Migration Amendment (Bridging Visa Conditions) Regulations 2021 [F2021l00444] [2021] AUPJCHR 86 (4 August 2021)

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2.95 The committee requested a response from the minister in relation to the legislative instrument in Report 7 of 2021.^[3]

Additional discretionary bridging visa conditions

2.96 This instrument permits the minister to impose a range of additional discretionary conditions on Subclass 050 (Bridging (General)) visas,^[4] and Subclass 070 (Bridging (Removal Pending)) visas, where the visa is being granted to a person in immigration detention by the minister exercising their personal power under section 195A of the Migration Act 1958 (Migration Act) (for example, to allow for the release of a person in immigration detention).

2.97 This instrument provides for 13 additional conditions which the minister may impose on a Subclass 050 visa, including requiring that the holder must:

2.98 Further, during the period of the visa, there must be no material change in the circumstances on the basis of which it was granted.^[6]

2.99 In the case of a Subclass 070 visa, the instrument provides that the minister may impose four additional discretionary visa conditions, requiring that the holder must: remain at the same address; notify the department at least two days in advance of any change in address; not engage in criminal conduct; and/or notify the department within 14 days of any changes in personal contact information.^[7]

Summary of initial assessment

Preliminary international human rights legal advice

Rights engaged by imposing visa conditions
Right to liberty

2.100 The explanatory materials state that this measure strengthens the community placement options available to the minister when considering whether to release an individual from immigration detention in cases where the individual poses a risk to public safety.^[8] The statement of compatibility notes that the measure supports the management of non-citizens in the community wherever possible and helps to ensure immigration detention is used as a last resort.^[9] If this measure has the effect of facilitating the release of individuals from immigration detention, it would appear to promote the right to liberty. The right to liberty prohibits the arbitrary and unlawful deprivation of liberty.^[10] The notion of 'arbitrariness' includes elements of inappropriateness, injustice and lack of predictability. Accordingly, any detention must not only be lawful, it must also be reasonable, necessary and proportionate in all of the circumstances. Detention that may initially be necessary and reasonable may become arbitrary over time if the circumstances no longer require detention. In this respect, regular review must be available to scrutinise whether the continued detention is lawful and non-arbitrary. The right to liberty applies to all forms of deprivations of liberty, including immigration detention.

Rights to privacy, work, freedom of movement, freedom of assembly, freedom of association and freedom of expression

2.101 However, this measure may also engage and limit a number of other human rights. The discretionary conditions which may be imposed by the minister may include:

• requiring the provision of personal information (including the visa holder's name, address, phone number, email address, employment and online profile and user name);

2.102 Consequently, this instrument may engage and limit: the right to privacy; right to work; freedom of movement; freedom of assembly; freedom of association; and freedom of expression. The right to privacy prohibits arbitrary and unlawful interferences with an individual's privacy, family, correspondence or home.^[12] This includes a requirement that the state does not arbitrarily interfere with a person's private and home life, as well as the right to control the dissemination of information about one's private life.^[13] The right to work provides that everyone must be able to freely accept or choose their work, and includes a right not to be unfairly deprived of work.^[14] The right to freedom of movement includes the right to move freely within a country for those who are lawfully within the country.^[15] The right to freedom of expression includes the freedom to seek, receive and impart information and ideas of all kinds.^[16] The right to freedom of assembly protects the right of individuals and groups to meet and engage in peaceful protest and other forms of collective activity in public.^[17] The right to freedom of association protects the right of all persons to group together voluntarily for a common goal and to form and join an association.^[18] These rights may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.

Rights engaged by consequences for breach of a visa condition
Rights to liberty, rights of the child and criminal process rights

2.103 In addition, if a visa holder breaches a condition, their visa may be subject to cancellation action and they may be detained in immigration detention.^[19] While acknowledging the intent of the measure is to facilitate release from detention (noting that the additional conditions may increase the likelihood that the minister will exercise their existing discretionary powers under section 195A), as a matter of law, insofar as the consequence of a breach of a visa condition is detention in immigration detention, the instrument may also engage and limit the right to liberty. The consequence of detention following visa cancellation is of particular concern in relation to individuals who may have been rendered stateless, may not be accepted by another country, or have been found to engage Australia's protection obligations. This is because it gives rise to the prospect of prolonged or indefinite detention, noting that a person will be subject to mandatory immigration detention following visa cancellation.^[20] The UN Human Rights Committee has made clear that '[t]he inability of a state to carry out the expulsion of an individual because of statelessness or other obstacles does not justify indefinite detention'.^[21] Detention may become arbitrary in the context of mandatory detention where individual circumstances are not taken into account, and a person may be subject to a significant length of detention.^[22] In addition, where the measure applies to children, it may also engage and limit the rights of the child.^[23] Children have special rights under international human rights law taking into account their particular vulnerabilities.^[24] In the context of immigration detention, the UN Human Rights Committee has stated that:

2.104 Furthermore, return to detention as a consequence of breaching a visa condition may be construed as imposition of a criminal penalty for the breach, given the seriousness of that consequence. If this were the case, then this would engage the criminal process rights under articles 14 and 15 of the International Covenant on Civil and Political Rights. In assessing whether a penalty may be considered criminal, it is necessary to consider:

2.105 While the penalty is not classified as criminal under domestic law, this is not determinative as the term 'criminal' has an autonomous meaning in international human rights law. As to the nature and purpose of the penalty, it would apply to Subclass 050 and 070 visa holders rather than the public in general and appears likely to be intended to deter visa holders from engaging in specified conduct. Given that visa cancellation and detention in immigration detention, potentially for a protracted or even indefinite period, would result in a deprivation of liberty, there appears to be a risk that the consequences of breaching a visa condition may be so severe as to constitute a 'criminal' penalty for the purposes of international human rights law. If it were to be considered a 'criminal' penalty, this would mean that the relevant provisions,^[26] which empower the minister to cancel a visa and re-detain a person who has not complied with a visa condition, must be shown to be consistent with the criminal process guarantees set out in articles 14 and 15 of the International Covenant on Civil and Political Rights, including the right not to be tried twice for the same offence,^[27] and the right to be presumed innocent until proven guilty according to law.^[28]

2.106 As to the right to be presumed innocent until proven guilty according to law, this requires that the case against a person be demonstrated on the criminal standard of proof (beyond all reasonable doubt).^[29] However, the criminal standard of proof does not apply to visa cancellation powers under the Migration Act. If the minister is considering cancelling a visa under section 116 because a visa holder has not complied with their visa conditions, they must notify the holder that there appear to be cancellation grounds; give the holder particulars of those grounds; and invite the holder to show that the grounds do not exist or that there are reasons why the visa should not be cancelled.^[30] Even where such notification is provided to the visa holder and a tribunal decides that the cancellation ground does not exist or decides not to cancel the visa despite the existence of the ground, the minister may still set aside that tribunal decision and cancel the visa if they consider the ground exists, the visa holder has not satisfied the minister that the ground does not exist, and the minister considers it to be in the public interest to cancel the visa.^[31] As regards the minister's personal power to cancel a visa under section 133C(3), the minister may do so whether or not: the holder was notified of the cancellation grounds; the holder responded to any such notification; the tribunal decided that the ground did not exist or decided not to cancel the visa; or a delegate of the minister decided to revoke the visa cancellation.^[32] Having regard to these provisions, the standard of proof that applies to visa cancellation decisions does not appear to comply with the right to be presumed innocent or to the minimum guarantees in criminal proceedings (such as time to prepare a defence, right to be tried in person, present relevant witnesses and examine witnesses against them).

