Senate

Supplmentary Explanatory Memorandum relating to sheet JC579

(Circulated by authority of the Minister for Immigration, Citizenship and Multicultural Affairs, the Hon. David Coleman MP)

Attachment A - Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018

These government amendments are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the government amendments

The Australian Government remains committed to protecting the Australian community from the risk of harm posed by non-citizens. To continue the trend of Australia's strong cancellation powers and low tolerance for criminal behaviour by non-citizens, these government amendments will introduce measures that enhance the Government's ability to protect the Australian community.

These government amendments are in response to recommendations by the 2017 Joint Standing Committee on Migration report on migrant settlement outcomes titled 'No one teaches you to become an Australian'. These government amendments strengthen the character test in section 501 of the Migration Act 1958 (Migration Act) by providing a new specific and objective ground to consider visa cancellation or refusal where a non-citizen has been convicted of offences involving violence against a person (including murder, assault and kidnapping), weapons, breaching of an apprehended violence order (or similar) or non-consensual sexual acts.

These government amendments also make consequential amendments to the definition of character concern in section 5C of the Migration Act to include the offences set out in the new ground of section 501 that these government amedments introduces. The term character concern is used in relation to the meaning of personal identifier in section 5A of the Migration Act, which is also relevant to the purposes for which personal identifiers can be collected under s257A, and in relation to permitted disclosures of identifying information, including personal identifiers, in section 336E. Together these provisions allow for the collection and disclosure of certain types of information, including for the purpose of identifying non-citizens who have a criminal history or who are of character concern.

These government amendments will ensure the character test aligns directly with community expectations, that non-citizens who commit offences such as murder, assault, sexual assault or aggravated burglary will not be permitted to remain in the Australian community. It provides further clarity by objectively setting out offences that adversely impact upon the inalienable right of law-abiding citizens and non-citizens to be protected, as recommended by the Joint Standing Committee on Migration's report.

Human rights implications

These government amendments engage the following rights:

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Right to liberty - Article 9 of the International Covenant on Civil and Political Rights (ICCPR).

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Non-refoulement obligations - Article 3(1) of the Convention against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment (CAT) and Articles 6 and 7 of the ICCPR.

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Expulsion of aliens - Article 13 of the ICCPR.

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Right to respect for the family - Articles 17(1) and 23(1) of the ICCPR.

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Consideration of the best interests of the child - Article 3 of the Convention on the Rights of the Child (CRC).

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Right to privacy - Article 17(1) of the ICCPR.

The practical effect of these amendments will be greater numbers of people being liable for consideration of refusal or cancellation of a visa as they would not, or no longer meet, character requirements set out in section 501 of the Migration Act.

Where a person's visa is cancelled or refused in Australia, they will be liable for detention under section 189 of the Act, may be removed from Australia, and/or may be separated from the family unit. This Statement of Compatibility addresses the potential human rights implications that may result from these practical effects along with other possible implications that may arise from these government amendments.

Right to liberty

Article 9(1) of the ICCPR states:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

These government amendments do not change the framework within which the character cancellation powers function. These new grounds do not enliven mandatory cancellation powers. The amendments only seek to provide additional, specified grounds to consider refusing or cancelling a visa. The decision to refuse or cancel a visa using these grounds will be discretionary.

Currently the character provisions in the Act enable a visa to be refused or cancelled on the basis of offences where the non-citizen has received a sentence of 12 months or more or was convicted of sexual criminal offences involving a child. While there is also a provision that allows consideration of refusal or cancellation of a visa based on a person's past and present criminal or general conduct, the amendments in these government amendments provide a clearer and more objective basis for refusing or cancelling the visa of a non-citizen whose offending has not attracted a sentence of 12 months or more, but who nonetheless poses an unacceptable risk to the safety of law-abiding citizens and non-citizens. For example, the breach of an Apprehended Violence Order (or similar). The amendments expand the framework beyond a primarily sentence-based approach and instead allow the Minister or delegate to look at the individual circumstances of the offending and the severity of the conduct.

If an individual's visa is cancelled or refused, the person is liable for immigration detention under section 189 of the Act.

As set out above, Article 9 of the ICCPR is a prohibition on arbitrary detention. The concept of arbitrariness goes beyond mere lawfulness and requires that the detention of the individual is reasonable, necessary and proportionate to achieve a legitimate aim. The object of these government amendments is to amend the character test to provide a specific and objective ground to consider cancellation or refusal of a visa where a non-citizen has been convicted of a serious crime. It aligns with community expectations that non-citizens who have committed serious offences should not be allowed to remain in the Australian community. The UN Human Rights Committee has recognised in the ICCPR context that "The Covenant does not recognize the right of aliens to enter or reside in the territory of a State party. It is in principle a matter for the State to decide who it will admit to its territory [...] Consent for entry may be given subject to conditions relating, for example, to movement, residence and employment" (CCPR General Comment 15, 11 April 1986).

