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2013-2014-2015
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
PASSPORTS LEGISLATION AMENDMENT (INTEGRITY) BILL 2015
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the Minister for Foreign Affairs,
the Hon Julie Bishop MP)
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AMENDMENTS TO THE PASSPORTS LEGISLATION AMENDMENT
(INTEGRITY) BILL 2015
OUTLINE
The purpose of the Passports Legislation Amendment (Integrity) Bill 2015 (the Bill)
is to refine and clarify the passports legislation and to strengthen the Government's
ability to respond to fraudulent activity in relation to Australian travel documents.
This supplementary explanatory memorandum provides for two amendments:
to amend a drafting error; and
to enable merits review for a decision to refuse any name or signature of a
person that the Minister considers to be unacceptable, inappropriate or offensive
(item 61, subsection 53(4) of the Bill).
In relation to the drafting error, currently item 52 of the Bill excludes from merits
review a decision to refuse to issue a document on the Minister's own initiative to
facilitate a lawful requirement for a person to travel under subsection 9(1A)(b) (item 4
of the Bill). The proposed amendment removes that provision and instead amends
item 51 to exclude from merits review a decision to issue a travel-related document
under subsection 9(1A)(b). This ensures the Bill reflects the policy intent as set out in
the Explanatory Memorandum and Human Rights Compatibility Statement for the
Bill.
Financial impact statement
Passage of this amendment will not result in any additional cost to applicants or to the
Commonwealth.
NOTES ON CLAUSES
Schedule 1--Amendments
Part 1--Main Amendments
Australian Passports Act 2005
Item 51--Paragraph 48(a)
1. Section 48 of the Australian Passports Act 2005 (the Passports Act)
provides for merits review for specified decisions made under this Act.
2. Section 9 of the Passports Act provides for the issue of travel-related
documents. Item 4 of the Bill amends section 9 to add new paragraph
9(1A)(b). Paragraph 9(1A)(b) provides that a travel-related document may
be issued on the Minister's own initiative to facilitate a lawful removal,
deportation, extradition or prisoner transfer to or from Australia.
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3. Item 51 repeals paragraph 48(a) of the Passports Act and replaces it with a
new paragraph 48(a).
4. New paragraph 48(a) amends the existing paragraph 48(a) to exclude from
merits review a decision to issue a travel-related document on the
Minister's own initiative under new paragraph 9(1A)(b).
5. A decision to issue a travel-related document under paragraph 9(1A)(b) is
not reviewable because it is a procedural decision to facilitate a lawful
requirement for a person to travel. There is no provision for the Minister to
make a decision to issue a travel-related document under this paragraph
without a lawful decision already having been made that requires the person
to travel. Review rights appropriately relate to the decision to require a
person to travel and not to the Minister's decision to issue the person a
travel-related document to facilitate that travel.
Item 52
6. Item 52 is omitted as it does not reflect the policy intention to exclude from
merits review a decision to issue a travel-related document on the
Minister's own initiative under new paragraph 9(1A)(b).
Item 55A--After paragraph 48(h)
7. Section 53 of the Passports Act provides for the name of the person that
must appear on an Australian travel document. Item 61 of the Bill amends
section 53 to add a new subsection (4) which provides that the Minister
may refuse any name or signature of a person that the Minister considers to
be unacceptable, inappropriate or offensive.
8. Item 55A inserts a new paragraph 48(ha) after the existing paragraph 48(h).
9. Paragraph 48(ha) provides that a decision to refuse a name or a signature of
a person under the new subsection 53(4) is a reviewable decision.
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AMENDMENTS TO THE PASSPORTS LEGISLATION AMENDMENT
(INTEGRITY) BILL 2015
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
1. Prepared in accordance with Part 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Amendments to the Passports Legislation Amendment (Integrity) Bill 2015
2. These amendments are compatible with the human rights and freedoms
recognised or declared in the international instruments listed in Section 3 of
the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the instrument
3. The Passports Legislation Amendment (Integrity) Bill 2015 (the Bill)
amends the Australian Passports Act 2005 (the Passports Act) for the
purpose of refining and clarifying the current legislation and strengthening
the Government's ability to respond to the fraudulent use of Australian
travel documents.
