Senate

Revised Explanatory Memorandum

(Circulated by authority of the Minister for Foreign Affairs, the Hon Julie Bishop MP)

Statement of compatibility with human rights

Statement of compatibility with human rights

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

Passports Legislation Amendment (Integrity) Bill 2015

181. This Bill is 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 instrument

182. The Passports Legislation Amendment (Integrity) Bill 2015 (Bill) amends the Australian Passports Act 2005 (Passports Act) for the purpose of refining and clarifying the current legislation and strengthening the Government's ability to respond to the fraudulent use of Australian travel documents. The Bill also makes minor amendments to the Foreign Passports (Law Enforcement and Security) Act 2005 (Foreign Passports Act) and repeals the Australian Passports (Transitionals and Consequentials) Act 2005.

183. The Passports Act provides for the issue and administration of Australian travel documents to be used as evidence of identity and citizenship by Australian citizens who are travelling internationally. The Passports Act also ensures that the passports system complements Australia's national security and border protection policies, law enforcement measures and international law enforcement cooperation while maintaining consistency with family law, privacy and administrative law principles.

184. The Bill follows a routine review of the passports legislation ten years after it was enacted. The amendments include:

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providing for the issue of a travel-related document on the Minister's own initiative to facilitate a lawful requirement for the person to travel (new paragraph 9(1A)(b));

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excluding merits review from a decision to issue a travel-related document under paragraph 9(1A)(b) (new paragraph 48(a));

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aligning the definition of 'parental responsibility' more closely to that in the Family Law Act 1975 to provide more certainty as to who is required to consent to a child passport;

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providing that the Minister may refuse to process a passport application if there are reasonable grounds to suspect fraud or dishonesty in the application-this does not prevent the person being issued a passport should they submit a fresh application with the correct information and where all eligibility requirements are met (new section 19A);

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creating a new offence targeting the making or providing of false Australian travel documents (new section 36);

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removing the right to seek a review of a decision to demand the surrender of a cancelled Australian travel document under paragraph 22(2)(d) (new paragraph 48(e)); and

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providing the Minister with the ability to refuse any name or signature of a person that would appear on the person's Australian travel document, on the basis that the Minister considers the name to be unacceptable, inappropriate or offensive (new subsection 53(4)).

185. The Bill also seeks to incorporate the operation of section 6.5 of the Passports Determination into the Passports Act resulting in a number of consequential amendments to other Acts. In order to simplify the operation of the Passports Act and other pieces of Commonwealth legislation, the Bill sets out a series of amendments designed to clarify that certain provisions apply to any Australian travel document and not just passports.

186. Further, the Bill removes the distinction in the definition of competent authority in subsection 14(3) of the Passports Act, and subsection 15(2) of the Foreign Passports Act, between the circumstances in which a competent authority may make a request. The current definition of competent authority in these subsections makes an unnecessary and technical distinction between circumstances relating to Australia and circumstances relating to a foreign country.

187. The amendments in paragraphs 186 and 187 (above) are minor and technical and do not make any substantive change to the law. As a result they do not have any human rights implications and will not be considered further in this paper.

Human rights implications

188. The Bill engages the following human rights:

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the right to freedom of movement under Article 12 of the International Covenant on Civil and Political Rights (ICCPR);

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the right of aliens lawfully in the territory of a State only to be expelled following a decision reached in accordance with law under Article 13 of the ICCPR;

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the right to a fair hearing in a suit of law under Article 14(1) of the ICCPR;

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the right to a presumption of innocence under Article 14(2) of the ICCPR;

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the right to privacy under Article 17 of the ICCPR;

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Australia's non-refoulement obligations in Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the right to life in Article 6 of the ICCPR and the prohibition on torture, cruel, inhuman and degrading treatment or punishment in Article 7 of the ICCPR; and

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the right of persons with responsibility for the upbringing of children under Articles 5 and 18 of the Convention on the Rights of the Child (CRC).

1 Right to freedom of movement

189. Article 12 of the ICCPR protects the right to freedom of movement. It provides that anyone lawfully in a State shall have the right to liberty of movement and that everyone shall be free to leave any country, including their own. Article 12(3) provides that this right may be limited where the limitation: is for a legitimate objective; is lawful; and is necessary to protect national security and the rights and freedom of others.

A Section 19A-Reasons relating to fraud or dishonesty for which the Minister may refuse to process an application for an Australian travel document

190. New section 19A may engage the right to freedom of movement contained in Article 12(2) of the ICCPR. This is because it provides that the Minister may refuse to process an application for an Australian travel document if the Minister suspects, on reasonable grounds, that fraudulent or misleading statements, information or documents have been given in relation to that application.

