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Passports Legislation Amendment (Integrity) Bill 2015

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2013-2014-2015

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

PASSPORTS LEGISLATION AMENDMENT (INTEGRITY) BILL 2015

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the Minister for Foreign Affairs,

the Hon Julie Bishop MP)

 

 

 

 



 

PASSPORTS LEGISLATION AMENDMENT (INTEGRITY) BILL 2015

 

Outline

The purpose of the Passports Legislation Amendment (Integrity) Bill 2015 (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.

The principal amendments of the Bill are to:

.                  provide for the issue of a travel-related document on the Minister’s own initiative to facilitate a lawful requirement for a person to travel;

.                  align the definition of ‘parental responsibility’ more closely to that in the Family Law Act 1975 (Cth)to provide more certainty as to who is required to consent to a child passport;

.                  provide that the Minister may refuse to process a passport application if there are reasonable grounds to suspect fraud or dishonesty in the application (this does not prevent the person being issued a passport should they submit a fresh application with the correct information and where all eligibility requirements are met); and

.                  amend existing offences and add an offence to strengthen the Government’s ability to respond to the fraudulent use of Australian travel documents, whether genuine or false.

 

Financial impact statement

Passage of this legislation will not result in any additional cost to applicants or to the Commonwealth. 



PASSPORTS LEGISLATION AMENDMENT (INTEGRITY) BILL 2015

Notes on Clauses

Part 1—Preliminary

Clause 1—Short Title

1.       Clause 1 is a formal provision specifying the short title of the Bill which, when enacted, is to be cited as the Passports Legislation Amendment (Integrity) Act 2015 .

Clause 2—Commencement

2.       Clause 2 provides for the commencement of the Bill. 

 

3.       Subsection 2(1) provides that each provision of this Bill specified in column 1 of the table, when enacted, commences or is taken to have commenced in accordance with column 2 of the table, and that any other statement in column 2 is to have effect according to its terms.

 

4.       Table Item 1 specifies that sections 1-3 (and anything in the Act not elsewhere covered by the table) will commence on the day this Act receives the Royal Assent. 

 

5.       Table Item 2 provides that Schedule 1 Part 1 (main amendments) and Schedule 1 Part 2 (consequential amendments) will commence on the 28 th day after this Act receives the Royal Assent. 

 

6.       Table Item 3 provides that Schedule 1 Part 3 (consequential amendments) will commence immediately after the commencement of section 99 to the Biosecurity Act 2015

 

7.       Table Item 4 provides that Schedule 2 (repeals) will commence on the day after the Act receives the Royal Assent. 

 

8.       Subsection 2(2) provides that any information in column 3 of the table is not part of this Bill but may be inserted in this column, or information in it may be edited, in any published version of this Act.

 

Clause 3—Schedules

9.       Clause 3 provides that legislation specified in a Schedule to the Act is to be amended or repealed as set out in the applicable items in the Schedule concerned, and stipulates that any other item in a Schedule to the Act has effect according to its terms.



 

Schedule 1—Amendments

Part 1—Main amendments

Australian Passports Act 2005

Item 1—Subsection 6(1)

1.              Item 1 inserts a definition of a contactless integrated circuit into subsection 6(1).

 

2.              This amendment is intended to remove any doubt that the circuit is part of the travel document for the purposes of the offences in Part 4 of Division 2 of the Australian Passports Act 2005 (Cth) (Passports Act).  For example, damaging the circuit is captured by the offence in section 34 (damaging an Australian travel document).

Item 2—Subsection 6(1) (after paragraph (c) of the definition of document )

3.              Item 2 inserts paragraph (d) into the definition of document .

 

4.              Paragraph (d) clarifies that the definition of document includes a photograph (as a primary identifier of the holder of the passport).

 

5.              This amendment is intended to remove any doubt that a photograph is a document for the purposes of the offences in Part 4 of Division 2 of the Passports Act.  For example, providing a false or misleading photo as part of an Australian travel document application is captured by the offence in section 31 (producing false or misleading documents in relation to an Australian travel document application).

Item 3—Subsection 6(1) (note at the end of the definition of document )

6.              Item 3 amends the note at the end of the definition of document in subsection 6(1).

 

7.              The note as amended clarifies that the note relates to paragraph (c) of the definition of document.

Item 4—Subsections 9(1) and (2)

8.              Item 4 repeals subsections 9(1) and 9(2) of the Passports Act and replaces them with new subsections 9(1), 9(1A) and 9(2).

 

9.              New subsection 9(1) ensures that the Minister retains the power to issue a person with a travel-related document.  Travel-related documents are issued to non-Australians (for example, refugees and stateless persons) and to Australian citizens when it is unnecessary or it is undesirable to issue the person with an Australian passport.



 

10.          New subsection 9(1A) sets out the circumstances in which a travel-related

document may be issued to a person.  A travel-related document may be issued to a person on application by or on behalf of that person or on the Minister’s own initiative, only in the circumstances set out in the new subparagraphs 9(1A)(b)(i)-(iv).

 

11.          These circumstances are: the lawful extradition of a person to or from Australia; the lawful deportation or removal of a person to or from Australia; and the lawful prisoner transfer of a person to or from Australia. 

 

12.          A lawful requirement for a person to travel should not be frustrated by the person withholding consent to the issue of a travel-related document that is issued to facilitate that lawful request.  For example, in the case of a lawful extradition, the person being extradited is usually a fugitive with motivation to avoid being returned to Australia to face criminal allegations.  Their extradition should not be frustrated by their refusal to consent to the issue of a travel-related document for the purposes of facilitating that travel.

 

13.          In addition, there are a small number of cases each year where non-citizens are unable to obtain travel documents from their country of origin to facilitate their lawful removal from Australia.  In these cases the Minister may, under the new subsection 9(1A), decide to issue these people with an Australian travel-related document to facilitate their removal.

 

14.          It is important to note that prisoner transfers are a voluntary process requiring the consent of the host government, the receiving government and the prisoner.  However, in some circumstances, the ability to issue an Australian travel-related document on the Minister’s own initiative for the purposes of a prisoner transfer is likely to make the transfer process more efficient. 

 

15.          Australia is a Contracting State to the Convention on International Civil Aviation 1944 .  The Convention stipulates that a Contracting State must issue a travel document to one of its nationals to facilitate their return to the Contracting State within 30 days of being requested to do so by another State (Annex 9, Chapter 5, paragraph 5.26).  Further, the Convention provides that ‘a Contracting State shall not make the signing by the person concerned of an application for a travel document a prerequisite for the issuance of that document’ (Annex 9, Chapter 5, paragraph 5.37).  This amendment ensures that Australia is able to comply with the requirements of the Convention in this regard.



 

16.          Item 4 amends subsection 9(2) to reflect the new subsections 9(1) and 9(1A).  The amendments also clarify that these subsections are affected by Division 2.  This reflects a series of amendments contained in the Bill (primarily in Division 2 of Part 2) that replace the word ‘passport’ with ‘travel document’ to clarify that the relevant provision applies to any document issued for the purposes of travel: that is, Australian travel-related documents and passports.  This is intended to simplify the passports legislation by removing the need to refer to the Australian Passports Determination 2005 (the Determination) to determine which provisions apply to which travel documents.

Item 5—Division 2 of Part 2 (heading)

17.          Item 5 amends the heading to clarify that this Division relates to any document issued for the purpose of travel (passports and travel-related documents) by replacing the word ‘passport’ with ‘travel document’.

