New and continuing matters
1.1
This chapter provides assessments of the human rights compatibility of:
- bills introduced into the Parliament between 4 and 7 September (consideration of 5 bills from this period has been deferred);[1]
- legislative instruments received between 28 July and 10 August (consideration
of 5 legislative instruments from this period has been deferred);[2] and
- bills and legislative instruments previously deferred.
1.2
The chapter also includes reports on matters previously raised, in
relation to which the committee seeks further information following
consideration of a response from the legislation proponent.
1.3
The committee has concluded its consideration of three instruments that
were previously deferred.[3]
Instruments not raising human rights concerns
1.4
The committee has examined the legislative instruments received in the
relevant period, as listed in the Journals of the Senate.[4] Instruments raising human rights concerns are identified in this chapter.
1.5
The committee has concluded that the remaining instruments do not raise
human rights concerns, either because they do not engage human rights, they
contain only justifiable (or marginal) limitations on human rights or because
they promote human rights and do not require additional comment.
Response required
1.6
The committee seeks a response or further information from the relevant minister
or legislation proponent with respect to the following bills and instruments.
Anti-Money Laundering and Counter-Terrorism Financing
Amendment Bill 2017
| Purpose |
Seeks to amend the Anti-Money
Laundering and Counter-Terrorism Financing Act 2006 (the AML/CTF Act) and
the Financial Transaction Reports Act 1988 to: expand the objects of
the AML/CTF Act to reflect the domestic objectives of AML/CTF regulation; regulate
digital currency exchange providers; amend industry regulation requirements
relating to due diligence obligations for correspondent banking
relationships; deregulate the cash-in-transit sector, insurance
intermediaries and general insurance providers; qualify the term 'in the
course of carrying on in a business'; allow the sharing of information between
related bodies corporate; increase the investigation and enforcement powers
of the Australian Transaction Reports and Analysis Centre (AUSTRAC); provide
police and customs officers broader powers to search and seize physical
currency and bearer negotiable instruments; provide police and customs
officers broader powers to establish civil penalties for failing to comply
with questioning and search powers; revise the definitions of 'investigating
officer', 'signatory' and 'stored value card' in the AML/CTF Act; and clarify
other regulatory matters relating to the powers of the AUSTRAC CEO |
| Portfolio |
Justice |
| Introduced |
House of Representatives, 17
August 2017 |
| Rights |
Criminal process rights; fair
trial; right to be presumed innocent; not to be tried and punished twice; not
to incriminate oneself (see Appendix 2) |
| Status |
Seeking additional
information |
Civil penalty provisions
1.7
The Anti-Money Laundering and Counter-Terrorism Financing Amendment Bill
2017 (the bill) proposes to make four provisions in the Anti-Money
Laundering and Counter-Terrorism Financing Act 2006 (the AML Act) into
civil penalty provisions. Section 175 of the AML Act states that the
maximum pecuniary penalty payable by an individual for a civil penalty
provision is 20,000 penalty units (or $4.2 million).
1.8
Specifically, the proposed amendments would mean that an individual
could be liable to a civil penalty of up to $4.2 million for a failure to
notify the AUSTRAC CEO of a change in circumstances that could materially
affect the person's registration;[5] a failure to declare an amount of currency or a bearer negotiable instrument
when leaving or entering Australia;[6] or providing a registrable digital currency exchange service if not registered.[7]
Compatibility of the measure with
criminal process rights
1.9
Civil penalty provisions are dealt with in accordance with the rules and
procedures that apply in relation to civil matters (the burden of proof is on
the balance of probabilities). However, if a civil penalty provision is in
substance regarded as 'criminal' for the purposes of international human rights
law, it will engage criminal process rights under articles 14 and 15 of the
International Covenant on Civil and Political Rights (ICCPR).
1.10
It is settled that a penalty or sanction may be 'criminal' for the
purposes of the ICCPR, even where it is classified as 'civil' under Australian
domestic law. The committee's Guidance Note 2 sets out some of the key
human rights compatibility issues in relation to civil penalties. The
classification of a penalty as 'criminal' under human rights law does not mean
that the penalty is illegitimate, but rather that criminal process rights, such
as the right to be presumed innocent and the right not to be tried and punished
twice, apply.
1.11
The statement of compatibility does not identify that any rights are
engaged by the civil penalty provisions and has not addressed whether they may
be classified as 'criminal' for the purposes of international human rights law.
1.12
Applying the tests set out in the committee's Guidance Note 2,
the first step in determining whether a penalty is 'criminal' is to look to its
classification under domestic law. In this instance, the penalty is classified
as 'civil' in the bill, however as stated above, this is not determinative of
its status under international human rights law.
1.13
The second step is to consider the nature and purpose of the penalty.
The penalty is likely to be considered to be criminal if the purpose of the
penalty is to punish or deter, and the penalty applies to the public in general
(rather than being restricted to people in a specific regulatory or
disciplinary context). In this instance, the purpose of the penalty is
identified as to deter, however it appears to be restricted to the specific
regulatory context of financial regulation.[8]
1.14
The third step is to consider the severity of the penalty. It is here
that potential concerns arise. A penalty is likely to be considered 'criminal'
where it carries a penalty of a substantial pecuniary sanction. However, this
must be assessed with due regard to regulatory context, including the nature of
the industry or sector being regulated and the relative size of the pecuniary
penalties being imposed. In this case, an individual could be exposed to a
penalty of up to $4.2 million. These are very significant penalties and raise
the concern that the provisions set out in [1.8] may be 'criminal' for the
purposes of international human rights law.
1.15
As set out above, the consequence of this would be that the civil
penalty provisions in the bill must be shown to be compatible with the criminal
process guarantees set out in articles 14 and 15 of the ICCPR. However, in this
case the measure does not appear to be consistent with criminal process
guarantees. For example, the application of a civil rather than a criminal
standard of proof raises concerns in relation to the right to be presumed innocent.
The right to be presumed innocent generally requires that the prosecution prove
each element of the offence to the criminal standard of proof of beyond
reasonable doubt. Accordingly, were the civil penalty provisions to be
considered 'criminal' for the purpose of international human rights law, there
would be serious questions about whether they are compatible with criminal
process rights.
Committee comment
1.16
The preceding analysis raises questions as to the compatibility
of the civil penalty with criminal process rights.
1.17
The committee draws the attention of the minister to its Guidance
Note 2 and seeks the advice of the minister as to whether:
- the civil penalty provisions in the bill may be considered to
be 'criminal' in nature for the purposes of international human rights law
(having regard to the committee's Guidance Note 2); and
- if the penalties are considered 'criminal' for the purposes of
international human rights law, whether the measures could be amended to accord
with criminal process rights (including specific guarantees of the right to a
fair trial in the determination of a criminal charge such as the presumption of
innocence (article 14(2)), the right not to incriminate oneself (article
14(3)(g)), the right not to be tried and punished twice for an offence (article
14(7)) and a guarantee against retrospective criminal laws (article 15(1))).
Further response required
1.18
The committee seeks a further response from the relevant minister or
legislation proponent with respect to the following bills and instruments.
