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2016-2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION AMENDMENT (VALIDATION OF DECISIONS) BILL 2017
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Immigration and Border Protection,
the Hon. Peter Dutton MP)
MIGRATION AMENDMENT (VALIDATION OF DECISIONS) BILL 2017
OUTLINE
The Migration Amendment (Validation of Decisions) Bill 2017 (the Bill) amends the
Migration Act 1958 (Migration Act) to preserve existing section 501 character decisions
made relying on information provided by gazetted law enforcement and intelligence
agencies, which is protected, or purportedly protected, from disclosure under section
503A.
FINANCIAL IMPACT STATEMENT
These amendments will have a low financial impact.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A Statement of Compatibility with Human Rights has been completed in relation to the
amendments in this Bill and assesses that the amendments are compatible with
Australia's human rights obligations. A copy of the Statement of Compatibility with
Human Rights is at Attachment A.
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MIGRATION AMENDMENT (VALIDATION OF DECISIONS) BILL 2017
NOTES ON INDIVIDUAL CLAUSES
Clause 1 Short Title
1. The short title by which this Act may be cited is the Migration Amendment (Validation
of Decisions) Act 2017.
Clause 2 Commencement
2. Subclause 2(1) sets out when the provisions of the Act commence.
3. The whole of the Act will commence on the day after the Act receives the Royal
Assent.
4. Subclause 2(2) provides that any information in column 3 of the table is not part of
this Act. Information may be inserted in this column, or information in it may be
edited, in any published version of this Act.
Clause 3 Schedules
5. This clause provides that legislation that is specified in a Schedule to this Act is
amended or repealed as set out in the applicable items in the Schedule concerned. In
addition, any other item in a Schedule to this Act has effect according to its terms.
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SCHEDULE 1--Amendments
Background
6. This amendment is in response to current proceedings in the High Court of Australia,
Graham and Te Puia, in which the validity of section 503A of the Act is being
challenged.
Migration Act 1958
Item 1 Section 503E Validation of decisions
7. This item inserts new section 503E before existing section 504.
8. New subsection 503E(1) provides that if section 503A is not a valid law of the
Commonwealth (in whole or in part), new subsection 503E(1) will prevent decisions
made by the Minister under section 503A from being invalid merely because the
decision relied on, or had regard to confidential information protected, or purportedly
protected, by existing subsection 503A(1) or (2). This includes decisions made by a
delegate of the Minister.
9. New subsection 503E(1) applies to decisions made by the Minister under section 501,
501A, 501B, 501BA, 501C or 501CA before this item commences.
10. 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.
11. 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.
12. The effect of this amendment is to preserve the validity of past decisions to refuse a
visa application or cancel a visa on character grounds, or decisions not to revoke such
a refusal or cancellation, where the decision relied on section 503A protected
information, in the event that section 503A itself is found not to be valid, in whole or
in part.
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13. New subsection 503E(2) ensures that subsection (1) does not apply to decisions that
are the subject of court proceedings in which judgment is reserved by a court as at
commencement of this item, or in which a judgment has been delivered by a court
before commencement of this item, setting aside or declaring invalid the decision.
14. This item 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. Nor does this item affect a person's right to seek merits review
of a relevant decision to the extent that such review is provided under existing law.
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Attachment A
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Validation of Decisions) Bill 2017
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act
2011.
Overview of the Bill
Section 503A of the Migration Act 1958 (Cth) (the Act) provides that information supplied to the
Department of Immigration and Border Protection by gazetted agencies (e.g. law enforcement or
intelligence agencies) for the purposes of making a decision to refuse or cancel a visa under section
501 of the Act is protected from disclosure, including to a court.
The purpose of this Bill is to uphold the visa cancellations or visa application refusals of certain
non-citizens of character concern who have committed crimes in Australia and pose a risk to the
Australian community. This Bill does this by amending the Act to deem decisions that relied on
information purportedly protected under section 503A to have been validly made, notwithstanding
their reliance on section 503A information. These amendments will not apply to cases where people
have challenged in a court a decision to refuse their visa application or to cancel their visa based on
section 503A information, and judgment is reserved, or has been delivered, by a court at the time of
commencement.
There are current matters before the High Court of Australia that challenge the constitutional
validity of section 503A. Through these amendments the Australian Government wishes to put
beyond doubt that existing decisions to refuse or cancel visas under section 501 of the Act remain
valid at law, notwithstanding their reliance on confidential information protected by section 503A.
Human rights implications
The amendments have been assessed against the seven core international human rights treaties.
Where a non-citizen's visa is cancelled or refused under section 501 of the Act, they will be
ineligible to make further visa applications (with limited exceptions) and will thus be liable for
detention under section 189 of the Act. They may also be removed from Australia, and may be
separated from the family unit. This Statement of Compatibility addresses the potential human
rights implications that may result from these practical effects.
Right to security of the person and freedom from arbitrary detention
The right to security of the person and freedom from arbitrary detention is contained in Article 9 of
the International Covenant on Civil and Political Rights (ICCPR).
Article 9
1. Everyone has the right to liberty and security of person. No one shall be subjected to
arbitrary arrest or detention. No one shall be deprived of his liberty except on such
grounds and in accordance with such procedure as are established by law.
