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 available on the committee's
website.[1]
Court and Tribunal Legislation Amendment (Fees and Juror Remuneration)
Regulations 2018 [F2018L00819]
Purpose |
Increases certain court
fees payable in the High Court of Australia, Federal Court of Australia and
Federal Circuit Court of Australia; increases the frequency of fee indexation
in the High Court of Australia, Federal Court of Australia, Federal Circuit
Court of Australia, National Native Title Tribunal and Administrative Appeals
Tribunal; and increases the indexation of juror remuneration in the Federal
Court of Australia |
Portfolio |
Attorney-General |
Authorising legislation |
Administrative Appeals
Tribunal Act 1975; Family Law Act 1975; Federal Circuit Court of Australia
Act 1999; Federal Court of Australia Act 1976; Judiciary Act 1903; Migration Act
1958; Native Title Act 1993 |
Last day to disallow |
15 sitting days after tabling
(tabled in the Senate and the House of Representatives on 25 June 2018) |
Right |
Fair
hearing; effective remedy |
Previous report |
Report 9 of 2018 |
Status |
Concluded examination |
Background
2.3
The committee first reported on the instrument in its Report 9 of 2018,
and requested a response from the Attorney-General by 26 September 2018.[2]
2.4
The Attorney-General's response to the committee's inquiries was
received on 27 September 2018. The response is discussed below and is available
in full on the committee's website.[3]
Increase to High Court fees
2.5
The regulations increase the base court fees prescribed by the High
Court of Australia (Fees) Regulation 2012 (High Court Fees Regulation),
payable in the High Court of Australia on or after 1 July 2018 by 17.5%.[4] The fees
include:
-
filing fees;
- hearing fees;
- fees for obtaining documents;
- annual subscription fees for copies of reasons for judgments; and
- any other fees under the regulations for services provided on or
after 1 July 2018.[5]
2.6
The increase applies to all fee categories, including 'financial
hardship fees'. Under section 12 of the High Court Fees Regulation, the
Registrar may determine that a person may pay the 'financial hardship fee'
instead of the usual fee that would otherwise be payable if, in the Registrar's
opinion, at the time the usual fee is payable, the payment of the fee would
cause financial hardship to the individual.[6] In making this decision, the Registrar must consider the 'individual's income,
day-to-day living expenses, liabilities and assets'.[7]
Compatibility of the measure with
the rights to a fair hearing and an effective remedy: initial analysis
2.7
In its initial analysis the committee raised questions as to the
compatibility of the increase to the High Court fees with the rights to a fair
hearing and an effective remedy. This is because an increase in court fees by
17.5%, particularly for those suffering hardship, may preclude persons from
being able to access the court and access justice.
2.8
The full initial human rights analysis is set out at Report 9 of 2018 (11 September 2018), pp. 2-6.[8]
2.9
The committee therefore sought the advice of the Attorney-General as to:
- whether the limitation on the right to a fair hearing is
proportionate to the stated objective of the measure, addressing, in
particular, whether less rights-restrictive options are available (noting the
impact the measure may have on those who would suffer financial hardship); and
- whether the increase in the 'financial hardship' category of
court fees in the High Court by 17.5 per cent is compatible with the right to
an effective remedy (including any safeguards in place to protect persons who
may suffer hardship).
Attorney-General's response and
analysis
2.10
As noted in the committee's initial analysis, ensuring the security of
the court, including the physical security of court staff and visitors, by
upgrading security arrangements is likely to be a legitimate objective for the
purpose of international human rights law. Raising revenue to fund security
upgrades by increasing court fees may also be rationally connected to this
objective.[9]
2.11
In response to the committee's request for advice, the
Attorney-General's response first cites the Productivity Commission's 2014
report into Access to Justice Arrangements, in which the Commission
considered that further increases in court fees could be undertaken without
unreasonably impeding access to justice. In this regard, however, it is noted
that the Productivity Commission also acknowledged that 'the effect of court
fees on access to justice may be particularly acute for financially
disadvantaged individuals'. [10]
2.12
Regarding the proportionality of the 17.5% increase to High Court fees,
the Attorney-General's response states:
The range of safeguards and exemptions in place further confirm
the proportionality of this measure, and that the measure is compatible with
the right to a fair hearing and effective remedy.
As the statement of compatibility and the Committee
described, there are hearing fee and filing fee exemptions for a range of
circumstances for litigants who would be considered to be in financial
hardship. These exemptions ensure that those who may otherwise have limited
right to an effective remedy have access to justice.
For example, this includes holders of Commonwealth health
concession cards, which means that recipients of Australian Government income
support payments are exempt from filing and hearing fees. The effect of this is
that a person earning a modest income would not be required to pay filing and
hearing fees because of the cut out income limits that apply to income support
payments.
In addition, and as also identified by the Committee, the
Registrar of the High Court may also defer the payment of fees in circumstances
where there is urgency that overrides the requirement to pay the fee
immediately.
2.13
As acknowledged in the committee's initial assessment, fee exemptions,
waivers and deferrals are important safeguards of the right to a fair hearing
in the context of increases in court fees.[11]
2.14
In response to the committee's concern that fee waivers do not apply to
document or service fees, the Attorney-General's response explains that:
It is worth noting that document and service fees represent
only a very small component of the fees raised by the High Court, and as such
are only expected to have a marginal impact for High Court litigants. This is
reflected in the small change in the cost of these fees. For example, the
majority of document or service fees received by the High Court in 2016-17 were
for searching or inspecting a document (Item 201) and for a litigation search
for a person involved in proceedings (Item 208). The increase in the cost of
each of these items as a result of this measure is $5.