2.107 In order to fully assess the compatibility of this measure with human rights, further information is required, in particular:

Committee's initial view

2.108 The committee noted that the measure may promote the right to liberty to the extent that it may facilitate the release of individuals in immigration detention. However, the committee also noted that insofar as the additional conditions may require the provision of personal information, restrict engagement in certain activities or employment, or require a person not to communicate or associate with certain peoples or groups, the measure also engages and limits a number of other rights. The consequence of a visa holder breaching a condition, including visa cancellation and detention, may also engage and limit rights.

2.109 The committee considers there were questions as to whether some of the conditions meet the minimum requirements of legal certainty and foreseeability, whether the measure addresses a pressing and substantial concern for the purposes of international human rights law, and whether it is proportionate and so sought the minister's advice as to the matters set out at paragraph [2.107].

Minister's response^[33]

• would be the reason, or part of the reason, for making the original decision; and

Concluding comments

International human rights legal advice

Multiple rights

2.112 As noted in the preliminary analysis, while the ability to impose additional visa conditions on those granted bridging visas may promote the right to liberty to the extent that it provides an alternative to detention, it also engages and limits multiple other human rights.^[34] These rights may be subject to permissible limitations where the limitation is prescribed by law; pursues a legitimate objective; is rationally connected to that objective; and is a proportionate means of achieving that objective.

2.113 To meet the quality of law test, the measure must be sufficiently certain and accessible, such that visa holders understand the legal consequences of their actions or the circumstances under which authorities may restrict the exercise of their rights.^[35] In other words, the regulations should satisfy the minimum requirements of legal certainty and foreseeability, whereby the precise circumstances in which interferences with rights may be permitted are clearly specified.^[36] In this regard, it is relevant to consider how the additional conditions, many of which are drafted in broad and ambiguous terms, are likely to be interpreted, applied and enforced in practice.

2.114 The minister stated that the conditions are sufficiently certain and reasonably foreseeable, advising that the visa holder is provided with a visa grant notification that includes the list of visa conditions that have been imposed and the Department provides the individual with an explanation of the conditions and common examples of breaches of those conditions. The minister stated that an interpreter can be provided as required and the individual may seek further clarification and information from the Department where necessary. The individual can also access the Department's Visa Entitlement Verification Online system to check which conditions are attached to their visa. As regards when and on what basis the minister would be satisfied that a visa condition has been breached, the minister referred to a High Court case that the requisite 'satisfaction' to cancel a visa is a state of mind formed reasonably and on a correct understanding of the law.^[37] The minister stated that an administrative decision-maker is obliged to make decisions that are based on logically probative material and arrived at in a logical or rational way.

2.115 Where the minister is satisfied that a visa condition has been breached, the minister advised that public safety is a primary consideration in deciding when to exercise the discretion to cancel the visa. Visa cancellation would be considered, for example, where the minister formed the view that allowing the non-citizen to remain in the community may present an unacceptable risk to public safety. The minister advised that the best interests of the child would also be a primary consideration if a child was to be affected by the decision. More specifically, the minister stated that in deciding to cancel a visa under paragraph 116(1)(b) of the Migration Act, the minister or their delegate would weigh up the available evidence, including matters that weighed against visa cancellation, such as, the purpose of the Bridging visa, past compliance with visa conditions, degree of hardship to the visa holder and their family members and Australia's international obligations. In relation to the minister's personal power to cancel a visa under subsection 133C(3), the minister stated that they must be satisfied a ground for visa cancellation under section 116 exists and it would be in the public interest to cancel the visa. The minister noted that the public interest test reflects the threshold at which it is appropriate that a visa cancellation decision may be made without notice to the individual. In deciding whether to cancel a visa under subsection 133C(3), the minister stated that they are informed by evidence and information provided by the Department.

2.116 Given that some additional conditions are drafted in particularly broad and imprecise terms, further information was also sought from the minister as to how these conditions would likely be interpreted and applied in practice. In particular, the minister advised that condition 8564, which states that the visa holder must not engage in criminal conduct, could be breached if the individual was arrested or charged with, but not yet convicted of, a criminal offence, as this may indicate

non-compliance, and that consideration of visa cancellation may be warranted. The minister stated that this condition is intended to encourage compliance with reasonable standards of behaviour. The minister reiterated that it is a privilege and not a right for a non-citizen who is granted a visa by the minister in the public interest to be allowed to live in the community while their immigration status is being resolved. Regarding condition 8303, which states that the visa holder must not become involved in activities disruptive to the Australian community, the minister advised that the right to peaceful and lawful protest would not be affected by this condition. Rather, the condition is intended to capture activities which constitute adverse behaviours within the community but which are not necessarily subject to criminal sanctions, such as public 'hate speech' and online vilification of groups with protected attributes. In practice, the minister noted that where a visa holder expresses an opinion or engages in an activity that attracts strong disagreement and condemnation from the Australian community, the community's views would be considered in assessing the extent to which those particular activities or opinions vilify a part of the community. Further, the minister noted that conviction of a criminal offence is not required for non-compliance with condition 8303, although in the absence of a conviction, the minister would require reasonable evidence indicating non-compliance.

2.117 The visa grant notification and information provided by the Department to the visa holder regarding the conditions attached to their visa may assist the individual to understand what is expected of them and in what circumstances a breach is likely to occur in relation to certain conditions. However, noting that much will depend on how this process operates in practice, it remains unclear whether this process would be sufficient to provide visa holders with legal certainty and foreseeability in relation to all conditions such that they will understand the legal consequences of their actions, including when a breach is likely to occur and in what circumstances the minister would elect to exercise their discretion to cancel a visa. For example, in relation to condition 8303, while the minister clarified that peaceful and lawful protest would not constitute a 'disruptive' activity, it remains ambiguous as to what activities would be considered 'disruptive'. The minister's response suggests that behaviours that are inconsistent with government and community expectations may be considered disruptive. The minister noted that community views would be relevant in assessing whether certain activities, behaviours or opinions expressed were inconsistent with community expectations.

2.118 The concept of community expectations is vague and open-ended and could therefore encompass a broad range of behaviours and activities. Community expectations are also generally diverse and dynamic, which may make it difficult for visa holders to foresee the consequences of a given action and regulate their conduct accordingly. Foreseeability is particularly important in this context as the consequences of breaching a condition may be severe (involving the loss of liberty). The circumstances in which the minister may elect to exercise their discretion to cancel a visa is therefore relevant in this regard. The minister's response provides some guidance as to the matters that may be considered in exercising the discretion, including public safety, the best interests of the child, the degree of hardship to the visa holder and international obligations. However, these matters are not provided for in the legislation and in the absence of any legislative guidance, there remain concerns that the scope of the minister's discretion and the manner of its exercise are not reasonably clear. For these reasons, concerns remain that as currently drafted, the regulations may not meet the quality of law test as it is not clear that all the additional conditions satisfy the minimum requirements of legal certainty and foreseeability.