191. The act of refusing to process an application on the basis of a reasonable suspicion of fraud or misleading statements, information or documents, in itself, limits the right to freedom of movement at the point at which the Minister makes the refusal decision. The ability to make a refusal decision in these circumstances, however, is vital to protect the integrity of the Australian passports system. Further, this amendment is in the interests of maintaining the ordre public: the Minister should not be obliged to issue travel documents where the Minister suspects on reasonable grounds that a person is, for example, applying for a passport using counterfeit documents in order to create a false identity (consistent with section 8 of the Passports Act). As a result, any limitation of the right to freedom of movement is in pursuit of a legitimate objective and is necessary to maintain the ordre public.

192. However, nothing in the Passports Act precludes a person whose passport application has been refused under this section from submitting a fresh application with a new application fee. A fresh application will be processed in accordance with normal practices. The provision of false or misleading information, statements or documents in connection with one application does not, in and of itself, prevent the person being issued a passport should they submit a fresh application with the correct information and where all eligibility requirements are met.

193. Further, decisions under the new section 19A are reviewable decisions under the Passports Act.

194. As a result, while section 19A may engage the right to freedom of movement, any limitations on that right are likely to be temporary and are permissible for the purpose of protecting the ordre public.

B Subsection 9(1A)-issuing travel documents on the Minister's own initiative

(i) Right to freedom of movement for Australians subject to expulsion orders

195. The new subsection 9(1A) clarifies the legislation by outlining the circumstances in which the Minister may issue a person with a travel-related document. Paragraph 9(1A)(b) permits the Minister to issue a travel-related document to a person on the Minister's own initiative, if the Minister is satisfied that such a document is required to:

(i)

lawfully remove, deport or extradite the person from Australia;

(ii)

facilitate the lawful deportation of the person to Australia;

(iii)

facilitate the lawful extradition of the person to Australia; or

(iv)

if the person is a prisoner-effect the lawful transfer of the person.

196. Issuing an Australian travel document to an Australian citizen who is subject to a lawful deportation or extradition order in a foreign country may engage rights under Article 12 of the ICCPR. However, an Australian travel document will only be issued to the Australian citizen to facilitate their removal where the Australian citizen no longer has any right to remain in the foreign country and yet is refusing to depart that country. This amendment will enable Australia to meet the requirements of Annex 9, Chapter 5 of the Convention on International Civil Aviation 1944. This Convention stipulates that a Contracting State shall issue a travel document to one of its nationals to facilitate their return to the Contracting State within 30 days of a request by another State to do so, whether or not the person concerned consents to the issue of the travel document.

(ii) Right for aliens to only be subject to lawful expulsion

197. Article 13 of the ICCPR provides that aliens lawfully in the territory of a State may only be expelled following a decision reached in accordance with law and must be able to submit reasons against expulsion (except where compelling reasons of national security otherwise require) and to have their case reviewed by a competent authority or person. Importantly, Article 13 only applies to people who are not Australian citizens and who are lawfully in Australia (by holding a visa, for example). The proposed amendments in new subsection 9(1A) seek to clarify the operation of the Passports Act in conjunction with laws relating to removal, deportation, extradition and the prisoner transfers under the Migration Act 1958, Extradition Act 1988 and the International Transfer of Prisoners Act 1997.

198. Subsection 9(1) of the Passports Act currently reads (emphasis added):

The Minister may, on application by or on behalf of a person, and in the circumstances specified in a Minister's determination, issue the person with a document of a kind specified in a Minister's determination, being a document issued for the purposes of travel.

A person subject to removal or deportation proceedings are often being removed from Australia against their will-for example, they may have overstayed their visa and do not wish to leave-and as such they are unlikely to consent to the issue of an Australian travel document to facilitate their expulsion from Australia.

199. The lawful expulsion decision forms the basis for the Minister's document-issue decision and there is no provision for the Minister to make a document-issue decision without an underlying decision in relation to expulsion already having been made in relation to the person.

200. These amendments clarify that the Minister may issue a travel-related document if it is necessary in order to facilitate the lawful travel of that person. The Bill limits these circumstances to cases of lawful removals, deportations, extraditions and prisoner transfers, meaning that the person may only be expelled when they have exhausted all of their appeal rights in relation to the expulsion order. Expulsion in these circumstances is necessary to protect national security and the ordre public and, accordingly, is consistent with international human rights law and in particular with Article 13 of the ICCPR. A lawful requirement for a person to travel should not be frustrated by a person withholding consent for the issue of an Australian travel document.

201. The issuing of an Australian travel document does not alter the laws under which Australia may remove, deport, extradite or transfer persons from Australia. Furthermore, the amendments to section 9 of the Passports Act do not interfere with a person's right to only be removed pursuant to a decision reached in accordance with law.