2.15
This information is relevant to assessing the sufficiency of the safeguards
in place, including fee waivers, and indicates that the impact of the lack of
availability of fee waivers for document or service fees is minor.
2.16
More broadly, regarding the particular increase to the financial
hardship fee category of High Court fees, the Attorney-General's response
explains that:
High Court fees are structured so as to distinguish between
litigants on the basis of capacity to pay, with the 'financial hardship'
category of fees being a third of the general filing fee. As such, the increase
of 17.5 per cent to the 'financial hardship' category of fees is an increase
from a significantly lower base, while also maintaining the 3 : 1 ratio with
the general filing fee.
2.17
The Attorney-General's response also states that:
Given the combination of the fee exemptions that apply for
High Court litigants, the additional safeguards available to the Registrar, the
continuation of a significantly lower fee category for applicants, and the
small impact of changes to document and service fees, the Government considers
that this measure represents the least rights-restrictive option available, and
ensures the ongoing right to a fair hearing, as well as continuing to provide
the right to effective remedy.
2.18
The information provided by the Attorney-General focuses on how the
financial hardship category of fees is calculated relative to the general
filing fees. However, it does not explicitly address whether a 17.5 per cent
increase to the financial hardship category, as distinct from other categories,
is the least rights restrictive approach to achieving the legitimate objective
of ensuring the security of the court. Nonetheless, the availability of the
safeguards referred to in the Attorney-General's response indicates that, on
balance, the increases to the High Court fees may be a proportionate limitation
on the rights to a fair hearing and an effective remedy.
Committee response
2.19
The committee thanks the Attorney-General for his response and
has concluded its examination of this issue.
2.20
Based on the information provided by the Attorney-General, the
committee considers that the measures may be compatible with the rights to a
fair hearing and an effective remedy.
Migration (IMMI 18/046: Determination of Designated Migration Law)
Instrument 2018 [F2018L00446]
Purpose |
Makes subdivision AF of
Part 2, Division 3, of the Migration Act 1958 part of the 'designated
migration law' for the purposes of section 495A of that Act |
Portfolio |
Home Affairs |
Authorising legislation |
Migration Act 1958 |
Last day to disallow |
Exempt from disallowance[12] |
Right |
Liberty |
Previous report |
Report 7 of 2018 |
Status |
Concluded examination |
Background
2.21
The committee first reported on the instrument in its Report 7 of
2018, and requested a response from minister by 29 August 2018.[13]
2.22
The minister's response to the committee's inquiries was received on 19
September 2018. The response is discussed below and is available in full on the
committee's website.[14]
Use of computer to determine status as 'eligible non-citizen'
2.23
The instrument makes subdivision AF of Part 2, Division 3 of the
Migration Act 1958 (Migration Act) part of the 'designated migration law'. The
designation permits the minister to arrange for computer programs to be used to
make a decision, exercise a power, comply with an obligation or do anything
else related to these actions in subdivision AF of Part 2, Division 3 of the
Migration Act.
2.24
Subdivision AF of the Migration Act regulates bridging visas.[15] Section 73 of the Migration Act provides that the minister may grant a
bridging visa to an 'eligible non-citizen' if certain criteria prescribed by
the regulations are satisfied.[16] Under section 72 of the Migration Act, non-citizens are 'eligible
non-citizens' if they have been 'immigration cleared',[17] belong to a particular class of persons,[18] or have been determined by the minister to be 'eligible non-citizens'.[19] The minister may make such a determination if certain criteria are satisfied,
including that 'the minister thinks that the determination would be in the
public interest'.[20] The power to make the determination may only be exercised by the minister
personally.[21]
Compatibility of the measure with
the right to liberty: initial analysis
2.25
In its initial analysis, the committee noted that the use of a computer
by the minister to exercise their personal power to determine whether a
non-citizen is an 'eligible non-citizen' (and therefore eligible to apply for a
bridging visa), including whether such a determination is 'in the public
interest',[22] could engage and limit the right to liberty. This is because, in the absence of
a bridging visa or other valid visa, a non-citizen will be classified as an
'unlawful non-citizen' and subject to immigration detention. The full initial
human rights analysis is set out at Report 7 of 2018 (17 August 2018)
pp. 11-15.[23]
2.26
The committee therefore sought the advice of the minister as to the
compatibility of the measure with the right to liberty, including:
- whether, and to what extent, a computer program will be used to
exercise the minister's personal powers in subdivision AF of Part 2, Division 3
of the Migration Act; and
- whether 'public interest' considerations by the minister could be
exempted from the 'designated migration law'.
2.27
To the extent a computer program would be used to exercise the
minister's personal power, the committee sought advice of the minister as to
the existence of adequate safeguards to ensure a person is not deprived of
liberty where it is not reasonable, necessary and proportionate, and whether
less rights restrictive alternatives were reasonably available.
Minister's response and analysis
2.28
The minister's response provides the following information in relation
to the committee's inquiries:
Bridging visas (BVs) were introduced in 1994 as part of the Migration
Reform Act 1992 to supplement the legislative requirement for mandatory
detention of unlawful non-citizens. BVs provide an interim or ‘bridging’ lawful
immigration status to non-citizens, until they reach a durable immigration
outcome – either grant of a substantive visa or departure from Australia.
Migration (IMMI 18/046: Determination of Designated Migration
Law) Instrument 2018, remakes the previous Migration Instrument (IMMI07/091),
which allowed the Minister to arrange for the use of a computer program to
grant a BV to applicants who have made valid applications for certain
substantive visas.
If a lawful non-citizen makes a valid application while in
Australia for a substantive visa, they will in nearly all cases be granted a
Bridging visa A (BVA) in association with the substantive visa application.
