House of Representatives

Explanatory Memorandum

(Circulated by authority of the Assistant Minister for Home Affairs, the Hon. Alex Hawke 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

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 Bill

Schedule 1 - Amendments relating to removal

Due to the limitations of current provisions under section 42, 48 and 48A of the Migration Act 1958 (the Migration Act), complications can arise during removal operations where the removal of an unlawful non-citizen from Australia cannot be completed, or is completed but the removed person does not enter the destination country. Currently, if an attempt to remove an unlawful non-citizen from Australia under section 198 of the Migration Act is made, and the unlawful non-citizen is returned to Australia for reasons other than being refused entry by the destination country (as per current paragraph 42(2A)(d)) - for example, a decision is made to cancel the removal during transit, on return to Australia, because the non-citizen will have left the migration zone, any bar on the applicant applying for further certain visas under sections 48 and 48A of the Migration Act will no longer apply to that non-citizen.

Section 42 of the Migration Act broadly sets out detail regarding the circumstances in which a non-citizen is required to hold a visa for travel to Australia. Subsection 42(1) of the Migration Act specifies that, subject to subsections 42(2), (2A) and (3), a non-citizen must not travel to Australia without a visa that is in effect. Relevantly, current paragraph 42(2A)(d) states that subsection 42(1) does not apply to a non-citizen in relation to travel to Australia if the non-citizen has been removed under section 198 to another country but has been refused entry by the country, and the non-citizen travels to Australia as a direct result of that refusal, and the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen.

New paragraphs 42(2A)(d) and (da) will ensure that subsection 42(1) does not apply to certain non-citizens whose removal from Australia under section 198 of the Migration Act has been aborted, which means that the non-citizen is able to return to Australia without a visa if there is a need to cancel a removal at any stage between the non-citizen leaving the migration zone and the non-citizen entering the destination country.

Section 48 of the Migration Act broadly sets out detail regarding the visas for which non-citizen in the migration zone who have been refused a visa or whose visa has been cancelled, may apply. Current subsection 48(2) states that for the purposes of the section, which only applies in respect of applications made while a non-citizen is in the migration zone, a non-citizen who has been removed from the migration zone under section 198 of the Migration Act and is again in the migration zone as a result of travel to Australia that is covered by paragraphs 42(2A)(d) or (e), is taken to have been continuously in the migration zone despite the attempted removal. Currently there is no reference at paragraph 42(2A)(d) to non-citizens whose removal has been aborted in transit to the destination country, meaning that, for the purposes of section 48 and 48A of the Migration Act, the non-citizen is not taken to have been continuously in the migration zone. The result is that the non-citizen is taken to have left the migration zone and is therefore not restricted by section 48 and 48A in the visa(s) for which they may apply.

New subsection 48(1B) and amended paragraph 48(2)(b) will, respectively, apply to a non-citizen who is again in the migration zone as a result of travel to Australia that is covered by new paragraphs 42(2A)(d) and 42(2A)(da), so that a person who returns to Australia as a result of travel covered by either of those paragraphs will be taken to have been continuously in the migration zone.

Similarly, current paragraph 48A(1A)(b) cross-references paragraph 42(2A)(d) to the same effect. Amended paragraph 48A(1A)(b) and new subsection 48A(1AB) will ensure that the bar on visa applications at section 48A applies to non-citizens who return to Australia between the time they leave Australia and the time they enter the destination country in the same way as it currently applies to non-citizens whose entry has been refused by the country of destination. Amended paragraph 48A(1A)(b) and new subsection 48A(1AB) will, respectively, apply to a non-citizen who is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or paragraph 42(2A)(da) and so a non-citizen who returns to Australia as a result of travel covered by either of those paragraphs will be taken to have been continuously in the migration zone for the purpose of section 48A despite the attempted removal.

This amendment will correct the unintended operation of law that leads to unlawful non-citizens who are attempted to be removed from Australia under section 198 of the Migration Act being treated differently under law depending on the reason that they return to Australia following an unsuccessful removal. The intention of the amendment to subsection 42(2A) of the Migration Act is to ensure that unlawful non-citizens in relation to whom removal under section 198 of the Migration Act is intended, but who return to Australia before entering the destination country, can return to Australia without a visa, and if they do, ensure that the bars against further visa applications in sections 48 and 48A remain applicable to those individuals despite the attempted removal.