2.119 The preliminary analysis noted that while the objectives of protecting public safety and strengthening community placement options are generally capable of constituting a legitimate objective, questions remain as to whether the measure addresses a pressing and substantial concern for the purposes of international human rights law. The public safety risk posed by individuals in immigration detention and the manner in which this risk is assessed are relevant considerations in determining whether the measure addresses a pressing and substantial public concern. The minister advised that the risk assessment would be done on a case by case basis, noting that some individuals may present a risk to the community because of their background. The minister states that it is not suggested that Subclass 050 and Subclass 070 visa holders as a cohort pose a risk to public safety and notes that it is government policy that additional visa conditions will only be imposed on those individuals who pose a risk to public safety. Factors that may indicate that an individual is of high risk include criminal history, behavioural concerns or previous non-compliance. The minister states that without the additional conditions, high risk individuals may not have been granted a visa due to community protection risks. The minister explains that having access to additional discretionary conditions provides a more robust community-based alternative to immigration detention and provides the minister with greater confidence to release individuals who pose a risk to public safety from immigration detention.

2.120 Based on the minister's advice that the additional visa conditions will only be imposed on those who may pose a risk to public safety, and noting that in the absence of additional conditions such persons would remain in detention, it would appear that this measure seeks to address a substantial and pressing concern.

2.121 As regards whether the measure is rationally connected to the stated objectives, as noted in the preliminary analysis, insofar as the measure provides the minister with the discretion to impose additional, stricter conditions on individuals who pose a risk to public safety, thereby assisting the department to monitor such individuals and mitigate any public safety risk, the measure would appear to be rationally connected to the stated objectives.

2.122 In assessing whether the measure is proportionate, it is necessary to consider a number of matters, including: whether the proposed limitation is sufficiently circumscribed; whether any less rights restrictive alternatives could achieve the same stated objective; whether the measure is accompanied by adequate safeguards and oversight and review mechanisms; whether the measure provides sufficient flexibility; and the extent of any interference with human rights.

2.123 Noting the breadth of the measure, including the lack of precise criteria as to how public safety risk is assessed and the failure to articulate circumstances in which conditions will be imposed, the preliminary analysis raised concerns that the measure may not be sufficiently circumscribed. In this regard, it is relevant to consider how a risk to public safety is assessed and the factors considered by the minister in determining which conditions to impose. The minister advised that the public safety risk is assessed on a case by case basis (as discussed in paragraph [2.119]) and the factors considered in determining which conditions to impose will depend on the circumstances of the case as well as the criminal or security history and profile of the particular individual. The minister stated that they are supported by a comprehensive submission from the Department, which includes the individual's biodata, immigration history, health, identity, character and removal issues. The minister stated that these submissions set out the risks and intervention options available to the minister under section 195A. The minister noted that the intervention powers under section 195A are used in a relatively small number of cases that present unique and exceptional or compelling and compassionate cir[38]mstances.³⁸ The minister further stated that the discretionary nature of the additional conditions allows the minister to consider the individual's circumstances and impose any condition available for that subclass of visa that the minister considers appropriate.

2.124 The minister's response provides some guidance as to how public safety risk is assessed and what factors may be considered in deciding which conditions to attach to a visa. As the imposition of conditions is discretionary, there is flexibility to treat different cases differently, having regard to the individual circumstances of each case.^[39] The UN High Commissioner for Refugees has urged States to closely consider the circumstances of particular vulnerable groups, such as children or people with disability, in designing alternatives to detention.^[40] To the extent that the measure allows the minister to consider the individual circumstances of detainees in deciding whether to grant a visa and attach conditions to that visa, the measure appears to provide flexibility to treat different cases differently. Depending on how it is exercised in practice, this flexibility may assist with proportionality. However, where a measure confers broad discretion on the executive, the scope of discretion and manner of its exercise should be sufficiently precise.^[41] While the minister's response and explanatory materials provide some guidance as to how the minister's discretion may be exercised, these matters are not set out in the legislation itself. Given the breadth of the measure and lack of legislative guidance, there remain concerns that the measure may not be sufficiently circumscribed.

2.125 As regards when additional conditions are likely to be imposed, the minister advised that it is government policy that the additional conditions will not be imposed on visas where the individual has a history of compliance with Australian laws and where no character concerns have previously been raised. The minister noted that there is no level of legislative control in relation to when conditions may be imposed, although there is some legislative control as to which conditions may be imposed on different applicants. Noting the stated intention to impose conditions only in high risk cases and, in relation to conditions that limit privacy, only where it is considered that there is no less rights restrictive way of achieving the objective, it remains unclear why this intention is not reflected in the legislation. The minister's response did not address this issue clearly, stating that the policy-based approach to the imposition of discretionary visa conditions has been in place since 1994. Where a measure limits a human right, discretionary safeguards alone may not be sufficient for the purposes of international human rights law.^[42] This is because discretionary safeguards are less stringent than the protection of statutory processes and can be amended or removed at any time. Without a legislative requirement to apply conditions only to individuals who pose a real risk to public safety and to apply the minimum conditions necessary to mitigate that risk, such assurances in the statement of compatibility and the minister's response would appear to be insufficient to guarantee that the discretionary powers will be exercised in the least rights restrictive manner.

2.126 In addition, the minister states that the availability of discretionary conditions facilitates the release of individuals from detention as without this more robust community-based alternative, those individuals would remain in detention due to the risk they pose to the public order and national security. However, as noted in the preliminary analysis, the fact that the granting of Subclass 050 or 070 visas subject to conditions is a less rights restrictive alternative to mandatory detention is not a sufficient safeguard to ensure that the conditions imposed on such visas are the minimum necessary and least invasive or coercive means of mitigating the public safety risk.

2.127 As regards the possibility of oversight and the availability of review, the minister advised that depending on the circumstances of the visa cancellation, such as the location of the visa holder and the cancellation ground used, the decision may be subject to merits review in the Administrative Appeals Tribunal (AAT). The minister advised that in general, individuals who have had their visa cancelled due to non-compliance with a visa condition would be able to seek merits review of that cancellation decision. The minister stated that migration decisions are also generally subject to judicial review. Regarding the decision to impose discretionary conditions on a visa under section 195A, the minister stated that there is a judicial pathway through the constitutional writs.