Migration Amendment (Validation of Decisions) Bill 2017
| Purpose |
Seeks to ensure that visa
cancellations or refusals based on information gained from gazetted law
enforcement officers under section 503A of the Migration Act 1958 remain valid at law |
| Portfolio |
Immigration and Border
Protection |
| Introduced |
House of Representatives,
21 June 2017 |
| Rights |
Prohibition on expulsion
without due process; liberty; protection of the family; non-refoulement;
freedom of movement; and effective remedy (see Appendix 2) |
| Previous report |
8 of 2017 |
| Status |
Seeking further additional
information |
Background
1.19
The committee first reported on the Migration Amendment (Validation of
Decisions) Bill 2017 (the bill) in its Report 8 of 2017, and requested a
response from the Minister for Immigration and Border Protection by 28 August
2017.[9]
1.20
The bill passed in the House of Representatives on 16 August 2017 and in
the Senate on 4 September 2017.
1.21
The minister's response to the committee's inquiries was received on 29
August 2017. The response is discussed below and is reproduced in full at Appendix 3.
Validation of decisions
1.22
Section 503A of the Migration Act 1958 (the Migration Act)
provides that information communicated to an authorised migration officer by a
gazetted agency (such as law enforcement or intelligence agencies or a war
crimes tribunal) for the purposes of making a decision to refuse or cancel a
visa on character grounds, is protected from disclosure, not only to the person
whose visa is refused or cancelled, but also to any court or tribunal reviewing
that decision, and to parliament or a parliamentary committee. The minister has
the non-compellable discretion to allow the disclosure after consulting the
gazetted agency.
1.23
Section 503A(2) was found to be invalid by the High Court on 6 September
2017.[10] Section 503A(2) was found to be invalid to the extent that it prevented the
minister from being required to divulge or communicate information to the High
Court and the Federal Court when those courts engaged in judicial review of the
minister's exercise of power to cancel or refuse to grant a visa. This was
considered to amount 'in practice to shield the purported exercise of power
from judicial scrutiny'[11] and to a 'substantial curtailment of the capacity of a court exercising
jurisdiction... to discern and declare whether or not the legal limits of power
conferred on the Minister by the Act have been observed'.[12] The High Court therefore considered that the minister made the decisions on the
erroneous understanding as to what the exercise of the statutory power
entailed, and quashed the decisions.
1.24
The bill seeks to ensure that, notwithstanding their reliance upon or
regard to confidential information purportedly protected by section 503A, the
minister or delegate's decisions regarding visa refusal or cancellation will
remain valid.
Compatibility of the measure with
the prohibition on expulsion without due process
1.25
The right not to be expelled from a country without due process is
protected by article 13 of the International Covenant on Civil and Political Rights
(ICCPR). It provides:
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.
1.26
The article incorporates notions of due process also reflected in
article 14 of the ICCPR,[13] which protects the right to a fair hearing.[14] As stated in the initial human rights analysis, to the extent that domestic law
gives authority to courts or tribunals to decide on expulsion or deportation
decisions, the guarantees of fairness and equality of arms apply.[15] These demand that each side be given the opportunity to contest all the
arguments and evidence adduced by the other party.[16] 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'.[17]
1.27
Under section 503A, both the person whose visa is refused or cancelled
and any authority outside the department reviewing the decision are unable to
require production of particular information on which the decision is based.
The person is therefore prevented from effectively contesting or correcting
potentially essential information and the reviewing authority is unable to
scrutinise whether the decision was correct or reasonably made, thereby
engaging and limiting the right of an alien to due process prior to expulsion.
1.28
The previous analysis noted that article 13 does contain an exception to
the requirement to afford due process where 'compelling reasons of national
security' exist. However, section 503A is broader than this exception. It does
not require the minister to be satisfied that compelling national security
reasons exist, but merely that the information relied upon is communicated to
an authorised migration officer by a gazetted agency on the condition that it
be treated as confidential. Indeed, there is no requirement to assess whether
confidentiality is necessary against any standard. This raises serious
questions as to whether section 503A is compatible with article 13.
1.29
In seeking to validate decisions which relied upon section 503A
information, which has been found to be constitutionally invalid on the grounds
and to the extent set out in 1.23, the measure further limits the right to due
process prior to expulsion under article 13.
1.30
The initial analysis stated that the right to due process prior to
expulsion was not addressed in the statement of compatibility, and accordingly
no assessment was provided as to whether the limitation was permissible. In the
context of other rights, considered below, the statement of compatibility
stated that the measure is a reasonable response to a legitimate objective. As
discussed below at [1.55] to [1.56], there are serious questions as to whether
the measure is effective to achieve, and proportionate to, the stated
objectives.
1.31
The committee therefore requested the advice of the minister as to the
compatibility of the measure with the right to due process prior to expulsion
under article 13 of the ICCPR, particularly regarding the inability of affected
individuals to contest or correct information on which the refusal or
cancellation is based, and the absence of any standard against which the need
for confidentiality of section 503A information is independently assessed or
reviewed.
Minister's response
1.32
The minister's response addresses each of the questions asked by the
committee.
1.33
In relation to the compatibility of the measure with the right to due
process prior to expulsion under article 13 of the ICCPR, the minister's
response emphasises that the bill only applies to visa cancelation or refusal
decisions that have already been made, and that the bill 'does not affect the
ability to contest information or the assessment of the confidentiality of
information, nor does it seek to limit review or due process prior to
expulsion'. The minister's response further states:
The High Court of Australia is considering the validity of
section 503A in Graham and Te Puia. The construction of section
503A, including the ability of individuals to contest information on which a
refusal or cancellation decision is based and the standard against which the
need for confidentiality of information is independently assessed, is outside
the scope of this Bill. Should the High Court determine that all or part of
section 503A is invalid, the Department of Immigration and Border Protection
(the Department) will consider the Court's findings in the context of future
decision-making. In any event, persons who have had their visa cancelled, or
visa application refused, on the basis of section 503A protected information
will remain able to seek judicial review of their visa decision following the
commencement of this amendment. This amendment does not prevent these
individuals' access to judicial review should they decide to seek it. Nor does
this amendment affect a person's right to seek merits review of a relevant
decision to the extent that such review is provided for under existing law. The
amendments seek only to validate the visa cancellation or visa application
refusal decision, rather than the construction of section 503A or the ability
for section 503A to protect certain sensitive information.
The amendments will maintain the status quo for individuals
who have already had their case thoroughly assessed and considered under
migration legislation and affected individuals will continue to have review
rights prior to expulsion. At the time of consideration, these persons failed
the character test in accordance with Australian law and had no lawful right to
hold a visa allowing them to enter or remain in Australia. They have had, and
continue to have, access to judicial review of this decision and some of these
individuals have challenged their cancellation or refusal decisions.