4. The Passports Act provides for the issue and administration of Australian
travel documents to be used as evidence of identity and citizenship by
Australian citizens who are travelling internationally.
5. This supplementary explanatory memorandum provides for two
amendments:
to amend a drafting error; and
to enable merits review for a decision to refuse any name or signature
of a person that the Minister considers to be unacceptable,
inappropriate or offensive (item 61, subsection 53(4) of the Bill).
6. In relation to the drafting error, currently item 52 of the Bill excludes from
merits review a decision to refuse to issue a travel-related document on the
Minister's own initiative to facilitate a lawful requirement for a person to
travel under subsection 9(1A)(b) (item 4 of the Bill). The proposed
amendment removes that provision and instead amends item 51 to exclude
from merits review a decision to issue a travel-related document under
subsection 9(1A)(b). This ensures the Bill reflects the policy intent as set
out in the Explanatory Memorandum and Human Rights Compatibility
Statement for the Bill.
Human rights implications
7. The amendments engage the following human rights:
the right to privacy in Article 17 of the International Covenant on
Civil and Political Rights (ICCPR); and
the right to a fair hearing in Article 14(1) of the ICCPR.
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Right to privacy
8. Article 17 of the ICCPR prohibits unlawful or arbitrary interferences with a
person's privacy. It provides that persons have the right to the protection of
the law against such interference or attacks. New subsection 53(4) limits a
person's right to privacy in the sense that it provides that a person's name
or signature may be considered unacceptable and may thus constitute a
reason for the Minister to refuse to issue an Australian travel document to
that person in that name.
9. Any limitation on a person's right to privacy that is imposed by new
subsection 53(4) will be lawful and not arbitrary. In order to protect the
rights and freedoms of others, such as the right to freedom from
discrimination, travel documents will not be issued under names which are
designed to cause offence to an individual or group of persons, or which
mislead people into thinking a person holds an award or title which they do
not hold. The limitation is a reasonable one to impose on applications for
Australian travel documents.
10. Paragraph 48(ha) provides that a decision to refuse a name or a signature of
a person that the Minister considers to be unacceptable, inappropriate or
offensive under the new subsection 53(4) is a reviewable decision.
11. Paragraph 48(ha) further contributes to the reasonableness of the limitation
on the right to privacy imposed by new subsection 53(4) by providing for
such a decision to be subject to merits review.
Right to fair hearing in a suit at law
12. To the extent that an individual's right to seek a review of a decision
constitutes a 'suit at law' such that it would be covered by Article 14 of the
ICCPR, the amendments in paragraphs 48(a) and 48(ha) engage the right to
a fair hearing in a suit at law.
Paragraph 48(a)
13. New paragraph 48(a) of the Bill excludes from merits review a decision to
issue a travel-related document on the Minister's own initiative, if required
to facilitate a lawful deportation, removal, extradition or prisoner transfer
under new subsection 9(1A)(b), because it is a procedural decision. The
expulsion decision forms the basis for the Minister's document-issue
decision. There is no provision for the Minister to make a decision to issue
a travel-related document under subsection 9(1A)(b) without a lawful
decision already having been made that requires the person to travel.
14. Review rights appropriately relate to the decision to require a person to
travel, and not to the Minister's decision to issue the person an Australian
travel document to facilitate that travel. The Bill does not remove a
person's right to seek a review of the decision to expel the person. As a
result, the person's right to a fair hearing in the matter of their expulsion is
not affected.
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15. Any limitation to the right to a fair hearing, to the extent that it applies to a
right to seek review of a decision, is reasonable and necessary to prevent
delays in lawful extraditions, removals, deportations and prisoner transfers.
Paragraph 48(ha)
16. Paragraph 48(ha) promotes the right to a fair hearing in Article 14(1) of the
ICCPR by providing for merits review for a decision made under
subsection 53(4).
Conclusion
17. These amendments are compatible with human rights as they promote
human rights and, to the extent that they may limit human rights, those
limitations are reasonable, necessary and proportionate.
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