Scrutiny of Bills Ninth Report of 1998

SENATE STANDING COMMITTEE FOR THE SCRUTINY OF BILLS

1 July 1998

ISSN 0729-6258

MEMBERS OF THE COMMITTEE

Senator B Cooney (Chairman)

Senator W Crane (Deputy Chairman)

Senator J Ferris

Senator S Macdonald

Senator A Murray

Senator J Quirke

TERMS OF REFERENCE

Extract from Standing Order 24

(1)

(a) At the commencement of each Parliament, a Standing Committee for the Scrutiny of Bills shall be appointed to report, in respect of the clauses of bills introduced into the Senate, and in respect of Acts of the Parliament, whether such bills or Acts, by express words or otherwise:

(i) trespass unduly on personal rights and liberties;

(ii) make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers;

(iii) make rights, liberties or obligations unduly dependent upon non-reviewable decisions;

(iv) inappropriately delegate legislative powers; or

(v) insufficiently subject the exercise of legislative power to parliamentary scrutiny.

(b) The Committee, for the purpose of reporting upon the clauses of a bill when the bill has been introduced into the Senate, may consider any proposed law or other document or information available to it, notwithstanding that such proposed law, document or information has not been presented to the Senate.

SENATE STANDING COMMITTEE FOR THE SCRUTINY OF BILLS

NINTH REPORT OF 1998

The Committee presents its Ninth Report of 1998 to the Senate.

The Committee draws the attention of the Senate to clauses of the following bills which contain provisions that the Committee considers may fall within principles 1(a)(i) to 1(a)(v) of Standing Order 24:

Australian Radiation Protection and Nuclear Safety Bill 1998

Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1997

Australian Radiation Protection and Nuclear Safety Bill 1998

This bill was introduced into the House of Representatives on 8 April 1998 by the Parliamentary Secretary to the Minister for Health and Family Services. [Portfolio responsibility: Health and Family Services]

The bill proposes to establish a scheme to regulate the operation of nuclear installations and the management of radiation sources, including ionising material and apparatus and non-ionising apparatus, where these activities are undertaken by the Commonwealth, Commonwealth entities and those who deal with such entities.

The Committee dealt with this bill in Alert Digest No. 6 of 1998, in which it made various comments. The Parliamentary Secretary to the Minister for Health and Family Services responded to those comments in a letter dated 23 June 1998. In its Seventh Report of 1998, the Committee sought further advice regarding clause 55. A further response dated 30 June 1998 has been received from the Parliamentary Secretary. A copy of that letter is attached to this report, and relevant parts of the response are discussed below.

Abrogation of the privilege against self-incrimination

Subclause 55(2)

In Alert Digest No. 6 of 1998, the Committee noted that subclause 55(1)(e) of the bill authorises an inspector to require any person on particular premises to answer any questions put by the inspector and produce any documents requested by the inspector.

Subclause 55(2) makes compliance an absolute requirement. No provision is made for non-compliance where a person has a reasonable excuse. As a consequence, subclause 55(2) removes the privilege against self-incrimination and does not contain the safeguards often included in such provisions (see, for example, Agricultural and Veterinary Chemicals Code 1994, s 146; Child Support Assessment Act 1989, s 161(4); Australian Wine and Brandy Corporation Act 1980, s 39ZH(3); Ozone Protection Act 1989, s 64(2)).

Accordingly, the Committee sought the advice of the Minister on the reasons why the requirement in subclause 55(2) makes no provision for possible non-compliance where a person has a reasonable excuse, which would include the likelihood that the information required was likely to incriminate that person.

Pending the Minister's advice, the Committee drew Senators' attention to this provision, as it may be considered to trespass unduly on personal rights and liberties, in breach of principle 1(a)(i) of the Committee's terms of reference.

The Parliamentary Secretary to the Minister responded as follows:

The Committee sought advice in respect of subclause 55(2) of the Bill which creates an offence for, amongst other things, refusing or failing to answer any questions put by an inspector (proposed subparagraph 55(1)(e)(i)). The Committee has stated that subclause 55(2) removes the privilege against self-incrimination and does not contain the safeguards often included in similar provisions.

Criminal Code – privilege against self incrimination

Following discussions with the Attorney-General's Department, the Department of Health and Family Services advices that it is highly likely that sub-clause 55(2) does not abrogate the privilege against self-incrimination. Under clause 10 of the Bill, Chapter 2 of the Criminal Code will apply to the offences in the Bill. It is considered that the Code will not alter the application of the privilege against self-incrimination at common law to Commonwealth offences. That is, the privilege will continue to apply in relation to a Commonwealth law requiring the answering of questions unless the law expressly or by necessary implication indicates a contrary intention: Sorby v The Commonwealth (1983) 152 CLR 281 at 309. Further details regarding this matter are at attachment A.

The Committee thanked the Parliamentary Secretary for this response, which addressed some of its concerns. The Committee noted the advice of the Attorney-General's Department that the offences under the Bill are subject to Chapter 2 of the Criminal Code, and that, therefore, “it is highly likely that sub-clause 55(2) does not abrogate the privilege against self-incrimination”. While persuasive, this advice is not definitive.