Section 11 Amendments: Reasons relating to child without parental consent or court order for travel

18.          The objectives of the amendments to section 11 of the Passports Act relating to issuing travel documents to children (Items 6-17) are to ensure that the reference to parental responsibility in the Passports Act is consistent with the concept and its use in the Family Law Act 1975 (Cth) (Family Law Act) and to remove any confusion as to who is required to consent to a child having an Australian travel document. 

 

19.          These amendments will also: clarify the role of the Department of Foreign Affairs and Trade (the Department) in issuing travel documents; clarify that this section applies to all Australian travel documents and not just passports; and ensure that ex-nuptial children residing in Western Australia are covered by section 11.

Item 6—Subsection 11(1)

20.          Item 6 repeals subsection 11(1) of the Passports Act and replaces it with a new subsection 11(1).  The new subsection 11(1) sets out the basic requirements for the issue of an Australian travel document to a child.  This subsection combines subsections 11(1) and 11(4) of the Passports Act to simplify the legislation.

 

21.          The amended subsection 11(1) retains the existing provisions that the Minister must not issue an Australian travel document to a child unless all persons with parental responsibility consent to the issue of a travel document or there is an Australian court order permitting the issue of a travel document. 



22.    

23.          The amended paragraph 11(1)(a) clarifies that consent relates primarily to a child having an Australian travel document rather than to a child travelling internationally .  The Department’s role is to issue travel documents.  Once an Australian travel document is issued to a child, the Department has no control over when or where that child may travel.  As such, it is more appropriate that the matter of consent relates to the child having an Australian travel document rather than to the child travelling internationally .

 

24.          The amended paragraph 11(1)(b) incorporates subsection 11(4) by

specifying some of the different terminologies that may be used in court orders that permit a travel document to be issued to a child. 

 

25.          In relation to court orders, the amendments remove and modify certain phrases contained in paragraph 11(4)(b) and insert these into paragraph 11(1)(b).  This includes replacing ‘contact outside Australia between the child and another person’ with ‘the child to live or spend time with another person who is outside Australia’.  ‘Contact’ may be interpreted as phone or email contact, whereas the intention of this provision is to enable the child to travel internationally.

Item 7—Subsection 11(2)

26.          Item 7 amends subsection 11(2) to clarify that the provision applies to all Australian travel documents. 

Item 8—Subparagraph 11(2)(c)(ii)

27.          Item 8 amends subparagraph 11(2)(c)(ii) to clarify that consent relates primarily to a child having an Australian travel document rather than to a child travelling internationally , consistent with the Department’s role in issuing travel documents. 

Item 9—Paragraph 11(2)(d)

28.          Item 9 amends paragraph 11(2)(d) to clarify that the provision applies to all Australian travel documents. 

Item 10—Subsection 11(3)

29.          Item 10 amends subsection 11(3) to clarify that the provision applies to all Australian travel documents. 

Item 11—Subsection 11(3) (note)

30.          Item 11 repeals the note in subsection 11(3) as it is no longer necessary. 

Item 12—Subsection 11(4)

31.          Item 12 repeals subsection 11(4) as it is redundant now that it has been combined into the new subsection 11(1).



 

Item 13—Subparagraph 11(5)(a)(ii)(note)

32.          Item 13 repeals the note in subparagraph 11(5)(a)(ii).  Item 17, below, amends and reinserts the note at the end of subsection 11(5).

Item 14—After paragraph 11(5)(a)

33.          Item 14 inserts a new paragraph 11(5)(aa) after the existing paragraph 11(5)(a).  New paragraph 11(5)(aa) ensures that the definition of parental responsibility includes persons covered by the Family Court Act 1997 (WA) (WA Family Court Act). 

 

34.          Paragraph 11(5)(a) of the Passports Act makes reference to the Family Law Act in relation to determining whether a person has parental responsibility for a child.  However, the provision does not acknowledge that the Family Law Act does not apply to children born outside of marriage in Western Australia.  This is because Western Australia has not referred its powers relating to ex-nuptial children to the Commonwealth.  The WA Family Court Act applies to these children instead.  This means that orders made under the WA Family Court Act that remove a person’s parental responsibility are not recognised as removing that person’s parental responsibility for the purposes of the Passports Act where those orders are not registered under the Family Law Act. 

 

35.          This amendment seeks to rectify this situation by confirming that the Passports Act covers orders made under the Family Law Act and the WA Family Court Act.

Item 15—Subparagraphs 11(5)(b)(ii) and (iii)

36.          Item 15 repeals subparagraphs 11(5)(b)(ii) and 11(5)(b)(iii) and replaces them with new subparagraph 11(5)(b)(ii).

 

37.          This amendment removes the requirement to seek consent for a child to have an Australian travel document from persons who are to ‘spend time with’ a child under a court order but who do not otherwise have parental responsibility for the child.

 

38.          Under the broad definition of ‘parental responsibility’ in the Passports Act, a person whose parental responsibility has been removed (either expressly or by implication) under the Family Law Act may still have parental responsibility for the purposes of consenting to a child having an Australian travel document.  The amendments seek to ensure the reference to ‘parental responsibility’ in the Passports Act is consistent with the concept as defined in the Family Law Act.

39.          Following these amendments, consent to a child having an Australian travel document will be required from: parents who have not had their parental responsibility extinguished at law; a person who has been awarded parental responsibility under a parenting order; a person with whom a child is to live under a parenting order; or a person who has guardianship, custody or parental responsibility for the child under an Australian law.

 

40.          The practical implementation of current subparagraph 11(5)(b)(ii) has been confusing and problematic for a small number of applicants each year.  This includes, for example, applicants with sole parental responsibility under a court order who are currently required to seek consent from persons with ‘spend time with’ or ‘access to’ a child but who do not otherwise have parental responsibility.

Item 16—Paragraph 11(5)(d)

41.          Item 16 amends paragraph 11(5)(d) to provide that persons who, under Australian law, are granted ‘access to’ a child but who do not otherwise have parental responsibility for the child are no longer required to consent to the child having an Australian travel document. 

 

42.          The amendment also removes the words ‘entitled to’ and replaces them with ‘has’, as the latter terminology is more appropriate in relation to a person’s responsibility for a child.

 

43.          It is important to note that these amendments do not remove the requirement contained in the Family Law Act for a person seeking to take a child overseas to obtain the consent in writing of all persons in whose favour a court order is made in relation to the child, or all other parties to proceedings for the making of a parenting order in relation to the child.  The Department notifies parents of the associated offences in the information booklets distributed to all passport holders, in the passport itself and on the passports website.

 

Item 17—At the end of subsection 11(5)

44.          Item 17 inserts a note following subsection 11(5) to clarify the presumptions discussed in subsection 11(5). 

 

45.          This note makes reference to presumptions contained in both the Family Law Act and the WA Family Court Act. 

Item 18—At the end of subsection 12(2)

46.          Item 18 amends subsection 12(2) to provide that, while a person must not be issued a passport if a competent authority makes a refusal/cancellation request in relation to the person under this subsection, the person may be issued a travel-related document.  As the refusal/cancellation is non-discretionary, this amendment enables the issue of a travel-related document if necessary: for example, to facilitate a person’s return to Australia. 

47.          Currently subsection 6.5(2) of the Determination provides that a Document of Identity may be issued under section 12 of the Passports Act.  The amendment moves the provision from the Determination into the Passports Act so that the section may be read without reference to the Determination.  The amendment also provides more flexibility by allowing for the issue of any travel-related document. 

