the infliction of serious harm are crimes under the
ordinary criminal law of most, if not all, countries, they are not the sort of
international crimes understood as falling within the exception in article
15(2) (which applies to breaches of international humanitarian law, such as
genocide, war crimes or crimes against humanity).[200]
2.556
Accordingly, the test for compatibility with article 15 is whether the
conduct was criminal under national law at the time it was committed. However,
the Act does not require that the conduct was an offence of manslaughter or
murder (or its equivalents) in the third country—merely that it is 'an
offence'. While it may be that in many cases the construction of the offence
provision in the third country is equivalent to that under Australian law,
there are also likely to be differences between countries as to what
constitutes the offence of murder compared to manslaughter and the specific
fault elements that apply to each offence. There are also likely to be
differences between countries as to the liability of an individual where a
person is killed as part of a joint criminal enterprise, or where death is the
consequence of an accident. It is possible that under the Act a person who
committed acts constituting a lesser offence (such as burglary) in their home
country could be subsequently subject to the charge of murder in Australia.
2.557
The statement of compatibility to the bill did not deal directly with
the possibility that individuals could be charged with a murder or manslaughter
offence which is not equivalent to the offence that they allegedly committed in
the foreign country.
2.558
The committee therefore sought the advice of the legislation proponents
as to how the retrospective application of culpability could be compatible with
the absolute prohibition against retrospective criminal laws.
Attorney-General's response
The Committee has also raised questions about the
retrospective operation of the measures in the Bill. These are legitimate
queries, as retrospective offences challenge a key element of the rule of law -
that laws are capable of being known in advance so that people subject to those
laws can exercise choice and order their affairs accordingly. The Parliament
does not make such offences lightly.
Murder and manslaughter are two of the most serious crimes a
person can commit and involve conduct which is universally known to be criminal
in nature. Although the Bill would create a criminal law which has a retrospective
operation, it only has retrospective operation in a technical sense because
there is no jurisdiction in the world which does not recognise within its
domestic criminal law a crime of murder or manslaughter, however described.
The provisions have been formulated in this way noting that
there are differences in other countries as to what constitutes the offence of
murder compared to manslaughter and the fault elements that apply to each
offence. It is not possible to take account of the different constructions of
murder and manslaughter offences in each country. The Bill's provisions are not
intended to apply to conduct that is not classified as murder or manslaughter
in the foreign country.
The Bill provides protections to ensure the retrospective operation
of the provisions does not apply unfairly, including dual criminality
protections in proposed paragraphs 115.1(1)(e) and 115.2(1)(e). The effect of
these provisions is that a person will only be liable for an offence of murder
or manslaughter in relation to conduct occurring before 1 October 2002 if, at
the time they engaged in the conduct, it also constituted an offence against
the law of the foreign country. The provisions ensure that a person cannot be
prosecuted for conduct that was not otherwise a criminal offence at the time of
its commission.
The Committee has observed that the proposed provisions would
not require that the conduct constitute manslaughter or murder (or equivalent
offences) in the foreign jurisdiction merely that it is 'an offence'. The
Committee raised the possible situation where a person is involved in a joint
criminal enterprise (such as burglary) in a foreign country, where an
Australian citizen is killed as a result. In such a case, the
Committee notes that a person may be subject to a charge of burglary in the
foreign jurisdiction, and subsequently face a charge of murder in Australia
under the Criminal Code.
I disagree that this situation would occur. For the
Australian offences to apply, the conduct would need to satisfy all elements of
both the Australian and the foreign offence. This would require the accused's
conduct to have caused the death of an Australian citizen or resident, and for
the accused to have had intended that the conduct would cause the death of the
Australian citizen (or be reckless as to causing that outcome). It is unlikely
that the elements of the Australian offence could be made out without that same
conduct constituting some form of culpable homicide in the foreign
jurisdiction.
If such a situation transpired, the operation of proposed
subsections 115.1(1A) and 115.2(1A) would mean that the maximum applicable
penalty would be lessened to penalty which applies for the relevant offence in
the foreign jurisdiction. This means that, if the relevant offence in the
foreign jurisdiction was something less than murder (for instance, manslaughter
or some other lesser form of culpable homicide), the maximum applicable penalty
would be accordingly set at the level for the foreign offence. Further, the
consent of the Attorney-General would be required before a prosecution under
these provisions could be commenced.[201]
Committee response
2.559
The committee thanks the Attorney-General for his response.
2.560
The response explains that the offence provision in the Act has been drafted
noting that there are differences in other countries as to what constitutes the
offence of murder compared to manslaughter and the fault elements that apply to
each offence. The response also notes that it is not possible to take account
of the different constructions of murder and manslaughter offences in each
country.
2.561
The response states that it is not the government's intention to apply
the offence provision to conduct that is not classified as murder or
manslaughter in the foreign country. The committee is grateful for this
clarification, but notes that this is not included in the Act, or the
explanatory memorandum to the bill, which would be a preferable means of
demonstrating Parliament's intent in enacting these offences.
2.562
The response also states that it is unlikely that the elements of the
Australian offence could be made out without that same conduct constituting
some form of culpable homicide in the foreign jurisdiction. While this may be
unlikely, it is not impossible. There are significant differences between
countries as to what constitutes the offence of murder compared to manslaughter
and the specific fault elements that apply to each offence. There are also
differences between countries as to the liability of an individual where a person
is killed as part of a joint criminal enterprise.
2.563
The committee's assessment of the retrospective application of
culpability for offences committed overseas against article 15 of the
International Covenant on Civil and Political Rights (prohibition against
retrospective criminal laws in relation to penalty provisions) is that as the
Act does not require that the conduct was an offence of manslaughter or murder
(or its equivalents) in the third country—merely that it is 'an offence'—that
the Act may be incompatible with the absolute prohibition against
retrospective criminal laws.
Prohibition against retrospective
criminal laws (penalty provisions)
2.564
The prohibition against retrospective criminal laws is contained within
article 15 of the ICCPR. More information is set out above at paragraphs [2.550]
to [2.553].
Compatibility of the measure with
the prohibition against retrospective criminal laws (penalty provisions)
2.565
Items 5 and 12 of the Act amend the penalties that would apply to
persons convicted of the new offences (relating to murder and manslaughter
respectively). If the conduct occurred before 1 October 2002 and is punishable
in the country in which the conduct occurred by a term of imprisonment, the
maximum sentence that may be handed down by an Australian court may not exceed
the maximum imprisonment that would apply in the other country. However, if the
conduct is punishable in the other country other than by a term of imprisonment
of 25 years or less, the maximum penalty under the Criminal Code will apply.
2.566
As noted above at [2.551], article 15 of the ICCPR provides that laws
must not impose greater punishments than those which would have been available
at the time the acts were done. While the Act does not seek to impose a higher
custodial penalty than that which would apply in the country where the offence
was committed, it is possible that a non-custodial sentence would be applicable
to the offence in that foreign country, for instance, in relation to a
manslaughter offence. It is therefore possible under the measure that an
individual may receive a more severe penalty under the proposed new law than
that which applied at the time the conduct was committed.
2.567
The statement of compatibility for the bill acknowledged that the
measure engages retrospective criminal laws, and stated:
...Where a foreign law would impose a non-custodial
punishment...these punishments will not be considered lower penalties for the
purpose of these offences.
...As not all possible punishments can be foreshadowed and
prescribed, this [the maximum imprisonment penalty] provides a mechanism to
ensure that it will be open to the court to impose a term of imprisonment
commensurate with the penalty applicable in the foreign jurisdiction.[202]
2.568
The statement of compatibility did not deal with the situation where a
person would, in the third country, be liable for a fine, to pay requisite
compensation, or community service, yet by the retrospective application of
this Act may be liable for a substantial custodial sentence under Australian
law. Article 15 of the ICCPR provides that laws must not impose greater
punishments than those which would have been available at the time the acts
were done, which is an absolute right that can never be justifiably limited.
2.569
The committee therefore sought the advice of the legislation proponents
as to how the imposition of higher penalties than previously existed could be
compatible with the absolute prohibition against retrospective criminal laws.
Attorney-General's response
The Bill provides that the maximum penalties for the extended
offences of murder and manslaughter are life imprisonment and 25 years'
imprisonment respectively. This is consistent with the maximum penalties for
the existing murder and manslaughter offences in section 115 of the Criminal
Code.
Consistent with Australia's requirements under article 15(1)
of the ICCPR, the Bill provides that where the conduct occurred before 1
October 2002, if the conduct was punishable in the foreign jurisdiction by a
term of imprisonment less than life (for offences against section 115.1) or 25
years (for offences against section 115.2), the defendant is entitled to the
benefit of that lower penalty. Where the conduct is punishable by a non‑custodial
sentence in the foreign jurisdiction, the court may impose a term of
imprisonment of up to the maximum under the Australian provisions (life and 25
years respectively).
The Committee has noted that, if the conduct is punishable in
the other country by a 'lesser' non-custodial sentence (such as a fine,
compensation or community service order), the maximum penalty under the
Criminal Code will apply.
The seriousness of the offences of murder and manslaughter
are such that these offences are always appropriately punished by a period of
imprisonment. It is highly unlikely that a person would receive a lesser
non-custodial sentence in matters where their conduct caused the death of
another person.
Should such circumstances transpire, under the existing
sentencing provisions for Commonwealth offences in subsection 16A(2) of the Crimes
Act 1914, it will be open to a court to consider any possible 'lighter'
punishment than imprisonment which would have otherwise been available in the
foreign jurisdiction. A court would not be obliged to do so. I believe that
this is an appropriate approach, due to the difficulty of anticipating all
possible punishments which may be applied in foreign jurisdictions.[203]
Committee response
2.570
The committee thanks the Attorney-General for his response.
2.571
Article 15 of the ICCPR places an absolute prohibition on the imposition
of a heavier penalty than that which would have been available at the time the
acts were done. The Act allows for a higher penalty to be imposed where the
accused may be liable for a non‑custodial sentence.
2.572
The response states that it is unlikely that a lesser custodial sentence
will be the penalty under foreign law for an offence occasioning death but does
not provide any evidence to support this statement. It is indeed difficult to
assess this reason given the breadth of countries and legal systems, and the
time period that the Act extends over.
2.573
The response further states that should this occur, the court imposing a
penalty would be able to consider a lighter sentence under its general
sentencing discretion, though recognises that a court would not be obliged to
do so. However, the legislation itself does not provide for any such
consideration, and Australia has not implemented Article 15 elsewhere into its
domestic legislation. The committee considers that the legislation is drafted
with insufficient safeguards given the absolute nature of the prohibition on a
higher penalty being imposed.
2.574
The committee's assessment of the retrospective application of
culpability for offences committed overseas against article 15 of the
International Covenant on Civil and Political Rights (prohibition against
retrospective criminal laws in relation to penalty provisions) is that the Act
may have insufficient safeguards to guarantee against the imposition of higher
penalties than previously existed, and risks the imposition of penalties in a
manner incompatible with the absolute prohibition against retrospective
criminal laws.
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum
Legacy Caseload) Bill 2014
Portfolio:
Immigration and Border Protection
Introduced: House
of Representatives, 25 September 2014
Purpose
2.575
The Migration and Maritime Powers Legislation Amendment
(Resolving the Asylum Legacy Caseload) Bill 2014 (the bill) amends the Migration
Act 1958 (the Migration Act), the Migration Regulations 1994 (the
migration regulations); the Maritime Powers Act 2013 (the Maritime
Powers Act), the Immigration (Guardianship of Children) Act 1946 (IGOC
Act) and the Administrative Decisions (Judicial Review) Act 1977 (ADJR
Act).
2.576
The bill amends the Maritime Powers Act to:
-
expand the existing powers in sections 69 and 72 to move vessels
and persons and related provisions;
-
explicitly provide the minister with a power to give specific and
general directions about the exercise of powers under sections 69, 71 and 72;
-
allow maritime powers to be exercised between Australia and
another country, provided the minister administering the Maritime Powers Act
has determined this should be the case;
-
provide that the rules of natural justice do not apply to a range
of powers in the Maritime Powers Act, including the power to authorise the
exercise of maritime powers, the new ministerial powers and the exercise of
powers to hold and move vessels and persons;
-
ensure that the exercise of a range of powers cannot be
invalidated because a court considers there has been a failure to consider,
properly consider, or comply with Australia's international obligations, or the
international obligations or domestic law of any other country;
-
amend provisions to allow a vessel or a person to be taken to a
place outside Australia whether or not Australia has an agreement or
arrangements with any country concerning the reception of the vessel or the
persons for the purposes of sections 69 and 72;
-
amend sections 69 and 72 to provide a 'place' is not limited to
another country or a place in another country;
-
amend the time during which a vessel or person may be dealt with
under sections 69, 71 and 72;
-
amend the Maritime Powers Act to provide that the section 69, 71
and 72 powers (and a range of related provisions) operate in their own right,
and that no implication is to be drawn from the Migration Act, particularly
from the existence of the regional processing provisions in that Act;
-
provide an explicit power exempting certain vessels involved in
maritime enforcement operations from the application of the Marine Safety
(Domestic Commercial Vessel) National Law Act 2012, the Navigation Act
2012 and the Shipping Registration Act 1981;
-
make a number of minor consequential and clarifying amendments to
the Maritime Powers Act, Migration Act and ICOG Act; and
-
ensure that decisions relating to operational matters cannot be
subjected to the provisions of the Legislative Instruments Act 2003, the
Judiciary Act 1903 and the ADJR Act.
2.577
The bill amends the Migration Act to:
-
introduce Temporary Protection Visas (TPVs) as a visa product for
unauthorised arrivals, whether by air or by sea, who are found to engage
Australia's protection obligations;
-
create a new visa class to be known as a Safe Haven Enterprise
Visa (SHEV);
-
explicitly authorise the making of regulations that deem an
application for one type of visa to be an application for a different type of
visa;
-
amend the application bars in sections 48, 48A and 501E of the
Migration Act to apply also in relation to persons in the migration zone who
have been refused a visa, or held a visa that was cancelled, in circumstances
where the refused application, or the application in relation to which the
cancelled visa was previously granted, was an application that was taken to
have been made by the person;
-
allow for multiple classes of protection visas;
-
include a definition of 'protection visas';
-
create an express link between certain classes of visas provided
for under the Migration Act (including Permanent Protection Visas (PPVs) and TPVs)
and the criteria prescribed in the migration regulations in relation to those
visas;
-
create a new fast-track assessment process and remove access to
the Refugee Review Tribunal (RRT) for fast-track applicants, defined as
unauthorised maritime arrivals (UMAs) who entered Australia on or after
13 August 2012 and made a valid application for a protection visa, and
other cohorts specified by legislative instrument;
-
require the minister to refer fast-track reviewable decisions to
the Immigration Assessment Authority (the IAA), which will conduct a limited
merits review on the papers and either affirm the fast-track reviewable
decision or remit the decision for reconsideration in accordance with
prescribed directions or recommendations;
-
create discretionary powers for the IAA to get new information
and permit the IAA to consider new information only in exceptional
circumstances;
-
provide the manner in which the IAA is to exercise its functions,
notify persons of its decisions, give and receive review documents, disclose
and publish certain information and enable the Principal Member of the RRT to
issue practice directions and guidance decisions to the IAA;
-
establish the IAA within the RRT and provide that the Principal
Member of the RRT is to be responsible for its overall operation and administration,
and specify delegation powers and employment arrangements for the Senior
Reviewer and Reviewers of the IAA;
-
amend the Migration Act to authorise removal powers independent
of assessments of Australia's non-refoulement obligations;
-
remove most references to the Refugee Convention from the
Migration Act and replace them with a new statutory framework reflecting
Australia's unilateral interpretation of its protection obligations;
-
amend the Migration Act, with retrospective effect, to provide
that children born to UMAs under the Migration Act, either in Australia or in a
regional processing country, are also UMAs for the purposes of the Migration
Act;
-
amend the Migration Act, with retrospective effect, to provide
that children born to transitory persons, either in Australia or in a regional
processing country, are also transitory persons for the purposes of the
Migration Act;
-
allow children born in Australia to a parent who is a transitory
person to be taken to a regional processing country;
-
amend the Migration Act, with retrospective effect, to provide
that any visa application of the child of a UMA or transitory person is
invalid, unless the minister has allowed the application, or the application of
that child's parent, to be made; and
-
amend the provisions governing the government's ability to place
a statutory limit on the number of protection visas granted in a program year,
including repealing sections 65A and 414A of the Migration Act (which require
applications for protection visas to be decided in 90 days) and the associated
reporting requirements in sections 91Y and 440A, and providing that the
requirement for the minister to grant or refuse to grant a visa in section 65
is subject to sections 84 and 86.
Background
2.578
The committee previously considered the bill in its Fourteenth Report
of the 44th Parliament (previous report), and requested further
information from the Minister for Immigration and Border Protection as to
whether a number of measures in the bill were compatible with human rights.[204]
The committee also concluded that certain measures in Schedule 1 of the bill
were incompatible with Australia's non‑refoulement obligations under
international law.
2.579
The bill passed both Houses of Parliament on 5 December 2014 and
received Royal Assent on 15 December 2014, and became the Migration and
Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload)
Act 2014 (the Act).
Schedules 1 and 5—incorporation of international law into Australian
domestic law and expansion of powers to intercept and detain people at sea
Multiple rights
2.580
The measures in Schedules 1 and 5 of the Act engage and limit a number
of human rights, including:
-
non-refoulement obligations;[205]
-
the right to security of the person and the right to be free from
arbitrary detention;[206]
-
the prohibition on torture, cruel, inhuman and degrading
treatment or punishment;[207]
-
the right to freedom of movement;[208]
-
the right to a fair hearing;[209]
and
-
the obligation to consider the best interests of the child.[210]
Amendments affecting the incorporation
of Australia's obligations under international law into domestic law
2.581
In its previous report the committee noted that, although the Refugee
Convention and its Protocol are not included in the treaties against which the
committee assesses the human rights compatibility of legislation,[211]
many of Australia's obligations under the Refugee Convention and its Protocol
overlap with Australia's obligations under the seven core human rights treaties
which are within the committee's mandate. As a result, many provisions of the
bill directly engage Australia's obligations under those treaties and therefore
must be assessed by the committee.
2.582
In addition, decisions under, and interpretations of, the Refugee
Convention form a specialised body of law which can inform an understanding of
the human rights treaties. The Department of Immigration and Border Protection,
for example, refers to the Refugee Convention to inform its own views as to the
content of particular human rights obligations.[212]
In the same way, the committee has drawn on relevant decisions under, and
interpretations of, the Refugee Convention in its assessment of the Act.
2.583
In its previous analysis, the committee noted that the Migration Act
incorporates into domestic law a number of Australia's obligations under the
Refugee Convention. However, the Act removes most references to the Refugee
Convention from the Migration Act and replaces them with a new statutory
framework. This is done with the stated intention of codifying Australia's
interpretation of its obligations under the Refugee Convention, and negating
any presumption that the Migration Act should be construed to facilitate
Australia's compliance with its obligations under the Refugee Convention.[213]
2.584
The intention of the Act is therefore to allow Australian domestic law
to develop independently from Australia's obligations under international law.[214]
2.585
The committee acknowledged previously that Australia has sovereignty to
change its domestic laws. However, the Act removes the relevant international
human rights norms from a role in defining the legal framework and standards
within which Australia meets its international human rights obligations, and as
such engages, and is likely to significantly limit, a number of human rights
protected by international law, including those set out at [2.580] above.
2.586
The committee noted that the statement of compatibility did not provide
a comprehensive analysis of whether the amendments in Schedule 1 and 5 are
compatible with these human rights.
2.587
The committee therefore requested the advice of the Minister for
Immigration and Border Protection as to whether the amendments in Schedule 1
and 5 are compatible with the rights listed at [2.580] above, and in
particular, whether the limits imposed on human rights by the amendments are in
pursuit of a legitimate objective, have a rational connection between the
limitation and that objective, and are proportionate to achieving that
objective.
Non-refoulement obligations
2.588
Australia has non-refoulement obligations under the Refugee Convention
for refugees, and under both the International Covenant on Civil and Political
Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT) for people who are found not to be
refugees.[215]
This means that Australia must not return any person to a country where there
is a real risk that they would face persecution, torture or other serious forms
of harm, such as the death penalty; arbitrary deprivation of life; or cruel,
inhuman or degrading treatment or punishment.[216]
2.589
Non-refoulement obligations are absolute and may not be subject to any
limitations.
2.590
Effective and impartial review by a court or tribunal of decisions to
deport or remove a person, including merits review, is integral to complying
with non-refoulement obligations.[217]
2.591
Australia gives effect to its non-refoulement obligations principally
through the Migration Act. In particular, section 36 of the Migration Act sets
out the criteria for the grant of a protection visa.
Schedule 1 - Expansion of powers to
intercept and detain people at sea and exclusion of court challenges based on
Australia's international obligations
2.592
The amendments in Schedule 1 of the Act expand powers to intercept
vessels and detain people at sea, and to transfer people to any country (or a
vessel of another country) that the minister chooses.
2.593
The amendments also exclude court challenges to government actions in
this context. The Act inserts new division 8A of the Maritime Powers Act to
provide that a decision cannot be invalidated because a court considers there
has been a failure to consider, properly consider, or comply with Australia's
international obligations when exercising a power.[218]
2.594
The committee noted in its previous analysis that the obligation of non‑refoulement
is considered in international law as jus cogens, which means that it is
a fundamental or peremptory norm of international law which applies to all
nations and can never be limited.
2.595
As noted above at [2.136], the provision of 'independent, effective and
impartial' review of non-refoulement decisions is integral to complying with
non‑refoulement obligations under the ICCPR and CAT.[219]
2.596
These amendments remove judicial review, and in particular the capacity
of individuals to seek judicial review, of executive decisions that may be
inconsistent with the government's stated intention to comply with
international law.
2.597
The committee therefore considered that the proposed amendments in
Schedule 1 were incompatible with Australia's obligations of non-refoulement
under the ICCPR and the CAT.
Minister's response
Schedule 1 - Maritime Powers Act amendments
1.352 The committee therefore requests the advice of the
Minister for Immigration and Border Protection as to whether the amendments in
Schedule 1 and 5 are compatible with the rights listed at 1.345 above are, and
particularly:
-
whether the proposed changes are aimed at achieving a
legitimate objective;
-
whether there is a rational connection between the limitation
and that objective; and
-
whether the limitation is reasonable and proportionate for the
achievement of that objective.