BVAs are automatically granted through departmental computer
systems at the same time a valid substantive visa application is made. A BV
will only come into effect if an individual’s substantive visa expires before a
decision is made on the new substantive visa application.
Importantly, the computer program can only grant a BV and
cannot make a decision to refuse. In instances where the online application
‘hits’ against risk systems, or where binary responses provided by an applicant
do not support an immediate auto-grant decision, the computer program will
refer the BV application to a departmental decision maker to manually decide
upon the application.
The computer program is designed to grant BVs in association
with substantive applications in the majority of straightforward cases.
Instances in which the BV application cannot be immediately granted by the
computer program, including where there are public interest considerations, are
always considered by a delegate or the Minister.
The Minister’s personal decision-making powers are not
automated through departmental computer programs. The public interest power in
section 72 of the Migration Act 1958 (the Migration Act) can only be
exercised by the Minister personally and is incapable of being decided by a
computer program. The Minister’s personal power involves considering any
applicable legal obligations.
2.29
The minister's response clarifies that a computer program will not be
used to exercise the minister's personal power in subdivision AF of Part 2,
Division 3 of the Migration Act. Based on the information provided by the
minister, the instrument is likely to be compatible with the right to liberty.
Committee response
2.30
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.31
Based on the information provided by the minister, the committee
considers that the measures are likely to be compatible with the right to
liberty.
Migration (Validation of Port Appointment) Bill 2018
Purpose |
Seeks to validate the
appointment of a proclaimed port in the Territory of Ashmore and Cartier
Islands |
Portfolio |
Home Affairs |
Introduced |
House of Representatives, 20 June 2018 |
Rights |
Non-refoulement; liberty;
fair hearing; effective remedy |
Previous report |
Report 7 of 2018 |
Status |
Concluded examination |
Background
2.32
The committee first reported on the bill in its Report 7 of 2018,
and requested a response from the Minister for Home Affairs by 29 August 2018.[24]
2.33
The minister's response to the committee's inquiries was received on
31 August 2018. The response is discussed below and is available in full on the
committee's website.[25]
Validation of a 'proclaimed port'
2.34
Under subsection 5(5)(a) of the Migration Act 1958 (the Migration
Act) the minister may, by notice published in the Gazette, appoint ports in an
external territory as 'proclaimed ports'.[26]
2.35
On 23 January 2002 a notice was published purporting to appoint an area
of waters within the Territory of Ashmore and Cartier Islands as a 'proclaimed
port' (2002 appointment).[27]
2.36
The effect of this 2002 appointment was to provide that people arriving
by boat without a valid visa, who entered certain waters of the Territory of
Ashmore and Cartier Islands, would be entering an 'excised offshore place' for
the purposes of the Migration Act and would thereby become 'offshore entry
persons', now 'unauthorised maritime arrivals' (UMAs) under the Migration Act.[28]
2.37
On 11 July 2018, the Federal Circuit Court held, in DBC16 v Minister
for Immigration & Anor,[29] that the purported appointment of an area of waters within the Territory of
Ashmore and Cartier Islands as a proclaimed port, was invalid. Accordingly, the
applicant in that case was not an UMA.[30]
2.38
The bill would correct a number of errors in the 2002 appointment and
retrospectively validate it including by:
- providing that there was a properly proclaimed port at Ashmore
and Cartier Islands at all relevant times;
- correcting the geographical coordinates of the area of waters
specified in the 2002 appointment noting that the 2002 appointment omitted some
details relating to the geographical coordinates;
- validating things done under the Migration Act that would be
invalid or ineffective directly or indirectly because of the terms of the 2002 appointment.[31]
2.39
Section 5 provides that the bill will not affect rights or liabilities
arising between parties to proceedings where judgment has been delivered by a
court prior to the commencement of the bill, if the validity of the appointment
was at issue in the proceedings and the judgment set aside the appointment or
declared it to be invalid.[32]
Compatibility of the measure with the obligation of
non-refoulement and the right to an effective remedy
2.40
Australia has non-refoulement obligations under the Refugee Convention[33] 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 all people, including people who are found
not to be refugees.[34] 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.[35] Non-refoulement
obligations are absolute and may not be subject to any limitations.
2.41
Independent, 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.[36]
2.42
Given that the 2002 appointment has been found to have been invalidly
made, this will have a range of consequences. Specifically, the effect of the
2002 appointment being invalid may be that persons who entered the area of
waters within the Territory of Ashmore and Cartier Islands without a valid visa
may not have been correctly classified as 'offshore entry persons' (now UMAs).
2.43
The classification of a person as an UMA significantly affects how their
rights and obligations under the Migration Act are to be determined and how
their applications for a visa may be processed. For example, persons who
entered the area of waters within the Territory of Ashmore and Cartier Islands
between 13 August 2012 and 1 June 2013 without a valid visa and were classified
as UMAs became 'fast track applicants' under the Migration Act.[37] This would have resulted in the 'fast track' process applying to the assessment
and review of their claims for refugee status and applications for protection
visas.