Item 19—Subsection 12(3) (paragraphs (b), (c) and (d) of the definition of prevented from travelling internationally )

48.          Item 19 amends the definition of prevented from travelling internationally in subsection 12(3) to clarify that the provision applies to all Australian travel documents. 

Item 20—Paragraph 13(1)(c)

49.          Item 20 amends paragraph 13(1)(c) to clarify that the provision applies to all Australian travel documents.

Item 21—Subsection 13(2)

50.          Item 21 amends subsection 13(2) to clarify that the provision applies to all Australian travel documents.

Item 22—Subsection 13(3) (paragraphs (b), (c) and (d) of the definition of prevented from travelling internationally )

51.          Item 22 amends the definition of prevented from travelling internationally in subsection 13(3) to ensure the provision applies to all travel documents, whether Australian or foreign.

Item 23—Paragraphs 14(1)(a) and (b)

52.          Item 23 amends paragraphs 14(1)(a) and 14(1)(b) to clarify that the provisions apply to all Australian travel documents.

Item 24—Subsection 14(2)

53.          Item 24 amends subsection 14(2) to clarify that the provision applies to all Australian travel documents.

Item 25—Subsection 14(3) (definition of competent authority )

54.          Item 25 repeals the existing definition of competent authority in subsection 14(3) and substitutes a new definition which removes the distinction between the circumstances in which a competent authority may make a refusal/cancellation request.

 

55.          The current definition of competent authority in subsection 14(3) makes an unnecessary and technical distinction between circumstances relating to Australia and circumstances relating to a foreign country. 

56.          The competent authorities listed in subsection 14(3) of the Passports Act have not changed; however, now any competent authority may make a refusal/cancellation request in relation to a circumstance that relates to Australia or a foreign country. 

 

57.          The decision to refuse or cancel a passport following a competent authority request pursuant to section 14 remains subject to the Minister’s discretion. 

Item 26—Section 15

58.          Item 26 repeals section 15 and replaces it with a new section 15.  This amended section clarifies that this provision applies to all Australian travel documents. 

Item 27—Subsection 16(2)

59.          Item 27 amends subsection 16(2) to give the Minister discretion to issue an Australian travel document to a person who owes money to the Commonwealth arising out of: expenses incurred by the Commonwealth on behalf of the debtor in a foreign country; money lent to the debtor while overseas; or expenses incurred by the Commonwealth in, or in connection with, effecting the debtor’s departure from a foreign country.  This will enable the Minister to consider the circumstances surrounding the debt before making a decision concerning a person’s entitlement to an Australian travel document.

 

60.          The amendment also changes the word ‘passport’ to ‘travel document’ to clarify that the provision applies to all Australian travel documents. 

Item 28—Subsection 16(3)

61.          Item 28 repeals subsection 16(3) as it will be redundant following the change made by Item 27.

 

62.          However, the matters provided for in subsection 16(3) remain important considerations for the Minister, in addition to considerations concerning the circumstances of the debt, when exercising discretion under this provision.  For example, important considerations include whether the debtor’s physical or psychological welfare would be adversely affected if the debtor was not able to travel overseas, or if the debtor has an urgent need to travel overseas for compassionate reasons. 

Item 29—Subsections 17(1) and (2)

63.          Item 29 amends subsections 17(1) and 17(2) to clarify that these provisions apply to all Australian travel documents.

Item 30—Paragraph 18(1)(a)

64.          Item 30 amends paragraph 18(1)(a) to clarify that the provision applies to all Australian travel documents.

Item 31—Paragraph 18(1)(b)

65.          Item 31 amends paragraph 18(a)(b) to clarify that the provision applies to all Australian travel documents. 

Item 32—Paragraph 18(2)(a)

66.          Item 32 amends paragraph 18(2)(a) to clarify that the provision applies to all Australian travel documents. 

Item 33—Subsection 18(3)

67.          Item 33 amends subsection 18(3) to clarify that the provision applies to all Australian travel documents.

Item 34—After Division 2 of Part 2

68.          Item 34 inserts a new Division 2A and section 19A in the Passports Act following Division 2 of Part 2. 

 

69.          The new Division sets out the reasons for which the Minister may refuse to process an application for an Australian travel document. 

 

70.          New section 19A provides that the Minister may refuse to process an application for an Australian travel document if the Minister suspects, on reasonable grounds, that there has been fraud or dishonesty in the application.  In these cases the application fee will not be refunded.  This is a reviewable decision. 

 

71.          Instances of alleged fraud will be assessed by qualified investigators.  Reasonable grounds may include, for example: a statutory declaration by a parent to the effect that they did not sign the consent provisions in a child passport application; an admission by a parent that they forged the signature of the other parent on a child passport application; formal advice from a Registry of Births, Deaths and Marriages that a birth certificate provided in relation to an Australian travel document application was not genuine; or the creation of a false identity to use for the purpose of a guarantor. 

 

72.          Section 19A is in addition to, and does not limit, the offences in sections 29 to 31 of the Passports Act concerning providing false or misleading information, making false or misleading statements or producing false or misleading documents in relation to an application for an Australian travel document. 

 

73.          This provision is intended to make clear that any kind of fraud in a travel document application is unacceptable and may undermine the integrity of the Australian passports system. 



 

74.          It is important to note that this amendment does not prevent a person being issued a passport should they submit a fresh application with the correct information and where all eligibility requirements are met. 

Item 35—Sections 20 and 21

75.          Item 35 repeals the existing sections 20 (‘When Australian passports are not valid’) and 21 (‘When travel-related documents are not valid’) and replaces them with a new combined and simpler section 20.

 

76.          This amendment removes duplication in the legislation by combining these sections to cover ‘When Australian travel documents are not valid’. 

Item 36—Paragraph 22(2)(e)

77.          Item 36 amends paragraph 22(2)(e)—which sets out when an Australian travel document may be cancelled—in order to separate circumstances relating to section 8 (which only relates to passports) from circumstances relating to sections 11 and 17 (which apply to any travel document). 

 

78.          As a consequence, the references to sections 11 and 17 have been removed from this paragraph and have been reinserted in new paragraph 22(2)(fa) (see Item 39 below).

Item 37—Subparagraph 22(2)(f)(ii)

79.          Item 37 omits the phrase ‘subsection 9(1)’ from subparagraph 22(2)(f)(ii) and replaces it with ‘paragraph 9(1A)(a)’ consistent with the new numbering of section 9. 

Item 38—At the end of paragraph 22(2)(f)

80.          Item 38 adds a new subparagraph 22(2)(f)(iii) at the end of paragraph 22(2)(f).

 

81.          New subparagraph 22(2)(f)(iii) allows the Minister to cancel a travel-related document if the document is no longer required for the lawful deportation, removal, extradition or prisoner transfer for which it was issued.  This situation may arise where, for example, the person is no longer being expelled or where the expulsion has already taken place.

Item 39—After paragraph 22(2)(f)

82.          Item 39 inserts a new paragraph 22(2)(fa) after paragraph 22(2)(f).

 

83.          Consistent with Item 36 above, new paragraph 22(2)(fa) provides for the cancellation of any travel document due to circumstances in sections 11 and 17.

Item 40—Paragraph 24(1)(b)

84.          Item 40 amends paragraph 24(1)(b) in order to ensure the provision is consistent with the amendments to sections 20 and 21 discussed in Item 35. 