From the advice, it appears that it is intended that the privilege against self-incrimination should continue to apply to an offence under clause 55. If so, there would seem to be no difficulty in expressly providing for it. Such an approach would remove any uncertainty. Accordingly, the Committee sought the Minister's advice on whether there is any difficulty in expressly providing that the privilege against self-incrimination continues to apply to an offence against clause 55.

Pending the advice of the Minister, the Committee continued to draw Senators' attention to the provision as it may be considered to trespass unduly on personal rights and liberties, in breach of principle 1(a)(i) of the Committee's terms of reference.

The Parliamentary Secretary has further responded as follows:

I would like to thank the Committee for their comments.

Abrogation of the privilege against self-incrimination – subclause 55(2)

The Committee sought advice as to whether there is any difficulty in expressly providing that the privilege against self-incrimination continues to apply to an offence against clause 55 of the Bill.

As detailed in my previous response, the Attorney-General's Department has advised that the existing provision is highly likely not to abrogate the privilege against self incrimination.

Whilst it is clearly our intention that the privilege not be abrogated, any provision within any legislation is ultimately subject to interpretation by the Courts. If, despite our intentions, there proves to be an ambiguity on the face of the legislation, a Court will be entitled to refer to, among other things, the Explanatory Memorandum accompanying clause 55.

To assist the Courts in their interpretation, and to clarify the intent of the provision, I will issue a corrigendum to the Explanatory Memorandum to the bill which will clarify that the provision is not intended to abrogate the privilege against self incrimination.

The corrigendum to the explanatory memorandum will state:

“Subclause 55(2) does not have the effect of abrogating the privilege against self incrimination.”

I trust this addresses the Committee's concerns.

The Committee thanks the Parliamentary Secretary for this further response.

Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1997

This bill was introduced into the House of Representatives on 30 October 1997 by the Minister for Immigration and Multicultural Affairs. [Portfolio responsibility: Immigration and Multicultural Affairs]

The bill proposes to amend the Migration Act 1958 to increase control over the entry into, and presence in, Australia of non-citizens who have a criminal background or have criminal associations and to strengthen the procedures used in dealing with such people.

The Committee dealt with this bill in Alert Digest No. 16 of 1997, in which it made various comments. The Minister for Immigration and Multicultural Affairs responded to those comments in a letter dated 5 January 1998. In its Fourth Report of 1998, the Committee thanked the Minister for this response, and sought further clarification on the difference between `national' and `public' interest. The Minister has responded in a letter dated 24 June 1998. A copy of that letter is attached to this report, and relevant parts of the response are discussed below.

Insufficiently defined administrative powers
Items 12 and 13 of Schedule 1 - proposed section 339 and proposed subsection 411(3)

In its Fourth Report of 1998, the Committee noted that Migration Legislation Amendment Bill (No. 4) 1997 proposed to substitute a new section 339 in the Migration Act. If enacted, this would give the Minister a wide power to certify that some decisions not be reviewable by the Migration Review Tribunal if the Minister thinks that:

(a) it would be contrary to the public interest to change the decision, because any change in the decision would prejudice the security, defence or international relations of Australia; or

(b) it would be contrary to the public interest for the decision to be reviewed because such review would require consideration by the Tribunal of deliberations or decisions of the Cabinet or of a Committee of the Cabinet.

The Committee dealt with this provision in its Thirteenth Report of 1997.

However, the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill now proposes to reduce the range of factors which may inform the Minister's decision to issue a conclusive certificate and thereby prevent merits review of the decision the subject of the certificate. In place of the relatively precise grounds of prejudicing the security, defence or international relations of Australia and the possibility of exposing Cabinet deliberations to review, items 12 and 13 of the present bill will allow the Minister to issue a certificate merely because he or she believes that it would be contrary to the national interest that a decision be changed or reviewed. In the Committee's view, this reduction of grounds widens the discretion in the use of this administrative power and the issue of whether it constitutes an insufficiently defined administrative power arises. Accordingly, the Committee sought the Minister's advice on this matter.

Pending the Minister's advice, the Committee drew Senators' attention to the provisions, as they may be considered to make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers, in breach of principle 1(a)(ii) of the Committee's terms of reference.

Insufficiently defined administrative powers
Item 23 of Schedule 1 - proposed subsections 501(3) to (5) and 501A (3) and (4)

In its Fourth Report of 1998, the Committee noted that proposed subsections 501(3) to (5), if enacted, would allow the Minister, acting personally, either to refuse to grant a visa or to cancel one that had been granted without hearing any representations which the affected person may wish to make, and therefore in derogation of the rules on natural justice and the codes of procedure set out in the Act. The Minister may use this power where he or she reasonably suspects that the person does not pass the character test and the Minister is satisfied that the refusal or cancellation is in the national interest.

As noted above, the use of this power solely on the grounds of 'the national interest' raised the issue of an insufficiently defined administrative power.

Further, the same issue arose with respect to proposed new subsections 501A(3) and (4) which allow the Minister to overturn a favourable decision of his delegate or the Administrative Appeals Tribunal on the character test.