2.44
However, the committee has previously considered that the 'fast track' assessment
process raises serious human rights concerns.[38] In particular, the committee has found elements of the 'fast track' assessment
process are likely to be incompatible with the obligation of non-refoulement
and the right to an effective remedy.[39] This was on the basis that as the 'fast track' assessment process does not
provide for full merits review it is likely to be incompatible with Australia's
obligations under the ICCPR and the CAT of ensuring independent, effective and
impartial review, including merits review, of non-refoulement decisions.[40] While the statement of compatibility acknowledges that the measure engages the
obligation of non-refoulement, it does not acknowledge the concerns outlined in
the committee's previous reports.[41]
2.45
The statement of compatibility argues that the validation merely
maintains the 'status quo'.[42] However, as noted above, in circumstances where the appointment was not validly
made, this may fundamentally change how people should have been treated under
the Migration Act. In this respect, the statement of compatibility provides no
information as to how those individuals would have been treated if the
appointment had never been made. It may be that a process that was capable of
complying with Australia's obligations of non-refoulement may have applied to
these individuals. It was unclear from the information provided how many people
may be adversely affected by the validation. There were also questions as to
the extent of the impact of the validation on Australia's non-refoulement
obligations including how many persons who entered the waters of the Territory
of Ashmore and Cartier Islands during the relevant period:
- are yet to have their claims for asylum or applications for
protection visas determined;
- have had their applications refused under the 'fast track'
process (and are present in Australia, offshore immigration detention or have
been subject to removal or return).
2.46
The committee therefore noted its previous concerns as to the
compatibility of the 'fast track' assessment process with Australia's
non-refoulement obligations and sought the advice of the minister as to
the extent of the impact of the validation on Australia's obligations,
including:
- how individuals arriving at the area of waters within the
Territory of Ashmore and Cartier Islands would have been treated if the 2002
appointment had not been made;
- the extent of any detriment to individuals if the 2002
appointment is validated;
- how many persons who entered the area of waters within the
Territory of Ashmore and Cartier Islands without a valid visa during the
relevant period:
- are yet to have their claims for asylum or applications for
protection visas determined (either in Australia or offshore immigration
detention);
- have had their applications refused under the 'fast track'
process (including how many are present in Australia, are present in offshore
immigration detention and how many have been subject to removal or return);
- any other information relevant to the compatibility of the
measure with the obligation of non-refoulement.
Minister's response
2.47
The minister provides the following information in response to the
committee's inquiries:
The appointment of a proclaimed port in the Territory of
Ashmore and Cartier Islands was published in the Commonwealth of Australia
Gazette No. GN 3 on 23 January 2002. The appointment excised certain waters of
the Territory of Ashmore and Cartier Islands for the purposes of the Migration
Act 1958 (the Act). The intended effect of the appointment was to make
unauthorised boat arrivals who entered the designated ‘excised offshore place’,
‘offshore entry persons’ (now ‘unauthorised maritime arrivals’ (UMAs)) under
the Act.
The Bill seeks to validate the appointment and maintains the
status quo in relation to the processing of UMAs who entered Australia via this
proclaimed port between 23 January 2002 and 1 June 2013. Enactment of the Bill
will ensure that there was a properly proclaimed port in the Territory of
Ashmore and Cartier Islands at all relevant times and that actions or decisions
which relied on the appointment, have been valid and effective.
If the appointment had not been made, the affected persons would
not be UMAs under the Act. However, the affected persons would be unlawful
non-citizens subject to immigration detention.
All affected persons have had the opportunity to seek
protection and have their claims assessed.
2.48
Apart from identifying that if the appointment had not been made the
affected persons would not be UMAs under the Migration Act and instead would
have been unlawful non-citizens subject to immigration detention, the
information provided by the minister does not respond to the committee's
specific inquiries. This makes any assessment of the extent of the impact of
the validation on Australia's obligations difficult to determine.
2.49
To the extent that there may be persons who have been subject to the
fast track assessment process as a result of the invalid 2002 appointment, the
concerns previously expressed in the committee's analysis as to the
compatibility of the fast track assessment process apply equally here.
2.50
As noted in the initial analysis, the committee has previously raised
concerns as to the absence of a full merits review in the fast track assessment
process, and the implications this may have on Australia's obligations under
the ICCPR and CAT to ensure independent, effective and impartial review of
non-refoulement decisions.[43] In this respect, the minister's response states that:
The Government is of the view that 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) 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.
2.51
As the committee has noted in previous human rights analysis of the fast
track assessment process, while there is no express requirement for external
merits review in the articles of the relevant conventions or jurisprudence
relating to obligations of non-refoulement, analysis of how the obligation
applies, and may be fulfilled, in the Australian domestic legal context
indicates that the availability of merits review of such decisions would likely
be required to comply with Australia's obligations under international law.[44] 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.
2.52
The jurisprudence of the UN Human Rights Committee and the UN Committee
against Torture establish the proposition that there is a strict requirement
for 'effective review' of non-refoulement decisions.[45] The purpose of an 'effective' review is to 'avoid irreparable harm to the
individual'.[46] In particular, in Singh v Canada, the UN Committee against Torture
considered a claim in which the complainant stated that he did not have an
effective remedy to challenge the decision of deportation because the judicial
review available in Canada was not an appeal on the merits but was instead a
'very narrow review for gross errors of law'.[47] In this case, the Committee against Torture concluded that judicial review was
insufficient for the purposes of ensuring persons have access to an effective
remedy:
The Committee notes that according to Section 18.1(4) of the
Canadian Federal Courts Act, the Federal Court may quash a decision of
the Immigration Refugee Board if satisfied that: the tribunal acted without
jurisdiction; failed to observe a principle of natural justice or procedural
fairness; erred in law in making a decision; based its decision on an erroneous
finding of fact; acted, or failed to act, by reason of fraud or perjured
evidence; or acted in any other way that was contrary to law. The Committee
observes that none of the grounds above include a review on the merits of the
complainant’s claim that he would be tortured if returned to India.