2.128 As stated in the preliminary analysis, the minister's powers to grant a visa under section 195A of the Migration Act and impose the additional conditions set out in this instrument are discretionary, non-compellable and non-reviewable powers, and they do not attract the requirement of procedural fairness.^[43] There is therefore no independent oversight of the exercise of the minister's discretionary powers to impose conditions on discretionary visas. While the minister advised that the judicial pathway of constitutional writs is available in relation to the minister's decision to impose conditions, it is unclear how accessible and effective this review mechanism would be in practice. While the minister states that generally visa cancellation decisions made on the basis of non-compliance with a visa condition are subject to merits review, it would appear that this may not be the case for many individuals to whom this measure applies. This is because section 388 of the Migration Act provides that a decision to cancel a visa held by a non-citizen who is in the migration zone at the time of the cancellation is a reviewable decision unless the decision was made under section 133C or made personally by the minister under section 116.^[44] Under sections 116 and 133C, the minister has a general and personal power to cancel a visa held by a person if they are satisfied that the person has not complied with a visa condition and, under subsection 133C(3), if they are satisfied it would be in the public interest.^[45] As such, where a visa holder breaches a discretionary condition and consequently a decision is made personally by the minister to cancel their visa under sections 116 or 133C, that decision is not subject to merits review.^[46] The minister's response did not clarify whether a decision made by a delegate of the minister to cancel a visa under section 116 would be reviewable.^[47] It is also noted that a decision will not be subject to merits review if the minister issues a conclusive certificate on the basis that it would be contrary to the national interest to change the decision or for the decision to be reviewed.^[48]

2.129 The committee has previously concluded that judicial review without merits review is unlikely to be sufficient to fulfil the international standard required of effective review.^[49] This is because judicial review is only available on a number of restricted grounds and does not allow the court to conduct a full review of the facts (that is, the merits), as well as the law and policy aspects of the original decision to determine whether the decision is the correct or preferable decision.^[50] While judicial review is available with respect to the lawfulness of administrative decisions made under the Migration Act, there are serious concerns that, in the absence of merits review, this is not effective in practice to allow the individual to challenge the decision in substantive terms and so does not appear to assist with the proportionality of this measure.

2.130 As to the possibility of oversight, the minister stated that where an individual has their visa cancelled due to non-compliance with a visa condition and they are detained in immigration detention, the Department has an internal assurance framework in place and external oversight is required under the Migration Act, including by the Commonwealth Ombudsman and the Australian Human Rights Commission. While the possibility of oversight by these bodies may, more generally, serve as a safeguard against arbitrary and unlawful detention, it does not appear to operate as an oversight mechanism in relation to the imposition of discretionary conditions on a visa, and so does not appear to assist with the proportionality of this specific measure.^[51]

2.131 Finally, as discussed in the preliminary analysis, the extent of any interference with human rights is a relevant consideration in assessing proportionality, noting that the greater the interference, the less likely the measure is to be considered proportionate. Depending on the nature of the visa conditions imposed and the length and conditions of detention (since breaching a visa condition may lead to visa cancellation and immigration detention), this measure may result in a significant interference with human rights. This is especially so where the consequence of breaching a condition is visa cancellation and detention. For Subclass 070 visa holders, there is a particular risk of indefinite detention if their visa is cancelled because removal of such persons from Australia may not be not reasonably practicable.^[52] The preliminary analysis particularly raised concerns about the risk of indefinite detention for Subclass 070 visa holders who are owed protection obligations and therefore cannot be removed from Australia but are ineligible for a grant of a visa and are therefore subject to ongoing immigration detention while they await removal. The minister noted that Subclass 070 visas are not only granted to non-citizens who have been found to engage Australia's international obligations. However, concerns remain that without any legislative maximum period of detention under the Migration Act and an absence of effective safeguards to protect against arbitrary detention, there is a real risk that detention may become indefinite, particularly where removal of the person from Australia is unlikely to occur in the reasonably foreseeable future. Where a measure results in the indefinite detention of certain persons, it would not appear to be proportionate.^[53]

2.132 While the ability to impose additional visa conditions on those granted bridging visas may promote the right to liberty to the extent that it provides an alternative to detention, it also engages and limits multiple other rights. There appears to be a risk that as currently drafted, the regulations may not meet the quality of law test. While the visa grant notification and information provided by the Department to the visa holder regarding their visa conditions may assist them to understand what is expected of them and in what circumstances a breach is likely to occur, noting that much will depend on how this process operates in practice, it remains unclear whether this process would be sufficient to provide visa holders with legal certainty and foreseeability in relation to all conditions. As regards the objective pursued, the objectives of protecting public safety and strengthening community placement options may be capable of constituting a legitimate objective. In particular, for the cohort of individuals who are assessed as posing a high risk to public safety, the provision of alternative detention options to facilitate their release would appear to address a substantial and pressing concern. The measure would also appear to be rationally connected to these objectives.

2.133 As regards proportionality, while there is flexibility to treat different cases differently, the breadth of the minister's discretion and the lack of legislative guidance as to the scope of the discretion and manner of its exercise raise concerns that the measure may not be sufficiently circumscribed. The measure does not appear to be accompanied by sufficient safeguards, noting that discretionary safeguards and assurances alone are unlikely to be sufficient. While judicial review is available, in the absence of merits review, this does not appear to assist with the proportionality of this measure. Finally, the measure has the potential to significantly interfere with rights and, in the absence of sufficient safeguards and access to review, such interferences are less likely to be considered proportionate. For these reasons, there may be a significant risk that the measure impermissibly limits multiple human rights.

Committee view

2.134 The committee thanks the minister for this response. The committee notes that the instrument permits the minister to impose a range of additional discretionary conditions on Subclass 050 (Bridging (General)) and Subclass 070 (Bridging (Removal Pending)) visas, where the visa is granted to a detainee by the minister exercising their personal power.

2.135 The committee notes that the measure may promote the right to liberty to the extent that it may facilitate the release of individuals in immigration detention. However, the committee also notes that insofar as the additional conditions may require the provision of personal information, restrict engagement in certain activities or employment, or require a person not to communicate or associate with certain peoples or groups, the measure also engages and limits a number of other rights. The consequence of a visa holder breaching a condition, including visa cancellation and detention, may also engage and limit rights. These rights may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.

2.136 The committee notes that while the measure is prescribed by law, there are concerns that it may not meet the quality of law test. The committee notes the minister's advice that visa holders are notified of their visa conditions and so visa holders are assisted to understand what is expected of them and in what circumstances a breach is likely to occur. While this may assist somewhat with legal certainty and foreseeability, the committee notes that as much will depend on how this process operates in practice, it remains unclear whether this is sufficient to provide visa holders with legal certainty and foreseeability in relation to all conditions such that they will understand the legal consequences of their actions.

2.137 Regarding the objective pursued by the measure, the committee considers that protecting public safety and strengthening community placement options for high risk detainees is a legitimate objective, and the measure is rationally connected to this objective.

2.138 However, the committee remains concerned that the measure may not be proportionate to the objectives sought to be achieved. The committee notes that while there is flexibility to treat different cases differently, the breadth of the minister's discretion raises concerns that the measure may not be sufficiently circumscribed. Regarding the existence of safeguards, the committee notes that discretionary safeguards and assurances alone are unlikely to be sufficient to guarantee that discretionary powers will always be exercised consistently with human rights. While judicial review is available, in the absence of merits review, the committee considers that these review mechanisms may not assist with the proportionality of this measure. Finally, the committee notes that the measure has the potential to significantly interfere with rights (noting that breach of a visa condition could lead to a person being removed to potentially lengthy immigration detention) and, in the absence of sufficient safeguards and access to review, such interreferences are less likely to be considered proportionate. For these reasons, the committee considers that there may be a significant risk that the measure impermissibly limits multiple human rights.