1.34
While the right to judicial review (and, in some circumstances, merits
review) remains, the bill appears to preclude an affected individual from being
able to challenge the lawfulness of the visa cancellation or refusal decision
on the basis that the decision was made in reliance on information protected by
section 503A. This issue seems to be acknowledged in the explanatory memorandum
which notes that the bill does 'not affect a person's ability to seek judicial
review of a decision described in paragraph 9 on any other ground, that
is, on a ground not mentioned in paragraphs 10 and 11'.[18] Paragraphs 9, 10 and 11 of the explanatory memorandum summarise the content and
operation of section 503E(1) and provide:
New subsection 503E(1) applies to decisions made by the
Minister under section 501, 501A, 501B, 501BA, 501C or 501CA before this item
commences.
Such a decision made by the Minister is not invalid, and is
taken never to have been invalid merely because the Minister:
- relied on; or
- had regard to; or
- failed to disclose in
accordance with any applicable common law or statutory obligation;
information that was protected, or purportedly protected, by
subsection 503A(1) or (2) of the Act.
Further, such a decision is not invalid, and is taken never
to have been invalid merely because the Minister made the decision based on an
erroneous understanding of section 503A or the protection that section would
provide against an obligation to disclose information.
1.35
Furthermore, the effect of the measure is to prevent an affected
individual from effectively contesting or correcting potentially essential
information, and a Court or reviewing authority is unable to scrutinise whether
the decision was correct or reasonably made. This limits the right to due
process prior to expulsion under article 13 of the ICCPR, as set out in the
initial analysis.
1.36
In relation to the committee's request for information regarding the
absence of any standard against which the need for confidentiality of section
503A information is independently assessed or reviewed, the minister's response
stated:
The High Court's deliberations in the cases of Graham and Te Puia centre on whether the ability to protect information under
section 503A is invalid in that it allows information to be withheld from
judicial proceedings based on criteria that are not evaluative. The
construction of section 503A and the nature of determining which information
requires protection is outside the scope of this Bill.
Section 503A was introduced by the Migration Legislation
Amendment (Strengthening of Provisions Related to Character and Conduct) Act
1998 to facilitate law enforcement and intelligence agencies providing
relevant information to the Department while ensuring that the content and
sources will be protected. This includes protecting the information from
disclosure to a court, tribunal, a parliament or parliamentary committee or any
other body or person.
In practice, law enforcement and intelligence agencies provide
information to the Department, on the basis it can be protected from disclosure
to any other person or body.
The High Court is considering whether this protective power
impairs the independence and impartiality of a court. Should the High Court
determine that all or part of section 503A is invalid, the Department will
consider the Court's findings in the context of future decision-making.
1.37
While, as the minister states, the construction of section 503A and the
nature of determining which information requires protection is outside the
scope of the bill, affected individuals whose visas have been cancelled or
refused relying on information protected under section 503A will have their
decisions retrospectively validated with no apparent assessment of whether
confidentiality of matters that were kept from them pursuant to section 503A is
necessary against any standard. The absence of any standard against which the
need for confidentiality is independently assessed or reviewed further limits
the right to due process prior to expulsion.
1.38
As the minister has not acknowledged this limitation, the minister has
not undertaken an assessment of whether that limitation was permissible. In the
context of other rights, considered below, the statement of compatibility stated
that the measure is a reasonable response to a legitimate objective. As
discussed below at [1.57] to [1.58], whilst the safety of the community and the
integrity of the migration system are capable of constituting legitimate
objectives under international human rights law, it cannot be concluded based
on the evidence available that the measures are effective to achieve, and
proportionate to, those objectives.
Committee comment
1.39
The committee thanks the minister for his response.
1.40
The preceding analysis raises serious concerns that the measure
is likely to be incompatible with the right to due process prior to expulsion.
1.41
The committee seeks the minister's further advice as to the
compatibility of the measure with the right to due process prior to expulsion
in light of the preceding analysis and the High Court's decision in Graham
v. Minister for Immigration and Border Protection; Te Puia v. Minister for
Immigration and Border Protection [2017] HCA 33.
Compatibility of the measure with
the right to liberty
1.42
The right to liberty, contained in Article 9 of the ICCPR, prohibits the
arbitrary and unlawful deprivation of liberty. This prohibition against
arbitrary detention requires that the state should not deprive a person of
their liberty except in accordance with law, but the concept of arbitrariness
also extends beyond the apparent 'lawfulness' of detention to include elements
of injustice, lack of predictability and lack of due process.[19] The right to liberty applies to all forms of deprivations of liberty, including
immigration detention, although what is considered as arbitrary may vary
depending on context.
1.43
Under the Migration Act, the cancellation of the visa of a non-citizen
living in Australia results in that person being classified as an unlawful
non-citizen, and subject to mandatory immigration detention prior to removal or
deportation.[20] The previous analysis stated that by validating decisions to cancel a visa
which may otherwise be invalid, the measure engages and limits the right to
liberty.
1.44
However, the statement of compatibility argues that the bill does not
limit the right to liberty as it:
introduces a legislative amendment that preserves the grounds
upon which certain non-citizen's visas were cancelled, or their applications
refused, the result of which may be subsequent detention, supporting existing
laws that are well-established, generally applicable and predictable.[21]
1.45
The initial analysis noted that the concept of 'non-arbitrariness' under
international law is not limited to general applicability and predictability,
although it includes both those concepts. The detention of a non-citizen on
cancellation of their visa will generally not constitute arbitrary detention,
as it is permissible to detain a person for a reasonable time pending their
deportation. Detention may however become arbitrary in the context of mandatory
detention, where individual circumstances are not taken into account, and a
person may be subject to a significant length of detention without knowing or
being able to contest the information on which their detention is based before
an independent body.[22]
1.46
In relation to section 503A, arbitrariness may arise because a person is
prevented from accessing and addressing evidence upon which the visa
cancellation, and therefore detention pending removal, is based. In seeking to
broadly validate decisions which had regard to section 503A information, the
bill would perpetuate the existing serious concerns in relation to section
503A.
1.47
In relation to the risk of indefinite detention, the statement of
compatibility states that '[t]he determining factor [in whether detention is
arbitrary] is not the length of detention, but whether the grounds for the
detention are justifiable'.[23] However, as stated by the United Nations Human Rights Committee (UNHRC) '[t]he
inability of a state to carry out the expulsion of an individual because of
statelessness or other obstacles does not justify indefinite detention'.[24] The risk of arbitrariness in this situation is exacerbated where a person is
deprived of legal safeguards to effectively challenge the basis of their
detention, such as access to information relied upon in refusing or cancelling
a visa.[25]
1.48
A measure may permissibly limit the right to liberty where it supports a
legitimate objective, is rationally connected to that objective, and is a
proportionate way to achieve that objective.
1.49
The statement of compatibility identifies the objectives of the measure
as being:
...[to ensure] the safety of the Australian community and
integrity of the migration programme — as it seeks to uphold certain character
refusal or cancellation decisions in the event of a High Court ruling on the
validity of section 503A. These non-citizens pose an unacceptable risk to the
Australian community if their cancellation decisions are overturned and they
are required to be released from immigration detention into the community.[26]
1.50
The statement of compatibility indicates that the measures are
reasonable as:
This Bill will not prevent the affected non-citizens from
individually challenging their decisions in a court. The detention of a
non-citizen under these circumstances is considered neither unlawful nor
arbitrary under international law.[27]
1.51
However, as the previous analysis noted, it is unclear upon what basis
an affected non-citizen would be able to challenge their visa cancellation or
refusal in a court. Indeed, the intent of the measure appears to be to preclude
affected persons from successfully challenging visa cancellations or refusals
made in reliance on information that was not disclosed pursuant to section
503A, notwithstanding the invalidity of section 503A(2).