1.362 The committee therefore considers that the proposed
amendments in Schedule 1 are incompatible with Australia's obligations of
non-refoulement under the ICCPR and the CAT.
Compliance with Australia's international obligations is to
be measured by what Australia does in toto by way of legislation, policy and
practice. The amendments in Schedule 1 do not change the need to give effect to
Australia's international obligations, nor do they require action to be taken
that is inconsistent with those obligations.
However, the amendments did seek to ensure that decisions
about Australia's international obligations, including how to give effect to
those obligations, are made by the executive government. This is both
appropriate given the operational context in which these decisions need to be
made, and consistent with decision-making generally relating to Australia's
sovereignty and overarching national security and national interests. The
Australian Government does not seek to take action that is inconsistent with
Australia's non-refoulement obligations.
Maintaining the security of Australia's borders is a legitimate
objective, and it is clear that maritime operations are rationally connected to
that objective. All States, as sovereign nations, are entitled to decide who
may enter their territory and the means by which they do so. Maritime
operations have been shown to be necessary to achieve the legitimate objective
of restoring order to Australia's borders - it is the maritime enforcement
operations which have played the primary role in reducing deaths at sea by
deterring illegal maritime arrivals. Over the past six years, more than a
thousand people have tragically lost their lives at sea while attempting the
dangerous journey to Australia in flimsy vessels with the assistance of
criminal people smugglers, often with inadequate supplies and equipment.
Australia received over 50 000 illegal maritime arrivals in that period,
placing significant strain on Australia's migration program. It is also
important to note that these maritime powers are necessary to ensure the
integrity of Australia's borders and maritime possessions in relation to a
range of other threats, such as environmental damage and drug smuggling.
-
non-refoulement obligations:
-
Noting the Committee's finding that "the proposed amendments
in Schedule 1 are incompatible with Australia's obligations of non-refoulement
under the International Covenant on Civil and Political Rights (ICCPR) and the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT)," it is important to reiterate that these amendments do
not require that action be taken which would breach Australia's non-refoulement
obligations. The Government takes Australia's international obligations
seriously, and does not seek to take action that is inconsistent with
Australia's non-refoulement obligations. A great deal of work is done to ensure
that decisions made and actions taken under the Maritime Powers Act 2013
(Maritime Powers Act) comply with Australia's international obligations. As a
matter of international law, non-refoulement obligations limit the destination
to which people may be sent, but do not require Australia to allow unauthorised
entry.
-
the right to security of the person and the right to be free from
arbitrary detention; (ICCPR 9)
-
These amendments do not limit the right to be free from arbitrary
detention - detention under the Maritime Powers Act is not arbitrary.
Arbitrariness involves elements of inappropriateness, injustice or a lack of
predictability. Any limitation on the freedom of movement of persons detained
or otherwise held under maritime powers is not arbitrary. The legislation
clearly sets out a range of factors governing the predictability of their
application. Consistent with Government policy, any deprivation of liberty will
be for the shortest period practicable for the performance of functions and
duties to achieve the object and purposes of the Maritime Powers Act. These
amendments simply clarify the time during which persons may be detained, and
related factors, for the legitimate exercise of powers under the Act, ensuring
there is a clear lawful basis for detention at each stage of a maritime
operation.
-
the prohibition on torture, cruel, inhuman and degrading treatment or
punishment; (ICCPR 7)
-
The treatment of individuals in pursuit of the legitimate
objective of protecting Australia's borders is carried out in full compliance
with Australia's obligations in relation to the humane and dignified treatment
of persons.
-
the right to freedom of movement; (ICCPR 12)
-
Article 12 of the ICCPR applies to persons "lawfully within
the territory of a State". This will not apply to persons engaged in
maritime operations in all but the most unusual circumstances. The right to
freedom of movement does not bestow a right to enter a country of which a
person is not a national.
-
Any restriction on individuals' freedom of movement while on a
vessel (for example, being restricted to one part of the vessel) is based on
operational necessity and the overriding interest of the safety of the crew and
passengers.
-
the right to a fair trial; (ICCPR 14) and
-
Where relevant, any person to be charged with a criminal offence
will be tried in accordance with normal practice in Australia, and it is open
to anyone wishing to challenge their treatment to pursue action in the
Australian courts.
-
the obligation to consider the best interests of the child. (Convention
on the Rights of the Child (CRC) 3 and 10)
-
The best interests of the child are to be a primary consideration
in any decision affecting the interests of that child; however, this primary
consideration may be outweighed by other primary considerations, such as the
maintenance of the order of Australia's borders. The Government does not
consider it to be in any child's best interests to be placed on an unseaworthy
vessel by criminal people-smugglers seeking to exploit the child's
vulnerability for their own ends.
-
The obligation in article 10 of the CRC to deal with applications
to enter Australia for the purposes of family reunification positively,
humanely and expeditiously does not provide a right to enter a country of which
a person is not a national.[220]
Committee response
2.598
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.599
The committee notes that the minister has provided a range of
information regarding a number of human rights that are engaged and limited in
relation to Schedule 1.
2.600
The following analysis is focused on the obligation of non-refoulement
due to the serious and irreversible nature of the harm that may result from
breaches of non-refoulement obligations.
2.601
The committee acknowledges and welcomes the commitment by the Australian
government not to take actions which are contrary to its non-refoulement
obligations under the ICCPR and CAT.
2.602
First, the committee notes that the minister's response argues that the
measure pursues a legitimate objective and is rationally connected to achieving
that objective.
2.603
However, as noted in its initial analysis of the measure, the obligation
of non‑refoulement is considered in international law as jus cogens,
which means that it is a fundamental or peremptory norm of international law
which applies to all nations, and can never be limited. Therefore, the
considerations raised by the minister are not relevant to an assessment of the
compatibility of the measure with the obligation of non-refoulement.
2.604
Second, the minister states that the amendments do not require that
action be taken which would breach Australia's non-refoulement obligations.
2.605
However, compliance with the obligation of non-refoulement under the CAT
and the ICCPR, together with the general obligation on states to provide an
effective remedy for breaches of human rights under article 2 of the ICCPR,
requires that sufficient procedural and substantive safeguards are in place to
ensure against the risk that a person is removed in contravention of this
obligation. It is therefore the risk that a person may be sent to or returned
to a country where there is a real risk that they would face persecution,
torture or other serious forms of human rights violations which may lead to a breach
of the obligation.
2.606
The committee notes that even with the best of intentions, mistakes may
be made in circumstances where there are insufficient safeguards in place.
Rigorous scrutiny of decisions involving non-refoulement obligations is
therefore required because of the irreversible nature of the harm that might
occur.
2.607
The committee has consistently taken the view that in the Australian
context compliance with the obligation requires access to effective and
impartial review by a court or tribunal, as well as merits review, of
non-refoulement decisions.[221]
2.608
In formulating this view, the committee has followed its usual approach
of drawing on the jurisprudence of bodies recognised as authoritative in
specialised fields of law that can inform the human rights treaties that fall
directly under the committee's mandate.
2.609
In this regard, the committee notes that treaty monitoring bodies have
found that the provision of effective and impartial review of non-refoulement
decisions by a court or tribunal is integral to complying with the obligation
of non-refoulement under the ICCPR and CAT. For example, the UN Committee
against Torture in Agiza v. Sweden found:
The nature of refoulement is such...that an allegation of
breach of...[the obligation of non-refoulement in] article [3 of the CAT] relates
to a future expulsion or removal; accordingly, the right to an effective remedy
contained in article 3 requires...an opportunity for effective, independent
and impartial review of the decision to expel or remove...The Committee's
previous jurisprudence has been consistent with this view of the requirements
of article 3, having found an inability to contest an expulsion decision before
an independent authority, in that case the courts, to be relevant to a finding
of a violation of article 3.[222]
2.610
Similarly, the UN Committee Against Torture in Josu Arkauz Arana v.
France found that the deportation of a person under an administrative
procedure without the possibility of judicial intervention was a violation of
article 3 of the CAT.[223]
2.611
In relation to the ICCPR, in Alzery v. Sweden the UN Human Rights
Committee emphasised that the provision of effective and impartial review of
non‑refoulement decisions by a court or tribunal is integral to complying
with the obligation of non-refoulement (as contained in article 7 of the
ICCPR):
As to the...absence of independent review of the Cabinet's
decision to expel, given the presence of an arguable risk of torture,
the...[right to an effective remedy and the prohibition on torture in articles 2
and 7 of the ICCPR require] an effective remedy for violations of the latter
provision. By the nature of refoulement, effective review of a decision to
expel to an arguable risk of torture must have an opportunity to take place
prior to expulsion, in order to avoid irreparable harm to the individual and
rendering the review otiose and devoid of meaning. The absence of any
opportunity for effective, independent review of the decision to expel in...[this
case] case accordingly amounted to a breach of article 7, read in conjunction
with article 2 of the Covenant.[224]
2.612
The committee notes that these statements are persuasive as
interpretations of international human rights law that are consistent with the
proper interpretation of treaties as set out in the Vienna Convention on the
Law of Treaties (VCLT).[225]
2.613
With reference to the above, the committee notes that the stated
intention of the measures is that decisions regarding non-refoulement are made
solely by the executive government rather than being subject to judicial
review. Accordingly, the measure restricts access to a form of review which is
required for compliance with Australia's non-refoulement obligations.
2.614
The purported implementation of Australia's non-refoulement obligations
through executive action alone, without any capacity for independent review
mechanisms to guard against potential breaches of Australia's non-refoulement
obligations, is a limit on a peremptory norm of international law.
2.615
The committee notes that the obligation of non-refoulement is
absolute and may not be subject to any limitations. The committee previously
concluded that the amendments in Schedule 1 of the bill (now Act) are
incompatible with Australia's obligations of non-refoulement under the
International Covenant on Civil and Political Rights (ICCPR) and the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
2.616
Schedule 1 restricts the availability of judicial review, which
operates as a potential safeguard against the risk that a person is sent to or
returned to a country where there is a real risk that they would face
persecution, torture or other serious forms of harm, such as the death penalty;
arbitrary deprivation of life; or cruel, inhuman or degrading treatment or
punishment. The provision of effective and impartial review of non-refoulement
decisions by a court or tribunal is integral to complying with the obligation
of non-refoulement under the ICCPR and the CAT.
2.617
The committee therefore reiterates its previous conclusion that the
amendments in Schedule 1 of the bill (now Act) are incompatible with
Australia's non-refoulement obligations under the ICCPR and the CAT on the
basis that it removes access to an impartial review of non-refoulement
decisions by a court or tribunal.
2.618
In order to address the human rights compatibility issues raised above,
the Migration Act may be amended to require a departmental review of all non‑refoulement
claims prior to any person's removal from Australia and that any decision taken
by the department following such a review is at a minimum reviewable by the
Administrative Appeals Tribunal and the courts.
Schedule 5 - Creating a new
statutory framework to declare Australia's protection obligations
2.619
Schedule 5 of the Act amends the Migration Act to create a new statutory
framework articulating Australia's unilateral interpretation of its protection
obligations, rather than interpreting its protection obligations by reference
to their definition in international law as was the previous approach.
2.620
Specifically, the amendments remove most references to the Refugee
Convention.
2.621
However, in its previous analysis the committee noted that it is not for
a state to unilaterally determine its obligations under a treaty after
ratification.[226]
Rather, treaties such as the Refugee Convention have a meaning in international
law which is separate from domestic law concepts,[227]
as well as its concern that the unilateral interpretation of Australia's
international obligations as proposed by the amendments is inconsistent with
accepted standards of international human rights law.
2.622
In summary, while the committee acknowledged the government's stated
intention to continue to comply with Australia's non-refoulement obligations,[228]
it was concerned that the proposed statutory framework would limit judicial
review, in particular, the ability of individuals to seek judicial review of
executive decisions that may be inconsistent with this stated intention to
comply with Australia's non‑refoulement obligations.
2.623
The committee therefore requested the advice of the minister as to
whether the proposed amendments in Schedule 5 are compatible with Australia's
non-refoulement obligations under the ICCPR and the CAT.
Minister's response
Schedule 5 Refugees Convention Codification
1.352 The committee therefore requests the advice of the
Minister for Immigration and Border Protection as to whether the amendments in
Schedule 1 and 5 are compatible with the rights listed at 1.345 [the right to
security of the person and the right to be free from arbitrary detention; the
right to freedom of movement; the right to a fair hearing; the obligation to
consider the best interests of the child], and particularly:
-
whether the proposed changes are aimed at achieving a legitimate objective;
-
whether there is a rational connection between the limitation and
that objective; and
-
whether the limitation is reasonable and proportionate for the
achievement of that objective.
As the committee has noted, the Refugees Convention and its
Protocol are not among the treaties listed in the Human Rights
(Parliamentary Scrutiny) Act 2011 as treaties against which the committee
assesses the human rights compatibility of legislation. In the context of this
Act, Refugees Convention issues have been raised and addressed in my responses
to other Senate Committees.[229]
1.374 The committee therefore requests the advice of the
minister as to whether the proposed amendments in Schedule 5 are compatible
with Australia's non-refoulement obligations under the ICCPR and the CAT.
The amendments proposed in Schedule 5 to the Act deal with
Refugees Convention issues. ICCPR and CAT are dealt with through other
provisions of the Act.[230]
Committee response
2.624
The committee thanks the Minister for Immigration and Border Protection
for his response.
2.625
However, the committee notes that the new statutory framework articulating
Australia's unilateral interpretation of its protection obligations introduced
in Schedule 5, impacts on Australia's human rights obligations under the seven
core human rights conventions that do form part of the committee's mandate. The
committee's analysis and request for information from the minister was in
relation to these obligations.
2.626
Specifically, there is significant overlap between Australia's obligations
under the Refugee Convention and obligations under the seven core human rights
conventions.
2.627
First, Australia has obligations under the ICCPR and CAT not to send
someone to a country where they face a real risk of serious forms of human
rights violations (non-refoulement obligations).
2.628
Second, the non-refoulement obligation under the ICCPR and the CAT,
often referred to as complementary protection, is generally considered to be
broader than the non-refoulement obligations under the Refugee Convention. This
is because it is possible that a person who faces a real risk of serious forms
of human rights violations, if returned to their country of origin, may also
have a well-founded fear of persecution and be entitled to protection as a
refugee. If a person is found to be a refugee, then a protection visa may be
issued entitling an individual to reside in Australia and not be returned to
their country of origin so long as the visa remains valid.
2.629
The issue of a protection visa is therefore one safeguard against the
risk that a person is returned in breach of Australia's non-refoulement
obligations under the ICCPR and CAT.
2.630
This is particularly relevant given that some of the other safeguards
against the risk of refoulement have been removed by the Act. For example, new
section 197C provides that, in order to exercise the removal powers under
section 198 of the Migration Act, an officer is not bound to consider
whether or not a person who is subject to removal engages Australia's
non-refoulement obligations before removing that person. This means that
removal to another country is permitted even where a person may face a real
risk of persecution, torture or other serious forms of human rights violations.
The committee previously concluded that the power to remove persons from
Australia, unconstrained by assessments of Australia's non-refoulement obligations,
is incompatible with Australia's obligations under the ICCPR and the CAT.
2.631
Third, a person with refugee status is entitled to a range of specific
rights under the Refugee Convention. Some of these rights overlap with
Australia's general human rights obligations in relation to all persons within
its territory (or otherwise in its jurisdiction).
2.632
Finally, the committee notes that the Senate committees to which the
minister refers have a different role and function to the Parliamentary Joint
Committee on Human Rights. In exercising its legislative scrutiny function, the
committee undertakes technical assessments of bills and legislation for
compatibility with Australia's obligations under the seven core human rights
treaties to which it is a party. While Parliamentary committees frequently
consider and report on the same legislation and issues, this does not obviate
the need for each of those committees to fulfil their discrete functions in
service of the Parliament.
2.633
In light of the information provided, the committee is unable to
conclude that the statutory framework to declare Australia's protection
obligations under Schedule 5 is compatible with human rights.
2.634
Additionally, the committee considers that the statutory framework to
declare Australia's protection obligations, as currently formulated, may be
incompatible with Australia's obligations of non-refoulement.
2.635
In order to address the human rights compatibility issues raised above,
the Migration Act may be amended to require a departmental review of all non‑refoulement
claims prior to any person's removal from Australia and that any decision taken
by the department following such a review is at a minimum reviewable by the
Administrative Appeals Tribunal and the courts.
Schedules 2 and 3—Temporary Protection Visas and Safe Haven Enterprise Visas
Multiple rights
2.636
The new visa classes engage and may limit a number of human rights
including:
-
non-refoulement obligations;[231]
-
the right to health;[232]
and
-
the obligation to consider the best interests of the child and
the right to the protection of the family.[233]
Introduction of Temporary Protection
Visas and Safe Haven Enterprise Visas—inadequate statement of compatibility
2.637
The Act establishes a framework to allow for the introduction of TPVs
and SHEVs.
2.638
In its previous analysis, the committee noted that details of the SHEVS
such as eligibility requirements had not been set out in either the bill (now
Act) or the statement of compatibility. These criteria are critical to an
assessment of the human rights compatibility of each proposed visa class.
2.639
The committee therefore requested the advice of the Minister for
Immigration and Border Protection as to whether the proposed provisions for
SHEVs are compatible with human rights.
Minister's response
Schedules 2 and 3 - Temporary protection visas and
safe-haven enterprise visas
1.378 The committee therefore requests the advice of the
Minister for Immigration and Border Protection as to whether the proposed
provisions for safe haven enterprise visas are compatible with human rights.
The details of Safe Haven Enterprise visas will come before
the committee when the Safe Haven Enterprise visa regulations are finalised.[234]
Committee response
2.640
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.641
The committee notes that the government moved amendments in the Senate
which set out the criteria for the grant of a SHEV.
2.642
The committee's usual expectation is that, where amendments have been
made to proposed legislation, the legislation proponent will take into account
the fact of those amendments in responding to issues raised by the committee
concerning the human rights compatibility of proposed legislation.
2.643
Noting the committee's previous statement that such criteria
are critical to the assessment of the human rights compatibility of each
proposed visa class, the committee will consider the human rights compatibility
of Safe Haven Enterprise Visas once the relevant regulations are tabled and are
examined by the committee in accordance with its usual examination of
instruments of delegated legislation.
Non-refoulement obligations
2.644
Australia has non-refoulement obligations, as described at [2.588] to [2.591]
above.
Introduction of Temporary Protection
Visas—proving claims for protection afresh
2.645
The amendments in Schedules 2 and 3 establish a framework to
allow for the reintroduction of TPVs. Under the proposed arrangements, people
who are found to engage Australia's non-refoulement obligations will be granted
a TPV only for a period of up to three years at one time, rather than being
granted a permanent protection visa.[235]
2.646
The committee noted in its previous analysis that TPVs will require
refugees to prove afresh their claims for protection every three years, as was
the case under the previous TPV regime. In this respect, the international
legal framework does provide for the cessation of refugee status or protection
obligations where, for example, the conditions in the person's country of
origin have materially altered such that the reasons for a person becoming a
refugee have ceased to exist.
2.647
However, as noted by the United Nations High Commissioner for Refugees,
the international protection regime 'does not envisage a potential loss of
status triggered by the expiration of domestic visa arrangements'.[236]
This means that the expiry of a visa should not, of itself, affect a person's
refugee status. The committee noted that the statement of compatibility did not
address whether there will be sufficient safeguards in place to ensure that any
reapplication process takes account of the risk of refoulement if the person is
denied continuing protection.
2.648
The committee therefore requested the advice of the Minister for
Immigration and Border Protection as to whether the temporary nature of the
proposed protection visas complies with Australia's obligations under the ICCPR
and the CAT to not place any person at risk of refoulement.
Minister's response
1.382 The committee therefore requests the advice of the
Minister for Immigration and Border Protection as to whether the temporary
nature of the proposed protection visas complies with Australia's obligations
under the ICCPR and the CAT to not place any person at risk of refoulement.
Each time an applicant applies for a Temporary Protection
Visa (TPV) they will have their protection claims re-assessed. This process
includes an assessment against Australia's obligations under the ICCPR and the
CAT. As there is no limit to the number of TPVs that can be granted to a person
in respect of whom Australia has protection obligations, the temporary nature
of these visas does not increase the risk of refoulement, under either the
ICCPR or the CAT.[237]
Committee response
2.649
The committee thanks the Minister for Immigration and Border Protection
for his response.
2.650
As noted previously, the international protection regime does not
envisage a potential loss of protection status as a result of the expiration of
domestic visa arrangements. This means that the expiry of a visa should not, of
itself, affect a person's refugee status.
2.651
The committee notes the advice of the minister that the temporary nature
of these visas, and the requirement that refugees prove afresh their protection
claims every three years, does not increase the risk of refoulement under the
ICCPR or the CAT; and welcomes the minister's advice that the reapplication
process includes an assessment against Australia's obligations under the ICCPR
and CAT.
2.652
However, the committee notes that no further details have been provided
about this assessment process and whether there are sufficient safeguards in
place to protect against the risk that an individual is not removed in
contravention of Australia's non-refoulement obligations.
2.653
In particular, as a person could now be required to go through the
process of proving afresh their protection claims multiple times this could, in
turn, increase the risk of refoulement if there are insufficient procedural and
substantive safeguards in place. The committee notes that many procedural and
substantive safeguards with respect to non-refoulement obligations have been
removed. For example, the committee has previously concluded that the power to
remove persons from Australia, unconstrained by assessments of Australia's
non-refoulement obligations, is incompatible with Australia's non-refoulement
obligations under the ICCPR and the CAT.[238]
2.654
In the absence of further information, particularly as to the
existence of procedural and substantive safeguards in respect of Australia's
non-refoulement obligations, and in light of the concerns previously raised in
relation to assessment processes, the committee considers that the requirement
to prove afresh claims for protection is likely to be incompatible with the
obligation not to place any person at risk of refoulement.