2.141 The committee draws these human rights concerns to the attention of the minister and the Parliament.

Code of behaviour

2.142 Before exercising the power under section 195A of the Migration Act to grant a Subclass 070 visa (that is, a bridging visa pending the person's removal from Australia), the minister will decide whether a code of behaviour must be signed by the non-citizen (unless they have already signed the code of behaviour in relation to a previous visa grant).^[54] If the code of behaviour is signed, then the regulations confer discretion on the minister to attach condition 8566 to Subclass 070 visa, which requires the visa holder to not breach the code.^[55] The code of behaviour requires that a person comply with certain expectations, including:

2.143 The consequences of breaching the code may include reduction of income support or visa cancellation and subsequent return to immigration detention, including potential transferral to an offshore processing centre.^[57]

Summary of initial assessment

Preliminary international human rights legal advice

Multiple rights

2.144 The requirements in the code of behaviour may engage and limit the rights to freedom of expression and assembly (as outlined above at paragraph [2 [58]]).⁵⁸ They may also engage and limit the right to a private life, which requires the state to not arbitrarily interfere with a person's private and[59]ome life.⁵⁹ Requiring that a person must undergo medical treatment engages and may limit the right to privacy, which includes the right to personal autonomy and physical and psychological integrity, and protects against compulsory [60]ocedures.⁶⁰ To the extent that this requirement has a disproportionate impact on people with disability, it may also engage and limit the rights of persons with disability, particularly the rights to equality and

non-discrimination and equal recognition before the law; the right to respect for a person's physical and mental integrity; the right to consent to medical treatment; and the right to be free from involuntary detention in a mental health facility and not to be forced to undergo mental health[61]reatment.⁶¹ The Committee on the Rights of Persons with Disabilities has emphasised that prior to the provision of medical treatment or health care, health and medical professionals must obtain the free and informed consent of persons with di[62]bilities.⁶² Consent should be obtained through appropriate consultation and not as a result of undue[63]nfluence.⁶³ As drafted, the code of behaviour requires a person not to refuse to comply with any health treatment for a health condition for public health purposes. Refusal to comply with this requirement will constitute a breach of the code, which may result in a reduction of social security payments or visa cancellation and[64]etention.⁶⁴ While the requirement to comply with health treatment may not necessarily result in forced medical treatment without consent, the severe consequences of refusing to comply (such as deprivation of liberty) raises questions as to whether consent to health treatment in this context is genuinely free and not the result of undue[65]nfluence.⁶⁵

2.145 In addition, to the extent that breach of the code results in the reduction of social security payments or the cancellation of an individual's visa and their return to immigration detention, the measure also engages and limits the right to liberty and the rights of the child (as outlined above at paragraph [2.103]), criminal process rights (as outlined above at paragraphs [2.104] to [2.106]) and the right to social security. The right to social security recognises the importance of adequate social benefits in reducing the effects of poverty and plays an important role in realising many other economic, social and cultural rights, in particular the right to an adequate standard o[66]living and the right to health.⁶⁶ The UN Committee on Economic, Social and Cultural Rights has noted that social security benefits must be adequate in amount and duration having regard to the principles of huma[67]dignity and non-discrimination.⁶⁷ It has stated that the adequacy of social security 'should be monitored regularly to ensure that beneficiaries are able to afford the goods and services they requir[68] to realise other human rights.⁶⁸

2.146 In order to fully assess the compatibility of this measure with human rights, further information is required, in particular:

Committee's initial view

2.147 The committee noted that the requirements in the code of behaviour and the consequences of breaching the code may engage and limit a number of rights, including the rights to privacy, liberty, social security and adequate standard of living, freedom of expression and assembly, rights of people with disability and criminal process rights.

2.148 The committee noted that while the measure is prescribed by law, it is unclear whether it meets the quality of law test because the expectations set out in the code are drafted in broad and imprecise terms and the consequences of breaching the code are not clear. While the general objectives of protecting public safety and strengthening community placement options may be capable of constituting a legitimate objective, the committee had questions as to whether the measure addressed a pressing and substantial concern for the purposes of international human rights law. The committee also raised concerns that the measure may not be proportionate and therefore compatible with multiple rights. As such, the committee sought the minister's advice as to the matters set out at paragraph [2.146].

Minister's response

Concluding comments

International human rights legal advice

Multiple rights

2.151 The preliminary analysis noted that in requiring a person to comply with certain expectations set out in the code of behaviour, the measure engages and limits the rights to freedom of expression and assembly, the right to privacy and a private life, and to the extent that it has a disproportionate impact on people with disability, the rights of persons with disability. To the extent that breach of the code results in the reduction of social security payments or the cancellation of an individual's visa and their return to immigration detention, the preliminary analysis noted that the measure also engages and limits the right to liberty, the rights of the child, criminal process rights and the right to social security. Regarding the latter, the minister advised that a reduction of income support would not be a potential consequence for breaching the code of behaviour for Subclass 070 visa holders. This is because this class of visa holders is not eligible for financial assistance under the Status Resolution Support Services Program, which is administered by the Department. The minister stated that instead, Subclass 070 visa holders may be eligible for Special Benefit payments, which is administered by Services Australia as opposed to the Department, and therefore not within the scope of the sanctions provided for by the code of behaviour for Subclass 070 visa holders subject to condition 8566. On the basis that a reduction of income support is not a consequence of breaching the code of behaviour, it appears that the right to social security is not limited by this measure.

2.152 The other rights engaged and limited by this measure may be subject to permissible limitations where the limitation is prescribed by law, pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.

2.153 Interferences with human rights must have a clear basis in law and satisfy the 'quality of law' test,^[69] such that people understand the legal consequences of their actions or the circumstances under which authorities may restrict the exercise of their rights.^[70] The preliminary analysis noted that the expectations in the code of behaviour are drafted in broad and ambiguous terms, which raises concerns that the measure may not be sufficiently precise to enable visa holders to understand what is expected of them and to foresee the consequences of their actions. A relevant consideration in this regard is the standard of proof that must be met in order for the minister to be satisfied that the code of behaviour has been breached, and the circumstances in which the minister will elect to exercise their discretion to take visa cancellation action.

2.154 The minister advised that by signing and agreeing to abide by the code of behaviour, visa holders are actively acknowledging their agreement to abide by this list of community expectations, with the understanding that non-compliance may result in the visa being cancelled. The minister stated that the minister or their delegate may exercise their discretion to cancel a visa for non-compliance with the code of behaviour after weighing up the available evidence, including matters that may weigh against the cancellation of the visa, such as past compliance with visa conditions, degree of hardship to the non-citizen and their family, the best interests of the child and international protection obligations. The minister stated that the decision to cancel a visa will be based on the individual merits of each case, including the severity of the offence or conduct.