Accordingly, the Committee sought the Minister's advice on these matters and, within that context, whether there would be grounds for judicial review.

On these issues, the Minister responded as follows:

The Committee seeks my advice on whether the introduction of a “national interest” test is in breach of principle 1(a)(ii) of the Committee's terms of reference in that the proposed provisions are legislation which makes rights, liberties or obligations unduly dependent upon insufficiently defined legislative powers.

In particular, the “national interest” test is used in both my powers:

to issue a conclusive certificate to prevent review of a decision by the Migration Review Tribunal (the MRT is established by MLAB4) (item 12) and by the Refugee Review Tribunal (RRT) (item 13); and
of personal intervention, to make decisions without prior natural justice to:
- cancel a visa or refuse a visa application under proposed subsection 501(3). Proposed subsections 501(4) and (5), to which the Committee has also referred, are purely supplementary to proposed subsection 501(3); or
- substitute a cancellation or refusal decision under proposed subsection 501A(3). Proposed subsection 501A(4), to which the Committee has also referred, is purely supplementary to proposed subsection 501A(3).

These amendments are designed to ensure that my personal power to intervene in the review process will be controlled by consistent and uniform criteria (that is, the national interest) across the entire Migration Act. I believe that Australia's national interest is a better test than the existing public interest test for direct Ministerial intervention in the review process because Australia's national interest encompasses a broader range of conduct and considerations than does the public interest.

Judicial review issues

The Committee has also sought my view on whether there would be grounds for judicial review in relation to my powers under proposed subsections 501(3) or 501A(3).

Pending the passage of MLAB5, decisions may be reviewed by:

. the Federal Court under the grounds set out in Part 8 of the Migration Act. The applicability of those grounds depends on what the judicial review applicant is contending; and
. the High Court of Australia in its original jurisdiction under section 75(v) of the Commonwealth Constitution, which in essence means the common law grounds for judicial review of administrative decisions. The applicability of those grounds depends on what the judicial review applicant is contending.

Under the judicial review scheme embodied in MLAB5, review by the Federal Court would be under section 39B of the Judiciary Act 1903 and by the High Court under section 75(v) of the Constitution, but the grounds of review would be confined to: whether there has been a bona fide attempt by the Minister to exercise a power conferred by the legislation; whether the exercise of the power related to the subject matter of the legislation; and whether the decision was reasonably capable of reference to that power.

In its Fourth Report of 1998, the Committee thanked the Minister for this detailed response which generally addressed the Committee's concerns. The Committee noted the minister's observation that Australia's national interest is a better test than the existing public interest test for direct Ministerial intervention in the review process.

The Committee sought clarification from the Minister of the differences between these two terms and, in particular, whether the definition of public interest in section 339 might be expanded to include considerations of the national interest.

Pending the advice of the Minister, the Committee continued to draw Senators' attention to the provisions, as they may be considered to make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers, in breach of principle 1(a)(ii) of the Committee's terms of reference.

On this issue, the Minister has responded as follows:

National interest test

proposed section 339 & subsection 411(3) – Items 12 and 13 of Schedule 1

proposed subsections 501(3) & 501A(3) – Item 23 of Schedule 1

The Committee seeks my advice on whether the introduction of a `national interest' test is in breach of principle 1(a)(ii) of the Committee's terms of reference in that the proposed provisions are legislation which make rights, liberties or obligations unduly dependent upon insufficiently defined legislative powers.

In particular, the `national interest' test is used in both my powers:

to issue a conclusive certificate to prevent review of a decision by the Migration Review Tribunal (the MRT is established by the Migration Legislation Amendment Bill No. 4 [MLAB4]) (item 12) and by the Refugee Review Tribunal (RRT) (item 13); and
of personal intervention, to make decisions to:
- cancel a visa or refuse a visa application under proposed subsection 501(3). Proposed subsections 501(4) and (5), to which the Committee has also referred, are supplementary to proposed subsection 501(3); or
- substitute a cancellation or refusal decision under proposed subsection 501A(3). Proposed subsection 501A(4), to which the Committee has also referred, is supplementary to proposed subsection 501A(3).

I remain of the view that in the subject matter of this Bill, reference to Australia's national interest is the appropriate standard and not a reference to public interest.

Judicial comments about `national interest' stress that it is not possible to give an exhaustive definition of what can be said to be in the national interest. Matters such as Australia's international reputation may be relevant. For example, a reference to the national interest' in the context proposed for section 501 of the Migration Act should allow account to be taken of the Government's interest in ensuring that Australia is not perceived internationally as a haven for criminals, terrorists and other persons of proven bad character. The risk that the presence in Australia of particular persons would promote discord or violence also appears to be relevant to an assessment of the national interest.

The `national interest' generally allows regard to be had to more specific governmental concerns related to public safety, national security, defence and Australia's reputation abroad.

You query whether the definition of public interest' in section 339 might be expanded to include considerations of the national interest. The Character Bill will replace the `public interest' test in section 339 (as introduced by MLAB4) with the `national interest' test.

I trust that these comments will be of assistance to the Committee.

The Committee thanks the Minister for this further response.

Barney Cooney

Chairman

Scrutiny of Bills Ninth Report of 1998