2.655
In order to address the human rights compatibility issues raised above,
the Migration Act may be amended to provide a presumption in favour of renewing
a TPV application. This presumption could be defeated in circumstances where
the Australian government can prove that the conditions in the person's country
of origin have materially altered such that the reasons for a person becoming a
refugee have ceased to exist.
Right to health and a healthy environment
2.656
The right to health is guaranteed by article 12(1) of the International
Covenant on Economic Social and Cultural Rights (ICESCR), and is fundamental to
a person's ability to exercise other human rights. The right to health is
understood as the right to enjoy the highest attainable standard of physical
and mental health, and to have access to adequate health care and live in
conditions that promote a healthy life (including, for example, safe and
healthy working conditions; access to safe drinking water; adequate sanitation;
adequate supply of safe food, nutrition and housing; healthy occupational and
environmental conditions; and access to health-related education and
information).[239]
2.657
Under article 2(1) of the ICESCR, Australia has certain obligations in
relation to the right to health. These include:
-
the immediate obligation to satisfy certain minimum aspects of
the right;
-
the obligation not to unjustifiably take any backwards steps that
might affect the right;
-
the obligation to ensure the right is made available in a
non-discriminatory way; and
-
the obligation to take reasonable measures within its available
resources to progressively secure broader enjoyment of the right.
2.658
Under article 4 of the ICESCR, economic, social and cultural rights may
be subject only to such limitations as are determined by law and compatible
with the nature of those rights, and solely for the purpose of promoting the
general welfare in a democratic society. Such limitations must be proportionate
to the achievement of a legitimate objective, and must be the least restrictive
alternative where several types of limitations are available.
Introduction of Temporary Protection
Visas
2.659
As previously noted, the amendments in Schedules 2 and 3 establish a
framework to allow for the reintroduction of TPVs. Under the proposed arrangements,
people who are found to engage Australia's non-refoulement obligations will be
granted a TPV for a period of up to three years at one time (rather than a PPV).[240]
2.660
The statement of compatibility noted that the right to health is engaged
by the amendments, and that TPV holders are entitled to access Medicare and the
Australian public health system.[241]
2.661
However, in its previous analysis the committee noted that the practical
operation and consequences of TPVs may have significant adverse consequences
for the health of TPV holders. TPVs will require refugees to prove afresh their
claims for protection every three years. The committee also noted research
showing that TPVs lead to insecurity and uncertainty for refugees which, in
turn, may cause or exacerbate existing mental health problems, or cause anxiety
and psychological suffering. Such research also indicates that restrictions on
family reunion places further stress on TPV holders which may lead to mental
health problems.[242]
2.662
The committee noted that these issues were not addressed in the
statement of compatibility.
2.663
The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to whether the proposed introduction of TPVs
is compatible with the right to health, and in particular whether the limits
imposed on human rights by the amendments are in pursuit of a legitimate
objective, have a rational connection between the limitation and that
objective, and are proportionate to achieving that objective.
Minister's response
1.388 The committee therefore seeks the advice of the
Minister for Immigration and Border Protection as to whether the proposed
introduction of temporary protection visas is compatible with the right to
health, and particularly:
-
whether the proposed changes are aimed at achieving a legitimate objective;
-
whether there is a rational connection between the limitation and
that objective; and
-
whether the limitation is a reasonable and proportionate measure for
the achievement of that objective.
As outlined in the statement of compatibility with human
rights the arrangements were aimed at achieving the legitimate objectives of
dissuading people from taking potentially life threatening journeys to
Australia, as well as the need to maintain the integrity of Australia's migration
system and protect the national interest. Both permanent protection visas and
family reunion may be marketed by people smugglers as motivators for
unauthorised maritime entry to Australia.
The Government notes the committee's concerns regarding possible
mental health problems for TPV holders but maintains there is a rational
connection between any limitations this policy may place on the right to health
and a healthy environment and achieving these objectives, and that these
limitations are reasonable and proportionate measures. As outlined in the
statement of compatibility with human rights, all applicants will have access
to Medicare and mainstream medical services. In addition they will have access
to:
-
the Government's Programme of Assistance for Survivors of Torture and
Trauma (PASTT). PASTT provides direct counselling and related support services,
including advocacy and referrals to mainstream health and related services;
-
in rural areas, PASTT has established rural, regional and remote
outreach services to enable survivors of torture and trauma to access services
outside metropolitan areas;
-
the Government's Better Access initiative to receive rebates through
Medicare should they wish to access selected mental health services provided by
general practitioners, psychiatrists, psychologists and eligible social workers
and occupational therapists; and
-
the Mental Health Services in Rural and Remote Areas programme (MHSRRA)
which provides rural and remote areas with more allied and nursing mental
health services. The MHSRRA enables survivors of torture and trauma to access
these services in areas of low or little mental health services.
Taking into account the fact that TPV holders will have
access to Medicare and mainstream medical services, as well as the additional
services listed above, any limitation on TPV holders' right to health is
mitigated by the availability of these services, and is reasonable and
proportionate to the objective of deterring people from making dangerous boat
journeys to Australia.[243]
Committee response
2.664
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.665
The committee notes that the minister's response acknowledges the
committee's particular concerns regarding the potential for TPVs to cause or exacerbate
existing mental health problems, or cause anxiety and psychological suffering.
However, the response argues that any limitation on the right to health is
justifiable.
2.666
The committee notes the minister's advice that individuals on TPVs will
have access to publicly funded health care services such as Medicare. However,
while access to Medicare is clearly an important aspect of protecting the right
to health, it does not fully mitigate against the health related harm
(particularly psychological harm) that may be caused to individuals through the
issuing of TPVs rather than providing permanent protection.
2.667
The committee notes the minister's advice that the objective of the
measures is to dissuade people from taking potentially life threatening
journeys to Australia, and to maintain the integrity of Australia's migration
system and protect the national interest.
2.668
In previous reports on legislation the committee has accepted that these
objectives could be considered to be legitimate objectives under international
human rights law. However, the response does not provide evidence as to how the
measures are rationally connected to that objective—that is, whether the
measures in question are likely to be effective.
2.669
This question is relevant because, for example, the measure has not
previously dissuaded persons who have arrived in Australia and are seen to be
in need of Australia's protection from taking the journey to Australia.
2.670
The committee also notes that, even where a measure limiting human
rights addresses a legitimate objective and is rationally connected to that
objective, it must also be a proportionate means of achieving that objective in
the sense of being the least rights restrictive means.
2.671
In this regard, the committee notes that no evidence has been provided
in the response that would support a finding that TPVs are the least rights
restrictive means to achieving that stated objective, particularly as they will
be applied universally, without individual considerations, to all UMAs.
2.672
The committee considers that Temporary Protection Visas (TPVs) engage
and limit the right to health. Based on the information provided, the committee
considers that TPVs may be incompatible with the right to health.
2.673
In order to address the human rights compatibility issues raised above,
the Migration Act may be amended to ensure that a presumption in favour of
renewing a TPV application exists. In addition, health services specifically
targeted at TPV holders may be extended.
Right to protection of the family
2.674
The right to respect for the family is protected by articles 17 and 23
of the ICCPR and article 10 of the ICESCR. Under these articles, the family is
recognised as the natural and fundamental unit of society and, as such, is
entitled to protection.
2.675
An important element of protection of the family, arising from the
prohibition under article 17 of the ICCPR against unlawful or arbitrary
interference with family, is to ensure family members are not involuntarily
separated from one another. Laws and measures which prevent family members from
being together, impose long periods of separation, or forcibly remove children
from their parents, will engage this right.
Obligation to consider the best interests of the child
2.676
Under the Convention on the Rights of the Child (CRC), Australia is
required to ensure that, in all actions concerning children, the best interests
of the child are a primary consideration.[244]
2.677
This principle requires active measures to protect children's rights and
promote their survival, growth, and wellbeing, as well as measures to support
and assist parents and others who have day-to-day responsibility for ensuring
recognition of children's rights. It requires legislative, administrative and
judicial bodies and institutions to systematically consider how children's
rights and interests are or will be affected directly or indirectly by their
decisions and actions.[245]
2.678
The committee notes that, while there is no universal right to family
reunification, article 10 of the CRC nevertheless obliges Australia to deal
with applications by minors for family reunification in a positive, humane and
expeditious manner. This obligation is consistent with articles 17 and 23 of
the ICCPR, which prohibit interference with the family, and require family
unity to be protected by society and the state.
No family reunion with Temporary
Protection Visa
2.679
The committee noted in its previous analysis that the proposed temporary
protection regime provides that refugees granted TPVs will not be eligible to
sponsor family members.[246]
2.680
The statement of compatibility identified this as engaging and
potentially limiting the right to the protection of the family and the rights
of the child. However, it provided no assessment of whether the measure is
reasonable, necessary and proportionate in pursuit of a legitimate objective, nor
offered evidence to establish how the rights of children to have their best
interests considered is outweighed by the policy objectives of preserving the
'integrity of Australia's migration system' and the 'national interest'.
2.681
The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to whether the proposed introduction of TPVs
is compatible with the obligation to consider the right to the protection of
the family, and with the best interests of the child, and in particular whether
the limits imposed on human rights by the amendments are in pursuit of a
legitimate objective, have a rational connection between the limitation and
that objective, and are proportionate to achieving that objective.
Minister's response
1.397 The committee therefore seeks the advice of the
Minister for Immigration and Border Protection as to whether the proposed
introduction of temporary protection visas is compatible with the obligation to
consider the right to the protection of the family, and with the best interests
of the child, and particularly:
-
whether the proposed changes are aimed at achieving a legitimate
objective;
-
whether there is a rational connection between the limitation and
that objective; and
-
whether the limitation is a reasonable and proportionate measure for
the achievement of that objective.
As stated in the statement of compatibility with human
rights, the changes were aimed, among other things, at achieving the legitimate
objectives of dissuading people, including minors, from taking potentially life
threatening journeys to achieve resettlement for their families in Australia,
maintaining the integrity of Australia's migration system and protecting the
national interest. Allowing TPV holders who are minors to sponsor family
members to migrate to Australia, would likely have the unintended consequence
of increasing the number of minors attempting to journey to Australia
illegally.
The Government therefore notes the committee's concerns but
maintains there is a rational connection between any limitation this policy
places on the best interest of the child and achieving these objectives, and
that, bearing in mind the potential for boat journeys to Australia to be life
threatening, these limitations are a reasonable and proportionate measure for
achieving these objectives.[247]
Committee response
2.682
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.683
The committee notes that the response acknowledges the committee's concerns
in relation to the limitation on the obligation to consider the best interests
of the child.
2.684
However, while in a previous report the committee accepted that the
stated objective could be a legitimate objective for human rights purposes, the
response does not provide any further evidence as to why the measure may be
considered to address a legitimate objective for the purpose of permissibly
limiting a human right in this particular case. Further, it not does provide
reasoning as to how the measure may be regarded as rationally connected to the
stated objective.
2.685
Also, in addressing whether preventing access to family reunion is a
proportionate means of achieving this objective, no information was provided as
to whether a less rights restrictive means of achieving the stated objective
was available or was tried. The committee notes that in order to be a
proportionate limitation on human rights the measure should be the least rights
restrictive way of achieving that objective.
2.686
The committee considers that the measure engages and limits the
obligation to consider the best interests of the child as a primary
consideration and the right to the protection of the family. Based on the
information provided, the committee considers that the measure may be incompatible
with these rights.
2.687
In order to address the human rights compatibility issues raised above,
the Migration Act could be amended to require the department to consider, on a
case by case basis, applications by children to sponsor family members to
travel to Australia.
Schedule 4—'Fast-track assessment process'
Multiple rights
2.688
Schedule 4 to the Act set up a 'fast track assessment process' for
asylum seekers who arrived irregularly in Australia on or after 13 August 2012,[248]
and gave the minister the power to extend this process to other groups of
asylum seekers.[249]
2.689
The committee noted in its previous analysis that the measures in
Schedule 4 of the bill (now Act) engage and limit a number of human rights,
including:
-
non-refoulement obligations;[250]
-
the right to a fair hearing;[251]
and
-
the obligation to consider the best interests of the child.[252]
2.690
The analysis focused primarily on Australia's non-refoulement
obligations, given the serious and irreversible nature of the harm that may
result from the breach of these obligations.
2.691
The analysis also noted that the statement of compatibility did not
provide a comprehensive analysis of whether the fast-track assessment process
was compatible with the right to a fair hearing and the obligation to consider
the best interests of the child.
2.692
The committee therefore requested further advice from the Minister
for Immigration and Border Protection as to whether the 'fast track assessment
process' is compatible with the obligation to consider the best interests of
the child and the right to a fair hearing, and in particular whether the limits
imposed on human rights by the amendments are in pursuit of a legitimate
objective, have a rational connection between the limitation and that
objective, and are proportionate to achieving that objective.
Minister's response
Schedule 4 - Fast Track
Assessment Process and limitation and exclusion of merits review
1.401 The committee therefore requests the further advice
of the Minister for Immigration and Border Protection as to whether 'fast track
assessment process' is compatible with the obligation to consider the best
interests of the child and the right to a fair trial, and particularly:
-
whether the proposed changes are aimed at achieving a legitimate
objective;
-
whether there is a rational connection between the limitation and
that objective; and
-
whether the limitation is reasonable and proportionate measure for
the achievement of that objective.
Schedule 4 established a new fast track assessment process
for 'fast track applicants', defined as protection visa applicants who entered
Australia as unauthorised maritime arrivals on or after 13 August 2012. The
Government's objective was to establish an efficient and cost effective process
for determining protection visa applications which deters applicants from
raising unmeritorious protection claims as a means to delay departure from
Australia. As stated in the Explanatory Memorandum to the Act, the measures
were aimed at achieving the legitimate objective of enhancing the integrity of
Australia's protection status determination framework and preventing abuse of
process.
Right to a fair trial
As acknowledged in the Statement of Compatibility with Human
Rights, Article 14 of the ICCPR expressly relates only to persons facing
criminal charges or suits of law and may not be directly applicable to the
administrative assessment of non-refoulement obligations. However, to the
extent that Article 14 is engaged, the Government is of the view that the
amendments relating to the fast track assessment process are compatible with
Article 14.
All fast track applicants, including children, will be
afforded a fair and robust assessment of their protection claims by a specially
trained departmental officer. As part of this process, all applicants will be
afforded procedural fairness and the opportunity to articulate their protection
claims, including during an interview, with the assistance of an interpreter if
required.
Fast track applicants who receive a fast track reviewable
decision, as defined in new section 473BB, will be automatically referred to
the Immigration Assessment Authority (IAA) which will conduct a limited form of
merits review and will either affirm the decision under review or remit it to
my department with directions. The IAA will conduct independent and impartial
reviews of decisions and will comply with the requirement to provide procedural
fairness. In addition, the IAA has the discretion to consider new information
and conduct an interview in exceptional circumstances, for example, where there
is a change in circumstances or new information which suggests that there is an
increased risk to the applicant.
It is the view of the Government that there is no express
requirement under the ICCPR or the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT) to provide merits review in
the assessment of non-refoulement obligations. Consistent with this position,
the Government considers that the obligation in Article 14, where it is
engaged, would be satisfied if either merits review or judicial review is
available to an applicant. As stated in the Statement of Compatibility with
Human Rights, the Executive Committee of the UNHCR has expressed the view that
asylum processes should satisfy basic requirements including the ability to
seek a reconsideration of a protection status determination decision from
either an administrative or judicial body.
It is therefore the view of the Government that the fast
track assessment process is compatible with Article 14 of the ICCPR as,
following a robust and fair assessment of their protection claims, all fast
track applicants have the ability to seek judicial review. In addition, the
fast track assessment process provides the further safeguard, for the majority
of fast track applicants, of access to merits review conducted by the IAA.
Finally, all applicants who are refused the grant of a protection visa on
character or security grounds have access to merits review conducted by the
Administrative Appeals Tribunal (AAT).
Where merits review is not provided to excluded fast track
review applicants, the Government considers this to be a reasonable and
proportionate measure consistent with the stated objective. This position is
discussed in detail below.
Best interests of the child
Article IO of the CRC requires that where a child makes an
application for family reunification, that application is dealt with
positively, humanely and expeditiously. To the extent that Article 10 is
engaged by the amendments relating to the fast track review process, the
Government is of the view that the amendments are compatible with this
obligation as all fast track applications will be dealt with positively,
humanely and expeditiously. However, the Government has focused this response
on Article 3 of the CRC as the Committee's question at 1.401 relates
specifically to Article 3 of the CRC and the best interests of the child.
Article 3 of the CRC requires that the best interests of the
child be a primary consideration in all actions concerning children. As stated
in the Statement of Compatibility with Human Rights, the Government is
committed to acting in accordance with Article 3 of the CRC and has established
policies and procedures for the fast track assessment process that give effect
to this commitment.
First, as part of the fast track assessment process, the
government is committed to providing application support through the Primary
Application Information Service (PAIS) to those considered most vulnerable
including all unaccompanied minors. Access to PAIS is an important safeguard,
consistent with the obligation in Article 3, as it ensures that vulnerable
children have the necessary support to articulate their claims for protection
during the fast track assessment process.
Secondly, all fast track applicants, including children, will
be afforded a fair and robust assessment of their protection claims by a
specially trained departmental officer. The assessment of protection claims
made by, or on behalf of, a child will continue to be conducted in an age-sensitive
manner that recognises the special needs of children. As noted in the Statement
of Compatibility with Human Rights, this includes providing unaccompanied
minors with the support of an independent observer during the protection visa
interview.
Thirdly, the majority of fast track decisions will be
automatically referred to the IAA which will conduct a merits review of the
decision. However, in limited circumstances, a fast track application made by
or on behalf of a child may be excluded from the fast track merits review
process where the applicant falls within the definition of excluded fast track
review applicant in amended section 5(1). Where the child is listed as a
dependent on the application of his or her parent, or the child is an applicant
in his or her own right but has the support of adult family members throughout
the fast track process, the Government's position is that any limitation on
merits review, in the limited circumstances where the child is deemed to be an
excluded fast track review applicant, is reasonable and proportionate to the
Government's objective of enhancing the integrity of the protection status
determination process.
However, in the case of vulnerable persons such as
unaccompanied minors, new section 473BC provides an important safeguard as I
have the ability to determine via legislative instrument that certain coho1is
of people who would otherwise be excluded fast track applicants will receive
access to the IAA. It is intended that a legislative instrument ensure that all
applicants receiving PAIS, which will include all unaccompanied minors, are
reviewed by the IAA. This safeguard ensures that the best interests of the
child are a primary consideration in determining access to merits review.
In establishing the fast track assessment process, the
Government has ensured that the best interests of the child, which include
receiving a timely outcome and having their welfare sensitively and
appropriately managed throughout the process, are a primary consideration.
However, the Government notes the integrity, efficiency and cost effectiveness
of the protection status determination framework are also primary
considerations. Therefore, to the extent that Article 3 is limited by the
amendments relating to the fast track assessment process, the Government is of
the view that this outcome is reasonable and proportionate to the stated
objective.[253]
Committee response
2.693
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.694
The committee welcomes the commitment by the minister that the fast
track assessment process will still afford applicants a fair and robust
assessment of their protection claims.
2.695
However, the committee considers that the response has not demonstrated
that there are sufficient safeguards in this expedited process to ensure that
there is a fair hearing or that the obligation to consider the best interests
of a child applicant are considered as a primary consideration.
2.696
In particular, the committee notes that some applicants may be excluded
from any form of external review under the expedited process.
2.697
Further, the review process provided by the new Immigration
Assessment Authority (IAA) is quite limited and may not ensure the right to a
fair hearing or that the best interests of the child are considered. This is
because nothing in Part 7AA requires the IAA to give a referred applicant any
material that was before the primary decision maker. There is also no right for
an applicant to comment on the material before the IAA. These provisions
therefore diminish procedural fairness and the applicant's prospects of
correcting factual errors or wrong assumptions in the primary decision at the
review stage.
2.698
In addition, the reviewers will no longer be statutory appointments, as
they will be employees under the Public Service Act 1999. This affects
the independence of such a review and therefore the impartiality of such a
review. While the committee notes that judicial review is still available in
the Australian context, judicial review is limited to review of decisions as to
whether the decision was lawful (that is, within the power of the decision
maker) and does not consider the merits of a decision (that is, whether the
decision was the correct or preferable decision).
2.699
In light of the above, the committee does not consider that the
minister's response has provided sufficient reasoning or evidence to establish
the fast track assessment process is the least rights restrictive way of
achieving its stated objective.
2.700
The committee considers that the measures limit the right to a fair
hearing and the obligation to consider the best interests of the child. The
committee considers that the fast track assessment process may be incompatible
with the rights of the child and the right to a fair hearing.
2.701
In order to address the human rights compatibility issues raised above,
the Migration Act could be amended to provide a fast track process that takes
into account the best interest of the child and provide a full assessment of
protection claims in accordance with the fair hearing standards set out in
article 14 of the ICCPR include a right to review before the Administrative
Appeals Tribunal
Non-refoulement obligations
2.702
Australia has non-refoulement obligations, described at [2.131] to [2.591]
above.
Limitations on independent merits
review and 'fast track assessment'
2.703
As noted above, schedule 4 to the Act set up a 'fast track assessment
process' for asylum seekers who arrived irregularly in Australia on or after 13
August 2012,[254]
and gave the minister the power to extend this process to other groups of
asylum seekers.[255]
2.704
This class of asylum seekers no longer have access to the Refugee Review
Tribunal (RRT), but instead have access to a new statutory body, the IAA, to be
constituted by members of the RRT, to review their refugee claims. Reviews of
decisions under this new 'fast-track' system are to be conducted on the papers
rather than at a hearing before the IAA. The IAA would be unable to consider
new information at the review stage unless there are exceptional circumstances.[256]
2.705
The committee noted in its previous analysis that, while there is scope
for Australia to determine its own processes for refugee status determination,
independent, effective and impartial review of claims to protection against non‑refoulement
is a fundamental aspect of its international human rights obligations.
2.706
In this regard, it is unclear whether the proposed fast-track process
will ensure that genuine claims for protection are identified and is capable of
ensuring that the true and correct decision is arrived at. The committee noted
that compliance with the obligation of non-refoulement requires that sufficient
procedural and substantive safeguards are in place to ensure a person is not
removed in contravention of this obligation, given the irreversible nature of
the harm that may result.[257]
2.707
The committee therefore sought the advice of the minister as to whether
the proposed limitation on merits review through the creation of the IAA is
compatible with Australia's obligations under the ICCPR and the CAT of ensuring
independent, effective and impartial review of claims to protection against
non-refoulement.