Part 4 Division 2—Offences

85.          The Bill amends five existing offences and inserts a new offence to strengthen the Government’s ability to respond to the fraudulent use of Australian travel documents.  Passports legislation constitutes an important part of a network of legislation designed to protect Australia from the use of false identity and citizenship documents and related criminal activity including people smuggling, terrorism and drug smuggling.

Item 41—Section 29 (heading)

86.          Item 41 amends the heading of section 29 to clarify that the offence relates to Australian travel documents themselves as well as to applications for Australian travel documents.

Item 42—Paragraph 29(1)(c)

87.          Item 42 repeals paragraph 29(1)(c) and replaces it with a new paragraph 29(1)(c) which, together with Item 41, makes it clear that making a false or misleading statement will be an offence if the statement is made on or about an Australian travel document or an application for an Australian travel document.

 

88.          On occasion, a person reports a passport as lost/stolen so that it will be cancelled in order to intentionally disrupt the travel of another person.  This is most often seen in cases of separated parents where one parent intentionally and falsely reports the child’s passport as lost or stolen to disrupt the legitimate plans of the other parent.  This is costly and distressing for the travelling parent and children. 

 

89.          Passports reported as lost or stolen are irrevocably cancelled and then reported to the International Criminal Police Organization (Interpol) to help prevent their fraudulent use. 

Item 43—Section 30 (heading)

90.          Item 43 amends the heading of section 30 to clarify that the offence relates to Australian travel documents themselves as well as to applications for Australian travel documents.

Item 44—Paragraph 30(1)(c)

91.          Item 44 repeals paragraph 30(1)(c) and replaces it with a new paragraph 30(1)(c).  Together with Item 43, the amendment specifies that it is an offence to give false or misleading information in relation to an Australian travel document or an application for an Australian travel document. 

Item 45—Section 31 (heading)

92.          Item 45 amends the heading of section 31 to clarify that the offence relates to the Australian travel documents themselves as well as to applications for Australian travel documents.

Item 46—Paragraph 31(1)(c)

93.          Item 46 repeals paragraph 31(1)(c) and replaces it with a new paragraph 31(1)(c).  Together with Item 45, the amendment provides that it is an offence to produce false and misleading documents in relation to an Australian travel document or an application for an Australian travel document.

 

94.          An example of the conduct that this provision targets is where a person produces a false identification to collect a passport. 

Item 47—After section 32

95.          Item 47 inserts a new section 32A into the Passports Act.

 

96.          New section 32A moves the existing offence in section 36 forward in the Act. 

Item 48—Sections 33 and 34

97.          Item 48 repeals sections 33 and 34 of the Passports Act and replaces them with new sections 33 and 34.

 

98.          New section 33 amends the existing offence (‘Selling an Australian travel document’) so that it is an offence to sell a false Australian travel document as well as a genuine Australian travel document.  A false Australian travel document includes: a document that is not an Australian travel document but purports to be; and a genuine Australian travel document that has been fraudulently altered.

 

99.          The maximum penalty for this offence remains imprisonment for 10 years or 1,000 penalty units, or both; consistent with other offences in the Passports Act.  These penalties are also consistent with related offences in the Criminal Code Act 1995 (Division 73—People smuggling and related offences) and the Migration Act 1958 (Section 234—False documents and false or misleading information etc relating to non-citizens).  Both of these offences involve penalties of imprisonment for 10 years or 1,000 penalty units, or both.

 

100.      New section 34 expands the existing offence (‘Damaging an Australian travel document’) to also include manipulation of, or tampering or interference with, an Australian travel document.  To avoid any doubt, the amendments also specify that this offence applies to a contactless integrated circuit embedded in an Australian travel document. 

101.      A person who damages, manipulates, interferes with or destroys an Australian travel document may have recourse to the ‘reasonable excuse’ exception in subsection 34(2).

 

102.      The maximum penalty for this offence remains imprisonment for 10 years or 1,000 penalty units, or both.  This imprisonment-penalty ratio is consistent with that of other offences in the Passports Act.

Item 49—Section 36

103.      Item 49 repeals section 36 and substitutes it with a new section 36. 

 

104.      New section 36 makes it an offence to make or provide false Australian travel documents with the intent that these documents will be used as though they were genuine.  A false Australian travel document includes: a document that is not an Australian travel document but purports to be; and a genuine Australian travel document that has been fraudulently altered. 

 

105.      There are no circumstances in which the making, creation or production of a false Australian travel document could be reasonably excused. 

 

106.      However, the provision of a false travel document by one person to another person is subject to a reasonable excuse exception, as it is foreseeable that a person may not realise that the document in their possession is false.

 

107.      The maximum penalty for this offence is imprisonment for 10 years or 1,000 penalty units, or both.  This imprisonment-penalty ratio is consistent with that of other offences in the Passports Act.

Item 50—Section 45 (heading)

108.      Item 50 amends the heading in section 45 to make it more consistent with the content of the provision.

 

109.      Section 45 allows the Minister to disclose specified information for the purpose of informing specified persons that an Australian travel document is lost, stolen or otherwise invalid.

Item 51—Paragraph 48(a)

110.      Item 51 amends paragraph 48(a) to ensure the provision applies to all Australian travel documents.

Item 52—Paragraph 48(b)

111.      Item 52 repeals paragraph 48(b) and replaces it with a new paragraph 48(b).

 

112.      New paragraph 48(b) amends the existing paragraph relating to a decision to refuse to issue an Australian travel document to exclude from merits review a decision made on a ground referred to in the new paragraph 9(1A)(b). 

113.      Decisions made on a ground referred to in paragraph 9(1A)(b) are not reviewable because the decision to issue a travel-related document to facilitate a lawful extradition, deportation, removal or prisoner transfer is a procedural decision.  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.

 

114.      References to decisions in relation to which a declaration under subsection 11(3) has been made and decisions made because of subsection 12(2) are retained from the existing paragraph 48(b).  However, following the amendment to subsection 12(2) this also excludes from merits review a decision to issue a travel-related document to a person under this subsection.  It is appropriate that this decision is not reviewable.  If a person was overseas a travel-related document would be issued to them so that they could return to Australia to face prosecution. 

Item 53—After paragraph 48(c)

115.      Item 53 inserts a new paragraph 48(ca) after the existing paragraph 48(c).

 

116.      New paragraph 48(ca) provides that a decision to refuse to process an application for an Australian travel document under the new section 19A is a reviewable decision.  It is appropriate that review rights exist in relation to a decision made under section 19A as the decision is based on a suspicion on reasonable grounds that there has been fraud or dishonesty in the application, which has not been proven. 

Item 54—Paragraph 48(e)

117.      Item 54 repeals the existing paragraph 48(e) and replaces it with new paragraphs 48(e) and 48(ea).

 

118.      New paragraph 48(e) refers only to demanding the surrender of a cancelled Australian travel document.  This amendment excludes from merits review a decision to demand the surrender of a cancelled travel document if the document was cancelled following a cancellation request by a competent authority. 

 

119.      A decision to demand the surrender of an Australian travel document cancelled in response to a competent authority request is not reviewable because the decision to demand the surrender of the document is a procedural decision.  Review rights more appropriately relate to the decision to cancel the travel document.  A decision to cancel an Australian travel document is a reviewable decision. 

120.      New paragraph 48(ea) retains the provision in the existing paragraph 48(e), that a decision under section 24 to demand the surrender of an invalid Australian travel document is a reviewable decision.

Item 55—Paragraph 48(g)

121.      Item 55 repeals paragraph 48(g).

 

122.      Paragraph 48(g) will be redundant following the amendment set out in Item 57, as there will no longer be a decision to review.