Legislative amendments that extend the grounds upon which a person's visa may be cancelled or refused, the result of which may be subsequent detention, add to a number of existing laws that are well-established, generally applicable and predictable. This will be the case also for these amendments. These Government amendments expands the scope of people who may be considered for visa cancellation or refusal, however it presents a reasonable response to achieving a legitimate purpose under the ICCPR - the safety of the Australian community and the integrity of the migration programme. The new powers will enable the Department to better target individuals with serious criminality or unacceptable behaviour and, in line with community expectations, it is appropriate that a person who engages in these activities should not be entitled to hold a visa. The consequence of this may be their detention and subsequent removal from Australia. Decision-makers exercising the discretion to refuse or cancel a person's visa are guided by comprehensive policy guidelines and Ministerial Directions, and take into account the individual's circumstances and relevant international obligations. This means the visa decision, and any consequent detention or refusal, is a proportionate response to the individual circumstances of each case.

The detention of a person under these circumstances is therefore considered neither unlawful nor arbitrary under international law. In addition, the Government has processes in place to mitigate any risk of a person's detention becoming indefinite or arbitrary through: internal administrative review processes; Commonwealth Ombudsman Own Motion enquiry processes, reporting and Parliamentary tabling; and, ultimately the use of the Minister's personal intervention powers to grant a visa or residence determination where it is considered in the public interest.

Non-refoulement obligations

Article 3(1) of the CAT states:

'No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.'

Articles 6 and 7 of the ICCPR also impose on Australia an implied non-refoulement obligation. Article 6 of the ICCPR states:

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

Article 7 of the ICCPR states:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

Australia remains committed to its international obligations concerning non-refoulement. These obligations are considered as part of the decision whether to refuse or cancel a visa on character grounds. Anyone who is found to engage Australia's non-refoulement obligations during the refusal or cancellation decision or in subsequent visa or Ministerial Intervention processes prior to removal will not be removed in breach of those obligations.

Expulsion of aliens

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.'

As the cancellation of a visa held by a non-citizen lawfully in Australia can lead to removal, the cancellation process as a whole can amount to expulsion as contemplated in Article 13 of the ICCPR.

Decisions to cancel a visa on character grounds are made in accordance with section 501 of the Migration Act and the relevant procedures and review mechanisms available are not being amended by these government amednments. To the extent that a larger number of people may have their visa cancelled as a result of this amendment, possibly leading to their expulsion, the processes are in accordance with the procedural requirements of Article 13 and review of the decisions is available - merits review by the Administrative Appeals Tribunal and/or judicial review for decisions made by a delegate, and judicial review of decisions made by the Minister personally.

Rights relating to families and children

Article 3(1) of the CRC states:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.'

Article 17(1) of the ICCPR states:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.'

Article 23(1) of the ICCPR states:

The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 24(1) of the ICCPR states:

Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.'

Where an individual's visa is cancelled or refused, they may be detained and/or removed from Australia under the provisions of the Migration Act, which may result in separation of the family unit. The rights relating to families and children - including the best interests of any children under 18 and the impact of separation from family members - will be taken into account as part of the consideration whether to refuse or cancel the visa. While rights relating to family and children generally weigh heavy against cancellation or refusal, there will be circumstances where they 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 government amendments allow for a more considered deliberation of community expectations and threats posed by individuals by specifying certain offences that will enliven consideration of visa refusal or cancellation, which will then allow consideration of the surrounding circumstances.

Any separation from family members in Australia caused by an unlawful non-citizen being detained or removed as a result of having their visa cancelled or refused pursuant to the new ground of the character test will not be inconsistent with Articles 17, 23 and 24 of the ICCPR and Article 3 of the CRC as the decision to refuse or cancel will appropriately weigh the impact of separation from family and the best interests of any children against the non-citizen's risk to the community.

Like other section 501 provisions within the Migration Act 1958, the specific grounds introduced by these government amendments does not differentiate between adults and persons under the age of 18. However, the best interests of the child are, and will remain to be, a primary consideration in any decision whether to refuse or cancel a child's visa on character grounds. As such, the refusal or cancellation of a child's visa on these grounds would only occur in exceptional circumstances.

Right to privacy

Article 17(1) of the ICCPR states:

'No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.'

As these government amendments consequentially amend section 5C of the Migration Act, expanding the definition of 'character concern', it also extends the circumstances in which the Department can collect and disclose identifying information for the purpose of identifying non-citizens who are of character concern - to include those who have been convicted of a designated offence.

The amendments are to achieve a legitimate purpose under the ICCPR - to protect the Australian community from non-citizens who pose an unacceptable risk. Permitting the collection and disclosure of identifying information, such as photographs, signatures and other personal identifiers as defined in section 5A of the Migration Act, for the purpose of identifying persons of character concern, is a reasonable and proportionate measure to achieve the intended operation of the character provisions for purpose of protecting the Australian community. Any interference with the privacy of a person who has been convicted of a designated offence, in order to help identify them, would therefore not be unlawful or arbitrary.

Conclusion

These amendments are compatible with human rights as, to the extent it may limit some human rights, those limitations are reasonable, necessary and proportionate to the objective of protecting the Australian community from the risk of harm posed by non-citizens who have been convicted of designated offences.