Minister's response
1.408 The committee therefore seeks the advice of the
minister as to whether the proposed limitation on merits review through the
creation of the Immigration Assessment Authority (IAA) is compatible with
Australia's obligations under the ICCPR and the CAT of ensuring independent,
effective and impartial review of claims to protection against non-refoulement.
Right to merits review of an assessment of non-refoulement
obligations
As stated earlier, the Government is of the view that there
is no express requirement under the ICCPR or the CAT to provide merits review
in the assessment of non-refoulement obligations. To the extent that
obligations relating to review are engaged in the context of immigration
proceedings, the Government is of the view that these obligations are satisfied
where either merits review or judicial review is available. Although merits
review may be an important safeguard, there is no obligation to provide merits
review where judicial review is available.
Article 13 of the ICCPR states:
An
alien lawfully in the territory of a State Party to the present Covenant may be
expelled therefrom only in pursuance of a decision reached in accordance with
law and shall, except where compelling reasons of national security otherwise
require, be allowed to submit the reasons against his expulsion and to have his
case reviewed by, and be represented for the purpose before, the competent
authority or a person or persons especially designated by the competent
authority.
The Government's position in relation to Article 13 is that
the obligation only applies to persons considered to be lawfully in the
territory of Australia. Where persons are considered to be lawfully in the
territory, the obligation is satisfied by the provision of a robust, open and
transparent assessment of non-refoulement obligations by the department
followed in most cases by review by the IAA and in all cases by the opportunity
for the applicant to seek judicial review in the case of an adverse decision.
To the extent that obligations relating to review under
Article 2 of the ICCPR or Article 14 of the ICCPR are engaged in immigration
proceedings, the Government's position is that these obligations are also
satisfied where access to judicial review is available. Similarly, there is no
express procedural obligation in Article 3 of the CAT to provide merits review
where non-refoulement obligations have been considered and properly assessed by
the department and where judicial review is available.
Where the State Party elects to provide merits review in the
assessment of non-refoulement obligations, there is no express obligation to
provide a full de nova review of the initial decision. Both the ICCPR and the
CAT permit the State Party to determine the appropriate mechanism for merits
review where sufficient safeguards are in place.
The fast track assessment process and the Immigration
Assessment Authority (IAA)
All fast track applicants will be afforded a fair and robust
assessment of their protection claims by a specially trained departmental
officer. During this process all applicants will be afforded procedural
fairness and the opportunity to articulate their protection claims, including
during an interview with the assistance of an interpreter if required. All fast
track applicants who are refused the grant of a protection visa will receive
the reasons for the decision and have the ability to seek judicial review of
the decision.
In addition, fast track review applicants who are refused the
grant of a protection visa, other than those who fall within the definition of
'excluded fast track review applicant', will have automatic access to
independent and impartial merits review conducted by the IAA. The IAA will
conduct a limited form of merits review and will either affirm the decision
under review or remit it to the department for reconsideration. Although the
merits review model of the IAA differs from that of the RRT, the Government's
position is that the IAA model is the appropriate model for processing
protection claims for persons who entered Australia as unauthorised maritime
arrivals on or after 13 August 2012.
In many cases review by the IAA will be limited as it will be
conducted on the information provided by the applicant to the department and it
will not involve an interview. However, new section 473DD allows the IAA to
consider new information in exceptional circumstances and new section 473DC provides
the IAA with the discretion to conduct an interview for the purposes of getting
new information.
These provisions provide important safeguards which ensure
that review by the IAA is effective and that all protection claims are
adequately considered prior to any removal of a refused applicant from
Australia. As stated in the Statement of Compatibility with Human Rights, the
Government intends that the threshold of 'exceptional circumstances' will be
satisfied where there is new information that indicates that the applicant may
now engage Australia's protection obligations.
The Government is of the view that the provision of a fair
and robust initial assessment by the department and access to judicial review
for all fast track applicants satisfies Australia's obligations under the ICCPR
and the CAT relating to review of administrative decisions. The Government also
considers that access to a limited form of merits review by the IAA in the
majority of cases is an additional safeguard that further supports
compatibility with such obligations.
Finally, as stated in the Statement of Compatibility of Human
Rights, the Government's objective in establishing the IAA is to improve the
integrity, efficiency and cost effectiveness of merits review and to prevent abuse
of process. To the extent that merits review is limited by the proposed
amendments, the Government considers that the limitation is a rational,
reasonable and proportionate measure to achieve the Government's stated
objective. However, for the reasons provided earlier, the Government does not
consider that any such limitation would be incompatible with Australia's
obligations under the ICCPR or the CAT relating to review of non-refoulement
assessments.[258]
Committee response
2.708
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.709
The committee notes the minister's advice that the government does not
consider that the ICCPR and CAT expressly require merits review of
non-refoulement decisions.
2.710
However, while there is no express requirement for merits review in the
articles of the relevant conventions or jurisprudence relating to obligations
of non‑refoulement, the committee notes its view that merits review of
such decisions is required to comply with the obligation under international
law, is based on a consistent analysis of how the obligation applies, and may
be fulfilled, in the Australian domestic legal context.
2.711
In formulating this view, the committee has followed its usual approach
of drawing on the jurisprudence of bodies recognised as authoritative in
specialised fields of law that can inform the human rights treaties that fall
directly under the committee's mandate.
2.712
In this regard, the committee notes that treaty monitoring bodies have
found that the provision of effective and impartial review of non-refoulement
decisions by a court or tribunal is integral to complying with the obligation
of non-refoulement under the ICCPR and CAT. For example, the UN Committee
against Torture in Agiza v. Sweden found:
The nature of refoulement is such...that an allegation of
breach of...[the obligation of non-refoulement in] article [3 of the CAT] relates
to a future expulsion or removal; accordingly, the right to an effective
remedy... requires, in this context, an opportunity for effective, independent
and impartial review of the decision to expel or remove...The Committee's
previous jurisprudence has been consistent with this view of the requirements
of article 3, having found an inability to contest an expulsion decision before
an independent authority, in that case the courts, to be relevant to a finding
of a violation of article 3.[259].
2.713
Similarly, the UN Committee Against Torture in Josu Arkauz Arana v.
France found that the deportation of a person under an administrative procedure
without the possibility of judicial intervention was a violation of article 3
of the CAT.[260]
2.714
In relation to the ICCPR, in Alzery v. Sweden the UN Human Rights
Committee emphasised that the provision of effective and impartial review of
non‑refoulement decisions by a court or tribunal is integral to complying
with the obligation of non-refoulement (as contained in article 7 of the
ICCPR):
As to...the absence of independent review of the Cabinet's
decision to expel, given the presence of an arguable risk of torture,
the...[right to an effective remedy and the prohibition on torture in articles 2
and 7 of the ICCPR require] an effective remedy for violations of the latter
provision. By the nature of refoulement, effective review of a decision to
expel to an arguable risk of torture must have an opportunity to take place
prior to expulsion, in order to avoid irreparable harm to the individual and
rendering the review otiose and devoid of meaning. The absence of any
opportunity for effective, independent review of the decision to expel
in...[this] case accordingly amounted to a breach of article 7, read in
conjunction with article 2 of the [ICCPR].[261]
2.715
The committee notes that these statements are persuasive as
interpretations of international human rights law that are consistent with the
proper interpretation of treaties as set out in the VCLT.[262]
2.716
The case law quoted above therefore establishes the proposition that,
while merits review is not expressly required, there is strict requirement for
'effective review' of non-refoulement decisions.
2.717
Applied to the Australian context, the committee has considered numerous
cases, like the present case, where legislation has provided for judicial
(rather than merits) review of non-refoulement decisions. Judicial review in
Australia is governed by the Administrative Decisions (Judicial Review) Act
1977, and represents a considerably limited form of review in that it
allows a court to consider only whether the decision was lawful (that is,
within the power of the decision maker). The court cannot undertake a full
review of the facts (that is, the merits) of a particular case to determine
whether the case was correctly decided.
2.718
Accordingly, in the Australian context, the committee considers that
judicial review is not sufficient to fulfil the international standard required
of 'effective review', because it is only available on a number of restricted
grounds of review that do relate to whether that decision was the correct or
preferable decision. The ineffectiveness of judicial review is particularly
apparent when considered against the purpose of effective review of
non-refoulement decisions under international law, which is to 'avoid
irreparable harm to the individual'.
2.719
In contrast, merits review allows a person or entity other than the
primary decision maker to reconsider the facts, law and policy aspects of the
original decision and to determine what is the correct or preferable decision.
2.720
In light of the above, the committee reiterates its view that, in the
Australian context, the requirement for independent, effective and impartial
review of non-refoulement decisions is not met by the availability of judicial
review, but may be fulfilled by merits review.
2.721
The committee notes that the minister states that fast track review
applicants who are refused the grant of a protection visa, other than those who
fall within the definition of 'excluded fast track review applicant', will have
automatic access to independent and impartial, effective, merits review
conducted by the IAA. Thus, notwithstanding the minister's view as to the
absence of a requirement for merits review under ICCPR and CAT, the minister
states that limited merits review by the IAA, combined with assessment by the
department and the availability of judicial review, is sufficient to satisfy
any requirement under international human rights law.
2.722
However, as acknowledged in the minister's response, the merits review
conducted by the IAA will be limited as it will be conducted on the information
provided by the applicant to the department and will not involve an interview.
Further, the IAA will only be able to reaffirm the decision or remit it to the
department (rather than substitute the decision for the correct or preferable
decision).
2.723
The committee considers that, as the fast track merits review is only
conducted on the papers and without the affected person being able to make
further representations or be present, there are significant questions as the
effectiveness of the processes. The features of the system place it
substantially apart from other forms of merits review in Australia, where a
tribunal member generally considers any additional material an applicant may
wish to provide, comes to their own decision about the facts of the case and
may substitute their own decision for the decision originally made.
2.724
The committee notes that the obligation of non-refoulement is
absolute and may not be subject to any limitations. The committee notes that
the measure restricts merits review of non-refoulement decisions through the
creation of the Immigration Assessment Authority (IAA) which will only perform
a limited form of merits review. The committee considers that the measure is
therefore likely to be incompatible with Australia's obligations under the
International Covenant on Civil and Political Rights (ICCPR) and the Convention
Against Torture (CAT) of ensuring independent, effective and impartial
review, including merits review, of non-refoulement decisions.
2.725
In order to address the human rights compatibility issues raised above,
the Migration Act may be amended to require a departmental review of all non‑refoulement
claims prior to any person's removal from Australia and that any decision taken
by the department following such a review is at a minimum reviewable by the
Administrative Appeals Tribunal and the courts.
Exclusion from independent merits
review
2.726
Under the system, of 'fast track assessment', a person can be designated
by the minister as an 'excluded fast track review applicant' because they are
said to 'present baseless or unmeritorious claims, or have protection elsewhere'.[263]
The minister is able to specify a person or class of persons to fall within the
definition of an excluded fast track review applicant.[264]
'Excluded fast track applicants' include persons:
-
considered to have the right to enter or reside in a third
country;
-
considered to have made a 'manifestly unfounded claim for
protection';
-
who were previously refused protection in Australia or elsewhere
by UNHCR or another country; or
-
considered to have arrived on a 'bogus' document 'without
reasonable explanation'.[265]
2.727
Under the amendments, an excluded fast track review applicant would not
have access to any form of merits review of the minister's decision.[266]
2.728
However, as set out above at paragraphs [2.709] to [2.720] the provision
of 'independent, effective and impartial' merits review of non-refoulement
decisions is integral to complying with non-refoulement obligations under the
ICCPR and CAT.[267]
An internal departmental review system, by its nature, lacks the requisite
degree of independence required under international human rights law to provide
a sufficient safeguard.
2.729
The committee therefore considered that the proposed exclusion of merits
review for excluded fast track review applicants is incompatible with Australia's
obligations of non-refoulement.
Minister's response
1.412 The committee therefore considers that the proposed
exclusion of merits review for excluded fast track review applicants is
incompatible with Australia's obligations of non-refoulement.
Excluded fast track review applicants
The Government is of the view that there is no express
requirement under the ICCPR or the CAT to provide merits review in the
assessment of non-refoulement obligations, nor does lack of merits review
amount to refoulement.
Clarification regarding internal departmental review
At paragraph 1.411 of the Committee's report, the Committee
refers to an internal departmental review system in the excluded fast track
review context. I would like to take this opportunity to clarify the internal
processes that will apply to excluded fast track review applicants.
Prior to finalising a case involving a possible excluded fast
track review applicant and in addition to the department's ordinary quality
control checks, such cases will undergo a further legal check of the process
within the department. The legal process check will form part of the
department's quality control procedures and will be conducted prior to the
decision being finalised by the delegate. The legal process check will ensure
that draft decisions have adhered to basic administrative law requirements; it
will not undertake a 'review' by considering any new information against the
previous assessment of the fast track applicant's protection claims.[268]
Committee response
2.730
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.731
The committee notes the minister's response that the government does not
consider that the ICCPR and CAT expressly require merits review of
non-refoulement decisions.
2.732
However, the committee also notes that it has consistently taken the
contrary view that merits review is required as a matter of international law.
2.733
As explained at [2.709] to [2.720] above, international jurisprudence
requires that there is 'effective review' of non-refoulement decisions. Given
that judicial review in the Australian context is only able to consider whether
a decision was lawful, merits review is also required in order for review to be
'effective' as required under international human rights law. As the measure
removes independent merits review, it follows that the measure is incompatible
with Australia's obligations of non-refoulement.
2.734
The committee further notes that the minister has provided some
information to clarify internal review processes.
2.735
However, the fact that such internal processes are limited to a 'legal
check' and will not consider new information may limit the effectiveness of
such processes as an internal departmental safeguard. This is particularly of
concern given that external merits review is removed through this provision.
2.736
The committee notes that the obligation of non-refoulement is
absolute and may not be subject to any limitations. The committee has
previously concluded that the exclusion of merits review for excluded fast
track review applicants is incompatible with Australia's obligations of
non-refoulement.
2.737
The committee notes that the measure removes merits review for
excluded fast track review applicants. The committee therefore reiterates its
conclusion that the exclusion of merits review for excluded fast track review
applicants is incompatible with Australia's obligations to ensure effective and
impartial review by courts or tribunals, including merits review, of
non-refoulement decisions.
2.738
In order to address the human rights compatibility issues raised above,
the Migration Act may be amended to require a departmental review of all non‑refoulement
claims prior to any person's removal from Australia and that any decision taken
by the department following such a review is at a minimum reviewable by the
Administrative Appeals Tribunal and the courts.
Schedule 6 – unauthorised maritime arrivals and new born children
Obligation to consider the best
interests of the child
2.739
Under the CRC, state parties are required to ensure that, in all actions
concerning children, the best interests of the child is a primary
consideration; see [2.676] to [2.678] above.[269]
The right to nationality
2.740
Every child has the right to acquire a nationality under article 7 of
the CRC and article 24(3) of the ICCPR.[270] Accordingly Australia is required
to adopt measures, both internally and in cooperation with other countries, to
ensure that every child has a nationality when born.
2.741
This is consistent with Australia's obligations under article 1(1) of
the Convention on the Reduction of Statelessness 1961 which requires Australia
to grant its nationality to a person born in its territory who would otherwise
be stateless.[271]
Legal status of children born to
asylum seekers – designating children as unauthorised maritime arrivals
2.742
Schedule 6 designates children born to parents who arrived by sea after
13 August 2012 as 'unauthorised maritime arrivals' (UMAs), the same
designation under the Migration Act as their parents, and could allow them to
be subject to transfer or continued detention at an offshore processing
country. The statement of compatibility assesses the proposed measure as
compatible with the obligation to consider the best interests of the child.
2.743
In its previous analysis the committee noted that designating a child as
an UMA has implications for the rights of a child beyond issues of family
unification, and considered that the proposed measure potentially limits the
obligation to consider the best interests of the child as a primary
consideration. This is because it allows such children to be treated as an UMA
and accordingly be subject to offshore detention and processing. In this
regard, the committee has previously raised serious human rights concerns in
relation to the offshore detention and processing regime.[272]
2.744
Further, the committee had concerns that the proposed measure may result
in some of these children becoming stateless, depending on the laws relating to
nationality in their parents' country of origin.
2.745
The committee therefore requested advice from the Minister for
Immigration and Border Protection as to whether the designation of children as
'unauthorised maritime arrivals' is compatible with the obligation to consider
the best interests of the child and the right to acquire a nationality, and in
particular whether the limits imposed on human rights by the amendments are in
pursuit of a legitimate objective, have a rational connection between the
limitation and that objective, and are proportionate to achieving that
objective.
Minister's response
Schedule 6 - Children of unauthorised maritime arrivals
1.421 The committee therefore requests the advice of the
Minister for Immigration and Border Protection as to whether the designation of
children as 'unauthorised maritime arrivals' is compatible with the obligation
to consider the best interests of the child and the right to acquire a
nationality, and particularly:
-
whether the proposed changes are aimed at achieving a legitimate
objective;
-
whether there is a rational connection between the limitation and
that objective; and
-
whether the limitation is a reasonable and proportionate measure for
the achievement of that objective.
Best Interests of the Child
The amendments proposed in the Bill clarify that children
born to an unauthorised maritime arrival (UMA) in Australia or a Regional
Processing Country (RPC) are also UMAs. However, they do not alter the need to
conduct a case-by-case assessment of a child's best interests for each child
liable for transfer to a RPC, nor do they impose a limitation on the obligation
to consider the best interests of the child in ensuing processes. By clarifying
that children have a status which is consistent with that of their parents, the
proposed amendments recognise the central importance of family in considering a
child's best interests, so reducing the prospect of family separation, as in
most cases both parents are also UMAs.
The best interests of each UMA child are considered prior to
any action to transfer the child to a RPC through a Pre-Transfer Assessment and
an additional Best Interests Assessment for Transferring Minors to a RPC (Best
Interests Assessment). These assessments support the application of sections
198AD and 198AE of the Act, that is, they are used to consider whether it is
reasonably practicable to transfer a minor or whether they should be referred
to me for possible consideration of my public interest discretion to exclude
the minor from being transferred to a RPC. In particular, the Best Interests
Assessment is used to consider whether appropriate support and services are
available in the RPC to meet the needs of the individual child. The assessment
identifies whether there are barriers to the minor being transferred to a RPC,
and, if it is considered not reasonably practicable at that time, the minor may
be recommended for consideration for transfer at a later date.
The amendments achieve a legitimate objective of
strengthening the government's existing IMA policies, which are aimed at
deterring IMAs from seeking to enter Australia illegally. They do this by
clarifying that the children of UMAs, born in Australia or in a RPC, have a
migration status consistent with their UMA parent(s). It is the government's
view that the amendments do not impose limitations in respect of the best
interests of the child.
Right to a nationality
The proposed amendments in the Bill do not affect Australian
citizenship law. In particular, a UMA born in Australia will continue to have
access to Australian citizenship if they would otherwise be stateless.
If a UMA child born in Australia has never been a citizen or
national of any country, and is not entitled to the citizenship or nationality
of a foreign country, he or she is eligible for Australian citizenship by
conferral under the statelessness provision [subsection 21(8) of the Australian
Citizenship Act 2007 (the Citizenship Act)]. Applications made pursuant to
subsection 21(8) are fee-free. A person does not need to be in Australia to
lodge an application for Australian citizenship, nor when an application made
under subsection 21(8) is decided. Furthermore, the general residence
requirement (Section 22 of the Citizenship Act) has no application to such applications
under subsection 21(8). Stateless children born in Australia to UMAs who wish
to apply for Australian citizenship are required to follow the same application
processes and meet the same eligibility requirements as any other stateless
person born in Australia.
Not all children born to UMA parents in Australia will be
eligible for Australian citizenship under the statelessness provisions, because
not all UMAs are stateless. In many cases, a child born in Australia or a RPC
to a UMA parent who does have a nationality will be eligible for the same
citizenship held by their father and/or mother.[273]
Committee response
2.746
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.747
The committee notes that the minister's response does not consider that
the measure limits the obligation to consider the best interests of the child.
2.748
However, the committee is of the view that the designation of the child
as a UMA limits the obligation to consider their best interests as the primary
consideration. This is because designation as a UMA allows children to be
subject to offshore detention and processing.
2.749
The committee further notes that credible reports have emerged regarding
the harsh conditions in regional processing countries (RPCs), including
allegations of serious abuse against children as well as the negative
psychological impact on children in such detention. This context renders it
more problematic to assert that being designated as an UMA and accordingly
being liable to transfer to a RPC does not limit the obligation to consider the
best interests of the child as a primary consideration.[274]
2.750
The committee notes that, following from the view that the right is not
limited, the response does not provide any evidence to establish that the measure
is nevertheless a justifiable limitation on the obligation to consider the best
interests of the child. However, it notes that the measure does not alter the
need to conduct a case-by-case assessment of a child's best interests for each
child liable for transfer to a RPC.
2.751
However, such an assessment is a matter of administrative discretion and
not a statutory requirement. There is no requirement that a child not be
transferred to a RPC if it is not in their best interests, or that the minister
exercise his discretion not to transfer a child to a RPC. As such, the
committee considers that this is an insufficient safeguard for the purpose of
international human rights law.
2.752
In relation to the right of a child to a nationality, the committee
notes the minister's advice that children would still be able to acquire
Australian citizenship under the Citizenship Act if they would otherwise be
stateless. The committee considers accordingly that the measure is likely to be
compatible with the right of the child to a nationality.
2.753
In relation to the obligation to consider the best interests of the
child, the committee considers that the designation of children born in
Australia or in a Regional Processing Country as an Unauthorised Maritime
Arrival limits the obligation to consider the best interests of the child as a
primary consideration.
2.754
The committee considers that the measure may be incompatible with
this obligation.
2.755
In order to address the human rights compatibility issues raised above,
the Migration Act could be amended, to require that a child born in Australia
is not subject to transfer to offshore processing and detention.