Item 56—Paragraph 48A(1)(a)

123.      Item 56 amends paragraph 48A(1)(a) to ensure the provision applies to all Australian travel documents. 

Item 57—Subsection 49(2)

124.      Item 57 amends subsection 49(2) to remove the ability to extend the 28 days provided for a person to apply for a review of a decision pursuant to subsection 49(1). 

 

125.      The 28-day period—after the person has been notified of the decision—to lodge an application for the review of a decision is reasonable and should not be able to be extended.  It is consistent with other time periods implemented by the Department.  For example, applicants have 28 days to provide full documentation for an incomplete passport application or for the surrender of an Australian travel document.  An application for the review of a decision can be lodged simply by sending a written request (for example, an email or letter) to the Department. 

Item 58—After paragraph 51(1)(c)

126.      Item 58 inserts new paragraph 51(1)(ca) after paragraph 51(1)(c), providing that decisions made under section 19A are delegable. 

 

127.      Section 19A provides that a passport application may not be processed on reasonable suspicion of fraud.  The numbers of potentially fraudulent applications seen by the Department are large enough to be a significant imposition on the Minister if the decisions were not delegable. 

Item 59—After paragraph 51(1)(h)

128.      Item 59 inserts two new paragraphs, 51(1)(ha) and 51(1)(hb), after paragraph 51(1)(h), providing that decisions made under subsections 53(2) and 53(4) are delegable. 

 

129.      Subsection 53(2) provides that Australian travel documents must be issued in forms approved by the Minister.  In practice, the design and development of travel documents is a long and detailed process spanning a number of years with many individual decisions needing to be taken during that process. 

130.      Subsection 53(4) is a new subsection provided for in the Bill (see Item 61 below).  Subsection 53(4) provides that a name or signature that is to appear on an Australian travel document may be refused on the grounds that it is considered unacceptable, inappropriate or offensive.  With almost 2 million passports issued annually in over 100 offices around the world it is not practical to require the Minister’s decision on all matters relating to applications for travel documents. 

Item 60—Subsection 53(3)

131.      Item 60 removes the second sentence from subsection 53(3), which is then amended and reinserted in new subsection 53(5) by Item 61. 

Item 61—At the end of section 53

132.      Item 61 adds three new subsections to section 53.  Section 53 provides for the name that a person may have on their travel document.

 

133.      New subsection 53(4) provides that the Minister may refuse any name or signature of a person that the Minister considers to be unacceptable, inappropriate or offensive. 

 

134.      Examples of unacceptable, inappropriate or offensive names or signatures include, but are not limited to:

.             an expletive;

.             a racial or ethnic slur or implication;

.             an obscene or offensive term, symbol or picture;

.             a political statement or slogan;

.             the name of, or reference to, a public institution or public office;

.             a title, award or decoration that is not awarded directly to, or conferred directly on, the applicant by the Crown or under a law of the Commonwealth;

.             a term that could mislead people into believing that the bearer has been awarded or conferred a title, award or decoration;

.             a string of words that would not commonly be recognised as a name;

.             a name that cannot be established by repute or usage;

.             any other term that is contrary to the public interest;

.             too many characters for the data page of the travel document;

.             a symbol without phonetic significance; or

.             characters that the Minister considers are inconsistent with the international standards and recommended practices and procedures for travel documents adopted in accordance with the Convention on International Civil Aviation 1944 .

135.      New subsection 53(5) clarifies and reinserts the provisions from the second sentence of subsection 53(3) concerning the name that must appear on a person’s travel document.  It further specifies that the name must be the most recent name according to the allowable identity documents to prevent a person developing multiple identities. 

 

136.      New subsection 53(6) provides that a person can only use an Australian marriage or relationship certificate to change their surname.  If a marriage or relationship certificate shows a different given name to that on their birth or citizenship certificate, this will need to be evidenced by a formal name change certificate before it may be used as evidence of a given name for the purposes of an Australian travel document. 



 

Foreign Passports (Law Enforcement and Security) Act 2005

Item 62—Subsection 13(2) (paragraphs (b), (c) and (d) of the definition of prevented from travelling internationally )

137.      Item 62 amends the definition of prevented from travelling internationally in subsection 13(2) to ensure that the provision applies to all travel documents, whether Australian or foreign.

Item 63—Subsection 14(2) (paragraphs (b), (c) and (d) of the definition of prevented from travelling internationally )

138.      Item 63 amends the definition of prevented from travelling internationally in subsection 14(2) to ensure that the provision applies to all travel documents, whether Australian or foreign. 

Item 64—Subsection 15(1) (note)

139.      Item 64 repeals the note in subsection 15(1) and replaces it with a new note to update the reference to the availability and location of the International Covenant on Civil and Political Rights .

Item 65—Subsection 15(2) (definition of competent authority )

140.      Item 65 repeals the existing definition of competent authority and substitutes a new definition.  This new definition removes the distinction between the circumstances in which a competent authority may request the Minister to make an order to surrender a person’s foreign travel documents.

 

141.      The current definition of competent authority in subsection 15(2) makes an unnecessary and technical distinction between circumstances relating to Australia and circumstances relating to a foreign country. 

 

142.      The competent authorities listed in section 15(2) of the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) have not changed; however, now any competent authority may request the Minister to make an order to surrender a person’s foreign travel documents in relation to a circumstance in Australia or a circumstance in foreign country.

 

143.      The decision to order the surrender of a person’s foreign travel documents following a competent authority request pursuant to section 15 remains subject to the Minister’s discretion.

Item 66—Application—issue of Australian travel documents to children

144.      Item 66 provides that the amendments to section 11 of the Passports Act apply to an Australian travel document issued to a child on or after the day that item commences, whether or not the application for the document was lodged before, on or after that day.



 

Item 67—Application—repeated loss or thefts of Australian travel documents

145.      Item 67 provides that section 15 of the Passports Act as amended applies in relation to applications lodged on or after the date the section commences.

Item 68—Application—form of Australian travel documents

146.      Item 68 provides that the amendments to section 53 of the Passports Act apply to applications for an Australian travel document lodged before, on or after the day that section 53 commences. 



 

Schedule 1—Amendments

Part 2—Consequential Amendments

A New Tax System (Family Assistance) Act 1999 (Cth)

Items 69 and 70—Subsection 3(1) and subparagraphs 57GK(a)(i) and (ii)

147.      Items 69 and 70 amend the A New Tax System (Family Assistance) Act 1999 (Cth) in order to ensure the operation of this legislation remains consistent with the Passports Act. 

 

148.      Item 69 amends subsection 3(1) to ensure the definition of Australian travel document corresponds with that in the Passports Act.

 

149.      Item 70 amends subparagraphs 57GK(a)(i) and 57GK(a)(ii) to clarify that the provisions relate to all Australian travel documents and are not limited in their operation to passports. 

Australian Crime Commission Act 2002 (Cth)

Items 71-78—Sections 4, 24, 31 and 34D

150.      Items 71-78 amend the Australian Crime Commission Act 2002 (Cth) in order to ensure the operation of this legislation remains consistent with the Passports Act.

 

151.      Item 71 amends subsection 4(1) to ensure the definition of Australian travel document corresponds with that in the Passports Act.

 

152.      Items 72-78 amend sections 24, 31 and 34D to clarify that the provisions relate to all travel documents and are not limited in their operation to passports, whether Australian or foreign. 