2.155 It is acknowledged that by signing the code of behaviour, visa holders may understand, at a broad level, the expectations set out in the code of behaviour and that a breach of these expectations could result in visa cancellation. However, noting the vague and open-ended nature of these expectations, which potentially encompass a broad range of behaviours and activities, there may still be uncertainty as to what activities or behaviour could result in a breach of the code of behaviour. In order to satisfy the requirements of legal certainty and foreseeability, the measure must enable visa holders 'to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail and to regulate their conduct'.^[71] An understanding of the circumstances in which the minister may elect to exercise their discretion to cancel a visa is therefore relevant in this regard. The minister's response provides some guidance as to the matters that may be considered in exercising this discretion. However, these matters are not provided for in the legislation and in the absence of any legislative guidance, there remain concerns that the scope of the minister's discretion and the manner of its exercise are not reasonably clear. As noted by the UN Human Rights Committee, laws should not confer 'unfettered discretion on those charged with their execution' and should indicate 'with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities'.^[72] Noting the breadth of the minister's discretion and the vague and open-ended nature of the expectations set out in the code of behaviour, there appears to be a risk that the code of behaviour may not satisfy the minimum requirements of legal certainty and foreseeability.

2.156 As to the objective being pursued, the minister states that the availability of condition 8566 will improve the minister's intervention options for managing unlawful non-citizens in the community, noting that without this condition, these persons may not have been released from immigration detention due to community protection risks. The minister states that discretionary conditions, including condition 8566, are intended to promote understanding and compliance with community expectations and provide a level of assurance to the minister, the government and the broader community that these visa holders are aware of these expectations. The objective being pursued by this measure appears to be broadly similar to the objectives sought to be achieved by the imposition of additional, discretionary conditions (as outlined above at paragraph [2.119]–[2.120]). Noting the additional conditions set out above, as well as the already expansive powers under the Migration Act to respond to public safety risks, the preliminary analysis raised questions as to why these existing provisions are insufficient to manage any public safety risk posed by Subc[73]ss 070 visa holders.⁷³ The minister advised that these existing provisions are ordinarily sufficient to manage public safety risks but they may result in visa cancellation and detention in immigration detention. The minister explained that the purpose of the measure is therefore to strengthen community placement options for high risk individuals, which protects the community as well as addresses the risks associated with long-term detention.

2.157 In general terms, as discussed at paragraph [2.119], the objectives of protecting public safety and strengthening community placement options may be capable of constituting legitimate objectives for the purposes of international human rights law. For the cohort of individuals who are assessed as high risk, the provision of alternative detention options to facilitate their release would appear to address a substantial and pressing concern. On the basis that the existing cancellation powers under the Migration Act result in long-term detention of individuals as a result of visa cancellation, to the extent that this measure strengthens community placement options and increases the likelihood of high risk individuals being managed in the community instead of in immigration detention, this measure appears to address a necessary social concern. To the extent that the requirement to comply with the code of behaviour mitigates any public safety risk and facilitates the release of individuals from immigration detention, the measure appears to be rationally connected to the objectives of strengthening community placement options and protecting the community.

2.158 In considering the proportionality of the code of behaviour, the proportionality analysis above in relation to the additional conditions (at paragraphs [2.122] to [2.131]) is highly relevant. There remain similar concerns that the measure may not be sufficiently circumscribed. As discussed above (at paragraphs [2.153] to [2.155]), the expectations are drafted in broad and ambiguous terms, which may make it difficult for visa holders to reasonably foresee the consequences of a given action, and the minister has a broad discretion to cancel a visa based on the individual merits of each case. While the breadth of the minister's discretion provides flexibility to treat different cases differently, in the absence of the scope of the discretion and the manner of its exercise being sufficiently precise, there remain concerns that the measure may not be sufficiently circumscribed.

2.159 As to the existence of safeguards, the minister advised that the additional discretionary conditions, including the code of behaviour, are not intended to be imposed on visas where the individual has a history of compliance with Australian laws and where there are no character concerns. The minister stated that it is government policy that condition 8566 (to not breach the code of conduct) will only be imposed on Subclass 070 visa holders who pose a risk to public safety. In this way, the minister explains that the measure improves options for managing these individuals in the community, thereby protecting the Australian community while addressing the risks associated with long-term detention. However, as noted in the preliminary analysis, the fact that the granting of a Subclass 070 visa with the code of behaviour and related conditions attached is a less rights restrictive alternative to ongoing detention does not assist with the proportionality of this specific measure, noting the UN High Commissioner for Refugees' recommendation that alternatives to detention must observe the principle of minimum intervention and be the least invasive or coercive means of achieving the objective.^[74] This principle should also be observed in relation to the consequences of breaching the code. Further, as discussed at paragraph [2.125], while the policy intention is to only impose the code of behaviour on high risk individuals, this is not a legislative requirement and in the absence of this, discretionary safeguards alone are unlikely to be sufficient to ensure that the minister's discretionary powers are exercised consistently with human rights.

2.160 Further, as noted in the preliminary analysis, there is limited access to review. While judicial review is available for decisions relating to visa cancellation, as discussed at paragraph [2.129], merits review does not seem to be available. As regards the possibility of oversight, the minister advised that for individuals who have had their visa cancelled and are detained in immigration detention, their detention would be subject to a range of existing internal assurance processes and external oversight by scrutiny bodies. The minister further stated that the minister has the ability to grant the individual a visa under section 195A if it is considered in the public interest to do so. As discussed at paragraph [2.130], the possibility of external oversight could, more generally, serve as a safeguard against arbitrary and unlawful detention. However, it does not appear to operate as an oversight mechanism in relation to the code of behaviour specifically, and so does not appear to assist with the proportionality of this measure. Further, noting the infrequent use of the minister's discretionary powers to grant a visa under section 195A in practice and the consequent protracted length of time non-citizens spend in immigration detention (with the majority of non-citizens currently in immigration detention having spent over five years in detention), the minister's discretionary powers under section 195A have not, to date, appeared to operate as a safeguard in rel[75]ion to this measure.⁷⁵

2.1 Insofar as the measure requires a person to comply with certain expectations as set out in the code of behaviour, and failure to do so may result in the cancellation of an individual's visa and their detention in immigration detention, the measure engages and limits multiple rights. Noting the breadth of the minister's discretion to cancel a visa and the vague and open-ended nature of the expectations set out in the code of behaviour, there appears to be a risk that the code of behaviour may not meet the quality of law test. The general objectives of protecting public safety and strengthening community placement options may be capable of constituting legitimate objectives for the purposes of international human rights law. To the extent that the requirement to comply with the code of behaviour mitigates any public safety risk and facilitates the release of individuals from immigration detention, the measure appears to be rationally connected to these objectives. However, there remain concerns that the measure may not be proportionate, noting that it may not be sufficiently circumscribed; it appears to be only accompanied by discretionary safeguards, which alone may not be sufficient; and there is limited access to review and oversight. The concerns raised in relation to the proportionality of the additional discretionary conditions (at paragraphs [2.132] to [2.133]) are relevant to this measure. For these reasons, there may be a significant risk that this measure impermissibly limits multiple rights.