Schedule 7—cap on protection visas
Right to security of the person and
freedom from arbitrary detention
2.756
Article 9 of the ICCPR provides for the right to security of the person
and freedom from arbitrary detention. This includes the right of a person:
-
to liberty and not to be subjected to arbitrary arrest or
detention;
-
to security;
-
to be informed of the reason for arrest and any charges;
-
to be brought promptly before a court and tried within a
reasonable period, or to be released from detention; and
-
to challenge the lawfulness of detention.
2.757
The only permissible limitations on the right to security of the person
and freedom from arbitrary detention are those that are in accordance with
procedures established by law, provided that the law itself and the enforcement
of it are not arbitrary.
Ministerial power to cap protection
visas
2.758
Schedule 7 enables the minister to cap the number of protection visas
that can be issued in any year. The statement of compatibility noted that the
measure is in response to the recent High Court decision in Plaintiff
S297/2013 v Minister for Immigration and Border Protection & Anor [2014]
HCA 24,[275]
in which the court held that the minister did not have the power, under section
85 of the Migration Act, to limit the number of protection visas that
may be granted in a specified financial year. The statement of compatibility
stated that the cap is consistent with the right not to be arbitrarily detained
because the protection claim will continue to be processed (notwithstanding
that it will be denied due to the cap), and the '[m]inister can consider
alternative ways to release someone from detention if they are found to engage
Australia's protection obligations but cannot be granted a protection visa
because of a cap'.[276]
2.759
In its previous analysis the committee noted its concern that the cap
may result in a breach of the prohibition against arbitrary detention if a
discretion to issue another visa type and to release a person found to engage
Australia's protection obligation is not exercised. In this respect, the
committee considered that the ministerial power to cap protection visas is a
limitation on the right to freedom from arbitrary detention. The statement of
compatibility did not assess any such limitation.
2.760
The committee therefore sought the further advice of the Minister for
Immigration and Border Protection as to whether the cap is compatible with the
right to freedom from arbitrary detention, and in particular whether the limits
imposed on human rights by the amendments are in pursuit of a legitimate
objective, have a rational connection between the limitation and that
objective, and are proportionate to achieving that objective.
Minister's response
Schedule 7 - Capping protection visas
Right to security of the person and freedom from arbitrary
detention
1.427 The committee therefore seeks the further advice of
the Minister for Immigration and Border Protection as to whether the cap is
compatible with the right to freedom from arbitrary detention, and
particularly:
-
whether the proposed changes are aimed at achieving a legitimate
objective;
-
whether there is a rational connection between the limitation and
that objective; and
-
whether the limitation is a reasonable and proportionate measure for
the achievement of that objective.
It is the view of the Government that a person would not be
kept in detention simply because a cap on certain visa grants was in place,
accordingly there is no incompatibility between the capping provision and the
right to freedom from arbitrary detention.
The proposed amendment to ensure that I am able to place a
statutory cap on the Onshore component of the Humanitarian programme is aimed
at achieving the legitimate objective of appropriately managing the
Humanitarian programme. In the past, when more Protection visas than the
Humanitarian programme allowed for were granted, it meant that there were fewer
visa grants in the Special Humanitarian programme. This reduced places
available from those people who waited offshore, and provided an incentive for
IMAs to use people smugglers to get to Australia. It is appropriate for the
Government to be able to manage the proportion of visas granted onshore and
offshore, noting that the proposed amendments do not require me to place a cap,
nor do they impose a cap, rather they ensure that I am able to should I so
choose.[277]
Committee response
2.761
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.762
The committee notes that the government moved amendments in the Senate
to provide that the ministerial power to determine the maximum number of visas
that may be granted in a specified financial year is not to be applied in
respect of TPVs or SHEVs.
2.763
The committee notes that the amendments are directly relevant to the
committee's consideration of whether the cap on visas is compatible with the
right to freedom from arbitrary detention. As noted above, the committee was
concerned that the cap on the issue of protection visas may result in a breach
of the prohibition against arbitrary detention, if a discretion to issue
another visa type and to release a person found to engage Australia's
protection obligations were not exercised.
2.764
The committee's usual expectation is that, where amendments have been
made to proposed legislation, the legislation proponent will take into account
the fact of those amendments in responding to issues raised by the committee
concerning the human rights compatibility of proposed legislation.
2.765
Given the amendments moved by the government in relation to the visa
cap, the committee considers the measure capping the amount of protection visas
that can be issued is likely to be compatible with the right not to be
arbitrarily detained.
Migration Amendment (Character and General Visa Cancellation) Bill 2014
Portfolio:
Immigration and Border Protection
Introduced:
House of Representatives, 24 September 2014
Purpose
2.766
The Migration Amendment (Character and General Visa Cancellation) Bill
2014 (the bill) made amendments to the Migration Act 1958 (the Migration
Act), including to:
-
strengthen existing powers to grant or cancel a visa on character
grounds under section 501 of the Migration Act by:
-
adding additional grounds on which a person will be taken to fail
the character test;
-
amending the existing definition of 'substantial criminal record'
to provide that a person will be taken to have a substantial criminal record (and
therefore fail the character test) if they have received two or more sentences
of imprisonment that, served concurrently or cumulatively, total 12 months or
more (down from the current two years);
-
broadening existing powers to allow refusal to grant or cancellation
of a visa where the minister reasonably suspects a person has been, or is
involved or associated with, a group, organisation or person that the minister
reasonably suspects is involved in criminal conduct;
-
inserting a new power to make cancellation of a visa mandatory
where the visa holder is in prison and fails the character test on specified
grounds;
-
providing that where a person has been pardoned for a conviction
and the effect of the pardon is that the person is taken never to have been convicted
of the offence, the person will fail the character test; and
-
providing that a person will be considered to have a substantial
criminal record (and fail the character test) if they have been found by a
court to be not fit to plead but the court nonetheless found that the person
committed the offence, and as a result they have been detained in a facility or
institution.
2.767
The bill also added to the existing general cancellation powers in
sections 109 and 116 of the Migration Act, including:
-
introducing a new ground for visa cancellation if:
-
the minister is not satisfied as to a person's identity; or
-
incorrect information was given by, or on behalf of, the visa
holder at any time (whether it was in relation to this visa or another visa) to
any person involved in the visa grant. Incorrect information is not defined;
-
strengthening the minister's personal powers to cancel a visa;
-
enabling the minister to personally set aside the decision of a
review tribunal and substitute his or her own decision to cancel a visa; and
-
strengthening provisions to make it clear that if the minister
exercises a personal power to cancel a visa, that decision is not merits
reviewable.
2.768
Measures raising human rights concerns or issues are set out below.
Background
2.769
The committee previously considered the bill in its Nineteenth Report
of the 44th Parliament, and requested further information from
the Minister for Immigration and Border Protection as to whether a number of
measures in the bill were compatible with human rights.[278]
2.770
The bill finally passed both Houses of Parliament on 26 November 2014
and received Royal Assent on 10 December 2014, and became the Migration
Amendment (Character and General Visa Cancellation) Act 2014 (the Act).
Expansion of visa cancellation powers
2.771
The committee considers that the expansion of visa cancellation powers
engages a number of human rights and related obligations including non‑refoulement
obligations, the right to liberty and the right to freedom of movement.
Non-refoulement obligations and the
right to an effective remedy
2.772
Australia has non-refoulement obligations under the Refugee Convention
for refugees, and under both the International Covenant on Civil and Political
Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT) for people who are found not to be
refugees.[279]
This means that Australia must not return any person to a country where there
is a real risk that they would face persecution, torture or other serious forms
of harm, such as the death penalty; arbitrary deprivation of life; or cruel,
inhuman or degrading treatment or punishment.[280]
2.773
Non-refoulement obligations are absolute and may not be subject to any
limitations.
2.774
Effective and impartial review by a court or tribunal of decisions to
deport or remove a person, including merits review in the Australian context,
is integral to complying with non-refoulement obligations.[281]
2.775
Australia gives effect to its non-refoulement obligations principally
through the Migration Act. In particular, section 36 of the Migration Act sets
out the criteria for the grant of a protection visa.
Compatibility of the measures with
Australia's non-refoulement obligations
2.776
In its previous analysis, the committee noted that a consequence of a
visa being refused or cancelled is that the person is an unlawful non-citizen
and is subject to removal from Australia. A person whose visa is refused or
cancelled on character grounds (including under the expanded powers introduced
by this bill) is prohibited from applying for another visa.[282]
Section 198 of the Migration Act requires an immigration officer to remove an
unlawful non-citizen in a number of circumstances as soon as reasonably
practicable. Section 197C of the Migration Act also provides that, for the
purposes of exercising removal powers under section 198, it is irrelevant
whether Australia has non-refoulement obligations in respect of an unlawful
non-citizen.
2.777
The committee noted that there is no statutory protection ensuring that
an unlawful non-citizen to whom Australia owes protection obligations will not
be removed from Australia. While the committee welcomed the minister's stated
commitment to ensuring no one who is found to engage our non-refoulement
obligations will be removed, this will depend solely on the minister's personal
non-compellable discretion. Additionally, the committee noted that Australia
may have non-refoulement obligations even in circumstances where the visa
holder has not made a claim for protection or the person is not covered by the
Refugee Convention.[283]
2.778
The obligation of non-refoulement and the right to an effective remedy
require an opportunity for effective, independent and impartial review of the
decision to expel or remove.[284]
In this regard, the committee noted that there is no right to merits review of
a decision that is made personally by the minister.
2.779
As the committee noted previously, administrative and discretionary
safeguards are less stringent than the protection of statutory processes, and
are insufficient in and of themselves to satisfy the standards of 'independent,
effective and impartial' review required to comply with Australia's
non-refoulement obligations under the ICCPR and the CAT.[285]
The committee noted that review mechanisms are important in guarding against
the irreversible harm which may be caused by breaches of Australia's
non-refoulement obligations.
2.780
The committee therefore considered that, to the extent that
'independent, effective and impartial' review, including merits review, is not
provided in relation to non-refoulement decisions, the proposed expansion of
visa cancellation powers may be incompatible with Australia's non-refoulement
obligations.
2.781
The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to whether the expanded visa cancellation
powers or decisions to remove a person once a visa has been cancelled are
subject to sufficiently 'independent, effective and impartial' review so as to
comply with Australia's non-refoulement obligations under the ICCPR and the
CAT.
Minister's response
Whilst noting the committee's concerns, it is the
Government's position that while merits review can be an important safeguard,
there is no express requirement under the ICCPR or the CAT for merits review in
the assessment of non-refoulement obligations.
As stated previously, Australia does not seek to resile from
or limit its non‑refoulement obligations. Nor do the amendments affect
the substance of Australia's adherence to these obligations. Expanded
cancellation powers do not alter the framework within which decisions are made.
Where a delegate of the Minister makes a decision to cancel or refuse a visa
under section 501 of the Migration Act 1958 (Act), that decision is
merits reviewable through the Administrative Appeals Tribunal (AAT). At either
the primary decision or review stage, non-refoulement obligations must be
considered as part of the requirement to exercise the discretion to refuse or
cancel a visa. Further, both departmental delegates and AAT members are bound
by Ministerial Direction 65, which in part requires non-refoulement obligations
to be considered. While personal decisions of the Minister are not merits
reviewable, such decisions can be appealed to the Federal Court on the basis
the Minister has made an error of law when making the decision. Further, there
are other mechanisms within the Act which provide the Government with the
ability to address non-refoulement obligations before removal. This occurs
through the protection visa process or the Minister's personal public interest
powers in the Act.
The amendment does not, and is not intended to, affect
opportunities set out elsewhere in the Act which enable the Government to be
satisfied that a person's removal will not breach Australia's non-refoulement
obligations. These Act amendments are not incompatible with Australia's
non-refoulement obligations.[286]
Committee response
2.782
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.783
The committee notes the minister's view that the ICCPR and CAT do not
expressly require merits review of non-refoulement decisions.
2.784
However, while there is no express requirement for merits review in the
articles of the relevant conventions or jurisprudence relating to obligation of
non‑refoulement, the committee notes its view that merits review of such
decisions is required to comply with the obligation under international law, is
based on a consistent analysis of how the obligation applies, and may be
fulfilled, in the Australian domestic legal context.
2.785
In formulating this view, the committee has followed its usual approach
of drawing on the jurisprudence of bodies recognised as authoritative in
specialised fields of law that can inform the human rights treaties that fall
directly under the committee's mandate.
2.786
In this regard, the committee notes that treaty monitoring bodies have
found that the provision of effective and impartial review of non-refoulement
decisions by a court or tribunal is integral to complying with the obligation
of non-refoulement under the ICCPR and CAT. For example, the UN Committee
against Torture in Agiza v. Sweden found:
The nature of refoulement is such...that an allegation of
breach of...[the obligation of non-refoulement in] article [3 of the CAT] relates
to a future expulsion or removal; accordingly, the right to an effective
remedy... requires, in this context, an opportunity for effective, independent
and impartial review of the decision to expel or remove...The Committee's
previous jurisprudence has been consistent with this view of the requirements
of article 3, having found an inability to contest an expulsion decision before
an independent authority, in that case the courts, to be relevant to a finding
of a violation of article 3.[287].
2.787
Similarly, the UN Committee Against Torture in Josu Arkauz Arana v.
France found that the deportation of a person under an administrative
procedure without the possibility of judicial intervention was a violation of
article 3 of the CAT.[288]
2.788
In relation to the ICCPR, in Alzery v. Sweden the UN Human Rights
Committee emphasised that the provision of effective and impartial review of
non‑refoulement decisions by a court or tribunal is integral to complying
with the obligation of non-refoulement (as contained in article 7 of the
ICCPR):
As to...the absence of independent review of the Cabinet's
decision to expel, given the presence of an arguable risk of torture,
the...[right to an effective remedy and the prohibition on torture in articles 2
and 7 of the ICCPR require] an effective remedy for violations of the latter
provision. By the nature of refoulement, effective review of a decision to
expel to an arguable risk of torture must have an opportunity to take place
prior to expulsion, in order to avoid irreparable harm to the individual and
rendering the review otiose and devoid of meaning. The absence of any
opportunity for effective, independent review of the decision to expel
in...[this] case accordingly amounted to a breach of article 7, read in
conjunction with article 2 of the [ICCPR].[289]
2.789
The committee notes that these statements are persuasive as
interpretations of international human rights law that are consistent with the
proper interpretation of treaties as set out in the Vienna Convention on the
Law of Treaties (VCLT).[290]
2.790
The case law quoted above therefore establishes the proposition that,
while merits review is not expressly required, there is strict requirement for
'effective review' of non-refoulement decisions.
2.791
Applied to the Australian context, the committee has considered numerous
cases, like the present case, where legislation has provided for judicial
(rather than merits) review of non-refoulement decisions. Judicial review in
Australia is governed by the Administrative Decisions (Judicial Review) Act
1977, and represents a considerably limited form of review in that it
allows a court to consider only whether the decision was lawful (that is,
within the power of the decision maker). The court cannot undertake a full
review of the facts (that is, the merits) of a particular case to determine
whether the case was correctly decided.
2.792
Accordingly, in the Australian context, the committee considers that
judicial review is not sufficient to fulfil the international standard required
of 'effective review', because it is only available on a number of restricted
grounds of review that do not relate to whether that decision was the correct
or preferable decision. The ineffectiveness of judicial review is particularly
apparent when considered against the purpose of effective review of
non-refoulement decisions under international law, which is to 'avoid
irreparable harm to the individual'.
2.793
In contrast, merits review allows a person or entity other than the
primary decision maker to reconsiders the facts, law and policy aspects of the
original decision and to determine what is the correct or preferable decision.
2.794
In light of the above, the committee reiterates its view that, in the
Australian context, the requirement for independent, effective and impartial
review of non‑refoulement decisions is not met by the availability of
judicial review, but may be fulfilled by merits review.
2.795
The committee also notes that the minister's response points to a range
of other mechanisms in the Act which provide the ability to consider
non-refoulement obligations before removal of a person, such as the protection
visa process or the minister's personal public interest powers in the Act.
However, the minister's response has not explained how these administrative and
discretionary mechanisms are sufficient to meet the requirement for effective
and impartial review of such decisions under international law.
2.796
The committee's assessment of the proposed expansion of visa
cancellation powers is that, to the extent that 'independent, effective and
impartial' review is not provided in relation to non-refoulement decisions, the
expansion of visa cancellation powers provided under the bill is incompatible
with Australia's non-refoulement obligations.
2.797
In order to address the human rights compatibility issues raised above,
the Migration Act may be amended to require a departmental review of all non‑refoulement
claims prior to any person's removal from Australia and that any decision taken
by the department following such a review is at a minimum reviewable by the
Administrative Appeals Tribunal.
Right to liberty
2.798
Article 9 of the ICCPR protects the right to liberty—the procedural
guarantee not to be arbitrarily and unlawfully deprived of liberty. This
prohibition against arbitrary detention requires that the state should not
deprive a person of their liberty except in accordance with law. The notion of
'arbitrariness' includes elements of inappropriateness, injustice and lack of
predictability.
2.799
Accordingly, any detention must not only be lawful, it must also be
reasonable, necessary and proportionate in all the circumstances. Detention
that may initially be necessary and reasonable may become arbitrary over time
if the circumstances no longer require the detention. In this respect, regular
review must be available to scrutinise whether the continued detention is
lawful and non‑arbitrary. The right to liberty applies to all forms of
deprivations of liberty, including immigration detention.
2.800
Article 9 applies to all forms of deprivations of liberty, including
immigration detention.
Compatibility of the measures with
the right to liberty
2.801
Under the Migration Act, the cancellation of the visa of a non-citizen
living in Australia on character grounds results in that person being
classified as an unlawful non-citizen, and subject to mandatory immigration
detention prior to removal or deportation. In cases where it is not possible to
remove a person because, for example, they may be subject to persecution if
returned to their home country or no country will accept them, that person may
be subject to indefinite detention. On this basis, the expanded visa
cancellation powers engage the prohibition against arbitrary detention.
2.802
The detention of a non-citizen on cancellation of their visa pending
deportation will generally not constitute arbitrary detention, as it is
permissible to detain a person for a reasonable time pending their deportation.
However, in the context of mandatory detention, in which individual
circumstances are not taken into account, and where there is no right to
periodic judicial review of the detention, the committee noted in its previous
analysis that there may be situations where the detention could become arbitrary under international human rights law.[291]
This is most likely to apply in cases where the person cannot be returned to
their home country on protection grounds (due to the obligation of
non-refoulement or where there is no other country willing to accept the
person).
2.803
The statement of compatibility stated that the changes do not limit the
right to liberty because they merely 'add to a number of existing laws that are
well‑established, generally applicable and predictable'.[292]
2.804
In its previous analysis the committee considered that ensuring the
safety of Australians is likely to be considered a legitimate objective for the
purpose of international human rights law. However, it was not clear that each
of the measures is rationally connected to achieving that aim and whether a
number of measures may be regarded as proportionate. In particular, it was
unclear whether there are sufficient safeguards to ensure that the detention of
persons after the exercise of the visa cancellation powers will not lead to
cases of arbitrary detention.
2.805
The committee therefore considered that the expansion of visa
cancellation powers, in the context of Australia's mandatory immigration detention
policy, limited the right to liberty. The statement of compatibility did not
sufficiently justify that limitation for the purpose of international human
rights law. The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to the legitimate objective, rational
connection, and proportionality of the measure.
Minister's response
The amendments introduced strengthen the visa cancellation
provisions; they do not alter the detention powers or framework already
established in the Act. The Statement of Compatibility (SOC) outlined the
Government's position that the detention of unlawful non-citizens as the result
of visa cancellation is neither unlawful nor arbitrary per se under
international law. Continuing detention may become arbitrary after a certain
period of time without proper justification. The determining factor, however,
is not the length of detention, but whether the grounds for the detention are
justifiable. The amendments widen the scope of people being considered for visa
cancellation or refusal, and the Government's position is that these amendments
present a reasonable response to achieving a legitimate purpose under the
Covenant - the safety of the Australian community.
The SOC further stated that the character and cancellation
provisions were amended in order to address the risk to the Australian
community posed by non-citizens of character, integrity or security concern.
The safety of the Australian community, particularly in the current security
environment, is considered to be both a pressing and substantial concern and a
legitimate objective. The cancellation of a non-citizen's visa in circumstances
where they present a risk to the Australian community, and their subsequent
detention prior to removal, follows a well-established process within the
legislative framework. I would reiterate, as stated in the SOC, the amendments
do not limit a person's right to security of the person and freedom from
arbitrary detention. However to the extent that it may be interpreted as
limiting the obligations in Article 9 of the ICCPR, there is clearly a rational
connection between ensuring non-citizens who present a risk to the Australian
community can be considered for visa cancellation or refusal and the legitimate
objective of protecting the safety of the Australian community from those who
pose a risk to it. Further, people who are affected by these measures will
still continue to be able to challenge the lawfulness of their detention in
accordance with Article 9(4).[293]
Committee response
2.806
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.807
The committee notes that, notwithstanding the minister's view that the
measures do not alter the existing detention powers or framework under the
Migration Act, the amendments strengthen the visa cancellation provisions with
the result that more people may be subject to mandatory detention as a result
of having their visa cancelled or rejected.
2.808
As noted in the committee's initial analysis, the detention of a
non-citizen or cancellation of their visa pending deportation will generally
not constitute arbitrary detention, as it is permissible to detain a person for
a reasonable time pending their deportation.
2.809
However, there may be cases where a person cannot be returned to their
home country on protection grounds (due to the obligation of non-refoulement or
where there is no other country willing to accept the person). As noted by the
minister in his response to the committee, such circumstances of continuing
detention can give rise to instances of arbitrary detention:
Continuing detention may become arbitrary after a certain
period of time without proper justification. The determining factor, however,
is not the length of detention, but whether the grounds for the detention are
justifiable.