Australian Security Intelligence Organisation Act 1979 (Cth)

Items 79-92—Sections 4, 34W and 34Y

153.      Items 79-92 amend the Australian Security Intelligence Organisation Act 1979 (Cth) in order to ensure the operation of this legislation remains consistent with the Passports Act. 

 

154.      Item 79 amends section 4 to ensure the definition of Australian travel document corresponds with that in the Passports Act.

 

155.      Items 80-92 amend sections 34W and 34Y to clarify that the provisions relate to all travel documents and are not limited in their operation to passports, whether Australian or foreign.



 

Bankruptcy Act 1966 (Cth)

Item 93—Subparagraph 77(1)(a)(ii)

156.      Item 93 repeals subparagraph 77(1)(a)(ii) of the Bankruptcy Act 1966 (Cth) and replaces it with a new subparagraph 77(1)(a)(ii). 

 

157.   Item 93 amends subparagraph 77(1)(a)(ii) to clarify that the provisions relate to all travel documents and are not limited in their operation to passports, whether Australian or foreign. 

 

Crimes Act 1914 (Cth)

Items 94-99—Sections 16, 22 and 22A

158.      Items 94-99 amend the Crimes Act 1914 (Cth) in order to ensure the operation of this legislation remains consistent with the Passports Act. 

 

159.      Item 94 amends subsection 16(1) to ensure the definition of Australian travel document corresponds with that in the Passports Act.

 

160.      Items 95-99 amend sections 22 and 22A to clarify that the provisions relate to all Australian travel documents and are not limited in their operation to passports.

 

Family Law Act 1975 (Cth)

Item 100—Section 67ZD

 

161.      Item 100 repeals section 67ZD of the Family Law Act and replaces it with a new section 67ZD in order to ensure the operation of this provision remains consistent with the Passports Act. 

 

162.      New section 67ZD ensures that the provision applies to all travel documents and is not limited in its operation to passports, whether Australian or foreign.

Federal Court of Australia Act 1976 (Cth)

Item 101—Paragraph 58DC(2)(c)

163.      Item 101 amends paragraph 58DC(2)(c) of the Federal Court of Australia Act 1976 (Cth) in order to ensure the provision remains consistent with the Passports Act.

 

164.      The amendment to 58DC(2)(c) clarifies that the provision relates to ‘documents issued for the purposes of travel’ and is not limited in its operation to passports, whether Australian or foreign. 



 

Income Tax Assessment Act 1936 (Cth)

Item 102—Section 202A (definition of passport )

165.      Item 102 repeals the definition of passport in section 202A of the Income Tax Assessment Act 1936 (Cth) because the term does not appear again in this Act or in any other income tax Acts. 

Law Enforcement Integrity Commissioner Act 2006 (Cth)

Items 103-116—Sections 5, 96D, 97, 98 and 99 and Subdivision F of Division 2 of Part 9

166.      Items 103-116 amend the Law Enforcement Integrity Commissioner Act 2006 (Cth) to ensure the operation of this legislation remains consistent with the Passports Act.

 

167.      Item 103 inserts the definition of Australian travel document into subsection 5(1) to ensure the use of the term remains consistent with the Passports Act. 

 

168.      Items 104-116 amend sections 96D, 97, 98 and 99 and the title of Subdivision F of Division 2 of Part 9 to clarify that the provisions relate to all travel documents and are not limited in their operation to passports, whether Australian or foreign. 

 

Paid Parental Leave Act 2010 (Cth)

Items 117-118—Sections 6 and 278D

169.      Items 117 and 118 amend sections 6 and 278D of the Paid Parental Leave Act 2010 (Cth) to ensure the operation of this legislation remains consistent with the Passports Act.

 

170.      Item 117 inserts the definition of Australian travel document into section 6 to ensure the use of the term remains consistent with the Passports Act.

 

171.      Item 118 amends subparagraphs 278D(a)(i) and 278D(a)(ii) to clarify that the provisions relate to all Australian travel documents and are not limited in their operation to passports.



 

Social Security Act 1991 (Cth)

Items 119-120—Sections 23 and 38P

172.      Items 119 and 120 amend sections 23 and 38P of the Social Security Act 1991 (Cth) to ensure the operation of this legislation remains consistent with the Passports Act.

 

173.      Item 119 inserts the definition of Australian travel document into subsection 23(1) to ensure the use of the term remains consistent with the Passports Act.

 

174.      Item 120 amends subparagraphs 38P(a)(i) and 38P(a)(ii) to clarify that the provisions relate to all Australian travel documents and are not limited in their operation to passports. 



 

Schedule 1—Amendments

Part 3—Consequential amendments commencing once the Biosecurity Act 2015 (Cth) commences

Biosecurity Act 2015 (Cth)

Item 121—Paragraph 99(a)

175.      Item 121 amends paragraph 99(a) of the Biosecurity Act 2015 (Cth) to clarify that the provision relates to all travel documents and is not limited in its operation to passports, whether Australian or foreign. 



 

Schedule 2—Repeals

Australian Passports (Transitionals and Consequentials) Act 2005 (Cth)

Item 1—The whole of the Act

176.      Item 1 repeals the Australian Passports (Transitionals and Consequentials) Act 2005 (Cth).

 

177.      This Act is now redundant 10 years after the Passports Act came into force.



 

PASSPORTS LEGISLATION AMENDMENT (INTEGRITY) BILL 2015

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

178.      Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).

Passports Legislation Amendment (Integrity) Bill 2015

179.      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 (Cth). 

Overview of the instrument

180.      The Passports Legislation Amendment (Integrity) Bill 2015 (Bill) amends the Australian Passports Act 2005 (Cth) (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.  The Bill also makes minor amendments to the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) (Foreign Passports Act) and repeals the Australian Passports (Transitionals and Consequentials) Act 2005 (Cth). 

 

181.      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.  The Passports Act also ensures that the passports system complements Australia’s national security and border protection policies, law enforcement measures and international law enforcement cooperation while maintaining consistency with family law, privacy and administrative law principles. 

 

182.      The Bill follows a routine review of the passports legislation ten years after it was enacted.  The amendments include:

.                  providing for the issue of a travel-related document on the Minister’s own initiative to facilitate a lawful requirement for the person to travel (new paragraph 9(1A)(b));

.                  providing that a person may not seek a review of a decision to issue a travel-related document under paragraph 9(1A)(b) (new paragraph 48(b));

.                  aligning the definition of ‘parental responsibility’ more closely to that in the Family Law Act 1975 (Cth) to provide more certainty as to who is required to consent to a child passport;

.                  providing that the Minister may refuse to process a passport application if there are reasonable grounds to suspect fraud or dishonesty in the application—this does not prevent the person being issued a passport should they submit a fresh application with the correct information and where all eligibility requirements are met (new section 19A);

.                  creating a new offence criminalising the making or providing of false Australian travel documents (new section 36);

.                  removing the right to seek a review of a decision to demand the surrender of a cancelled Australian travel document under paragraph 22(2)(d) (new paragraph 48(e)); and

.                  providing the Minister with the ability to refuse any name or signature of a person that would appear on the person’s Australian travel document, on the basis that the Minister considers the name to be unacceptable, inappropriate or offensive (new subsection 53(4)). 

 

183.      The Bill also seeks to incorporate the operation of section 6.5 of the Passports Determination into the Passports Act resulting in a number of consequential amendments to other Acts.  In order to simplify the operation of the Passports Act and other pieces of Commonwealth legislation, the Bill sets out a series of amendments designed to clarify that certain provisions apply to any Australian travel document and not just passports. 