...the State party should provide for judicial review of the
merits, rather than merely of the reasonableness, of decisions to expel an
individual where there are substantial grounds for believing that the person
faces a risk of torture. The Committee accordingly concludes that in the
instant case the complainant did not have access to an effective remedy against
his deportation to India...[48]
2.53
In the Australian context, as noted, external merits review is
unavailable but judicial review is available. Judicial review in Australia is
governed by the Administrative Decisions (Judicial Review) Act 1977 and
the common law,[49] and represents a 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 relevant
decision maker). The court cannot undertake a full review of the facts (that
is, the merits), as well as the law and policy aspects of the original decision
to determine whether the decision is the correct or preferable decision. There
are therefore serious concerns as to whether judicial review in the Australian
context would be sufficient to be 'effective review' for the purposes of
Australia's non-refoulement obligations.[50] Accordingly, the committee has previously concluded that judicial review in the
Australian context is not likely to be sufficient to fulfil the international
standard required of 'effective review' because it is only available on a
number of restricted grounds of review.
2.54
As to whether the limited merits review process for fast track
applicants through the Immigration Assessment Authority (IAA) process would constitute
'effective' review, the minister's response states:
All fast track applicants, like other non-citizens seeking
Australia’s protection, receive a full and comprehensive assessment of their
claims for protection. Most fast track applicants who are found to not engage
Australia’s protection obligations are automatically referred to the IAA for an
independent and impartial merits review. While the IAA generally conducts a
merits review based on information provided by the applicant as part of their protection
visa application, it 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.
In Plaintiff M174 v Minister for Immigration and Border
Protection – High Court – M174/2016, the High Court confirmed the
robustness of the fast track process. It affirmed that the IAA, “when
conducting a review of a fast track reviewable decision, is not concerned with
the correction of error on the part of the Minister or delegate but is engaged
in a de novo consideration of the merits of the decision that has been
referred to it”. The IAA considers “the application for a protection visa
afresh and to determine for itself whether or not it is satisfied that the
criteria for the grant of the visa have been met.”
As discussed above, it is the view of the Government that
there is no express requirement under the ICCPR or the CAT to provide merits
review in the assessment of non-refoulement obligations.
2.55
As noted above, the purpose of 'effective review' is to avoid
irreparable harm to the individual. In the context of Article 3 of the CAT, the
Committee against Torture has held that states parties to the CAT are obliged
'in determining whether there is a risk of torture under article 3, to give a
fair hearing to persons subject to expulsion orders'.[51] The Committee against Torture has also been critical of state parties taking
into account information in making decisions about the real and personal risk
of torture where the complainant has not had an opportunity to contest the
information.[52]
2.56
As noted in previous human rights analysis of the fast track merits
review process, the merits review conducted by the IAA is limited as it is
conducted on the information provided by the applicant to the department and
will not involve an interview. Further, the IAA is only able to reaffirm the
decision or remit it to the department (rather than substitute for the decision
the correct or preferable decision). 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.[53]
2.57
Previous human rights analysis has therefore concluded that the fast
track assessment process and the absence of external merits review of fast
track decisions is likely to be incompatible with Australia's non-refoulement
obligations.[54]
Committee response
2.58
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.59
Consistent with the committee's previous conclusions, the preceding
analysis indicates that the measure is likely to be incompatible with
Australia's obligations under the International Covenant on Civil and Political
Rights and the Convention against Torture to ensure independent, effective and impartial
review, including merits review, of non-refoulement decisions.
Compatibility of the measure with the right to a fair hearing
2.60
Validating the 2002 appointment may engage and limit the right to a fair
hearing on a number of grounds.
2.61
First, given the 2002 appointment has been found to be invalid, the
'fast track' assessment process may have incorrectly been applied to individuals
who arrived at the area of waters within the Territory of Ashmore and Cartier
Islands. Previous human rights analysis of the 'fast track' assessment process
noted that the 'fast track' assessment and review process is quite limited and
there were concerns as to the independence and the impartiality of such a
review. Accordingly, the committee previously concluded that the fast-track
assessment process may be incompatible with the right to a fair hearing.[55]
2.62
Secondly, validating the 2002 appointment may adversely affect any
person who seeks to challenge an act or decision under the Migration Act on the
basis that the impugned action or decision is invalid under the 2002
appointment. Accordingly, the validation may further limit the right to a fair
hearing. The minister, in his second reading speech explains that the:
...validity of the Appointment is now being challenged in the
Federal Circuit Court and the Federal Court...A successful challenge to the
Appointment could mean that affected persons did not enter Australia at an
excised offshore place and are therefore not unauthorised maritime arrivals
under the act. It could also mean that some affected persons are not fast-track
applicants under the act.[56]
2.63
It was noted that the court in DBC16 v Minister for Immigration &
Anor[57] reached precisely this finding in relation to the invalidity of the
appointment and accordingly made a declaration that the applicant was not an
UMA. No further information is provided in the statement of compatibility about
the nature of any other challenges related to the 2002 appointment.
Nevertheless section 5 of the bill provides that the bill will not affect
rights or liabilities arising between parties to proceedings where judgment has
been delivered by a court prior to the commencement of the bill, if the
validity of the appointment was at issue in the proceedings and the judgment
set aside the appointment or declared it to be invalid. While this may operate
as a relevant safeguard, it does not address circumstances where a proceeding
is on foot but judgment has not been issued. It also does not address the
situation where proceedings have not yet been commenced by affected
individuals. This raised questions as to whether the measure is the least
rights restrictive approach.
2.64
More generally, the right to a fair hearing is not addressed in the
statement of compatibility, and accordingly no assessment was provided as to
whether any limitation is permissible.
2.65
The committee therefore requested the advice of the minister as to the
compatibility of the measure with the right to a fair hearing, including:
- whether the measure is aimed at achieving a legitimate objective
for the purposes of human rights law;
- how the measure is effective to achieve (that is, rationally
connected to) that objective; and
- whether the limitation is a reasonable and proportionate measure
to achieve the stated objective (including whether it is the least rights
restrictive approach and the scope of individuals likely to be affected),
particularly in light of the fact that the 2002 appointment has been found to
be invalid.