Schedule 2 - Giving of Documents

Schedule 2 to this Bill broadens the available channels by which the Department of Home Affairs (the Department) can give documents to people. This will occur by amending sections 494B and 494C of the Migration Act to enable the Department to give a document by making that document available by way of an online account.

Sections 494B and 494C respectively set out the methods by which the Minister gives documents to a person, and when a person is taken to have received a document from the Minister. The methods include giving a document by hand, by prepaid post or other prepaid means, or by fax, email or other electronic means. The Bill's amendment to allow for a document to be made available to a recipient by way of an online account, and for when this would be taken to be received in line with other electronic communications, provides a benefit to recipients in respect of certainty of the transmission of documents in addition to providing the Department with administrative efficiency.

Schedule 3 - Recoverable Payments

Section 163 of Division 3 of Part VIII of the Customs Act provides for refunds of duty and includes a regulation making power. The circumstances in which refunds may be paid are set out in the Customs Regulation 2015 (the Customs Regulation).

The legislative basis to pay drawbacks is contained in section 168 of the Customs Act. This provision also includes a regulation-making power. The circumstances in which drawbacks are made are also set out in the Customs Regulation.

Section 83 of the Commonwealth Constitution provides that no amount may be paid out of the Consolidated Revenue Fund (CRF) except under an appropriation made by law. The Department operates principally on a client self-assessment basis in relation to the collection, refund and drawback of duty in the Integrated Cargo System. There is a risk that refunds and drawbacks may be made otherwise than in accordance with the legislation, with the consequence that section 83 of the Constitution may be breached.

To address this issue, sections 165, 273 and Part XVII of the Customs Act are amended to create a power to enable the Department to refund duty or drawback of duty to a person in circumstances where the Department has mistakenly determined that the person is entitled to a refund. This power allows refund monies to be drawn from the CRF.

The amendment reduces the risk of breaching section 83 of the Constitution, which may result from refunds and drawbacks of duty being made otherwise than in accordance with the legislation.

Schedule 4 - Passenger Movement Charge

Schedule 6 to this Bill introduces a new power that will allow a fee for service to be charged for, and in relation to, the payment of the passenger movement charge or an amount equal to the charge.

The Department manages an online system and facility that enables applicants and clients to pay for statutory charges, fees, and duties, etc. These payments may be made online by bank transfer, PayPal or credit card.

Where an applicant or a client elects for the related statutory charges, fees and duties, etc. with a credit card or PayPal, the Department is charged a merchant fee by the financial institutions for those payments made by an applicant or a client. Where the applicant or client pays related statutory charges, fees and duties, etc. via bank transfer, no merchant fee is charged to the Department.

Under section 6 of the Passenger Movement Charge Collection Act 1978 (the PMC Collection Act) a person seeking to depart Australia is liable to pay a charge known as the passenger movement charge. The Department currently incurs a merchant fee whenever the person seeking to depart Australia pays the passenger movement charge with a credit card.

Consistent with the fee for service that the Department recovers for other statutory portfolio charges, fees and duties, etc. that are paid by credit card or PayPal, the purpose of the Bill is to insert a head of power into the PMC Collection Act to enable a similar fee to be recovered by the Department.

Schedule 5 - Minor Amendments

Schedule 5 to this Bill makes minor amendments to section 58A and section 208DA of the Customs Act to ensure these provisions operate as intended.

The purpose of section 58A of the Customs Act is to control the movement of persons and goods between sea installations installed in the adjacent area and the coastal area of Australia, or a resources installation attached to the Australian seabed, and an external place.

The wording "to an external place" was inadvertently omitted from paragraph 58A(4)(a) and paragraph 58A(5)(a) of the Customs Act when these provisions were repealed and substituted by the Customs Legislation Amendment Act (No. 1) 1999.

The amendments to section 58A will restore the omitted wording "to an external place" in paragraphs 58A(4)(a) and 58(5)(a) to ensure that these provisions operate as intended to control the movement of persons and goods for the purpose of section 58A.

Section 208DA of the Customs Act sets out the process for disposal of certain condemned goods that are narcotic-related goods (other than narcotic goods).

Currently, subsection 208DA(4) of the Customs Act refers to narcotic-related goods (other than narcotic goods) being sold or otherwise disposed of under subsection 208DA(2). This is not accurate, however as under subsection 208DA(2) such goods must first be transferred to the Official Trustee, before being sold or otherwise disposed of under subsection 208DA(3).