1.52
With particular reference to the risk that a person may be arbitrarily detained,
the statement of compatibility states:
The Government has processes in place to mitigate any risk of
a non-citizen's detention becoming indefinite or arbitrary through: internal
administrative review processes; Commonwealth Ombudsman 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.[28]
1.53
As considered in a previous human rights assessment of visa cancellation
powers,[29] ensuring the safety of Australians and the integrity of the immigration system
are capable of constituting legitimate objectives for the purposes of international
human rights law.
1.54
However, the measure seeks to validate administrative decisions made
with regard to information which was not disclosed to the affected person, and
could not be effectively tested in a court for reliability, relevance or
accuracy. The effectiveness of the measure to ensure the safety of Australians
and the integrity of the immigration system is therefore questionable.
1.55
Moreover, in order for a measure to be a proportionate limitation on a
right, it must be the least rights restrictive means of achieving the
legitimate objective of the measure. The previous analysis stated that it is
difficult to see how validating decisions to cancel visas based on information
that is kept from the person affected, broadly as a class, is the least rights
restrictive means of achieving the stated objectives. It would appear to be
possible for the minister to make a renewed decision to refuse or cancel the
visa of an affected person on an individual basis. Insofar as information is
sought to be kept from the affected person for reasons of national security,
the statement of compatibility does not address alternative means that may be
available that would protect such information only to the extent required for
national security or alternative processes that would still allow such
information to be tested in some way before a court or tribunal. More broadly,
it is not clear from the statement of compatibility why existing criminal
justice or national security mechanisms are insufficient to counter any risk a
person may pose should the cancellation of their visa be invalid as a
consequence of the High Court's decision.
1.56
No detail was provided regarding the functioning or effectiveness of
internal review processes, or the oversight processes referred to in the
statement of compatibility. While the administrative
and discretionary processes identified may in some circumstances mitigate the
risk of arbitrary or indefinite detention, they are unlikely to constitute
sufficient safeguards under international law, due to their discretionary
nature.[30]
1.57
The committee therefore requested the advice of the Minister for
Immigration and Border Protection as to the compatibility of the measure in
relation to the right to liberty, particularly regarding:
- why the broad legislative
validation of a class of decisions is required, when it appears that the
minister could make a renewed decision to refuse or cancel the visa of an
affected person on an individual basis;
- any alternative means that may
be available that would protect such information only to the extent required
for national security or alternative processes that would still allow such
information to be tested in some way before a court or tribunal; and
- the availability of less rights
restrictive criminal justice or national security mechanisms to address any
risk posed by affected individuals.
Minister's response
1.58
In relation to the compatibility of the measure with the right to
liberty, the minister's response stated:
Broad legislative validation
These measures ensure that non-citizens affected will not
have their visas reinstated as a result of the High Court decision in the cases
of Graham or Te Puia. Reinstatement of such visas could result in
either release from immigration detention or the ability to return to
Australia. These non-citizens have had their cases thoroughly assessed and
considered under migration legislation. At the time of this consideration,
these persons failed the character test due to them being of serious character
concern, and range from being members of outlawed motorcycle gangs to those
with serious criminal records. The safety of the Australian community has been
integral to these considerations. As a result of the cancellation or refusal decision,
they have no lawful right to hold a visa allowing them to enter or remain in Australia.
In the event that the High Court finds that all or part of
section 503A is invalid, the resultant release of affected individuals from
immigration detention, or their ability to enter Australia, while their cases
are being reconsidered puts the Australian community at an unacceptable risk
and would understandably undermine public confidence in the integrity of
Australia's migration framework. The broad application of this Bill is
appropriate given the high risk to the Australian community if these measures
are not taken and is effective and proportionate to the legitimate objective of
protecting the Australian community.
Alternative means to protect information
The need for an alternative means to protect information may
be considered should the High Court find all or part of section 503A invalid.
However, possible amendments to s503A are outside the scope of this Bill.
Alternative mechanisms to address risks posed by affected
individuals
The availability of less rights restrictive criminal justice
or national security mechanisms to address the risk posed by affected
individuals is outside the scope of this Bill. Individuals affected by the
measures in this Bill have been assessed as being a risk to the Australian
community and do not meet the migration programme's character requirements. As
such, these individuals have no lawful right to hold a visa allowing them to
enter or remain in Australia, and if they are in Australia this means they must
be detained under the Migration Act. The use of protected information under
section 503A in cancellation decisions does not alter the risk to the community
posed by persons who have failed the character test.
If this measure is not passed by the parliament, there is a
risk that following the High Court's decision those affected individuals will
have visas reinstated or granted, which means those who are onshore may be
released back into the Australian community, and those who are offshore will be
able to return to Australia. The Australian Government cannot detain persons
who have a valid visa, and therefore there are no currently available
alternative mechanisms to address the risks posed by the affected individuals.
1.59
As noted in the previous human rights analysis, ensuring the safety of
Australians and the integrity of the immigration system are capable of
constituting legitimate objectives for the purposes of international human
rights law. However, the minister’s statement that these individuals have
‘failed the character test’ and thereby pose a risk to the Australian community
such as to warrant their detention must be understood in the context that the
legislation at the time allowed these administrative decisions to be made
without the person knowing, or a court being able to test, information
disclosed pursuant to section 503A for reliability, relevance or accuracy. The
minister’s response therefore does not address the serious concerns identified
in the initial analysis as to the effectiveness of the measure to ensure the
safety of Australians and the integrity of the immigration system.
1.60
As the minister considered that the committee's questions as to whether
there are any alternative means available to protect the information, or
whether any less restrictive measures are available to address the risks posed
by the affected individuals, were outside the scope of the bill, the minister's
response does not substantively address these concerns. However, as the effect
of the bill is to retrospectively validate the minister's decisions based on
information provided pursuant to section 503A, the bill in effect upholds the
process facilitated by section 503A, notwithstanding the constitutional
invalidity of section 503A(2). The concerns raised in the previous human rights
analysis as to whether there are alternative and less restrictive means available
to protect information and to protect the community against risk, which arise
as a consequence of validating the minister's reliance on section 503A,
therefore remain. Even if it were to be accepted that detention is an
appropriate response to the risk posed by particular individuals, it is not
possible to conclude that validating decisions that result in mandatory
detention, of a class of persons rather than on an individual basis, on
information that is kept from each person, is the least restrictive means of
achieving the stated objectives.
1.61
Based on the information provided and the previous human rights
analysis, the measure may give rise to arbitrariness and there are serious
concerns that the measure is likely to be incompatible with the right to liberty.