Minister's response
2.66
The minister's response discusses the extent to which fair hearing
rights are engaged and limited by the bill insofar as fair hearing rights may
apply to the 'fast track' assessment process to which persons affected by the
invalid 2002 appointment would have been subject. In particular, the minister's
response reiterates the government's position that Article 13 of the ICCPR,
which deals with the expulsion of aliens lawfully in the territory of the state
party, does not apply in the present circumstances. In this respect, the UN
Human Rights Committee has stated that 'illegal entrants and aliens who have
stayed longer than the law or their permits allow, in particular, are not
covered' by article 13.[58]
2.67
As to article 14 of the ICCPR, the minister's response states that this
article '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'. The minister's response reiterates the arguments discussed above
in the context of the right to an effective remedy and non-refoulement
obligations that there is no express requirement to provide merits review in
the assessment of non-refoulement obligations and further states that, if
article 14 is engaged, the measure is compatible with the right to a fair
hearing 'as, following a robust and fair assessment of their protection claims,
all fast track applicants have the ability to seek judicial review'.
2.68
Article 14 of the ICCPR requires that in the determination of a person's
rights and obligations in a suit at law, everyone shall be entitled to a fair
and public hearing by a competent, independent and impartial tribunal
established by law. The concept of 'suit at law' is based on the nature of the
right in question rather than on the status of one of the parties, and is to be
determined on a case by case basis.[59] However, the UN Human Rights Committee has indicated that the guarantee in
article 14 does not generally apply in extradition, expulsion or deportation
proceedings.[60] However, as noted earlier in relation to the right to non-refoulement and the
right to an effective remedy, the UN Committee against Torture has interpreted
the non-refoulement obligation in article 3 of the Convention against Torture
as requiring a fair hearing for persons subject to expulsion orders when
determining whether there is a risk of torture if a person is returned to their
country of origin,[61] and that states parties should provide merits review and not solely judicial
review.[62] Therefore, the nature and fairness of the hearing that persons receive is
relevant in determining whether the persons receive an 'effective' review for
the purposes of the right to non-refoulement and the right to an effective
remedy, discussed above.
2.69
An additional issue related to the right to a fair hearing relates to
the application of the bill to persons who have instituted court proceedings
but where judgment has not been delivered before the provisions in the bill
commence. The minister's response on this aspect of the bill states:
Government policy around the management of UMAs has been
highly effective in responding to the enduring threat of maritime people
smuggling and protecting the integrity of Australia’s migration framework. In
order to maintain public confidence in our border protection arrangements, it
is imperative that we uphold the original intent of the appointment. For these reasons
it is appropriate for the Bill to apply to persons who have instituted
proceedings but where judgment has not been delivered before the provisions
commence.
By reinstating the validity of the appointment, the Bill does
not impose any new obligations on affected persons. Instead, it maintains the
status quo in relation to the processing of UMAs and, where relevant, fast
track applicants under the Act who entered Australia via this proclaimed port
between 23 January 2002 and 1 June 2013.
2.70
The UN Human Rights Committee has also stated that where a judicial body
is entrusted with the task of deciding about expulsions or deportations, the
guarantee of equality of all persons before courts and tribunals in article 14
and the principles of impartiality, fairness and equality of arms in article 14
apply to such proceedings.[63] The UN Human Rights Committee has also stated that 'if the legality of an
alien's entry or stay is in dispute, any decision on this point leading to his
expulsion or deportation ought to be taken in accordance with article 13'.[1]
In circumstances where the effect of the 2002 appointment being found to be
invalid is that the legality of the affected person's entry or stay in
Australia may be in dispute, and the validity of the 2002 appointment is under
challenge in the courts, fair hearing rights under articles 13 and 14 may have
some relevance for persons whose proceedings are on foot but judgment has not
been delivered. These rights demand that each side be given the opportunity to
contest all the arguments and evidence adduced by the other party.[64] The Human
Rights Committee has stated that the article requires that 'an alien [...] be
given full facilities for pursuing his remedy against expulsion so that this
right will in all circumstances of his case be an effective one'.[65]
2.71
The effect of retrospectively validating the invalid 2002 appointment
means that persons whose proceedings are currently on foot would be unable to
continue to contest the validity of the 2002 appointment through the courts.
This may limit the right to a fair hearing accordingly.
2.72
The minister's stated objective of limiting fair hearing rights is to
'maintain public confidence in our border protection arrangements' and
'protecting the integrity of Australia's migration framework'. The committee
has previously considered that ensuring the integrity of the immigration system
is capable of constituting a legitimate objective for the purposes of
international human rights law.[66]
2.73
The minister's response otherwise does not provide any information as to
how the measure is rationally connected or proportionate to this objective,
beyond stating that the measure is appropriate. It is not clear, for example,
how many individuals may be affected by this aspect of the bill. In these
circumstances, it is not possible to conclude whether the measure is compatible
with fair hearing rights.
Committee response
2.74
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.75
To the extent that fair hearing rights are engaged by the
application of the bill to persons who are challenging the validity of the 2002
appointment, where proceedings are on foot but judgment has not been delivered,
the committee is unable to conclude whether the measure is compatible with fair
hearing rights.