202. A decision to issue a travel-related document on the Minister's own initiative does not, in and of itself, engage human rights. However, in the circumstances outlined in new paragraph 9(1A)(b), the issuing of a travel-related document may be one part of a process which engages human rights relating to the removal to or from Australia and non-refoulement (addressed below). On this basis, these amendments engage Article 13 but do not limit the right.

203. Further, it is important to note that decisions to expel people from Australia are made under other Acts; non-refoulement and other considerations are taken into account at the point at which the expulsion decision is made. It is not the responsibility of the Minister, in deciding whether or not to issue a travel-related document on the Minister's own initiative, to determine whether or not the principles of international law have been observed for the purposes of deciding whether to expel someone. This is the responsibility of the person making the expulsion decision.

2 Right to a presumption of innocence

204. Article 14(2) of the ICCPR enshrines the right to be presumed innocent until proven guilty according to law. While no amendments in the Bill propose to reverse the presumption of innocence, amendments to sections 32A and 34 and new section 36 impose an evidential burden on a defendant in relation to proving that they had a 'reasonable excuse' for engaging in otherwise criminal conduct.

205. To the extent that this evidential burden limits a person's right to be presumed innocent, the limitation is justifiable as the 'reasonable excuse' that must be proven is particularly within the knowledge of the person concerned. If, for example, a person finds a false travel document in the street and has it in their possession for the purpose of handing it in to a police station, it is reasonable that the burden of proving that set of circumstances falls to the defendant. The rights of the defendant are otherwise not affected by these amendments and it is clearly more practical for the defendant to prove that they had a reasonable excuse for their conduct than for the prosecution to disprove it.

206. As a result, the amendments to sections 32A and 34 and new section 36 which limit a person's right to a presumption of innocence are reasonable, necessary and proportionate.

207.

3 Right to privacy

208. Article 17 of the ICCPR prohibits unlawful or arbitrary interferences with a person's privacy. It provides that persons have the right to the protection of the law against such interference or attacks. New subsection 53(4) limits a person's right to privacy in the sense that it provides that a person's name or signature may be considered unacceptable and may thus constitute a reason for the Minister to refuse to issue an Australian travel document to that person in that name.

209. A person may use the most recent name registered by the person with an Australian Registry of Births, Deaths or Marriages. However, the principal object of the Passports Act is to provide for the issue and administration of Australian passports, to be used as evidence of identity and citizenship by Australia citizens who are travelling internationally. Given that passports are documents which are presented to officials in other countries as evidence of a person's identity and citizenship, a restriction on the use of unacceptable or offensive names and signatures is reasonable and necessary. Examples of unacceptable names include names which are or contain: an expletive; a racial or ethnic slur or implication; an obscene or offensive term; a political statement or slogan; the name of, or reference to, a public institution or public office; a term that could mislead people into believing that the bearer has been awarded or conferred a title, award or decoration; or a string of words that would not commonly be recognised as a name.

210. A similar situation arises in relation to signatures which contain offensive words or symbols. While a person is entitled to create any signature they wish, there are certain words, phrases and images which are considered inappropriate and should not be included in a signature printed in a Commonwealth document.

211. Any limitation on a person's right to privacy that is imposed by new subsection 53(4) will be lawful and not arbitrary. In order to protect the rights and freedoms of others, such as the right to freedom from discrimination, travel documents will not be issued under names which are designed to cause offence to an individual or group of persons, or which mislead people into thinking a person holds an award or title which they do not hold. The limitation is a reasonable one to impose on applications for Australian travel documents.

212. A decision to refuse a name or a signature of a person that the Minister considers to be unacceptable, inappropriate or offensive is a reviewable decision under new paragraph 48(ha). This further contributes to the reasonableness of the limitation on the right to privacy imposed by new subsection 53(4) by providing for such a decision to be subject to merits review.

4 Right to fair hearing in a suit at law

213. To the extent that an individual's right to seek a review of a decision constitutes a 'suit at law' such that it would be covered by Article 14 of the ICCPR, the amendments in paragraphs 48(a), 48(e), 48(ea) and 48(ha) would engage the right to a fair hearing in a suit at law.

A Subparagraph 48(a)

214. New paragraph 48(a) states that a decision made under new paragraph 9(1A)(b) is not a reviewable decision.

215. Decisions made on a ground referred to in paragraph 9(1A)(b) are not reviewable because the decision to issue an Australian travel document to facilitate a lawful extradition, deportation, removal or prisoner transfer is procedural. The expulsion decision forms the basis for the Minister's document-issue decision. There is no provision for the Minister to make a decision to issue a travel-related document under subsection 9(1A)(b) without a lawful decision already having been made that requires the person to travel.