Committee comment
1.62
The committee thanks the minister for his response.
1.63
The preceding analysis raises serious concerns that the measure
is likely to be incompatible with the right to liberty.
1.64
The committee seeks the minister's further advice as to the
compatibility of the measure with the right to liberty in light of the
preceding analysis and the High Court's decision in Graham v. Minister for
Immigration and Border Protection; Te Puia v. Minister for Immigration and
Border Protection [2017] HCA 33
Compatibility of the measure with the
right to protection of the family
1.65
The right to protection of the family includes ensuring that family
members are not involuntarily and unreasonably separated from one another. This
right may be engaged where a person is expelled from a country without due
process and is thereby separated from their family life.[31] The initial human rights analysis stated that the measure engages and limits
the right to protection of the family as the validation of a visa cancellation
could operate to separate family members.
1.66
The statement of compatibility reasons that the amendments cannot be
said to give rise to arbitrary interference with family life as they do not
'expand visa cancellation powers or impact the grounds upon which a person may
have had their visa cancelled'.[32]
1.67
However, the bill seeks to validate decisions to cancel or refuse a visa
which had regard to information protected under section 503A, that may now be
affected by the invalidity of section 503A(2). In each such individual
case, the measure has potential for arbitrary interference with family life,
due to a lack of due process provided to the affected person.
1.68
As noted in the previous analysis, of relevance in this respect is the
case of Leghaei v Australia, in which the author of the communication to
the UNHRC was denied a permanent visa to remain in Australia on the basis that
the author had been assessed by the Australian Security Intelligence
Organisation (ASIO) as being a threat to national security. His wife and four
children were either Australian citizens or permanent residents. The UNHRC
found a violation of article 17 of the ICCPR read in conjunction with article
23:
While his legal representatives were provided with
information on evidence held against him, they were prevented, by a decision by
the judge, from communicating to the author any information that would permit
him to instruct them in return and to refute the threat that he allegedly posed
to national security.
In light of the author's 16 years of lawful residence and
long-settled family life in Australia and absence of any explanation from the
State party as to the reasons for terminating his right to remain, except for
the general assertion that it was done for 'compelling reasons of national
security', the Committee finds that the State party's procedure lacked due
process of law... the Committee considers that the State Party has violated the
author's rights under article 17, read in conjunction with article 23...[33]
1.69
Section 503A goes further than the provision at issue in Leghaei v
Australia in withholding the information from not only the person, but also
their lawyer and the court. There is therefore a serious risk that decisions
based on information protected by section 503A limit the right to freedom from
arbitrary interference in family life. The statement of compatibility did not
address the matters raised in Leghaei v Australia.
1.70
The committee therefore requested the advice of the minister as to:
- any safeguards in relation to
the particular circumstances of families; and
- the concerns outlined in Leghaei
v Australia, including the inability of affected individuals to contest or
correct information on which the refusal or cancellation is based.
Minister's response
1.71
In relation to the compatibility of the measure with the right to
protection of the family, the minister's response states:
Australia acknowledges its obligations under the ICCPR not to
subject individuals to arbitrary or unlawful interference with the family, and
accordingly the Department takes all matters concerning interference with
families seriously. It is important to note that all visa cancellation and visa
application refusal decisions affected by this Bill were made prior to the
Bill's commencement.
The rights relating to protection from arbitrary interference
with family are taken into account as part of any request for visa revocation
where the visa is mandatorily cancelled without notice, or where a decision to
cancel or refuse a visa on character grounds is made. In both circumstances the
impact on family members affected by the decision is a consideration, which
will be weighed against factors such as the risk the person presents to the
Australian community.
This Bill introduces no new decision-making capability or
power, seeking only to uphold decisions already made. The considerations
relating to family remain unchanged in the cancellation of visas or refusal of
visa application on character grounds.
The concerns outlined in Leghaei v Australia
The Australian Government respectfully disagreed with the
views of the Human Rights Committee in Leghaei v Australia, that
Australia's procedures lacked due process of law and that Dr Leghaei's rights
were violated under article 17, read in conjunction with article 23, of the
ICCPR. The Australian Government did not accept that there was a lack of due
process leading up to Dr Leghaei's removal and considers that interference with
the family was not arbitrary, given that his removal was on the basis that he
was lawfully assessed as being a direct risk to Australia's national security.
The concerns of the Parliamentary Joint Committee on Human
Rights highlighted at 1.199 of the Report, relate to the ability of affected
individuals to contest information on which refusal or cancellation is based.
As discussed above, this concerns the construction of section 503A, which is
currently being considered by the High Court. The amendment does not change
considerations relating to interference with family in the cancellation or
refusal of visas on character grounds. As such, the inquiry into due process
and the resulting impact on article 17 is outside the scope of this Bill.
1.72
The effect of the bill is to validate decisions made based on
information provided pursuant to section 503A. In this respect, the
construction and effect of section 503A is directly relevant to the individuals
affected by the measure. An effect of the bill is that those individuals may be
precluded from successfully challenging visa cancellations or refusals made in
reliance on information that was not disclosed pursuant to that section,
notwithstanding that section 503A(2) is invalid.
1.73
The minister's response does not identify any safeguards beyond the
indication that a person’s family circumstances are a consideration when
deciding whether or not to cancel or refuse a visa. However, at the time the visa
cancellation or refusal decisions were made, the consideration of any other
factors would potentially have been informed by information protected by
section 503A. In light of the concerns earlier expressed as to the lack of due
process provided to the affected person through the operation of section 503A,
the minister's response does not adequately address the serious concerns raised
in the initial analysis as to the adequacy of any safeguards to protect against
the arbitrary interference with family life.
1.74
As to the minister's response to the committee's question concerning Leghaei
v Australia, the UNHRC's views are not binding on Australia as a matter of
international law. Nevertheless, as the UN body responsible for interpreting
the ICCPR, the UNHRC's views are highly authoritative interpretations of
binding obligations under the ICCPR and should be given considerable weight by
the government in its interpretation of Australia's obligations. Moreover,
these statements of the UNHRC are persuasive as interpretations of
international human rights law that are consistent with the proper
interpretation of treaties as set out in the Vienna Convention on the Law of Treaties.[34] In this respect, as a principle of international law, it is not open for a state
party to a treaty to unilaterally interpret its treaty obligations.[35]
Committee comment
1.75
The committee thanks the minister for his response.
1.76
The preceding analysis and the previous human rights analysis raise
serious concerns that the measure is likely to be incompatible with the right
to family life.
1.77
The committee seeks the minister's further advice as to the
compatibility of the measure with the right to family life in light of the
preceding analysis and the High Court's decision in Graham v. Minister for
Immigration and Border Protection; Te Puia v. Minister for Immigration and
Border Protection [2017] HCA 33.
Compatibility of the measure with
the right to non-refoulement in conjunction with the right to an effective
remedy
1.78
Australia has non-refoulement obligations under the Refugee Convention,
the ICCPR and the Convention Against Torture (CAT). 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.[36] Non-refoulement obligations are absolute and may not be subject to any
limitations.