2.810
In this regard, the committee notes the recent UN Human Rights Committee
(HRC) decision concerning the continued detention of 46 refugees subject to
adverse ASIO security assessments. The HRC found that their indefinite
detention on security grounds amounted to arbitrary detention and to cruel,
inhuman or degrading treatment, contrary to articles 9(1), 9(4) and 7 of the
ICCPR. The HRC considered the detention of the refugees to be in violation of
the right to liberty in article 9 of the ICCPR because the government:
-
had not demonstrated on an individual basis that their continuous
indefinite detention was justified; or that other, less intrusive measures
could not have achieved the same security objectives;
-
had not informed them of the specific risk attributed to each of
them and of the efforts undertaken to find solutions to allow them to be
released from detention; and
-
had deprived them of legal safeguards to enable them to challenge
their indefinite detention, in particular, the absence of substantive review of
the detention, which could lead to their release from arbitrary detention.[294]
2.811
Accordingly, it is the blanket and mandatory nature of detention for
those who have been refused a visa but to whom Australia owes protection
obligations that makes such detention arbitrary. In particular, the Australian
system provides for no consideration of whether detention is justified and
necessary in each individual case—detention is simply required as a matter of
policy. It is this essential feature of the mandatory detention regime that
invokes the right to liberty in article 9 of the ICCPR.
2.812
The committee accepts that the safety of the Australian community,
particularly in the current security environment, may be considered to be both
a pressing and substantial concern and a legitimate objective. However, as
mandatory detention applies to individuals regardless of whether they are a
threat to national security, the measure is not proportionate because it is not
the least rights restrictive approach to achieve the legitimate objective.
2.813
The committee's assessment of the proposed expansion of visa cancellation
powers against article 9 of the International Covenant on Civil and Political
Rights (right to liberty) is that the measure is likely to be incompatible with
Australia's obligations under international human rights law. As set out above,
the response does not sufficiently justify that limitation. The committee
considers that it has not been demonstrated that the measure is a proportionate
means of achieving the objective of national security (i.e. the least rights
restrictive approach)..
2.814
In order to address the human rights compatibility issues raised above,
the Migration Act may be amended to:
-
provide an individual assessment of the necessity of detention in
each individual case;
-
provide each individual subject to immigration detention a statutory
right of review of the necessity of that detention;[295]
and
-
in the case of individuals detained for a lengthy period of time,
provide a periodic statutory right of review of the necessity of continued
detention.
Right to freedom of movement
2.815
Article 12 of the ICCPR protects freedom of movement. The right to
freedom of movement includes the right to move freely within a country for
those who are lawfully within the country, the right to leave any country and
the right to enter one's own country. The right may be restricted in certain
circumstances.
2.816
The right to enter one's own country includes a right to remain in the
country, return to it and enter it. There are few, if any, circumstances in
which depriving a person of the right to enter their own country could be
justified. Australia cannot, by stripping a person of nationality or by
expelling them to a third country, arbitrarily prevent a person from returning
to his or her own country.
2.817
The reference to a person's 'own country' is not necessarily restricted
to the country of one's citizenship—it might also apply when a person has very
strong ties to the country.
Compatibility of the measures with
the right to freedom of movement
2.818
The committee noted in its previous analysis that the expanded visa
cancellation powers, in widening the scope of people being considered for visa
cancellation, may lead to more permanent residents having their visas cancelled
and potentially being deported from Australia.
2.819
While the statement of compatibility stated that freedom of movement is
engaged by the measures, it did not address the broader issue of whether using
any of the expanded visa cancellation powers to cancel the visa of a permanent
resident, who has lived for many years in Australia and has strong ties with
Australia, is consistent with the right to freedom of movement. The committee
noted that the UN Human Rights Committee has found that the deportation of a
person with strong ties to Australia, following cancellation of their visa on
character grounds, may constitute a breach of the right of a permanent resident
to remain in their own country'.[296]
2.820
The committee therefore considered that the expansion of visa
cancellation powers may limit the right to freedom of movement and specifically
the right of a permanent resident to remain in their 'own country'. The
statement of compatibility did not justify that limitation for the purposes of
international human rights law. The committee therefore sought the advice of
the Minister for Immigration and Border Protection as to whether there is
reasoning or evidence that establishes that the stated objective addresses a
pressing or substantial concern or whether the proposed changes are otherwise
aimed at achieving a legitimate objective, whether there is a rational
connection between the limitation and that objective, and whether the
limitation is a reasonable and proportionate measure for the achievement of
that objective.
Minister's response
I disagree with the committee's view that the reference to a
person's own country is not necessarily restricted to the country of one's
citizenship. It is the Government's position that a person who enters a State
under that State's immigration laws cannot regard the State as his or her own
country when he or she has not acquired nationality in that country. In any
event, the enhanced cancellation and refusal powers are limited to visa
cancellation and refusals only and therefore do not fall within article 12(4).
Further, the non-citizen's ties to the Australian community, including their
length of residence is taken into account when considering the cancellation or
refusal of their visa. The amendment is therefore compatible with human rights
because it is consistent with Australia's human rights obligations.[297]
Committee response
2.821
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.822
The committee notes the minister's advice that non-citizen's ties to the
Australian community, including their length of residence, are taken into
account when considering the cancellation or refusal of their visa. The
committee welcomes this approach but notes that such a consideration is a
matter of administrative discretion and not a statutory requirement. As such,
this is an insufficient safeguard for the purposes of international human
rights law.
2.823
The committee notes the statement by the minister that
article 12(4) (the right to enter one's own country) applies only to
citizens of Australia.
2.824
The committee notes that this is inconsistent with recent views
expressed by the UN Human Rights Committee (HRC), including in relation to
Australia. In Nystrom v. Australia the HRC interpreted the right to
freedom of movement under article 12(4) of the ICCPR as applying to
non-citizens where they had sufficient ties to a country, and indeed noted that
'close and enduring connections' with a country 'may be stronger than those of
nationality'.[298]
The HRC subsequently affirmed this view in Warsame.[299]
2.825
In both cases, the HRC found violations of ICCPR article 12(4) where a
person had clear, ongoing and longstanding connections to the resident state
and also no connection with the ostensible state of their nationality. Thus,
the HRC has now issued two views confirming a broader interpretation of art
12(4) than one simply based on nationality or citizenship.
2.826
The committee notes that HRC views are not binding on Australia as a
matter of international law and that the minister's response reflects the Australian
government's response to the Nystrom decision, which was essentially to
disagree with the decision. Nevertheless, the HRC's views are highly
authoritative interpretations of binding obligations under the ICCPR and should
be given considerable weight by the government in its interpretation of
Australia's obligations. However, the minister's response does not include any
evidence or analysis as to why the views of the Australian government should be
preferred to the HRC in the interpretation of article 12(4).
2.827
Further, as noted above at [2.789], these statements of the HRC in
relation to article 12(4) are persuasive as interpretations of international
human rights law that are consistent with the proper interpretation of treaties
as set out in the Vienna Convention on the Law of Treaties (VCLT).[300]
2.828
In addition, the words of article 12(4) do not make any reference to a
requirement of 'citizenship' or 'nationality' but instead use the phrase 'own
country'. In interpreting these words according to their 'ordinary meaning' as
required by the VCLT, the phrase 'own country' clearly may be read as a broader
concept than the terms 'citizenship' or 'national'.
2.829
Article 32 of the VCLT provides that in the interpretation of treaties
recourse may be had to supplementary means of interpretation in circumstances
where the meaning is ambiguous or unreasonable. Supplementary means of
interpretation include the preparatory work of a treaty, such as the
negotiating record or travaux préparatoires. The committee notes that
the travaux préparatoires for article 12(4) show that the terms
'national' and 'right to return to a country of which he is a national' was
expressly considered and rejected by states during the negotiation of the
ICCPR.
2.830
The travaux préparatoires for article 12(4) also show that
Australia expressed concern during the negotiations about a right of return for
persons who were not nationals of a country but who had established their home
in that country (such as permanent residents in the Australian context).
Accordingly, the phrase 'own country' was proposed by Australia as a
compromise, and the right to enter one's 'own country' rather than the right to
return to a country of which one is a 'national' was agreed in the final text
of the ICCPR.[301]
2.831
In this context, the committee considers that the correct interpretation
of 'own country' is clearly one that imports a significantly broader meaning to
the phrase than the term 'citizenship'. In fact, the phrase 'own country'
appears to have been proposed by Australia specifically to allow for a right of
return for persons who are not nationals but have strong links with Australia.
2.832
The committee's assessment of the proposed expansion of visa
cancellation powers against article 12 of the International Covenant on Civil
and Political Rights (right to freedom of movement) is that the measures are
likely to be incompatible. The committee considers that this limitation has not
been sufficiently justified for the purposes of international human rights law.
2.833
In order to address the human rights compatibility issues raised above,
the Migration Act may be amended to require that any person who has lived for
many years in Australia and has such strong ties with Australia that they
consider Australia to be their 'own country' be only subject to visa
cancellation if the minister is satisfied that there is no other way to protect
the security of the Australian community.
Failure to pass character test on basis of group membership or association
2.834
The Act amended section 501 of the Migration Act to provide that
a person will not pass the character test if the minister reasonably suspects
that the person has been, or is, a member of a group or organisation, or has
had an association with a group, organisation or person which has been involved
in criminal conduct. A person who fails to pass the character test is
ineligible for the grant of a visa or may have their visa cancelled.
2.835
The committee noted the potential for the measure to restrict a person's
ability to freely associate, and considered that the measure may limit the
right to freedom of association.
Freedom of association
2.836
The right to freedom of association is protected by article 22 of the
ICCPR. It provides that all people have the right to freedom of association with
others; that is to join with others in a group to pursue common interests.
2.837
Limitations on this right are permissible only where they are
'prescribed by law' and 'are necessary in a democratic society in the interests
of national security or public order or for the protection of the rights and
freedoms of others'.
Compatibility of the measure with
the right to freedom of association
2.838
The statement of compatibility stated that the measure is compatible
with the right to freedom of association.
2.839
However, in its previous analysis the committee noted that the amendment
does not, as the statement of compatibility indicated, target specific groups
such as gangs or terrorist organisations. Rather, the amendment is broadly
framed to apply to any association with a group, organisation or person that
has been or is involved in criminal conduct, and could presumably include minor
criminal conduct. The committee was concerned that under this measure a person
could fail the character test on the basis of, for example, having friends or
family who have engaged in even relatively minor criminal conduct, without the
person themselves having been engaged in such conduct.
2.840
The committee previously acknowledged the importance of protecting the
Australian community from risks associated with organised criminal activity and
that this is likely to be a legitimate objective for the purpose of
international human rights law.
2.841
However, the committee was concerned that lowering the threshold to
include those who have had an association with a group, organisation or person
involved in criminal conduct may not be rationally connected to or a
proportionate way to achieve that objective. In this respect, the committee
also noted that the ministerial discretion whether or not to exercise the power
is unlikely, in and of itself, to offer sufficient protection such that the
measure may be regarded as proportionate to its stated objective.
2.842
The committee therefore considered that the amendment providing that a
person will not pass the character test on the basis of group membership or
association limits the right to freedom of association, and noted that the
statement of compatibility does not sufficiently justify this limitation for
the purposes of international human rights law.
2.843
The committee therefore sought the advice of the Minister for
Immigration and Border protection as to whether there is reasoning or evidence
that establishes that the stated objective addresses a pressing or substantial
concern, or whether the proposed changes are otherwise aimed at achieving a
legitimate objective; whether there is a rational connection between the
limitation and that objective; and whether the limitation is a reasonable and
proportionate measure for the achievement of that objective.
Minister's response
A finding that a person does not pass the character test
based on an association with a specific person, group or association is not in
itself a decision to refuse or cancel a visa. Rather, it then enlivens the
discretion whether or not to cancel a visa. As articulated in the SOC this
amendment is targeted specifically at non-citizens who have associations to
criminal motorcycle gangs, terrorist organisations, organised criminal groups,
people smuggling, people trafficking, or involvement in war crimes, genocide or
human rights abuses. It is the Government's position that these types of associations
or memberships may present a risk to the Australian community or represent a
national security risk. The Government therefore considers it reasonable that
non-citizens with these types of memberships or associations are thoroughly
scrutinised and assessed in order to determine the level of risk these
associations might pose to the Australian community. There is no intention that
this new association ground will be used to cancel or refuse the visas of
non-citizens who do not pose a risk to the Australian community. As stated in
the SOC, creating a disincentive for non-citizens to associate with criminal
organisations, or other people involved in criminal activity is seen as
reasonable, proportionate and necessary, and has a rational connection to the
legitimate objective of protecting the Australian community.[302]
Committee response
2.844
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.845
The committee welcomes the intention that the new association ground for
cancelling (or refusing) a visa will be used only in relation to those who pose
a risk to the Australian community.
2.846
However, as confirmed in the minister's response, it will be entirely at
the discretion of the minister. The committee's primary concern is that, in granting
such a broad executive discretion, the power of visa cancellation in relation
to a person who fails to pass the character test could be used in circumstances
where a person poses no threat to Australians.
2.847
Where broad discretions are granted to decision-makers, statutory
safeguards are important in demonstrating that any limitation on the right to
freedom of association is proportionate. The absence of statutory safeguards in
relation to this broad executive power means that the power could be used beyond
the stated purposes set out in the minister's response. Accordingly, the
committee considers that the measure is not proportionate to its stated
objective.
2.848
The committee's assessment of the proposed strengthening of the
character test requirements against article 22 of the International Covenant on
Civil and Political Rights (right to freedom of association), is that the
measure may be incompatible. As set out above, the statement of compatibility
and the minister's response do not sufficiently justify the limitation as
proportionate (that is, as the least rights restrictive approach to achieve the
stated objective).
2.849
In order to address the human rights compatibility issues raised above,
the Migration Act may be amended to require a departmental review of all
non-refoulement claims prior to any person's removal from Australia and that
any decision taken by the department following such a review is at a minimum
reviewable by the Administrative Appeals Tribunal.
Lower threshold for the character test if there is a risk that a person
would incite discord in the community
2.850
Previously, paragraph 501(6)(d) of the Migration Act provided
that a person would fail the character test for a visa if there is a
'significant risk' that they may engage in certain conduct, including a
significant risk they would 'incite discord in the Australian community or in a
segment of that community'. The Act amended this provision to lower the
threshold for this test from a 'significant risk' to simply a 'risk'.
2.851
As this lower threshold for the cancellation of a person's visa may be
applied in respect of a person's expression, the committee considered that the
measure engages and may limit the right to freedom of expression.
Right to freedom of opinion and
expression
2.852
The right to freedom of opinion and expression is protected by article
19 of the ICCPR. The right to freedom of opinion is the right to hold opinions
without interference and cannot be subject to any exception or restriction. The
right to freedom of expression extends to the communication of information or
ideas through any medium, including written and oral communications, the media,
public protest, broadcasting, artistic works and commercial advertising.
2.853
Under article 19(3), freedom of expression may be subject to limitations
that are necessary to protect the rights or reputations of others, national
security, public order (ordre public),[303] or public health or
morals.[304]
Compatibility of the measure with
the right to freedom of expression
2.854
The committee's initial analysis noted that the ability for a person's
visa to be cancelled on the basis of a risk that they would incite discord
through their opinions or expressions could have a discouraging or 'chilling'
effect on their willingness to publicly discuss or otherwise make known their
views, particularly in relation to contentious issues.
2.855
The committee therefore considered that the lowering of the threshold
for the character test where there is a 'risk' that a person would incite
discord in the community limits the right to freedom of expression and opinion.
2.856
However, the statement of compatibility assessed the bill as being
compatible with human rights, but provided no assessment of the measure or its
potential to limit the right to freedom of expression.
2.857
The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to the legitimate objective, the rational
connection, and the proportionality of the measure.
Minister's response
A finding that a person does not pass the character test
based on the risk a person would incite discord in the community is not in
itself a decision to refuse or cancel a visa. Rather, it then enlivens the
discretion whether or not to cancel a visa. It is the Government's position
that lowering the existing risk threshold in this provision of the character
test is an appropriate response to the current security climate as the right to
freedom of expression may have an express limitation for the purposes of
national security, public order, public safety, public health or morals and the
respect of the rights or reputation of others. In any event, lowering the risk
threshold in this way does not regulate a person's ability to express certain
views.
Departmental delegates are instructed to consider these
grounds against Australia's well established tradition of free expression.
However, where a non-citizen's opinions may attract strong expressions of
disagreement or condemnation from the Australian community, the views of the
community will be a consideration in terms of assessing the extent to which
particular activities or opinions are likely to cause discord or unrest.
The Australian Government will not tolerate public statements
from non-citizens that encourage or advocate violence against other people, or
violence as a legitimate form of political expression. It is the Government's
position that lowering this risk threshold is entirely appropriate and aimed as
the legitimate objective of protecting public safety. Lowering the risk
threshold will ensure non-citizens who may pose a risk to the Australian
community by advocating violence are thoroughly scrutinised and the risk they
pose is properly assessed. As such, to the extent that there may be any
limitation on the right to freedom of expression, there is a clear and rational
connection between allowing a thorough assessment of risk and the legitimate
aim of protecting public safety. The Government believes this limitation is a
reasonable and proportionate measure to ensure public safety, particularly in
the current security environment.[305]
Committee response
2.858
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.859
The committee agrees that public statements that encourage or advocate
violence against other people is not a legitimate form of expression.
2.860
However, the committee notes that in most cases the making of such
statements is a criminal offence under Australian law and, as such, people who
made such statements could have their visa cancelled or refused on the grounds
that they are not of good character. In such circumstances, it appears unlikely
that a person's visa would be cancelled or refused instead on the lesser ground
of inciting discord in the community.
2.861
The committee notes that departmental delegates are instructed to
consider the ground of there being a risk that a person would incite discord in
the community against Australia's well established tradition of free
expression.
2.862
However, where a non-citizen's opinions may attract strong expressions
of disagreement or condemnation from the Australian community, the views of the
community will be a consideration in terms of assessing the extent to which
particular activities or opinions are likely to cause discord or unrest. As
confirmed in the minister's response, it will be entirely at the discretion of
the minister and the department whether to use this ground to cancel or refuse
a visa.
2.863
The committee's initial analysis raised a concern not with the aim of
protecting public safety, but with the granting of an apparently broad executive
discretion that could be used in circumstances where a person poses no threat
to the public and are simply exercising a right to free speech.
2.864
Where broad discretions are granted to decision-makers, statutory
safeguards are important in demonstrating that any limitation on the right to
freedom of association is proportionate. The absence of statutory safeguards in
relation to this broad executive power means that the power could be used
beyond the stated purposes set out in the minister's response. Accordingly, the
committee considers that the measure is not proportionate.
2.865
The committee's assessment of the proposed lowering of the threshold
for the character test where there is a 'risk' that a person would incite
discord in the community against article 19 of the International Covenant on
Civil and Political Rights (right to freedom of expression), is that the
measure may be incompatible. As set out above, the statement of compatibility
and the minister's response do not sufficiently justify the limitation as
proportionate (that is, as the least rights restrictive approach to achieve the
stated objective).
2.866
In order to address the human rights compatibility issues raised above,
the Migration Act may be amended to require a departmental review of all
non-refoulement claims prior to any person's removal from Australia and that
any decision taken by the department following such a review is at a minimum
reviewable by the Administrative Appeals Tribunal.
Requirement to provide personal information for the purposes of the
character test
2.867
The Act introduced a new section to the Migration Act that compels the
head of a state or territory agency to provide personal information in relation
to a specified person relevant to the passing of the character test under
section 501 of the Migration Act. Although the Act does not specify the type of
information that could be required to be made available, the statement of
compatibility explains that it would include:
-
bio-data of persons entering Australian
correctional institutions;
-
information on persons who have received
suspended sentences;
-
information on persons sentenced but released by
a courts due to 'time served';
-
information on persons directed to be held in
mental health institutions, or transferred from prison to mental health
institutions within the period of their sentence; and
-
any information that can be considered relevant
to the assessment of a person's character in the ordinary sense.[306]
2.868
The Act specifically provides that the head of a relevant state
or territory agency is not excused from complying with a notice on the ground
that disclosing the information would contravene a law of the Commonwealth,
state or territory that (a) primarily relates to the protection of the privacy
of individuals and (b) prohibits or regulates the use or disclosure of personal
information.[307]
2.869
The committee previously considered that requiring the mandatory
provision of personal information for the purposes of the character test under
section 501 of the Migration Act, engages and may limit the right to
privacy.
Right to privacy
2.870
Article 17 of the ICCPR prohibits arbitrary or unlawful
interferences with an individual's privacy, family, correspondence or home. The
right to privacy includes respect for informational privacy, including:
-
the right to respect for private and confidential information,
particularly the storing, use and sharing of such information; and
-
the right to control the dissemination of information about one's
private life.
2.871
However, this right may be subject to permissible limitations which are
provided by law and are not arbitrary. In order for limitations not to be
arbitrary, they must seek to achieve a legitimate objective and be reasonable,
necessary and proportionate to achieving that objective.
Compatibility of the measure with
the right to privacy
2.872
The committee's initial analysis noted that that, while ensuring the
availability of information necessary to support the identification and
assessment of visa holders of character concern is likely to be a legitimate
objective for the purpose of international human rights law, it is unclear
whether the measure may be regarded as a proportionate way to achieve that
objective.
2.873
The statement of compatibility acknowledged that the requirement to
provide personal information for the purposes of the character test may be seen
as limiting a person's right to privacy, but assessed the measure as being
compatible with the right.
2.874
The committee noted that the statement of compatibility did not
sufficiently justify that limitation for the purpose of international human
rights law. The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to whether there is a rational connection
between the limitation and the stated objective, and whether the limitation is
a reasonable and proportionate measure for the achievement of the stated
objective.
Minister's response
Section 501 of the Act sets out the basis upon which a person
could be found to not pass the character test. Section 501L of the Act is clearly
limited to the Minister requesting information from a State or Territory
agency, that the agency can reasonably acquire, and where the information is
relevant to the assessment of whether or not a non-citizen passes the character
test. In this regard, I do not agree with the committee's view that this
represents a broad and unconstrained requirement to share personal information.
I would reiterate that this legislative provision puts beyond
doubt that my department has a legislative basis upon which to obtain
information relevant to a non-citizen's character. To the extent that this is a
limitation of person's right to privacy, there is rational connection between
this limitation and the Government's objective of protecting the Australian
community from the risk of harm by a non-citizen who is suspected of not
passing the character test. It is reasonable and proportionate that State,
Territory and Federal Government departments are able to share information
about non-citizens who may do harm or engage in criminal activity where that
information is relevant to the assessment of that person against the character
test.