Committee view

2.161 The committee thanks the minister for this response. The committee notes that the measure would allow the minister to require a Subclass 070 visa holder to sign a code of behaviour and attach condition 8566 to that visa, which requires the visa holder to not breach the code. The code may require the visa holder to comply with certain expectations, including not engaging in any anti-social or disruptive activities that are inconsiderate or disrespectful. The consequences of breaching the code may be visa cancellation and detention in immigration detention.

2.162 The committee notes that the requirements in the code of behaviour and the consequences of breaching the code may engage and limit a number of rights, including the rights to privacy and liberty, freedom of expression and assembly, rights of people with disability and criminal process rights. These rights may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.

2.163 The committee notes that while the measure is prescribed by law, there appears to be a risk that the code of behaviour may not meet the quality of law test because of the breadth of the minister's discretion to cancel a visa and the vague and open-ended nature of the expectations set out in the code of behaviour. The committee considers that the general objectives of protecting public safety and strengthening community placement options may be capable of constituting legitimate objectives for the purposes of international human rights law. The committee considers that, to the extent that the requirement to comply with the code of behaviour mitigates any public safety risk and facilitates the release of individuals from immigration detention, the measure appears to be rationally connected to these objectives. However, the committee remains concerned that the measure may not be proportionate, noting that it may not be sufficiently circumscribed; appears to be only accompanied by discretionary safeguards, which alone may not be sufficient; and there is limited access to review and oversight. The concerns raised by the committee in paragraph [2.138] in relation to the proportionality of the additional discretionary conditions are relevant in the context of this measure. For these reasons, the committee considers that there may be a significant risk that this measure impermissibly limits multiple rights.

2.166 The committee draws these human rights concerns to the attention of the minister and the Parliament.

[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Migration Amendment (Bridging Visa Conditions) Regulations 2021 [F2021L00444], Report 6 of 2021; [2021] AUPJCHR 86.

[2] In the event of any change to the Senate or House's sitting days, the last day for the notice would change accordingly.

[3] Parliamentary Joint Committee on Human Rights, Report 7 of 2020 (16 June 2021), pp. 50-74.

[4] A Subclass 050 visa allows a person to remain lawfully in Australia while they make arrangements to leave, finalise their immigration matter, or wait for an immigration decision. See, https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/bridging-visa-e-050-051 (accessed 4 May 2021).

[5] Schedule 1, item 2, subclause 050.616A(1).

[6] Schedule 1, item 2, subclause 050.616A(1).

[7] Schedule 1, item 5, subclause 070.612.

[8] Explanatory statement, p. 1; statement of compatibility, p. 4.

[9] Statement of compatibility, p. 12.

[10] International Covenant on Civil and Political Rights, article 9.

[11] Statement of compatibility, pp. 4–9.

[12] UN Human Rights Committee, General Comment No. 16: Article 17 (1988) [3]-[4].

[13] The UN Human Rights Committee further explains that this right is required to be guaranteed against all such interferences and attacks whether they emanate from State authorities or from natural or legal persons. General Comment No. 16: Article 17 (1988).

[14] International covenant on Economic, Social and Cultural Rights, articles 6–7. See also, UN Committee on Economic, Social and Cultural Rights, General Comment No. 18: the right to work (article 6) (2005) [4].

[15] International Covenant on Civil and Political Rights, article 12.

[16] International Covenant on Civil and Political Rights, article 19(2).

[17] International Covenant on Civil and Political Rights, article 21, UN Human Rights Committee, General Comment No 25: Article 25 (Participation in public affairs and the right to vote) [8]. The Committee notes that citizens take part in the conduct of public affairs, including through the capacity to organise themselves.

[18] International Covenant on Civil and Political Rights, article 22.

[19] Migration Act 1958, subsections 116(1)(b) and 133C(3). The explanatory statement at p. 14 notes that breach of a visa condition may provide a basis for cancellation of the visa under subsection 116(1)(b). This may include visa cancellation by the Minister acting personally under subsection 133C(3), if the minister considered it was in the public interest to do so. Visa cancellation results in a person being classified as an unlawful non-citizen, and subject to mandatory immigration detention under section 189. See also statement of compatibility, p. 4. The human rights implications of visa cancellation, including on character grounds, has been considered by the committee previously, see, Parliamentary Joint Committee on Human Rights, Nineteenth report of the 44^th Parliament (3 March 2015) pp. 13–28; Thirty-fourth report of the 44^th Parliament (23 February 2016) pp. 29–65; Report 7 of 2016 (11 October 2016) pp. 89–92.

[20] Migration Act 1958, section 189, 198.

[21] UN Human Rights Committee, General Comment 35: Liberty and security of person (2014) [18]. See, also, C v Australia, UN Human Rights Committee Communication No.900/1999 (2002) [8.2]; Bakhtiyari et al. v. Australia, UN Human Rights Committee Communication No.1069/2002 (2003) [9.3]; D and E v. Australia, UN Human Rights Committee Communication No. 1050/2002 (2006) [7.2]; Shafiq v. Australia, UN Human Rights Committee Communication No. 1324/2004 (2006) [7.3]; Shams et al. v. Australia, UN Human Rights Committee Communication No. 1255/2004 (2007) [7.2]; F.J. et al. v. Australia, UN Human Rights Committee Communication No. 2233/2013 (2016) [10.4].

[22] See F.K.A.G v. Australia, UN Human Rights Committee Communication No. 2094/2011 (2013) [9.5]; M.M.M et al v Australia, UN Human Rights Committee Communication No. 2136/2012 (2013) [10.4] ['the authors are kept in detention in circumstances where they are not informed of the specific risk attributed to each of them... They are also deprived of legal safeguards allowing them to challenge their indefinite detention'].

[23] Including the requirement that the best interests of the child be the primary consideration in all actions concerning children; the obligation to provide protection and humanitarian assistance to child refugees and asylum seekers; the requirement that detention is used only as a measure of last resort and for the shortest appropriate period of time; and the obligation to take measures to promote the health, self-respect and dignity of children recovering from torture and trauma: Convention on the Rights of the Child, articles 3(1), 22, 37(b) and 39.

[24] Convention on the Rights of the Child. See also, UN Human Rights Committee, General Comment No. 17: Article 24 (1989) [1].

[25] UN Human Rights Committee, General Comment No. 35: Liberty and security of person (2014) [18].

[26] Migration Act 1958, subsections 116(1)(b) and 133C(3). Note that section 118 provides that the powers to cancel a visa under sections 116 (general power to cancel) and 133C (Minister's personal powers to cancel visas on section 116 grounds) are not limited, or otherwise affected, by each other.

[27] International Covenant on Civil and Political Rights, article 14(7).

[28] International Covenant on Civil and Political Rights, article 14(2).

[29] International Covenant on Civil and Political Rights, article 14(2). See UN Human Rights Committee, General Comment 32: Article 14: Right to equality before courts and tribunals and to a fair trial (2007) [30]: 'The presumption of innocence, which is fundamental to the protection of human rights... guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt'.