Compatibility of the measure with the right to an
effective remedy for impermissible limitations on human rights
2.76
Where measures impermissibly limit human rights, those affected have a
right to an effective remedy. The right to an effective remedy is protected by
article 2 of the ICCPR, and may include restitution, guarantees of
non-repetition of the original violation, or satisfaction. The UN Human Rights
Committee has stated that while limitations may be placed in particular
circumstances on the nature of the remedy provided (judicial or otherwise),
states parties must comply with the fundamental obligation to provide a remedy
that is effective.[67]
2.77
As outlined above, classification as an UMA may have led to the
imposition of measures which were likely to be incompatible with human rights
including the obligation of non-refoulement. Those classified as an UMA will
have been subject to mandatory immigration detention[68] and may also have been transferred to offshore immigration detention.[69] In some cases, it may have resulted in prolonged immigration detention
(including offshore detention) or delays in processing claims.[70] The committee has previously raised human rights concerns about the impact of both
onshore and offshore immigration detention including in relation to:
- the right to liberty and the prohibition on arbitrary detention;
- the right to humane treatment in detention;
- the right to health; and
- the rights of the child.[71]
2.78
Classification as an UMA may also have impacted upon whether an
individual found to be a refugee was entitled to a permanent protection visa or
temporary protection visa. The consequence of being granted a temporary rather
than permanent visa may also have restricted access to family reunion and the
right to the protection of the family.[72]
2.79
It appears that the validation could operate to close a potential avenue
for individuals who entered certain waters of the Territory of Ashmore and
Cartier Islands and were classified as UMAs to seek a remedy in relation to
possible violations of such human rights, as affected persons would in effect
be precluded from contesting the validity of the appointment in court. However,
the statement of compatibility does not acknowledge that the right to an
effective remedy is engaged by the measure and accordingly does not provide an
assessment as to whether it is compatible with this right. As noted above,
while there is a potential safeguard in the bill in relation to proceedings
where judgment has been delivered, there is no such safeguard more generally in
relation to ongoing proceedings or proceedings that have not yet been brought.
Further, that safeguard would appear to only operate in relation to a person
who is a party to the particular proceedings where judgment has been delivered,
rather than all those who may be affected by the judgment.
2.80
The committee therefore sought the advice of the minister as to whether
the measure is compatible with the right to an effective remedy (including how
individuals who arrived at the area of waters within the Territory of Ashmore
and Cartier Islands would have been treated if the 2002 appointment had not
been made and the effect of the validation on the ability of individuals to
seek remedies in relation to possible violations of human rights).
Minister's response
2.81
In response, the minister states that if the appointment had not been
made, the affected persons would not be UMAs under the Migration Act but as the
persons had entered Australia without a visa that was in effect, the persons
would have been unlawful non-citizens subject to immigration detention. The
minister's response continues:
As discussed above, by reinstating the validity of the
appointment, the Bill does not impose any new obligations on affected persons.
Instead, it maintains the status quo in relation to the processing of UMAs who
entered Australia via this proclaimed port between 23 January 2002 and 1 June
2013.
To the extent that obligations relating to review under
Article 2 of the ICCPR or Article 14 of the ICCPR may be 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 novo 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.
2.82
The issues relating to compatibility of the 'fast track' assessment
process and the limited review rights available with the right to an effective
remedy and non-refoulement obligations were discussed above.
2.83
The minister's response otherwise does not respond to the committee's
specific concerns as to whether validating the 2002 appointment would close a
potential avenue for individuals who entered certain waters of the Territory of
Ashmore and Cartier Islands and were classified as UMAs to seek a remedy in
relation to possible violations of such human rights. As noted in the initial
analysis, the committee's previous human rights analysis of UMAs has raised a
number of concerns in relation to the compatibility of both onshore and
offshore immigration detention with human rights, including the right to
liberty and the prohibition on arbitrary detention, the right to humane
treatment in detention, the right to health, the rights of the child, and the
right of protection of the family. Concerns therefore remain as to how persons
who were classified as UMAs pursuant to the invalid 2002 appointment would be able
to obtain an effective remedy for impermissible limitations on human rights
which resulted from that invalid appointment. It would appear as a result of
the bill that any opportunity to pursue that remedy has been closed.
Committee response
2.84
The committee thanks the minister for his response and has
concluded its examination of this issue.
2.85
The committee is unable to conclude whether the measure is
compatible with the right to an effective remedy for impermissible limitations
on human rights.
Modern Slavery Bill 2018
Purpose |
Seeks to require certain
large businesses and government entities to provide the minister annual reports
on actions to address modern slavery risks in their operations and supply
chains (Modern Slavery Statements). Also seeks to require the minister to
publish Modern Slavery Statements in an online register |
Portfolio |
Home Affairs |
Introduced |
House of Representatives,
28 June 2018 |
Rights |
Multiple rights |
Previous report |
Report 8 of 2018 |
Status |
Concluded examination |
Background
2.86
The committee first reported on the bill in its Report 8 of 2018,
and requested a response from the minister by 5 September 2018.[73]
2.87
A response from the assistant minister to the committee's inquiries
was received on 19 September 2018. The response is discussed below and is available
in full on the committee's website.[74]
Modern slavery reporting requirements
2.88
The bill seeks to require certain government and non-government entities
(reporting entities)[75] to provide an annual report on actions they have taken to address modern
slavery risks in their operations and supply chains (Modern Slavery Statement)
to the minister. The Modern Slavery Statement would be required to identify the
reporting entity, and to describe:
- the reporting entity's structure, operations and supply chains;
- the risks of modern slavery practices[76] in the operations and supply chains of the reporting entity, and any entities
that the reporting entity owns or controls;
- the actions taken by the reporting entity and any entity that the
reporting entity owns, to assess and address those risks, including due
diligence and remediation processes;
- how the reporting entity assesses the effectiveness of such
actions;
- consultation undertaken with entities that the reporting entity
owns, and entities with which the reporting entity has prepared a joint
statement; and
- any other relevant information.[77]
2.89
The bill also seeks to require the minister to register all Modern
Slavery Statements given in accordance with the requirements in the bill in an
online register.[78] Where a Modern Slavery Statement does not comply with the requirements in the
bill, the minister would still be able to register the statement, although they
would not be required to do so.[79]
2.90
Additionally, the bill seeks to permit other entities (so long as they
are Australian entities or carry on business in Australia) to comply with the
reporting requirements in the bill on a voluntary basis. An entity would be
able to volunteer to comply with the reporting requirements by giving written
notice to the minister.[80]
2.91
In Report 8 of 2018 (21 August 2018) at
pp 17-20,[81] the committee drew the positive human rights implications of the bill to the
attention of the minister and parliament, and welcomed the proposed reporting
requirements, which promote the right to freedom from slavery and forced
labour.