This amendment does not alter the way in which information
received by the Government in relation to non-citizens is used, disclosed and
stored. My department has in place a Privacy Policy to address its obligations
regarding collection, use and disclosure of personal information, and sets out
how the department complies with its obligations under the Privacy Act 1988.
All personal information held by my department is stored in compliance with
Australian Government security requirements and includes the department's
processes being the subject of mandatory reporting processes and protocols in
accordance with guidelines issued by the Privacy Commissioner.[308]
Committee response
2.875
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.876
The committee notes in particular the minister's advice that information
will only be shared to the extent that it is relevant to the assessment of
whether or not a non-citizen passes the character test and any information
received by the government is used, disclosed and stored in accordance with the
department's privacy policy and its compliance with the Privacy Act 1988.
2.877
The committee therefore considers that the measure is likely to be
compatible with the right to privacy.
Migration Amendment (2014 Measures No. 2) Regulation 2014 [F2014L01696]
Portfolio:
Immigration and Border Protection
Authorising
legislation: Migration Act 1958
Last day
to disallow: 26 March 2015
Purpose
2.878
The Migration Amendment (2014 Measures
No. 2) Regulation 2014 (the regulation) amends the Migration Regulations 1994
(the Migration Regulations) to:
-
remove the prescribed period of time that an applicant outside
Australia must be given to respond to a request for information or to an
invitation to comment, so that the 'reasonable time' period set out in the Migration
Act 1958 (Migration Act) will apply instead;
-
broaden the definition of 'managed fund' to allow the minister to
specify investment products as eligible investment products for visa applicants
seeking a business visa;
-
make changes to the character and general visa cancellation
provisions in the Migration Regulations 1994, as
a consequence of the introduction of the Migration Amendment (Character and
General Visa Cancellation) Act 2014.
Background
2.879
The committee considered the regulation
in its Twenty-first Report of the 44th Parliament.[309]
Criteria for grant of visa requires a statement from appropriate authority
2.880
Item 3 of Schedule 3 of the regulation prescribes additional criteria
for the grant of a visa. For those visa applicants that are required to satisfy
public interest criteria 4001 or 4002, if the minister requests it, an
applicant must provide a statement from an appropriate authority in a country
where the person resides, or used to reside, that provides evidence about
whether the person has a criminal history.
2.881
The committee considered that this measure engages and may limit
Australia's non-refoulement obligations and the right to liberty.
Non-refoulement obligations
2.882
Australia has non-refoulement obligations under the Refugee Convention,
and under both the International Covenant on Civil and Political Rights (ICCPR)
and the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT).[310]
This means that Australia must not return any person to a country where there
is a real risk that they would face persecution, torture or other serious forms
of harm, such as the death penalty; arbitrary deprivation of life; or cruel,
inhuman or degrading treatment or punishment.[311]
2.883
Non-refoulement obligations are absolute and may not be subject to any
limitations.
2.884
Independent, effective and impartial review of decisions to deport or
remove a person, including merits review, is integral to complying with
non-refoulement obligations.[312]
2.885
Australia gives effect to its non-refoulement obligations principally
through the Migration Act. In particular, section 36 of the Migration Act sets
out the criteria for the grant of a protection visa, which includes being found
to be a refugee or otherwise in need of protection under the ICCPR or the CAT.
Compatibility of the measure with
non-refoulement obligations
2.886
Under the Migration Regulations, applicants for all visas, including
protection visas,[313]
are required to pass the character test (criteria 4001) and to not be assessed
as a security risk by the Australian Security Intelligence Organisation
(criteria 4002). This means that, while a person may engage Australia's
protection obligations under the Refugee Convention, the ICCPR and CAT, they
might nonetheless be denied a visa on character grounds. This regulation
introduces an additional criterion, which is that the person provides evidence
about whether they have a criminal history from an appropriate authority in a
country where the person resides or has resided.[314]
The minister can exercise his or her personal non-compellable discretion to
waive this requirement if satisfied it is not reasonable to require the
applicant to provide the statement.
2.887
The statement of compatibility acknowledged that this provision 'may
result in a greater number of visa refusal decisions for non-citizens who are
in Australia'.[315]
It stated that the amendments do not engage Australia's non-refoulement
obligations.
2.888
The committee considered in its previous analysis that the measure
engages and limits the obligation of non-refoulement, as it imposes an
additional condition which must be met before a visa can be granted, including
a protection visa. A person may be found to be one to whom Australia owes
protection obligations but, because they cannot provide evidence of whether
they have a criminal history from an appropriate authority, they may not be
granted a protection visa.
2.889
The requirement that a person provide evidence about whether they have a
criminal history from an appropriate authority in a country they may have fled
could effectively provide notice to that country that the person is seeking
asylum in Australia. If the person is not granted a protection visa and is
returned to that country, this could itself become a basis for persecution in
that country.
2.890
While the committee acknowledged the minister's commitment to ensuring
no one who is found to engage our non-refoulement obligations will be removed
in breach of that obligation, this will depend solely on the minister's
personal non-compellable discretion. Further, 'independent, effective and
impartial' review, including merits review, is not provided in relation to
non-refoulement decisions.
2.891
The committee therefore sought the advice of the Minister for
Immigration and Border Protection as to whether imposing additional criteria to
be satisfied before a visa can be granted, including a protection visa,
complies with Australia's non-refoulement obligations under the ICCPR and the
CAT.
Minister's response
Regulation 2.03AA provides that, where a person is required
to satisfy either or both of Public Interest Criterion (PIC) 4001 or 4002 for
grant of a visa, the person must provide a statement from an appropriate
authority about his or her criminal history and a completed approved Form 80 (Personal
particulars for assessment including character assessment), if requested by
the Minister. A waiver of the requirement to provide the criminal history
statement is available where the Minister is satisfied that it is not
reasonable for the applicant to provide it.
Regulation 2.03AA made no change to the requirement for
existing visa applicants to be assessed against either or both of PIC 4001 or
PIC 4002 where applicable. Historically, there have been numbers of visa
applicants who have not completed the Form 80, or have not provided the
information requested about their criminal history. Within the previous
statutory framework, there was no mechanism to compel an applicant to provide
the requested information, thus limiting the ability of the Department of
Immigration and Border Protection (the Department) to comprehensively assess
whether a visa applicant presented a character or security risk. The amendment
ensures that a visa applicant who is required to satisfy PIC 4001 and/or PIC
4002 is also required to provide the documentation required to assess these
PICs if requested by the Minister, with a waiver of the request available in
certain circumstances.
This amendment has not changed the long-standing practice in
relation to people seeking protection, being that protection visa applicants
will not be required to obtain a criminal history statement from an authority
in a country from which protection is sought. It is important to note that
under existing and long-established policy guidelines, there are already waiver
provisions in place to this effect.
It is also the case that the amendments have no impact on the
independent, effective and impartial review of visa decisions. Whether or not
merits review is available to a visa applicant of a Departmental decision
depends on other provisions in the Migration Act 1958 (the Migration
Act). This means that merits review may be available to a visa applicant
refused a visa due to a failure to satisfy either regulation 2.03AA or the
applicable clause in Schedule 2 to the Migration Regulations 1994 (the
Migration Regulations) that requires satisfaction of PIC 4001 and/or PIC 4002,
as has always been the case. As part of the review process, the merits review
body will be able to consider whether it was reasonable for the applicant to be
required to provide evidence of their criminal history from an appropriate
authority in their home country.
As stated in my response to the committee's Nineteenth
report of the 44th Parliament, whilst noting the committee's
concerns, it is the Government's position that while merits review can be an
important safeguard, there is no express requirement under the International
Covenant on Civil and Political Rights (ICCPR) or the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) for
merits review in the assessment of non-refoulement obligations. Australia does
not seek to resile from or limit its non-refoulement obligations. Nor do the
amendments affect the substance of Australia's adherence to these obligations.
Further, there are other mechanisms under the Migration Act which provide the
Government with the ability to address non-refoulement obligations. These
include through the protection visa application process, the Minister's
personal public interest powers in the Migration Act, and International
Treaties Obligation Assessments that take place prior to a person's involuntary
removal from Australia to confirm compliance with Australia's non-refoulement
obligations, if such an assessment has not previously occurred.
It is the Government's view that this regulation amendment is
not incompatible with Australia's non-refoulement obligations.[316]
Committee response
2.892
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.893
The committee welcomes the minister's advice that the minister may waive
the requirement to provide a criminal history statement where the minister is
satisfied that it is not reasonable for the applicant to provide it. The
committee notes, however, that such a consideration is a matter of
administrative discretion and not a statutory requirement. As such, this is an
insufficient safeguard for the purposes of international human rights law.
2.894
The committee also welcomes advice that the department has a longstanding
practice in relation to people seeking protection, being that protection visa
applicants will not be required to obtain a criminal history statement from an
authority in a country from which protection is sought.
2.895
However, the committee notes that legislative safeguards provide a
stronger level of protection than that provided by guidance material or policy
safeguards. The committee's longstanding view has been that, where a measure
limits a human right, discretionary or administrative safeguards alone are
likely to be insufficient for the purpose of a permissible limitation under
international human rights law. This is because administrative and
discretionary safeguards are less stringent than the protection of statutory
processes and can be amended at any time.
2.896
The committee further notes the minister's advice that merits review
will be available for some decisions relating to the grant of a visa depending
on other provisions in the Migration Act. Accordingly, merits review will not
be available in every case in which a protection visa is sought. As set out in
the committee analysis of the minister's response to the Migration Amendment
(Character and General Visa Cancellation) Bill 2014, the committee is of
the view that the international case law establishes the proposition that,
while merits review is not expressly required, there is strict requirement for
'effective review' of non-refoulement decisions.
2.897
Applied to the Australian context, the committee has considered numerous
cases, like the present case, where legislation has provided for judicial
(rather than merits) review of non-refoulement decisions. Judicial review in
Australia is governed by the Administrative Decisions (Judicial Review) Act
1977, and represents a considerably limited form of review in that it
allows a court to consider only whether the decision was lawful (that is,
within the power of the decision maker). The court cannot undertake a full
review of the facts (that is, the merits) of a particular case to determine
whether the case was correctly decided.
2.898
Accordingly, in the Australian context, the committee considers that
judicial review is not sufficient to fulfil the international standard required
of 'effective review', because it is only available on a number of restricted
grounds of review that do not relate to whether that decision was the correct
or preferable decision. The ineffectiveness of judicial review is particularly
apparent when considered against the purpose of effective review of
non-refoulement decisions under international law, which is to 'avoid
irreparable harm to the individual'.
2.899
In contrast, merits review allows a person or entity other than the
primary decision maker to reconsider the facts, law and policy aspects of the
original decision and to determine what is the correct or preferable decision.
2.900
In light of the above, the committee reiterates its view that,
in the Australian context, the requirement for independent, effective and
impartial review of non-refoulement decisions is not met by the availability of
judicial review, but may be fulfilled by merits review.
2.901
The committee's assessment of the requirement that an applicant may
be compelled to provide a statement from an appropriate authority that offers
evidence about whether the person has a criminal history, is that it may be incompatible
with Australia's non-refoulement obligations.
2.902
In order to address the human rights compatibility issues raised above,
the Migration Act may be amended to:
-
expressly preclude a person from being compelled to obtain a
criminal history statement from an authority in a country from which protection
is sought; and
-
require a departmental review of all non-refoulement
claims prior to any person's removal from Australia and that any decision
taken by the department following such a review is at a minimum reviewable by
the Administrative Appeals Tribunal.
Right to liberty
2.903
Article 9 of the ICCPR protects the right to liberty—the procedural
guarantee not to be arbitrarily and unlawfully deprived of liberty. This
prohibition against arbitrary detention requires that the state should not
deprive a person of their liberty except in accordance with law. The notion of
'arbitrariness' includes elements of inappropriateness, injustice and lack of
predictability.
2.904
Accordingly, any detention must not only be lawful, it must also be
reasonable, necessary and proportionate in all circumstances. Detention that
may initially be necessary and reasonable may become arbitrary over time if the
circumstances no longer require the detention. In this respect, regular review
must be available to scrutinise whether the continued detention is lawful and
non-arbitrary.
2.905
The right to liberty applies to all forms of deprivations of liberty,
including immigration detention.
Compatibility of the measure with
the right to liberty
2.906
The statement of compatibility stated that the amendments do not limit
the right to freedom from arbitrary detention.[317]
2.907
However, in its previous analysis the committee considered that,
imposing additional criteria for the grant of a visa such that a person
recognised as a refugee may still not be granted a visa, engages and limits the
prohibition against arbitrary detention. This is because a person whose visa is
refused if they have not been able to provide evidence of whether they have a
criminal history from an appropriate authority in their home country will be
subject to mandatory immigration detention pending their removal or
deportation. Where it is not possible to remove a person because, for example,
they may be subject to persecution if returned to their home country or no
country will accept them, that person may be subject to indefinite detention.
2.908
While the committee considered that ensuring the safety of the
Australian community and the integrity of the migration program is likely to be
considered a legitimate objective for the purposes of international human
rights law, it is not clear that each of the measures is rationally connected
to achieving that aim and whether a number of measures may be regarded as
proportionate. In particular, it is unclear whether there are sufficient
safeguards to ensure that the detention of persons who have not been granted a
visa for failure to provide a statement from an appropriate authority about
whether the person has a criminal history will not lead to cases of arbitrary
detention.
2.909
The committee therefore considered that imposing additional criteria to
be satisfied before a visa can be granted, in the context of Australia's
mandatory immigration detention policy, limits the right to liberty. The
statement of compatibility did not sufficiently justify that limitation for the
purpose of international human rights law. The committee therefore sought the
advice of the Minister for Immigration and Border protection as to whether
there is reasoning or evidence that establishes that the stated objective
addresses a pressing or substantial concern or whether the proposed changes are
otherwise aimed at achieving a legitimate objective, whether there is a
rational connection between the limitation and that objective, and whether the
limitation is a reasonable and proportionate measure for the achievement of
that objective.
Minister's response
The Government is of the view that the imposition of the
additional criteria in regulation 2.03AA does not engage or limit the
prohibition against arbitrary detention. This amendment is aimed at the
minority of non-protection visa applicants who do not provide the required
documents, and is applicable where a visa applicant does not comply with
reasonable requests made by the Department for the purposes of assessing them
against PIC 4001 or PIC 4002. The amendment ensures that a visa applicant who
is required to satisfy PIC 4001 and/or PIC 4002 is also required to provide the
documentation required to assess these PICs if requested by the Minister, with
a waiver of the requirement available in certain circumstances.
This amendment is not intended to change long standing
practices in relation to people seeking protection from Australia. It is
important to note that under existing and long-established policy guidelines,
there are already provisions in place to provide that a protection visa
applicant is not required to obtain a statement from an appropriate authority,
such as a penal certificate, in relation to a country from which they are
claiming protection.
Regulation 2.03AA made no change to the requirement for
existing visa applicants upon whom PIC 4001 and/or PIC 4002 are imposed, to be
assessed against those PICs in order for character and security risks to be
assessed. As stated in my response to the committee's Nineteenth report of
the 44th Parliament, the safety of the Australian community, particularly
in the current security environment, is considered to be both a pressing and
substantial concern and a legitimate objective. The refusal to grant a visa in
circumstances where the applicant presents a risk to the Australian community,
and their subsequent detention as an unlawful non-citizen prior to removal from
Australia, is undertaken within a well-established legislative process. I would
reiterate, and as previously stated in the Regulation's Statement of
Compatibility with human rights, that the amendments do not limit a person's
right to security of the person and freedom from arbitrary detention. To the
extent that it may be interpreted as limiting the obligations in Article 9 of
the ICCPR, there is a clearly rational connection between ensuring that
non-citizens in Australia who present a risk to the Australian community can be
considered for visa refusal on character grounds, and the legitimate objective
of protecting the safety of the Australian community from those who may pose a
risk to it. Further, people who are affected by these measures will continue to
be able to challenge the lawfulness of their detention in accordance with
Article 9(4). As noted above, the amendments also have no effect on the
availability of review of visa refusal decisions.
This regulation amendment does not alter the detention powers
or framework already established in the Migration Act. The Statement of
Compatibility which accompanied the Explanatory Statement to the Regulation
outlined the Government's position that the detention of unlawful non-citizens
as the result of visa refusal is neither unlawful nor arbitrary under
international law. Continuing detention may become arbitrary after a certain
period of time without proper justification. The determining factor, however,
is not the length of detention, but whether the grounds for the detention are
justifiable. While the amendments provide that a small number of visa
applicants may be considered for visa refusal, it is the Government's position
that these amendments present a reasonable response to achieving a legitimate
purpose- being the safety of the Australian community.[318]
Committee response
2.910
The committee thanks the Minister for Immigration and Border
Protection for his response.
2.911
The committee notes that, notwithstanding the minister's view that the
measures do not alter the existing detention powers or framework under the
Migration Act, imposing additional criteria for the grant of a visa, such that
a person recognised as one to whom Australia owes protection may still not be
granted a visa, may result in more people being subject to mandatory
immigration detention. The committee also notes the minister's advice that the
measure is 'aimed at' the minority of non-protection visa applicants who do not
provide the required documents. In this regard, the regulation permits a much
broader application of the requirement to provide a criminal history check
including in relation to protection visas.
2.912
As noted in the committee's initial analysis, the detention of a
non-citizen or cancellation of their visa pending deportation will generally
not constitute arbitrary detention, as it is permissible to detain a person for
a reasonable time pending their deportation.
2.913
However, there may be cases where a person cannot be returned to their
home country on protection grounds (due to the obligation of non-refoulement or
where there is no other country willing to accept the person). As noted by the
minister in his response to the committee, such circumstances of continuing
detention can give rise to instances of arbitrary detention:
Continuing detention may become arbitrary after a certain
period of time without proper justification. The determining factor, however,
is not the length of detention, but whether the grounds for the detention are
justifiable.
2.914
In this regard, the committee notes the recent UN Human Rights Committee
(HRC) decision concerning the continued detention of 46 refugees subject to
adverse ASIO security assessments. The HRC found that their indefinite
detention on security grounds amounted to arbitrary detention and to cruel,
inhuman or degrading treatment, contrary to articles 9(1), 9(4) and 7 of the
ICCPR. The HRC considered the detention of the refugees to be in violation of
the right to liberty in article 9 of the ICCPR because the government:
-
had not demonstrated on an individual basis that their continuous
indefinite detention was justified; or that other, less intrusive measures
could not have achieved the same security objectives;
-
had not informed them of the specific risk attributed to each of
them and of the efforts undertaken to find solutions to allow them to be
released from detention; and
-
had deprived them of legal safeguards to enable them to challenge
their indefinite detention, in particular, the absence of substantive review of
the detention, which could lead to their release from arbitrary detention.[319]
2.915
Accordingly, it is the blanket and mandatory nature of detention for
those who have been refused a visa but to whom Australia owes protection
obligations that makes such detention arbitrary. In particular, the Australian
system provides for no consideration of whether detention is justified and
necessary in each individual case—detention is simply required as a matter of policy.
It is this essential feature of the mandatory detention regime that invokes the
right to liberty in article 9 of the ICCPR.
2.916
While the committee accepts that the safety of the Australian community,
particularly in the current security environment, may be considered to be both
a pressing and substantial concern and a legitimate objective, the mandatory
detention regime does not allow for an individual assessment of whether
detention of an individual is necessary to protect Australian community. On the
same facts, the measure is also not proportionate because it is not the least
rights restrictive approach to achieve the legitimate objective.
2.917
The committee's assessment of the requirement that an applicant may
be compelled to provide a statement from an appropriate authority that offers
evidence about whether the person has a criminal history, is that it may be
incompatible with article 9 of the International Covenant on Civil and
Political Rights (right to liberty).
2.918
In order to address the human rights compatibility issues raised above,
the Migration Act may be amended to:
-
provide an individual assessment of the necessity of detention in
each individual case;
-
provide each individual subject to immigration detention a
statutory right of review of the necessity of that detention;[320]
and
-
in the case of individuals detained for a lengthy period of time,
provide a periodic statutory right of review of the necessity of continued
detention.
Imposition of special return criteria—visa cannot be granted if had previously
held a visa that was cancelled on character grounds
2.919
Special Return Criterion (SRC) 5001 of Schedule 5 to the Migration
Regulations previously provided that a person could not be granted a visa if
they were deported from Australia or held a visa that was cancelled on certain
character grounds. The regulation amends this to refer to new grounds on which
a visa has been cancelled, to reflect the amendments introduced by the Migration Amendment (Character and General Visa
Cancellation) Act 2014. The provision
provides that such exclusion will continue to apply unless the minister
personally grants a permanent visa to the person.
2.920
As this amendment expands the basis on
which a person can be permanently excluded from Australia, the committee
considers that this engages and limits the right to freedom of movement (own
country) and the obligation to consider the best interests of the child.
Right to freedom of movement (right
to return to Australia)
2.921
Article 12 of the ICCPR protects freedom of movement. The right to
freedom of movement includes the right to move freely within a country for
those who are lawfully within the country, the right to leave any country and
the right to enter one's own country. The right may be restricted in certain
circumstances.
2.922
The right to enter one's own country includes a right to remain in the
country, return to it and enter it. There are few, if any, circumstances in
which depriving a person of the right to enter their own country could be
reasonable. Australia cannot, by stripping a person of nationality or by
expelling them to a third country, arbitrarily prevent a person from returning
to his or her own country.
2.923
The reference to a person's 'own country' is not necessarily restricted
to the country of one's citizenship—it might also apply when a person has very
strong ties to the country.
Compatibility of the measures with
the right to freedom of movement (right to return to Australia)
2.924
The statement of compatibility did not address the compatibility of the
measure with the right to freedom of movement.
2.925
In its previous analysis the committee noted that the expanded basis on
which a person is excluded from the grant of a further visa may lead to a
permanent resident whose visa is cancelled being excluded from ever returning
from Australia, unless the minister exercises a personal, non-compellable
discretion to grant a permanent visa to the person.
2.926
The committee also noted that the UN Human Rights Committee has found
that the deportation of a person with strong ties to Australia, following
cancellation of their visa on character grounds, may constitute a breach of the
right of a permanent resident to remain in their own country.[321]
The statement of compatibility provided no assessment of whether the expanded
exclusion criteria are compatible with the right to freedom of movement.