The amendment to subsection 208DA(4) of the Customs Act will ensure that this provision accurately refers to the correct process for disposing of narcotic-related goods (other than narcotic goods), as set out in subsection 208DA(2).

Human rights implications

This Bill does not breach any of the applicable rights or freedoms.

Schedule 1 - Amendments relating to removal

Freedom from arbitrary detention

Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR) relevantly provides that no-one shall be subjected to arbitrary or unlawful detention. The proposed amendments engage this right by requiring the detention (under section 189 of the Migration Act) of unlawful non-citizens who are returned to Australia following an attempted removal under section 198 of the Migration Act. Australia takes its obligations to non-citizens in immigration detention very seriously.

The Australian Government's position is that the detention of individuals is neither unlawful nor arbitrary per se under international law. Continuing detention may become arbitrary after a certain period of time without proper justification. The determining factor, however, is not the length of detention, but whether the grounds for the detention are justifiable. In the context of Article 9(1), detention that is not 'arbitrary' must have a legitimate purpose within the framework of the ICCPR in its entirety. Detention must be predictable in the sense of the rule of law (it must not be capricious) and it must be reasonable (or proportional) in relation to the purpose to be achieved.

While the proposed amendments will limit an unlawful non-citizen's opportunity to apply for a visa (through continuous application of statutory bars in ss48 and 48A), their re-detention will continue to be for the legitimate purpose of completing their removal from Australia under section 198 of the Migration Act as soon as it becomes reasonably practicable to do so. The removal of unlawful non-citizens under section 198 is mandated by the law and is an integral part of maintaining the integrity of Australia's migration system. Where removal cannot be accomplished within reasonable timeframes, in line with established detention policy and procedures, the Department will review the detention decision and consider less restrictive forms of detention such as residence determination or grant of a Bridging visa E, as appropriate in circumstances of the case.

It is anticipated that the instances of a removal being aborted and the person being returned to Australia, will only occur in exceptional cases.

These policy and procedures ensure that the re-detention of affected unlawful non-citizens is reasonable and proportionate to completing their removal from Australia.

Non-refoulement

Australia has obligations under the ICCPR and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) not to return a person to a certain country in certain circumstances.

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.

The Department recognises that these non-refoulement obligations are absolute and does not seek to resile from or limit Australia's obligations. However, the form of administrative arrangements in place to support Australia meeting its non-refoulement obligations is a matter for the Government. The amendments outlined in this Bill do not breach Australia's non-refoulement obligations because the obligations - if applicable - will have been assessed prior to the non-citizen's removal from Australia. A pre-removal clearance check is undertaken for all involuntary removals of unlawful non-citizens to ensure the proposed removal would not breach Australia's non-refoulement obligations. Where this check identifies outstanding protection claims, removal will not proceed until these claims have been fully assessed. An individual will not be removed from Australia in breach of non-refoulement obligations.

The best interests of the child

As a party to the Convention on the Rights of the Child (CRC), Australia is required to ensure that in all actions concerning children, the best interests of the child are considered as a primary consideration (Article 3). It is the case that the amendments would apply to the removal of children under section 198 of the Migration Act in addition to adults being removed where affected children would remain in Australia. Under policy, all actions taken by the Department which involve children involve an assessment of the child's best interests as a primary consideration. However, although the best interests of the child is a primary consideration, such considerations may be outweighed by other factors, such as the need to maintain the integrity of Australia's migration system and the fact that those subject to removal have no entitlement to remain lawfully in Australia. Consequently, it may not be in a child's best interests to be removed from Australia, but in certain circumstances, this will need to be balanced against other primary considerations.

All removals from Australia involving children (including cases where the removal of an adult affects a child who is remaining in Australia) require the best interest of the child as a primary consideration to ensure compliance with Australia's obligations under Article 3 of the CRC. Where the best interest of the child overwhelmingly outweighs all other relevant considerations in relation to a removal, the case may be referred to the Minister for consideration to exercise his non-compellable powers to grant a visa.

Schedule 2 - Giving of Documents, Schedule 3 - Recoverable Payments, Schedule 4 - Passenger Movement Charge and Schedule 5 - Minor amendments

These Schedules to the Bill do not engage, impact on, or limit in any way, the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights at section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Conclusion

The Bill is compatible with applicable rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.