 

184.      Further, the Bill removes the distinction in the definition of competent authority in subsection 14(3) of the Passports Act, and subsection 15(2) of the Foreign Passports Act, between the circumstances in which a competent authority may make a request.  The current definition of competent authority in these subsections makes an unnecessary and technical distinction between circumstances relating to Australia and circumstances relating to a foreign country.

 

185.      The amendments in paragraphs 183 and 184 (above) are minor and technical and do not make any substantive change to the law. As a result they do not have any human rights implications and will not be considered further in this paper. 

Human rights implications

186.      The Bill engages the following human rights:

.                  the right to freedom of movement under Article 12 of the International Covenant on Civil and Political Rights (ICCPR);

.                  the right of aliens lawfully in the territory of a State only to be expelled following a decision reached in accordance with law under Article 13 of the ICCPR;

.                  the right to a fair hearing in a suit of law under Article 14(1) of the ICCPR;

.                  the right to a presumption of innocence under Article 14(2) of the ICCPR;

.                  the right to privacy under Article 17 of the ICCPR;

.                  Australia’s non-refoulement obligations in Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the right to life in Article 6 of the ICCPR and the prohibition on torture, cruel, inhuman and degrading treatment or punishment in Article 7 of the ICCPR; and

.                  the right of persons with responsibility for the upbringing of children under Articles 5 and 18 of the Convention on the Rights of the Child (CRC).

1   Right to freedom of movement

187.      Article 12 of the ICCPR protects the right to freedom of movement.  It provides that anyone lawfully in a State shall have the right to liberty of movement and that everyone shall be free to leave any country, including their own.  Article 12(3) provides that this right may be limited where the limitation: is for a legitimate objective; is lawful; and is necessary to protect national security and the rights and freedom of others. 

A         Section 19A—Reasons relating to fraud or dishonesty for which the Minister may refuse to process an application for an Australian travel document

188.      New section 19A may engage the right to freedom of movement contained in Article 12(2) of the ICCPR.  This is because it provides that the Minister may refuse to process an application for an Australian travel document if the Minister suspects, on reasonable grounds, that fraudulent or misleading statements, information or documents have been given in relation to that application.

 

189.      The act of refusing to process an application on the basis of a reasonable suspicion of fraud or misleading statements, information or documents, in itself, limits the right to freedom of movement at the point at which the Minister makes the refusal decision.  The ability to make a refusal decision in these circumstances, however, is vital to protect the integrity of the Australian passports system.  Further, this amendment is in the interests of maintaining the ordre public : the Minister should not be obliged to issue travel documents where the Minister suspects on reasonable grounds that a person is, for example, applying for a passport using counterfeit documents in order to create a false identity (consistent with section 8 of the Passports Act).  As a result, any limitation of the right to freedom of movement is in pursuit of a legitimate objective and is necessary to maintain the ordre public

190.      However, nothing in the Passports Act precludes a person whose passport application has been refused under this section from submitting a fresh application with a new application fee.  A fresh application will be processed in accordance with normal practices.  The provision of false or misleading information, statements or documents in connection with one application does not, in and of itself, prevent the person being issued a passport should they submit a fresh application with the correct information and where all eligibility requirements are met.

 

191.      Further, decisions under the new section 19A are reviewable decisions under the Passports Act.

 

192.      As a result, while section 19A may engage the right to freedom of movement, any limitations on that right are likely to be temporary and are permissible for the purpose of protecting the ordre public .

B         Subsection 9(1A)—issuing travel documents on the Minister’s own initiative

(i)         Right to freedom of movement for Australians subject to expulsion orders

193.      The new subsection 9(1A) of the Passports Act clarifies the legislation by outlining the circumstances in which the Minister may issue a person with a travel-related document.  Paragraph 9(1A)(b) permits the Minister to issue a travel-related document to a person on the Minister’s own initiative, if the Minister is satisfied that such a document is required to:

 

(i)                  lawfully remove, deport or extradite the person from Australia;

(ii)                facilitate the lawful deportation of the person to Australia;

(iii)              facilitate the lawful extradition of the person to Australia; or

(iv)              if the person is a prisoner—effect the lawful transfer of the person. 

 

194.      Issuing an Australian travel document to an Australian citizen who is subject to a lawful deportation or extradition order in a foreign country may engage rights under Article 12 of the ICCPR.  However, an Australian travel document will only be issued to the Australian citizen to facilitate their removal where the Australian citizen no longer has any right to remain in the foreign country and yet is refusing to depart that country.  This amendment will enable Australia to meet the requirements of Annex 9, Chapter 5 of the Convention on International Civil Aviation 1944 .  This Convention stipulates that a Contracting State shall issue a travel document to one of its nationals to facilitate their return to the Contracting State within 30 days of a request by another State to do so, whether or not the person concerned consents to the issue of the travel document.



 

(ii)        Right for aliens to only be subject to lawful expulsion

195.      Article 13 of the ICCPR provides that aliens lawfully in the territory of a State may only be expelled following a decision reached in accordance with law and must be able to submit reasons against expulsion (except where compelling reasons of national security otherwise require) and to have their case reviewed by a competent authority or person.  Importantly, Article 13 only applies to people who are not Australian citizens and who are lawfully in Australia (by holding a visa, for example).  The proposed amendments in new subsection 9(1A) seek to clarify the operation of the Passports Act in conjunction with laws relating to removal, deportation, extradition and the prisoner transfers under the Migration Act 1958 (Cth), Extradition Act 1988 (Cth) and the International Transfer of Prisoners Act 1997 (Cth).

 

196.      Subsection 9(1) of the Passports Act currently reads (emphasis added):

The Minister may, on application by or on behalf of a person, and in the circumstances specified in a Minister’s determination, issue the person with a document of a kind specified in a Minister’s determination, being a document issued for the purposes of travel. 

A person subject to removal or deportation proceedings are often being removed from Australia against their will—for example, they may have overstayed their visa and do not wish to leave—and as such they are unlikely to consent to the issue of an Australian travel document to facilitate their expulsion from Australia. 

 

197.      The lawful expulsion decision forms the basis for the Minister’s document-issue decision and there is no provision for the Minister to make a document-issue decision without an underlying decision in relation to expulsion already having been made in relation to the person.

 

198.      These amendments clarify that the Minister may issue a travel-related document if it is necessary in order to facilitate the lawful travel of that person.  The Bill limits these circumstances to cases of lawful removals, deportations, extraditions and prisoner transfers, meaning that the person may only be expelled when they have exhausted all of their appeal rights in relation to the expulsion order.  Expulsion in these circumstances is necessary to protect national security and the ordre public and, accordingly, is consistent with international human rights law and in particular with Article 13 of the ICCPR.  A lawful requirement for a person to travel should not be frustrated by a person withholding consent for the issue of an Australian travel document.

 

199.      The issuing of an Australian travel document does not alter the laws under which Australia may remove, deport, extradite or transfer persons from Australia.  Furthermore, the amendments to section 9 of the Passports Act do not interfere with a person’s right to only be removed pursuant to a decision reached in accordance with law.



 

200.      A decision to issue a travel-related document on the Minister’s own initiative does not, in and of itself, engage human rights.  However, in the circumstances outlined in new paragraph 9(1A)(b), the issuing of a travel-related document may be one part of a process which engages human rights relating to the removal to or from Australia and non-refoulement (addressed below).  On this basis, these amendments engage Article 13 but do not limit the right.