1.79
As the committee has previously stated on numerous occasions, 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 giving
effect to non-refoulement obligations.[37]
1.80
The statement of compatibility acknowledges that the bill may 'engage
[the right to non-refoulement] because one eventual consequence of confirming
the validity of decisions to refuse or cancel a visa may be removal from
Australia'. However, it goes on to state that the amendments do not set out
that the automatic consequence of validating the decision will be removal from
Australia and that consideration of non-refoulement obligations is undertaken
'before a non-citizen is considered to be available for removal from Australia.
Any removal from Australia is conducted in accordance with Australia's
non-refoulement obligations'.[38]
1.81
Under section 501E of the Migration Act, a person whose visa is refused
or cancelled on character grounds is prohibited from applying for another visa.[39] Section 198 of the Migration Act requires an immigration officer to remove an
unlawful non-citizen in a number of circumstances as soon as reasonably
practicable. Section 197C of the Migration Act also provides that, for the
purposes of exercising removal powers under section 198, it is irrelevant
whether Australia has non-refoulement obligations in respect of an unlawful
non-citizen. There is no statutory protection ensuring that an unlawful
non-citizen to whom Australia owes protection obligations will not be removed from
Australia, nor is there any statutory provision granting access to effective
and impartial review of the decision as to whether removal is consistent with
Australia’s non-refoulement obligations. As stated in previous human rights
assessments, ministerial discretion not to remove a person is not a sufficient
safeguard under international law.[40] Therefore concerns remain that the measure may engage and limit the right to
non-refoulement in conjunction with the right to an effective remedy.
1.82
The committee notes that the
obligation of non-refoulement is absolute and may not be subject to any
limitations.
1.83
The committee notes that the
measure does not provide a non-discretionary bar to refoulement, nor merits
review of decisions relating to the validation of visa cancellation or refusal
decisions, and is therefore likely to be incompatible with Australia's
obligations under the ICCPR and the Convention Against Torture.
Minister's response
1.84
In relation to these concerns, the minister's response states:
The Department recognises that 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 a decision to
cancel or refuse a visa under character grounds. Anyone who is found to engage
Australia's non-refoulement obligations will not be removed in breach of those
obligations. As noted above, this amendment upholds the validity of visa
cancellation or visa application refusal decisions made with regard to information
protected by section 503A. It does not affect the consideration of visa
cancellations or visa refusals under character grounds generally, and non-refoulement obligations will continue to be considered as part of this process.
There are mechanisms within the Migration Act which provide
the Government with the ability to address non-refoulement obligations
before consideration of removal. For example, Australia's non-refoulement obligations are met through the protection visa application process or the use of
the Minister's personal powers in the Migration Act. The form of administrative
arrangements in place to support Australia meeting its non-refoulement obligations is a matter for the Government. This consideration is separate from
the duty established by the removal power. The revalidation of decisions that
used information protected by section 503A will not affect Australia continuing
to uphold its non-refoulement obligations.
As previously stated, this Bill introduces no new
decision-making capability or power, seeking only to uphold decisions already
made. The considerations relating to non-refoulement remains unchanged
in the cancellation of visas or refusal of visa application on character
grounds.
1.85
While the bill introduces no new decision-making capability or power,
the effect of upholding decisions already made is that the concerns relating to non-refoulement that arise from the operation of section 503A are upheld
and perpetuated. As stated in previous human rights assessments, ministerial
discretion not to remove a person is not a sufficient safeguard under
international law.[41]
Committee comment
1.86
The committee thanks the minister for his response.
1.87
The preceding analysis and the previous human rights analysis raise
serious concerns that the measure is likely to be incompatible with the obligation
of non-refoulement in conjunction with the right to an effective remedy.
1.88
The committee seeks the minister's further advice as to the
compatibility of the measure with the obligation of non-refoulement in
conjunction with the right to an effective remedy in light of the preceding
analysis and the High Court's decision in Graham v. Minister for Immigration
and Border Protection; Te Puia v. Minister for Immigration and Border
Protection [2017] HCA 33.
Compatibility of the measure with
freedom of movement (right to enter one's own country)
1.89
The right to freedom of movement is protected under article 12 of the
ICCPR and includes a right to leave Australia as well as the right to enter,
remain, or return to one's 'own country'.[42]
1.90
The reference to a person's 'own country' is not restricted to the
formal status of citizenship. It includes a country to which a person has very
strong ties, such as the country in which they had resided for a substantial
period of time and established their home.[43]
1.91
The previous analysis stated that the right to freedom of movement is
engaged by this measure, as an eventual consequence of validating visa
cancellation decisions is the deportation and re-entry ban of a person who may,
despite not holding formal citizenship, have such strong ties to Australia that
they consider Australia to be their 'own country'.
1.92
The statement of compatibility does not acknowledge that the right to
enter one's own country is engaged and limited, however in the context of other
rights, states that the measure is a reasonable response to a legitimate
objective. As discussed above at [1.55] to [1.56], whilst the safety of the
community and the integrity of the migration system are capable of constituting
legitimate objectives under international human rights law, there are serious
questions as to whether the measure is effective to achieve, and proportionate
to, those objectives.
1.93
The preceding analysis raises questions as to the compatibility of the
measure with the right to freedom of movement (the right to enter one's own
country).
1.94
The committee therefore sought
further information from the minister as to the proportionality of the measure,
in particular regarding any safeguards applicable to individuals for whom
Australia is their 'own country', such as ensuring their visa is only cancelled
as a last resort where other mechanisms to protect the safety of the Australian
community are unavailable.
Minister's response
1.95
In relation to the compatibility of the measure with the right to freedom
of movement and the existence of applicable safeguards, the minister's response
states:
It is important to note that all visa cancellation and visa
application refusal decisions affected by this Bill were made prior to the
Bill's commencement.
An individual's ties to Australia are taken into account as
part of any request for visa revocation where the visa is mandatorily cancelled
without notice, or where a decision to cancel or refuse a visa on character
grounds is made. In both circumstances the individual's ties to Australia are
not a primary consideration, whereas factors such as the risk the person
presents to the Australian community does constitute a primary consideration.
Delegates making a decision on character grounds are bound by a relevant Ministerial
Direction, which requires a balancing of these countervailing considerations.
While an individual's ties to Australia can be considered, there will be
circumstances where this will be outweighed by the risk to the Australian
community due to the seriousness of the person's criminal record or past
behaviour or associations.
Decisions by the Minister to refuse to grant or to cancel a
visa under subsection 501(3) of the Act (the power to cancel without notice)
are not subject to the rules of natural justice. However, under these parts of
the Act, the Minister may only refuse to grant or cancel a visa where he or she
is satisfied that it is in the national interest to do so. In circumstances
where natural justice does not apply, any information about a person's personal
circumstances that is before the Minister at the time of consideration must be
taken into account in the making of the decision.
This Bill introduces no new decision-making capability or
power, seeking only to uphold decisions already made, which have already
considered ties to Australia as detailed above. As set out above, decisions to
cancel or refuse a visa on character grounds takes into account a person's ties
to the Australian community and weighs them against other relevant considerations.