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2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his
arrest.
Australia takes its obligations to non-citizens in immigration detention very seriously. The
Australian Government's position is that the detention of individuals requesting protection is
neither unlawful nor arbitrary per se under international law. Continuing detention may become
arbitrary after a certain period of time without proper justification. The determining factor,
however, is not the length of detention, but whether the grounds for the detention are justifiable.
In the context of Article 9, detention that is not 'arbitrary' must have a legitimate purpose within the
framework of the ICCPR in its entirety. Detention must be predictable in the sense of the rule of
law (it must not be capricious) and it must be reasonable (or proportional) in relation to the purpose
to be achieved.
The object of the Migration Act is to 'regulate, in the national interest, the coming into, and
presence in, Australia of non-citizens' (subsection 4(1)). The UN Human Rights Committee has
recognised that "The [ICCPR] does not recognize the right of aliens to enter or reside in the
territory of a State party. It is in principle a matter for the State to decide who it will admit to its
territory [ ... ] Consent for entry may be given subject to conditions relating, for example, to
movement, residence and employment" (Human Rights Committee General Comment 15, 11 April
1986, paras 5-6).
This Bill does not limit a non-citizen's right to security of the person and freedom from arbitrary
detention. Australia's migration framework states that unlawful non-citizens in Australia (i.e. non-
citizens who do not hold a visa that is in effect) will be subject to mandatory detention. This Bill
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.
This amendment presents a reasonable response to achieving a legitimate purpose under the ICCPR
- 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 or refusal decisions are overturned and they are required to be released from
immigration detention into the community.
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. 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.
Article 17(1) and Article 23(1) of the ICCPR and Article 16(1) of the Convention on the Rights of
the Child (CRC) - prohibition of the unlawful and arbitrary interference with family and protection
of the family unit
Article 17(1) of the ICCPR states that:
No one shall be subjected to arbitrary or unlawful interference with his privacy, family,
home or correspondence, nor to unlawful attacks on his honour and reputation.
Article 16(1) of the CRC replicates Article 17 of the ICCPR, however in so doing, makes the
obligation specific to children.
Article 23(1) of the ICCPR provides that:
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The family is the natural and fundamental group unit of society and is entitled to protection
by society and the State.
The United Nations Human Rights Committee has noted that Articles 17 and 23 of the ICCPR
"must be read against Australia's right, under international law, to take reasonable steps to control
the entry, residence and expulsion of aliens".
The amendments seek to maintain the validity of character refusal and cancellation visas that have
relied on information purportedly protected under section 503A. As is currently the case,
individuals without a valid visa will be an unlawful non-citizen, and will be liable for detention and
removal from Australia. This may result in the separation of family members in some cases.
Legislative amendments that contemplate cancellation of a visa and subsequent detention add to a
suite of existing laws that are well-established, generally applicable and predictable. The
amendment does not expand visa cancellation powers or impact the grounds upon which a person
may have had their visa cancelled. Further, the amendments present a reasonable response to
achieving a legitimate purpose under the Covenant - the protection of the Australian community
from the risk that certain visa holders present.
The amendments cannot be said to give rise to the unlawful or arbitrary interference with family
and as such are consistent with Articles 17(1) and 23(1) of the ICCPR or Article 16(1) of the CRC.
Non-refoulement obligations
The amendments potentially engage Article 3(1) of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment of Punishment (CAT) and Articles 6, and 7 of the International
Covenant on Civil and Political Rights (ICCPR) because one eventual consequences of confirming
the validity of decisions to refuse or cancel a visa may be removal from Australia.
Article 3(1) of the CAT provides that:
1. No State Party shall expel, return ("refouler") or extradite a person to another State
where there are substantial grounds for believing that he would be in danger of being
subjected to torture.
Article 6 of the ICCPR states that:
Every human bring has the inherent right to life. This right shall be protected by law. No
one shall be arbitrarily deprived of his life.
Article 7 of the ICCPR provides that:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment. In particular, no one shall be subjected without his free consent to medical or
scientific experimentation.
Although the amendments make clear that decisions under section 501 to refuse a visa application
or cancel a visa that relied on information protected from disclosure under section 503A remain
valid, the amendments do not set out that removal from Australia would be the automatic
consequence of these decisions remaining valid. The amendments simply maintain the status quo
for affected persons by preserving decisions that have already been made, and do not affect any
existing legal rights or liabilities that are currently in place. Consideration of a person's engagement
with Australia's non-refoulement obligations are undertaken before a non-citizen is considered to be
available for removal from Australia. Any removal from Australia is conducted in accordance with
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Australia's non-refoulement obligations. As such, the amendments are consistent with Article 3 of
the CAT and Articles 6 and 7 of the ICCPR.
Conclusion
These amendments are for a legitimate purpose and are compatible with human rights. The Bill
maintains the status quo for affected persons who have already been assessed as
non-citizens of character concern in accordance with section 501 of the Act. To the extent that these
amendments may limit human rights, the Government considers those limitations as reasonable,
proportionate and necessary.
The Hon Peter Dutton, Minister for Immigration and Border Protection