 

201.      Further, it is important to note that decisions to expel people from Australia are made under other Acts; non-refoulement and other considerations are taken into account at the point at which the expulsion decision is made.  It is not the responsibility of the Minister, in deciding whether or not to issue a travel-related document on the Minister’s own initiative, to determine whether or not the principles of international law have been observed for the purposes of deciding whether to expel someone.  This is the responsibility of the person making the expulsion decision. 

2   Right to a presumption of innocence

202.      Article 14(2) of the ICCPR enshrines the right to be presumed innocent until proven guilty according to law.  While no amendments in the Bill propose to reverse the presumption of innocence, amendments to sections 32A and 34 and new section 36 impose an evidential burden on a defendant in relation to proving that they had a ‘reasonable excuse’ for engaging in otherwise criminal conduct.

 

203.      To the extent that this evidential burden limits a person’s right to be presumed innocent, the limitation is justifiable as the ‘reasonable excuse’ that must be proven is particularly within the knowledge of the person concerned.  If, for example, a person finds a false travel document in the street and has it in their possession for the purpose of handing it in to a police station, it is reasonable that the burden of proving that set of circumstances falls to the defendant.  The rights of the defendant are otherwise not affected by these amendments and it is clearly more practical for the defendant to prove that they had a reasonable excuse for their conduct than for the prosecution to disprove it.

 

204.      As a result, the amendments to sections 32A and 34 and new section 36 which limit a person’s right to a presumption of innocence are reasonable, necessary and proportionate.



205.  

3   Right to privacy

206.      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) of the Passports Act 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 .

 

207.      A person may use the most recent name registered by the person with an Australian Registry of Births, Deaths or Marriages.  However, the principal object of the Passports Act is to provide for the issue and administration of Australian passports, to be used as evidence of identity and citizenship by Australia citizens who are travelling internationally.  Given that passports are documents which are presented to officials in other countries as evidence of a person’s identity and citizenship, a restriction on the use of unacceptable or offensive names and signatures is reasonable and necessary.  Examples of unacceptable names include names which are or contain: an expletive; a racial or ethnic slur or implication; an obscene or offensive term; a political statement or slogan; the name of, or reference to, a public institution or public office; a term that could mislead people into believing that the bearer has been awarded or conferred a title, award or decoration; or a string of words that would not commonly be recognised as a name. 

 

208.      A similar situation arises in relation to signatures which contain offensive words or symbols.  While a person is entitled to create any signature they wish, there are certain words, phrases and images which are considered inappropriate and should not be included in a signature printed in a Commonwealth document. 

 

209.      Any limitation on a person’s right to privacy that is imposed by new subsection 53(4) will be lawful and not arbitrary by virtue of the limited application of the subsection.  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. 

4   Right to fair hearing in a suit at law

210.      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 subparagraph 48(b)(i) and paragraphs 48(e) and 48(ea) would engage the right to a fair hearing in a suit at law.



 

            A         Subparagraph 48(b)(i)

211.      The decision to issue a travel-related document to facilitate a lawful removal should not be subject to review.  As such, subparagraph 48(b)(i) of the Passports Act states that a decision made under new paragraph 9(1A)(b) is not a reviewable decision. 

 

212.      Decisions made on a ground referred to in paragraph 9(1A)(b) are not reviewable because the decision to issue an Australian travel document to facilitate a lawful extradition, deportation, removal or prisoner transfer is procedural.  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.

 

213.      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. 

 

214.      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 extradition, removal, deportation and prisoner transfer processes.

            B         Paragraph 48(e)

215.      Consistent with the discussion of subparagraph 48(b)(i) above, a decision to demand the surrender of an Australian travel document cancelled in response to a competent authority request is not reviewable because the decision to demand the surrender of the document is a procedural one.  Review rights more appropriately relate to the decision to cancel the travel document. 

 

216.      Paragraph 22(2)(d) states that the Minister may cancel an Australian travel document if a competent authority makes a refusal/cancellation request in relation to the person.  A document is only cancelled following a request by a competent authority for reasons of Australian law enforcement (section 12), international law enforcement cooperation (section 13) or to address the potential of the person engaging in harmful conduct (section 14)

 

217.      Where a person’s Australian travel document has been cancelled, an officer may demand the surrender of that cancelled document. 



 

218.      A decision to cancel an Australian travel document is a reviewable decision.  A passport that has been cancelled following a competent authority request cannot be returned to the person until the outcome of any review of the cancellation decision.  To do so would subvert the effect of the cancellation decision.  If the Administrative Appeals Tribunal overturns the Minister’s decision to cancel the passport, a new passport would be issued to the person.

5   Australia’s non-refoulement obligations

219.      As the amendments to section 9 refer to the issuing of an Australian travel document to facilitate the removal, deportation or extradition of the person from Australia, to the extent that these amendments relate to those actions they may engage Australia’s non-refoulement obligations. 

 

220.      Article 3(1) of the CAT provides:

No State Party shall expel, return (‘ refouler ’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

Articles 6 and 7 of the ICCPR also impose on Australia an implied non-refoulement obligation.  Article 6 of the ICCPR states:

Every human being has the inherent right to life.  This right shall be protected by law.  No one shall be arbitrarily deprived of his life.

Article 7 of the ICCPR provides:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

The Government recognises these 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, within or prior to the removal, deportation and extradition processes under those legal regimes.  Anyone who is found to engage Australia’s non-refoulement obligations will not be removed, deported or extradited in breach of those obligations. 

6   Rights of people with responsibility for the upbringing of children

221.      Articles 5 and 18 of the CRC require the State to protect the rights, responsibilities and duties of parents or persons with responsibility for the upbringing of children to make decisions and take actions that are in the best interests of the child.



 

222.      Under the broad definition of ‘parental responsibility’ in the Passports Act, a person whose parental responsibility has been removed (either expressly or by implication) under the Family Law Act may still have parental responsibility for the purposes of consenting to a child having an Australian travel document.  It is inappropriate that the Passport Act, as it currently stands, accords a person more parental responsibility for a child than is permitted and/or intended by a court.

 

223.      The amendments seek to ensure the reference to ‘parental responsibility’ in the Passports Act is consistent with the concept as defined in the Family Law Act.  Following these amendments, consent to a child having an Australian travel document will be required from: parents who have not had their parental responsibility extinguished at law; a person who has been awarded parental responsibility under a parenting order; a person with whom a child is to live under a parenting order; or a person who has guardianship, custody or parental responsibility for the child under an Australian law.

 

224.      Article 5 of the CRC makes it clear that the Government needs to protect the ‘responsibilities, rights and duties of parents … legal guardians or other persons legally responsible for the child’.  Article 18 of the CRC states that ‘parents or … legal guardians have the primary responsibility for the upbringing and development of the child’.  Amending the definition in section 11 engages Articles 5 and 18 to the extent that the new definition ensures that only those with parental responsibility for a child are permitted to make decisions about the child’s passport.  As such, this amendment is consistent with the rights enshrined in the CRC, to the extent that they are already protected by the Family Law Act. 

 

225.      It is important to note that these amendments do not remove the requirement contained in the Family Law Act for a person taking a child overseas to seek the consent in writing of all persons in whose favour a court order is made in relation to the child, or all other parties to proceedings for the making of a parenting order in relation to the child.  The Department notifies parents of the associated offences in the information booklets distributed to all passport holders, in the passport itself and on the passports website. 

Conclusion

226.      This Bill is compatible with human rights to the extent that it promotes rights and, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.