1.96
While the bill introduces no new decision-making capability or power,
the effect of upholding decisions already made is that the concerns relating to
freedom of movement that arise from the operation of section 503A are
upheld and perpetuated. An eventual consequence of validating visa cancellation
or refusal decisions is the deportation and re-entry ban of a person who may,
despite not holding formal citizenship, have such strong ties to Australia that
they consider Australia to be their 'own country'. As such, the bill engages
and limits freedom of movement. While the minister's response outlines the
existing processes for taking into account a person's ties to the Australian
community when deciding whether to cancel or refuse a visa on character
grounds, to the extent that those processes may have been informed by
information provided pursuant to section 503A, the minister's response does not
adequately address the concerns raised in the previous human rights analysis as
to whether the measure is compatible with the right of a person to remain in
their 'own country'. In this respect, it is further noted that the committee
has previously concluded that visa cancellation powers may be incompatible with
the right to return to and remain in one's own country in relation to
Australian permanent residents with longstanding or otherwise strong ties to
Australia.[44]
Committee comment
1.97
The committee thanks the minister for his response.
1.98
The preceding analysis raises serious concerns that the measure
is likely to be incompatible with the right to freedom of movement.
1.99
The committee seeks the minister's further advice as to the
compatibility of the measure with the right to freedom of movement in light of
the preceding analysis and the High Court's decision in Graham v. Minister
for Immigration and Border Protection; Te Puia v. Minister for Immigration and
Border Protection [2017] HCA 33.
Compatibility of the measure with
the right to an effective remedy
1.100
Should section 503A impermissibly limit a human right, those affected
have the 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 right to an
effective remedy may take many forms, however it is not able to be limited
according to the usual proportionality framework.
1.101
As stated in the initial analysis, in relation to the human rights
implications of section 503A, the right to an effective remedy would likely
include a fresh review of the expulsion decision, where the person affected is
entitled to access and challenge adverse evidence, including section 503A
protected information.
1.102
It is unclear whether the bill would allow affected persons to challenge
the decision anew and access the information previously protected by section 503A
in those proceedings in light of the invalidity of section 503A(2).
1.103
The statement of compatibility does not acknowledge that the right to an
effective remedy was engaged by the measure.
1.104
The committee therefore sought
the advice of the minister as to whether in the event that section 503A is held
to be invalid, a person whose decision is validated under the amendments will
be able to challenge the refusal or cancellation decision anew and access
information previously protected under section 503A, in those proceedings.
Minister's response
1.105
In relation to the compatibility of the measure with the right to an
effective remedy, the minister's response states:
The ability to challenge visa cancellation or visa
application review decisions anew and access information previously protected
under section 503A is outside the scope of this Bill. While affected
individuals have had, and will continue to have, review rights for their visa
cancellation or application refusal decisions, how this might change following
the decision of the High Court will be dependent on the Court's findings.
1.106
As stated at [1.34], the explanatory memorandum notes the bill does not
affect a person's ability to seek judicial review of a decision on a ground 'not
mentioned' in section 503E(1).[45]
The bill therefore appears to potentially preclude an affected individual from
being able to challenge the lawfulness of the visa cancellation or refusal
decision on the basis that the decision was made in reliance on information
protected by section 503A. It is therefore not clear the basis upon which the
minister considers that the ability to challenge visa cancellation or visa
application review decisions anew and access information previously protected
under section 503A is outside the scope of the bill. It is noted that there has
been no explanation of how this review might operate and the scope of the
review.
Committee comment
1.107
The committee thanks the minister for his response.
1.108
The preceding analysis raises serious concerns that the measure
is incompatible with the right to an effective remedy.
1.109
The committee seeks the minister's further advice as to the
compatibility of the measure with the right to an effective remedy in light of
the preceding analysis and the High Court's decision in Graham v. Minister
for Immigration and Border Protection; Te Puia v. Minister for Immigration and
Border Protection [2017]
HCA 33.
Advice only
1.110
The committee draws the following bills and instruments to the attention
of the relevant minister or legislation proponent on an advice only basis. The
committee does not require a response to these comments.
Autonomous Sanctions
Amendment (Democratic People’s Republic of Korea) Regulations 2017
[F2017L00880]
Autonomous Sanctions (Designated Persons and Entities – Democratic
People’s Republic of Korea) Amendment List 2017 [F2017L00637]
Autonomous Sanctions (Designated Persons and Entities and Declared Persons
– Ukraine) Amendment List 2017 [F2017L00675]
Charter of the United Nations
(Sanctions—Democratic People’s Republic of Korea) Amendment (2017 Measures No.
1) Regulations 2017 [F2017L00878]
| Purpose |
To amend the Autonomous
Sanctions Regulations 2011 by imposing additional sanctions in respect of the
Democratic People’s Republic of Korea; and apply the operation of the
sanctions regime under the Autonomous Sanctions Regulations 2011 and the Charter
of the United Nations Act 1945 by designating or declaring that a person
is subject to the sanctions regime and by giving effect to decisions of the
United Nations Security Council |
| Portfolio |
Foreign Affairs |
| Authorising legislation |
Autonomous Sanctions Act
2011 and Charter of the United
Nations Act 1945 |
| Last day to disallow |
15 sitting days after
tabling ([F2017L00880] and [F2017L00878] tabled 8 August 2017; [F2017L00637]
tabled 13 June 2017; [F2017L00675] tabled House of Representatives 19 June
2017 and Senate 20 June 2017) |
| Rights |
Privacy; fair hearing;
protection of the family; equality and non-discrimination; adequate standard
of living; freedom of movement; non-refoulement (see Appendix 2) |
| Status |
Advice only |
Background
1.111
The Autonomous Sanctions Amendment (Democratic People’s Republic of
Korea) Regulations 2017 [F2017L00880], Autonomous Sanctions (Designated Persons
and Entities – Democratic People’s Republic of Korea) Amendment List 2017
[F2017L00637] and Autonomous Sanctions (Designated Persons and Entities and
Declared Persons – Ukraine) Amendment List 2017 [F2017L00675] are made under
the Autonomous Sanctions Act 2011. This Act (in conjunction with the
Autonomous Sanctions Regulations 2011 and various instruments made under those
regulations) provides the power for the government to impose broad sanctions to
facilitate the conduct of Australia's external affairs (the autonomous
sanctions regime). The Charter of the United Nations (Sanctions—Democratic
People’s Republic of Korea) Amendment (2017 Measures No. 1) Regulations 2017
[F2017L00878] is made under the Charter of the United Nations Act 1945. This
Act (in conjunction with various instruments made under that Act)[46] gives the Australian government the power to apply sanctions to give effect to
decisions of the United Nations Security Council by Australia (the UN Charter
sanctions regime).[47]
1.112
An initial human rights analysis of various instruments made under both
sanctions regimes is contained in the Sixth report of 2013 and Tenth report
of 2013.[48] A further detailed analysis of various instruments made under both sanctions
regimes is contained in the Twenty-eighth report of the 44th Parliament and Thirty-third report of the 44th Parliament.[49] This analysis stated that, as the instruments under consideration expanded
or applied the operation of the sanctions regime by designating or declaring
that a person is subject to the sanctions regime, or by amending the regime
itself, it was necessary to assess the human rights compatibility of the autonomous
sanctions regime and aspects of the UN Charter sanctions regime as a whole when
considering instruments which expand the operation of the sanctions regime. A further response was therefore sought from the minister, which was
considered in the committee's Report 9 of
2016.[50] The committee concluded its examination of various
instruments and made a number of recommendations to ensure the compatibility of
the sanctions regimes with human rights.[51]
'Freezing' of designated person's assets and prohibition on travel
1.113
The Autonomous Sanctions Amendment (Democratic People’s Republic of
Korea) Regulations 2017 [F2017L00880] amends the Autonomous Sanctions
Regulations 2011 to expand the grounds upon which the Minister for Foreign
Affairs can designate persons or entities for targeted financial sanctions and
travel bans in respect of the Democratic People’s Republic of Korea (DPRK). The
expanded grounds are that the person or entity is:
- associated, or has been associated, with the DPRK's weapons of
mass-destruction program or missiles program; or
- assisting, or has assisted, in the violation, or evasion, by the
DPRK of certain United Nations Security Council Resolutions that relate to the
DPRK.