Compatibility of the measure with the right to privacy
2.92
In its initial analysis, the committee raised questions as
to the compatibility of the measures in the bill with the right to privacy.[82] This is because Modern Slavery Statements may result in the disclosure of
personal information, and there is also a small risk that a modern slavery
statement could identify victims or potential victims of modern slavery.[83] The full initial human rights analysis is set out at Report 8 of 2018 (21
August 2018) pp. 20-22.[84]
2.93
The committee requested the minister's advice as to whether the measures
are a reasonable and proportionate means of achieving their stated objective
(including any safeguards in place against the disclosure of personal
information, or any information that could identify a victim or potential
victim of modern slavery).
Minister's response and analysis
2.94
As noted in the committee's initial analysis, the objective of the bill
- strengthening Australia's approach to modern slavery by the development and
maintenance of responsible and transparent supply chains - is likely to be a
legitimate objective for the purposes of international human rights law, and
the measures appear to be rationally connected to this objective.[85]
2.95
In relation to the proportionality of the measures, the Assistant
Minister's response states that the bill:
...does not directly seek to collect or disclose personal
information and does not contain any measures that require or encourage
reporting entities to provide personal information, including information that
could identify potential victims.
2.96
The response also reiterates the point made in the statement of
compatibility that there are safeguards to ensure that personal information is
not disclosed. These include the provision of detailed guidance on what
information should be reported in Modern Slavery Statements, the publicly
accessible nature of the legislation, and the wording of the reporting criteria
in the bill—all of which do not require disclosure of personal information.
The Assistant Minister's response also indicates that a requirement to redact
or refuse to publish a Modern Slavery Statement that contained personal
information would not be feasible as it would require the department to
undertake detailed and resource intensive scrutiny of over 3,000 statements
annually. However, the response states that the department will monitor the
overall quality of Modern Slavery Statements. It should be noted, however, that
from the perspective of international human rights law, the administrative
inconvenience of identifying and redacting any potential personal information
(including information that could identify a victim or potential victim of
modern slavery) would not, of itself, justify a limitation on the right to
privacy.
2.97
The Assistant Minister's response also reiterates the low risk that the
bill will result in the disclosure of personal information, and states that the
safeguards contained in the bill are therefore sufficient in light of that low
risk. The Assistant Minister's response further states:
The Department has also carefully assessed other approaches,
including amending the Bill to include an express requirement that statements
not contain personal or other identifying information. The Department does not
consider that this approach would be more effective than providing detailed
information about privacy issues in guidance material, which could include case
studies and comprehensive advice.
2.98
As outlined in the committee's initial human rights analysis,[86] the safeguards in the form of detailed policy guidance are important and relevant
to the proportionality of the measures. In this particular case,[87] detailed policy guidance about privacy issues and comprehensive advice in
relation to such issues may be capable, in practice, of preventing personal
information or information that may identify a victim of modern slavery from
being disclosed. This is the case particularly in circumstances where, as noted
in the initial analysis, most information would be business rather than
individual information, and the risk of identifying victims or potential
victims through the Modern Slavery Statements is very small.[88]
2.99
The Assistant Minister's response states in this respect that similar
legislation in the United Kingdom[89] and California[90] does not include specific safeguards to address the right to privacy, and the
Department is not aware of any cases where personal information has been
disclosed as part of these regimes. This is useful information. However, it is
not necessarily determinative, given the differences between these pieces of
legislation and the contexts within which they operate. For example, in the
United Kingdom, public authorities are required to comply with Article 8 of the
European Convention on Human Rights, which protects the right to privacy.[91] In any event, the United Kingdom's Modern Slavery Act 2015 contains some
specific safeguards to protect personal information from being disclosed in
circumstances that would breach restrictions on disclosure under other laws.[92]
2.100
Ultimately, the sufficiency of the safeguards to protect the right to
privacy will depend on how the measures, as well as any accompanying
departmental oversight and policy guidance, operate in practice. In light of
the very low risk that Modern Slavery Statements will contain personal or
identifying information, and in light of the legitimate objective of the bill,
on balance the measures in the bill may be a proportionate limitation on the
right to privacy. However, the committee recommends that the implementation of
the bill (including compliance with any policy guidance relating to privacy
matters) be monitored by government to ensure that the bill operates in a
manner that is compatible with the right to privacy.
Committee response
2.101
The committee thanks the assistant minister for her response and
has concluded its examination of this issue.
2.102
Based on the further information provided by the assistant
minister, the committee considers that the measures may be compatible with the
right to privacy. However, it is noted that much may depend on the adequacy of
the applicable safeguards in practice. The committee therefore recommends that
the modern slavery reporting regime be monitored to ensure that the
implementation of the bill is compatible with the right to privacy.
2.103
The committee requests that a copy of any guidance materials
relating to the preparation of Modern Slavery Statements be provided to the
committee when they are available.
Mr Ian Goodenough MP
Chair
Navigation: Previous Page | Contents | Next Page