2.927
The committee therefore considered that the expansion of the exclusion
criteria may limit the right to freedom of movement and specifically the right
of a permanent resident to return to their 'own country'. The statement of
compatibility did not justify that limitation for the purpose of international
human rights law. The committee therefore sought the advice of the Minister for
Immigration and Border protection as to whether there is reasoning or evidence
that establishes that the stated objective addresses a pressing or substantial
concern or whether the proposed changes are otherwise aimed at achieving a
legitimate objective, whether there is a rational connection between the
limitation and that objective, and whether the limitation is a reasonable and
proportionate measure for the achievement of that objective.
Minister's response
As stated in my response to the committee's Nineteenth
report of the 44th Parliament, I respectfully disagree with
the committee's view that the reference to a person's own country is not
necessarily restricted to the country of one's citizenship. It is the
Government's position that a person who enters a State under that State's
immigration laws cannot regard the State as his or her own country when he or
she has not acquired nationality in that country. The expansion of the
'exclusion criteria' to include all character cancellation decisions is limited
to visa cancellations only. It is the Government's view that this does not fall
within article 12(4) of the ICCPR because the legislation has not been extended
to matters of Australian citizenship. In deciding whether or not to cancel a
non-citizen's visa, a decision-maker will take into account the non-citizen's
ties to the Australian community, including their length of residence. The
amendment is therefore compatible with human rights because it is consistent
with Australia's international human rights obligations.[322]
Committee response
2.928
The committee thanks the Minister for Immigration and Border Protection
for his response.
2.929
The committee notes the minister's advice that non-citizen's ties to the
Australian community, including their length of residence, are taken into
account when considering the cancellation of their visa. The committee welcomes
this approach but notes that such a consideration is a matter of administrative
discretion and not a statutory requirement. As such, this is an insufficient
safeguard for the purposes of international human rights law.
2.930
The committee notes the unequivocal statement by the minister that
article 12(4) (the right to enter one's own country) applies only to
citizens of Australia. The committee notes that this is inconsistent with
recent views expressed by the UN Human Rights Committee (HRC), in Nystrom v.
Australia and in Warsame.[323]
In both cases, the HRC found violations of ICCPR article 12(4) where a person
had clear, ongoing and longstanding connections to the resident state and also
no connection with the ostensible state by reason of their nationality. Thus,
the HRC has now issued two views confirming a broader interpretation of art
12(4) than one simply based on nationality or citizenship.
2.931
The committee notes that HRC views are not binding on Australia as a
matter of international law and that the minister's response reflects the Australian
government's response to the Nystrom decision, which was essentially to
disagree with the decision. Nevertheless, the HRC's views are highly
authoritative interpretations of binding obligations under the ICCPR and should
be given considerable weight by the government in its interpretation of
Australia's obligations. However, the minister's response does not include any
evidence or analysis as to why the views of the Australian government should be
preferred to the HRC in the interpretation of article 12(4).
2.932
Further, these statements of the HRC in relation to article 12(4) are
persuasive as interpretations of international human rights law that are
consistent with the proper interpretation of treaties as set out in the Vienna
Convention on the Law of Treaties (VCLT).[324]
2.933
In addition, the words of article 12(4) do not make any reference to a
requirement of 'citizenship' or 'nationality' but instead use the phrase 'own
country'. In interpreting these words according to their 'ordinary meaning' as
required by the VCLT, the phrase 'own country' clearly may be read as a broader
concept than the terms 'citizenship' or 'national'.
2.934
Article 32 of the VCLT provides that in the interpretation of treaties,
recourse may be had to supplementary means of interpretation in circumstances
where the meaning is ambiguous or unreasonable. Supplementary means of
interpretation include the preparatory work of a treaty, such as the
negotiating record or travaux préparatoires. The committee notes that
the travaux préparatoires for article 12(4) show that the terms
'national' and 'right to return to a country of which he is a national' was
expressly considered and rejected by states during the negotiation of the
ICCPR.
2.935
The travaux préparatoires for article 12(4) also show that
Australia expressed concern during the negotiations about a right of return for
persons who were not nationals of a country but who had established their home
in that country (such as permanent residents in the Australian context). Accordingly,
the phrase 'own country' was proposed by Australia as a compromise, and the
right to enter one's 'own country' rather than the right to return to a country
of which one is a 'national' was agreed in the final text of the ICCPR.[325]
2.936
In this context, the committee considers that the correct interpretation
of 'own country' is clearly one that imports a significantly broader meaning to
the phrase than the term 'citizenship'. In fact, the phrase 'own country'
appears to have been proposed by Australia specifically to allow for a right of
return for persons who are not nationals but have strong links with Australia.
2.937
The committee's assessment of the expanded basis on which a person
can be permanently excluded from Australia, including those who have lived for
many years in Australia and have strong ties with Australia, is that it is
likely to be incompatible with article 12 of the International Covenant on
Civil and Political Rights (right to freedom of movement). The committee
considers that this limitation has not been sufficiently justified for the
purposes of international human rights law.
2.938
In order to address the human rights compatibility issues raised above,
the Migration Act may be amended to require that any person who has lived for
many years in Australia and has such strong ties with Australia that they
consider Australia to be their 'own country' be only subject to visa
cancellation if the minister is satisfied that there is no other way to protect
the security of the Australian community.
Obligation to consider the best
interests of the child
2.939
Under the Convention on the Rights of the Child (CRC), state parties are
required to ensure that, in all actions concerning children, the best interests
of the child is a primary consideration.
2.940
This principle requires active measures to protect children's rights and
promote their survival, growth and wellbeing, as well as measures to support
and assist parents and others who have day-to-day responsibility for ensuring
recognition of children's rights. It requires legislative, administrative and
judicial bodies and institutions to systematically consider how children's
rights and interests are or will be affected directly or indirectly by their
decisions and actions.
Compatibility of the measures with
the obligation to consider the best interests of the child
2.941
The statement of compatibility noted that various measures in the
regulation could result in the separation of the family unit.[326]
It did not, however, set out the compatibility of these measures with the
obligation to consider the best interests of the child, in the context where a
child, who may have had their visa cancelled as a minor, may, as a result of
these amendments, never be able to be granted another visa to Australia.
2.942
Where a person's visa is being considered for cancellation, the decision
to waive the exception and grant a permanent visa is a personal,
non-compellable discretion of the minister. As the committee has previously
noted in its analysis, administrative and discretionary process are less stringent
than the protection of statutory processes. In the absence of a statutory
requirement to consider the best interests of a child when deciding whether or
not the child will be excluded from the grant of another visa, it is unclear
whether the regulation may be considered as being compatible with the
obligation to consider the best interests of the child.
2.943
The committee considered that the regulation engages and limits the
obligation to consider the best interests of the child. The statement of
compatibility for the bill did not provide sufficient information to establish
that the regulation may be regarded as proportionate to its stated objective.
The committee therefore sought the advice of the Minister for Immigration and
Border Protection as to whether the regulation imposes a proportionate
limitation on the obligations to consider the best interests of the child.
Minister's response
It is possible that a minor could have his or her visa
cancelled under section 501, 501A or 501B of the Migration Act, however, it
would be rare that a person under the age of 18 would be considered against the
character test in subsection 501(6) of the Migration Act. Policy guidelines on
minors who may not pass the character test in subsection 501(6) of the
Migration Act relevantly state:
The fact that the
person is under 18 must be given significant consideration. Therefore, the
whereabouts of the minor's parents will be crucial in deciding whether to
pursue visa cancellation or refusal for the minor. Under policy,
cancellation or refusal should not be pursued if that decision would result in
the minor being separated from their parents or legal guardians, unless the
minor does not pass the character test because of an extremely serious offence.
Cancellation or refusal may be
considered appropriate in cases involving less serious offences where the
decision would not result in the minor being separated from their parents or
legal guardians. An example would be a 16 year old who is in Australia as the
holder of a student visa and whose parents live in the home country.
In circumstances where a minor is being considered for visa
cancellation under section 501 of the Migration Act (or sections 501A or 5018),
the individual's legal guardians would also be included in any procedural
fairness process, and the person's age when they committed the act(s) that
brought them within the scope of the character test would be a relevant factor
to consider when exercising the discretion to cancel their visa. As stated in
the Statement of Compatibility for this Regulation, the Minister's delegates
and Administrative Appeals Tribunal members making a decision under section 501
are bound by a Ministerial Direction made under section 499 of the Migration
Act which requires a balancing exercise of countervailing considerations.
In all visa cancellation decisions based on the character
test, the best interests of the child are a primary consideration. While rights
relating to children generally weigh heavily against visa cancellation, there
will be circumstances where this may be outweighed by the risk to the
Australian community due to the seriousness of the person's criminal record or
past behaviour or associations.
The decision to cancel a non-citizen's visa under section 501
of the Migration Act relates only to the individual who has been found to not
pass the character test. Any associated visa holder of a non-citizen who has had
their visa cancelled under the character provisions, such as a spouse or child,
would continue to hold their visa, and would not be subject to consequential
visa cancellation under any provision of section 501. Therefore, a minor would
not be subject to an exclusion period under SRC 5001 due to imposition of the
character provisions in section 501 on an associated visa holder.[327]
Committee response
2.944
The committee thanks the Minister for Immigration and Border
Protection for his response. On the basis of the minister's advice that:
-
a minor would not be subject to an exclusion period because a
family member (as the associated visa holder) failed the character test; and
-
in circumstances where a minor is being considered for visa
cancellation the individual's legal guardians would also be included in any
procedural fairness process,
the committee concludes that the measure is likely to be
compatible with the obligations to consider the best interests of the child.
Social Security Legislation Amendment (Community Development Program) Bill
2015
Portfolio:
Indigenous Affairs
Introduced:
Senate, 2 December 2015
Purpose
2.945
The Social Security Legislation Amendment (Community Development
Program) Bill 2015 (the bill) creates a new income support payment and
compliance arrangements for people living in remote Australia who are eligible
for certain income support payments.
2.946
Measures raising human rights concerns or issues are set out below.
Background
2.947
The committee first reported on the bill in its Thirty-third Report
of the 44th Parliament (previous report) and requested
further information from the minister as to the compatibility of the bill with
the rights to social security and the right to equality and non-discrimination.
The committee also recommended that the government release an exposure draft of
the legislative instrument which would set out the compliance obligations and
penalty regime for remote income support recipients.[328]
New obligations and penalty arrangements for remote income support
recipients
2.948
The bill exempts eligible remote income support recipients from existing
compliance obligations and penalty arrangements and enables the minister to
determine these requirements in a legislative instrument. The explanatory
memorandum (EM) states that the intention of the bill 'is that the legislative
instrument will provide for consequences where obligations are not complied
with, in order to provide incentives for remote income support recipients to
engage in work or activities'.[329]
2.949
The bill does not set out the intended content of the obligations to be
determined by legislative instrument. The EM states that the bill enables the
minister to 'determine appropriate participation activities and compliance
arrangements in consultation with communities, ensuring that they are tailored
to the individual needs of remote job seekers'.[330]
2.950
The new 'simplified arrangements' also enable payments to remote income
support recipients to be made on a weekly basis, and for payments to be made by
service providers rather than the Department of Human Services (the
department). Under these 'simplified arrangements', remote job seekers will be
subject to immediate 'No Show No Pay' penalties for non-compliance with
activity requirements. These penalties will also be applied by service
providers rather than the department.
2.951
The committee considered in its previous report that by enabling the
creation of a different system of obligations and penalty arrangements for
remote job seekers, the bill engages and may limit the right to social security
and the right to an adequate standard of living, and the right to equality and
non-discrimination.
Right to social security
2.952
The right to social security is protected by article 9 of the
International Covenant on Economic, Social and Cultural Rights (ICESCR). This
right recognises the importance of adequate social benefits in reducing the
effects of poverty and plays an important role in realising many other
economic, social and cultural rights, particularly the right to an adequate
standard of living and the right to health.
2.953
Access to social security is required when a person has no other income
and has insufficient means to support themselves and their dependents.
Enjoyment of the right requires that sustainable social support schemes are:
-
available to people in need;
-
adequate to support an adequate standard of living and health
care;
-
accessible (providing universal coverage without discrimination
and qualifying and withdrawal conditions that are lawful, reasonable,
proportionate and transparent); and
-
affordable (where contributions are required).
2.954
Under article 2(1) of the ICESCR, Australia has certain obligations in
relation to the right to social security. These include:
-
the immediate obligation to satisfy certain minimum aspects of
the right;
-
the obligation not to unjustifiably take any backwards steps that
might affect the right;
-
the obligation to ensure the right is made available in a
non-discriminatory way; and
-
the obligation to take reasonable measures within its available
resources to progressively secure broader enjoyment of the right.
2.955
Specific situations which are recognised as engaging a person's right to
social security include: health care and sickness; old age; unemployment and
workplace injury; family and child support; paid maternity leave; and
disability support.
Right to an adequate standard of
living
2.956
The right to an adequate standard of living is guaranteed by article
11(1) of the ICESCR, and requires state parties to take steps to ensure the
availability, adequacy and accessibility of food, clothing, water and housing
for all people in Australia.
2.957
In respect of the right to an adequate standard of living, article 2(1)
of the ICESCR also imposes on Australia the obligations listed above in
relation to the right to social security.
Right to equality and
non-discrimination
2.958
The right to equality and non-discrimination is protected by articles 2
and 26 of the International Covenant on Civil and Political Rights (ICCPR).
2.959
This is a fundamental human right that is essential to the protection
and respect of all human rights. It provides that everyone is entitled to enjoy
their rights without discrimination of any kind, and that all people are equal
before the law and entitled without discrimination to the equal and
non-discriminatory protection of the law.
2.960
The ICCPR defines 'discrimination' as a distinction based on a personal
attribute (for example, race, sex or religion),[331]
which has either the purpose (called 'direct' discrimination), or the effect
(called 'indirect' discrimination), of adversely affecting human rights.[332]
The UN Human Rights Committee has explained indirect discrimination as 'a rule
or measure that is neutral on its face or without intent to discriminate',
which exclusively or disproportionately affects people with a particular
personal attribute.[333]
Compatibility of the measure with
the right to social security and the right to an adequate standard of living
2.961
The imposition of new obligations and immediate penalties may result in
some remote job seekers having their payments reduced or losing their payments
altogether, and therefore the measures may limit the recipient's right to social
security. Further, the imposition of immediate penalties for non-attendance
appears to have the effect that any appeal by a social security recipient will
occur after the imposition of a penalty, reducing the ability of a social
security recipient to avoid a penalty before it is imposed.
2.962
The bill does not set out the content of the obligations which are to be
determined by legislative instrument. Given that currently social security
legislation includes extensive mutual obligations, it is unclear why it is
necessary to leave the content of the obligations which will apply to remote
Australians, to delegated legislation rather than being set out in primary
legislation.
2.963
The statement does not address the effect of the new compliance
obligations or penalty arrangements on recipients' rights to social security
and an adequate standard of living. The statement therefore does not provide
any information as to the legitimate objective of the measures, how the
measures are rationally connected to that objective and how the measures are
otherwise proportionate.
2.964
The committee noted that to demonstrate that a limitation is
permissible, proponents of legislation must provide reasoned and evidence-based
explanations of why the measures are necessary in pursuit of a legitimate
objective. The Attorney‑General's Department's guidance on the
preparation of statements of compatibility states that the 'existence of a
legitimate objective must be identified clearly with supporting reasons and,
generally, empirical data to demonstrate that [it is] important'.[334] To be
capable of justifying a proposed limitation of human rights, a legitimate
objective must address a pressing or substantial concern, and not simply seek
an outcome regarded as desirable or convenient. In addition, as the precise
obligations and compliance regime will be left to subordinate legislation it
will be difficult for the committee to assess the bill as compatible with human
rights without reviewing the proposed legislative instrument.
2.965
The committee therefore sought the advice of the minister as to the
objective to which the proposed changes are aimed, and why they address a
pressing and substantial concern; the rational connection between the
limitation and that objective; and reasons why the limitation is a reasonable
and proportionate measure for the achievement of that objective. The committee
also recommended that the government release an exposure draft of the
legislative instrument which would set out the compliance obligations and
penalty regime for remote income support recipients to enable the committee to
assess the human rights compatibility of the bill.
Minister's response
As outlined in the Explanatory Memorandum, the changes
proposed in the CDP Bill promote rights to social security, an adequate standard
of living, to work and are consistent with the right to equality and
non-discrimination. To the extent (if any) that they may limit human rights,
those limitations are reasonable, necessary and proportionate to support job
seekers in remote Australia, by strengthening the existing incentives for
remote job seekers to actively engage with their income support activity
requirements and opportunities to participate and remain in paid work. Please
see Attachment A for further information on the Bill's compatibility with human
rights.
There has been significant interest in participation in phase
one of the reforms and I have met with providers in Queensland, New South
Wales, Western Australia, South Australia and the Northern Territory to explain
the proposed model, as has the Department of the Prime Minister and Cabinet.
All CDP service providers have attended a two-day meeting with Departmental
staff and myself in February 2016 as part of ongoing engagement with providers.
The meeting included consultation on the proposed reforms and the feedback and
input that I received during this meeting will inform the design of the
legislative instrument. My Department will continue to work closely with CDP
providers over the coming months.
The measures in the CDP Bill are reasonable and proportionate
to achieve its objectives. They apply equally to all job seekers who reside in
remote income support regions in Australia, the measures in the CDP Bill are
non-discriminatory and are not a special measure.
Please note that I have committed to making further
information in relation to the detail of the scheme available to members of
Parliament before debate of the CDP Bill and expect to circulate consultation
papers on the proposed CDP penalties scheme and compliance framework by
mid-March. I will also make these papers available to the committee at this
time.
Attachment A: Further information on the compatibility of
the CDP Bill
The new obligation and penalty arrangements promote the right
to social security by helping job seekers avoid future compliance action and
therefore, receive income support payments to a greater extent.
The current national job seeker compliance framework is not
well suited to the needs of remote job seekers. The Department of the Prime
Minister and Cabinet (PM&C) receives consistent feedback from communities
and provider organisations that:
-
Current arrangements are not easily understood by remote job seekers
which means that behavioural change happens slowly, if at all.
-
The current compliance system arrangements mean jobseekers experience
long delays. Having to interact with a compliance system that is run from major
cities potentially thousands of kilometres away makes it difficult to apply the
necessary agility and immediacy to overcome the pervasive welfare reliance in
remote Australia.
-
Communities want arrangements that better combine income support with
employment opportunities and community development projects, with sufficient
community control to ensure participation can be maximised.
As a result of current compliance arrangements, job seekers
do not understand the link between attending activities and receiving income
support. Therefore, behaviour is not changing. This is indicative of a
historically high trend in non-attendance and disengagement with employment
services in remote Australia. At end of June 2015, 22 per cent of all financial
penalties nationally were applied to CDP participants. In early July 2015, less
than 5 percent of the CDP caseload attended their activity. By the end of
December 2015 attendance had improved but was still tracking low, at just under
25 per cent. Despite the increase in application of penalties under CDP,
attendance in activities remains disproportionately low.
The changes proposed in the CDP Bill will simplify the system
and make it easier for job seekers in remote Australia to understand the link
between attendance at CDP activities and income support payments. These changes
will also enable, through legislative instruments, the application of a simpler
compliance framework that is tailored to the unique social and labour market
conditions in remote Australia. Ultimately, these changes will make it easier
for these job seekers to understand their obligations and also help them to
avoid compliance penalties.
In addition, the CDP Bill makes it possible for penalties to
be applied in the same week by a locally based decision maker with direct and
more immediate access to job seekers. This more immediate relationship between
payments and attendance is designed to encourage job seekers to attend more of
their activities so that they incur fewer penalties.
It is also worth noting that the arrangements do not limit
the right to social security as the changes proposed in the CDP Bill do not
reduce the general entitlements of job seekers or make their obligations more
onerous. For instance, the reforms will not change the amount a job seeker is
entitled to receive (their maximum basic rate) or their hours of obligation.
The protections afforded to job seekers in relation to review
and appeals processes will remain substantively the same as existing
arrangements under the social security law. Review processes will be in place,
with PM&C responsible for reviewing provider decision making on payments
and compliance (similar to review processes within the Department of Human
Services (DHS)). Other protections with respect to reviews of payment decisions
and financial penalties, including recourse to the Administrative Appeals
Tribunal, will be retained.
Appropriate safeguards against unnecessarily limiting a
person's right to social security such as clear, consistent guidelines for
providers and robust external review processes will be in place to ensure that
decision-making does not lead to inconsistent treatment of job seekers. In
addition, section 1061ZAAZ(2)(ii) of the CDP Bill requires the Minister to
consider whether there is social and economic disadvantage within the proposed
region prior to determining a remote income support region. A limitation (if
any) is reasonable, proportionate and necessary to achieve the legitimate
objectives of the CDP Bill in addressing entrenched welfare and disadvantage in
the relevant region.
In addition, any limitation is proportionate to achieve the
Bill's objective, as the reforms are designed to overcome the inherent
imbalance in employment opportunities and consequential disadvantage
experienced in parts of remote Australia.[335]
Committee response
2.966
The committee thanks the Minister for Indigenous Affairs for his
response.
2.967
The committee welcomes the minister's commitment to making further
information in relation to the detail of the CDP scheme, including the proposed
penalties and compliance framework, available to members of Parliament and the
committee before debate of the bill. However, in the absence of that further
information the committee is unable to conclude whether the bill is compatible
with Australia's obligations under international human rights law.
2.968
The committee accepts that reforming the national job seeker compliance
framework to assist remote job seekers avoid future compliance action and
therefore, receive income support payments to a greater extent, pursues a
worthy objective. However, as noted above at paragraphs [2.948] to [2.951], the
bill does not set out the intended content of the obligations to be determined
by legislative instrument, and therefore the committee is unable to assess
whether the measures chosen are rationally connected, or proportionate, to the
objective sought.
2.969
The committee is unable to conclude whether the bill is compatible
with Australia's international human rights law obligations. The committee will
be in a position to assess the compatibility of the bill once the proposed
penalties and compliance framework is released.
The Hon Philip Ruddock MP
Chair
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