1.114
The Autonomous Sanctions (Designated Persons and Entities – Democratic
People’s Republic of Korea) Amendment List 2017 [F2017L00637] and Autonomous
Sanctions (Designated Persons and Entities and Declared Persons – Ukraine)
Amendment List 2017 [F2017L00675] designate persons and entities for the
purposes of the Autonomous Sanctions Regulations 2011 on the basis that the minister
is satisfied that a person or entity is:
- associated with the DPRK's weapons of mass-destruction program or
missiles program; or
- responsible for, or complicit in, the threat to the sovereignty
and territorial integrity of Ukraine.
The designation has the effect that this person or entity is
subject to financial sanctions, and cannot travel to, enter, or remain in
Australia[52]
(or their designation or declaration is continued).[53] In addition, the Charter of the United Nations (Sanctions—Democratic People’s
Republic of Korea) Amendment (2017 Measures No. 1) Regulations 2017
[F2017L00878] gives effect to certain United Nations Security Council
Resolutions imposing further sanctions on the DPRK, including the prohibition
of certain imports, procurement, and scientific and technical cooperation involving persons or groups
officially sponsored by or representing the DPRK.[54] This instrument expands the definition of 'designated person' (that is, a
person who is designated as subject to the UN Charter sanctions regime) in
section 4 of the Charter of the United Nations (Sanctions — Democratic People’s
Republic of Korea) Regulations 2008 to include persons or entities to whom the
measures mentioned in paragraph 8(d) of UN Security Council Resolution
1718 apply under a decision of the United Nations Security Council or the
Committee.[55]
Compatibility of the measure with
multiple human rights
1.115
As set out in the committee's previous consideration of the sanctions
regimes, the measures in these instruments engage and limit multiple human
rights. The statements of compatibility for these instruments do not identify
the relevant human rights engaged or provide any analysis in relation to the
issues identified in the committee's previous reports.
1.116
The committee has previously recognised that applying pressure to
regimes and individuals with a view to ending the repression of human rights
internationally is a legitimate objective that may support limitations on human
rights. However, in relation to the decision to designate or declare a person
under the sanctions regimes, the committee's Report
9 of 2016 set out in detail how each of the identified safeguards in
the sanctions regimes are insufficient, and why the sanctions regimes are
thereby not proportionate limitations on human rights.[56]
1.117
The committee therefore made a number of recommendations to the minister
in respect of the sanctions regimes.[57]
Committee comment
1.118
The committee refers to its previous consideration of the
sanctions regimes, and in particular, the recommendations made by the committee
in its Report 9 of 2016.
Criminal Code Amendment (Control Orders—Legal Representation for Young
People) Regulations 2017 [F2017L00843]
| Purpose |
Provides for process for
legal representation for young people in respect of control orders |
| Portfolio |
Attorney-General |
| Authorising legislation |
Criminal Code Act 1995 |
| Last day to disallow |
15 sitting days after
tabling (tabled in the House of Representatives and the Senate 8 August 2017) |
| Rights |
Multiple (see Appendix 2) |
| Status |
Advice only |
Background
1.119
The committee previously considered amendments to the control orders
regime which allowed for control orders to be imposed on children aged
14 or 15 years of age under Division 104 of the Criminal Code
Act 1995 (Criminal Code) in Report 7 of 2016.[58]
1.120
The committee has also previously considered the control orders regime
as more broadly part of its consideration of the Counter-Terrorism Legislation
Amendment (Foreign Fighters) Bill 2014;[59] and the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014.[60]
Young person's right to legal representation in control order proceedings
1.121
Section 104.28(4) of the Criminal Code requires an issuing court to
appoint a lawyer for a young person aged 14 to 17 years in relation to control
order proceedings, where the young person does not have legal representation,
except in limited circumstances.
1.122
The Criminal Code Amendment (Control Orders—Legal Representation for
Young People) Regulations 2017 [F2017L00843] (the regulations) operationalises
this provision by providing that the court may request the legal aid commission
to arrange representation and the Australian Federal Police are to inform
relevant persons.[61]
Compatibility of the measure with
the right of the child to be heard
1.123
As previously noted by the committee, providing for a child to have
access to legal representation is compatible with the right to a child to be
heard in judicial and administrative proceedings. Accordingly, the
operationalisation of this measure through the regulations is also compatible
with this right. However, notwithstanding this safeguard, concerns remain more
generally as to the human rights compatibility of applying the control orders
regime to children. These are set out in full in the committee's Report 7 of
2016.[62]
Committee comment
1.124 The
committee draws the human rights implications of the regulations to the
attention of parliament.
Bills not raising human rights
concerns
1.125
Of the bills introduced into the Parliament between 4 and 7 September,
the following did not raise human rights concerns (this may be because the bill
does not engage or promotes human rights, and/or permissibly limits human
rights):
- Aged Care Amendment (Ratio of Skilled Staff to Care Recipients)
Bill 2017;
- A New Tax System (Goods and Services Tax) Amendment (Make
Electricity GST Free) Bill 2017;
- ASIC Supervisory Cost Recovery Levy Amendment Bill 2017;
- Australian Grape and Wine Authority Amendment (Wine Australia)
Bill 2017;
- Customs Amendment (Singapore-Australia Free Trade Agreement
Amendment Implementation) Bill 2017;
- First Home Super Saver Tax Bill 2017;
- High Speed Rail Planning Authority Bill 2017;
- Regional Forest Agreements Legislation (Repeal) Bill 2017;
- Renewable Energy (Electricity) Amendment (Continuing the Energy
Transition) Bill 2017;
- Telecommunications Amendment (Guaranteeing Mobile Phone Service
in Bushfire Zones) Bill 2017; and
- Treasury Laws Amendment (Reducing Pressure on Housing Affordability
Measures No. 1) Bill 2017.
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