216. Review rights appropriately relate to the decision to require a person to travel, and not to the Minister's decision to issue the person an Australian travel document to facilitate that travel. The Bill does not remove a person's right to seek a review of the decision to expel the person. As a result, the person's right to a fair hearing in the matter of their expulsion is not affected.

217. Any limitation to the right to a fair hearing, to the extent that it applies to a right to seek review of a decision made on a ground referred to in paragraph 9(1A)(b), is reasonable and necessary to prevent delays in lawful extraditions, removals, deportations and prisoner transfer processes.

B Paragraph 48(e)

218. Consistent with the discussion of paragraph 48(a) above, a decision to demand the surrender of an Australian travel document cancelled in response to a competent authority request is not reviewable because the decision to demand the surrender of the document is a procedural one. Review rights more appropriately relate to the decision to cancel the travel document.

219. Paragraph 22(2)(d) states that the Minister may cancel an Australian travel document if a competent authority makes a refusal/cancellation request in relation to the person. A document is only cancelled following a request by a competent authority for reasons of Australian law enforcement (section 12), international law enforcement cooperation (section 13) or to address the potential of the person engaging in harmful conduct (section 14)

220. Where a person's Australian travel document has been cancelled, an officer may demand the surrender of that cancelled document.

221. A decision to cancel an Australian travel document is a reviewable decision. A passport that has been cancelled following a competent authority request cannot be returned to the person until the outcome of any review of the cancellation decision. To do so would subvert the effect of the cancellation decision. If the Administrative Appeals Tribunal overturns the Minister's decision to cancel the passport, a new passport would be issued to the person.

C Paragraph 48(ha)

222. Paragraph 48(ha) promotes the right to a fair hearing in Article 14(1) of the ICCPR by providing for merits review for a decision to refuse a name or a signature of a person as unacceptable, inappropriate or offensive under new subsection 53(4).

5 Australia's non-refoulement obligations

223. As the amendments to section 9 refer to the issuing of an Australian travel document to facilitate the removal, deportation or extradition of the person from Australia, to the extent that these amendments relate to those actions they may engage Australia's non-refoulement obligations.

224. Article 3(1) of the CAT provides:

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 provides:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

The Government recognises these non-refoulement obligations are absolute and does not seek to resile from or limit Australia's obligations. Non-refoulement obligations are considered as part of, within or prior to the removal, deportation and extradition processes under those legal regimes. Anyone who is found to engage Australia's non-refoulement obligations will not be removed, deported or extradited in breach of those obligations.

6 Rights of people with responsibility for the upbringing of children

225. Articles 5 and 18 of the CRC require the State to protect the rights, responsibilities and duties of parents or persons with responsibility for the upbringing of children to make decisions and take actions that are in the best interests of the child.

226. Under the broad definition of 'parental responsibility' in the Passports Act, a person whose parental responsibility has been removed (either expressly or by implication) under the Family Law Act may still have parental responsibility for the purposes of consenting to a child having an Australian travel document. It is inappropriate that the Passport Act, as it currently stands, accords a person more parental responsibility for a child than is permitted and/or intended by a court.

227. The amendments seek to ensure the reference to 'parental responsibility' in the Passports Act is consistent with the concept as defined in the Family Law Act. Following these amendments, consent to a child having an Australian travel document will be required from: parents who have not had their parental responsibility extinguished at law; a person who has been awarded parental responsibility under a parenting order; a person with whom a child is to live under a parenting order; or a person who has guardianship, custody or parental responsibility for the child under an Australian law.

228. Article 5 of the CRC makes it clear that the Government needs to protect the 'responsibilities, rights and duties of parents ... legal guardians or other persons legally responsible for the child'. Article 18 of the CRC states that 'parents or ... legal guardians have the primary responsibility for the upbringing and development of the child'. Amending the definition in section 11 engages Articles 5 and 18 to the extent that the new definition ensures that only those with parental responsibility for a child are permitted to make decisions about the child's passport. As such, this amendment is consistent with the rights enshrined in the CRC, to the extent that they are already protected by the Family Law Act.

229. It is important to note that these amendments do not remove the requirement contained in the Family Law Act for a person taking a child overseas to seek the consent in writing of all persons in whose favour a court order is made in relation to the child, or all other parties to proceedings for the making of a parenting order in relation to the child. The Department notifies parents of the associated offences in the information booklets distributed to all passport holders, in the passport itself and on the passports website.

Conclusion

230. This Bill is compatible with human rights as it promotes human rights and, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.