[30] Migration Act 1958, section 119.

[31] Migration Act 1958, subsection 133C(1). Subsection 133C(2) provides that if subsection 133C(1) applies, subdivisions E and F of the Migration Act 1958, which deal with the procedures for cancelling visas, do not apply.

[32] Migration Act 1958, subsection 133C(5).

[33] The minister's response to the committee's inquiries was received on 8 July 2021. This is an extract of the response. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.

[34] These rights include the rights to liberty, privacy, and work; freedom of assembly, movement, association, and expression; rights of the child; and criminal process rights.

[35] Pinkney v Canada, United Nations (UN) Human Rights Communication No.27/1977 (1981) [34]; Rotaru v Romania, European Court of Human Rights (Grand Chamber), Application No. 28341/95 (2000) [56]–[63]; Gorzelik and others v Poland, European Court of Human Rights (Grand Chamber), Application No. 44158/98 (2004) [64].

[36] UN Human Rights Committee, General Comment No. 16: The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation (Art. 17) (1988) [8]; General Comment No. 27, Freedom of Movement (Art. 12) (1999) [13]. See also UNHCR, Detention Guidelines: Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention (2012) [36], where the UN High Commissioner for Refugees has observed in the context of alternatives to detention: 'Like detention, alternatives to detention equally need to be governed by laws and regulations in order to avoid the arbitrary imposition of restrictions on liberty or freedom of movement. The principle of legal certainty calls for proper regulation of these alternatives...Legal regulations ought to specify and explain the various alternatives available, the criteria governing their use, as well as the authority(ies) responsible for their implementation and enforcement'.

[37] Wei v Minister for Immigration and Border Protection [2015] HCA 51

[38] The Parliamentary Joint Committee on Human Rights has recently commented on the infrequent use of the minister's discretionary intervention powers under section 195A in the context of the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021. See Parliamentary Joint Committee on Human Rights, Report 7 of 2021 (16 June 2020) pp. 100–124.

[39] With respect to the right to liberty, the UN Human Rights Committee has observed: 'The decision [to detain a person in immigration detention] must consider relevant factors case by case and not be based on a mandatory rule for a broad category; must take into account less invasive means of achieving the same ends, such as reporting obligations, sureties or other conditions to prevent absconding; and must be subject to periodic re-evaluation and judicial review. Decisions regarding the detention of migrants must also take into account the effect of the detention on their physical or mental health': UN Human Rights Committee, General Comment 35: Liberty and security of person (2014) [18].

[40] UNHCR, Detention Guidelines: Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention (2012) [39]: 'It must be shown that in light of the asylum-seeker's particular circumstances, there were not less invasive or coercive means of achieving the same ends. Thus, consideration of the availability, effectiveness and appropriateness of alternatives to detention in each individual case needs to be undertaken...In designing alternatives to detention, it is important that States observe the principle of minimum intervention and pay close attention to the specific situation of particular vulnerable groups such as children, pregnant women, the elderly, or persons with disabilities or experiencing trauma'.

[41] Gillan and Quinton v UK, European Court of Human Rights, Application No. 415/05 (2010) [77].

[42] See, for example, Human Rights Committee, General Comment 27, Freedom of movement (Art.12) (1999).

[43] Migration Act 1958, subsections 195A(4) and 197AE. See Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31. For discussion of review in the context of the minister's discretionary powers under section 195A of the Migration Act see Parliamentary Joint Committee on Human Rights, Migration Amendment (Clarifying International Obligations for Removal), Report 5 of 2021 (29 April 2021) pp. 21–25; Report 7 of 2021 (16 June 2020) pp. 100–124.

[44] Migration Act 1958, subsections 338(3)(c)–(d).

[45] Migration Act 1958, sections 116 and 133C.

[46] Migration Act 1958, subsections 338(3)(c)–(d).

[47] Section 496 of the Migration Act 1958 authorises the minister to delegate their powers under the Act, including delegating the minister's powers under section 116 to persons holding the position of executive levels 1 and 2.

[48] Migration Act 1958, section 339.

[49] The committee has previously raised concerns about the lack of merits review of visa cancellation decisions and the compatibility of such measures with the rights to a fair hearing and liberty. See Parliamentary Joint Committee on Human Rights, First Report of the 44^th Parliament (10 December 2013), pp. 103–108; Second Report of the 44^th Parliament (February 2014), pp. 107–120; Fourth Report of the 44^th Parliament (March 2014), pp. 75–112; Seventh Report of the 44^th Parliament (June 2014), pp. 90–96.

[50] See Parliamentary Joint Committee on Human Rights, Report 1 of 2019 (12 February 2019) pp.14-17; Report 12 of 2018 (27 November 2018) pp. 2-22; Report 11 of 2018 (16 October 2018) pp. 84-90; Thirty-sixth report of the 44^th Parliament (16 March 2016) pp. 196-202; Report 12 of 2017 (28 November 2017) p. 92 and Report 8 of 2018 (21 August 2018) pp. 25-28; Report 3 of 2021 (17 March 2021) pp. 58–59 and 91–97. See also Singh v Canada, UN Committee against Torture Communication No.319/2007 (2011) [8.8]-[8.9].

[51] In its comments on the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021, the Parliamentary Joint Committee on Human Rights raised questions as to whether external oversight by the Commonwealth Ombudsman and the Australian Human Rights Commission would, in practice, be an effective safeguard against arbitrary detention. This is because these external oversight frameworks may not necessarily result in the release of an individual from detention, as release is only possible where the minister exercises their discretionary powers to grant a visa under sections 195A or 197AB—which seems to occur infrequently, noting in particular that of those detained under these powers in the last five years, three-quarters were detained for over two years, and almost half were detained for over five years. See Parliamentary Joint Committee on Human Rights, Report 7 of 2021 (16 June 2020) pp. 100–124.

[52] A Subclass 070 visa enables the visa holder to be released from immigration detention pending removal from Australia, as removal of the person is not reasonably practicable at that time.

[53] International Covenant on Civil and Political Rights, article 7; and Convention against Torture and other Cruel, Inhuman, Degrading Treatment or Punishment, articles 3–5. Note that, to the extent that the measure could result in indefinite detention, it may also have implications for Australia's obligation not to subject any person to torture or to cruel, inhuman or degrading treatment or punishment. For a discussion on these implications see Parliamentary Joint Committee on Human Rights, Migration Amendment (Clarifying International Obligations for Removal), Report 5 of 2021 (29 April 2021) pp. 25–26; Report 7 of 2021 (16 June 2020) pp. 120–121.

[54] Statement of compatibility, p. 6.

[55] Schedule 1, item 6, subclause 070.613.

[56] Code of Behaviour for Public Interest Criterion 4022 - IMMI 13/155 [F2013L02105].

[57] Code of Behaviour for Public Interest Criterion 4022 - IMMI 13/155 [F2013L02105].

[58] The Parliamentary Joint Committee on Human Rights has previously considered the human rights implications of the Code of Behaviour for Public Interest Criterion 4022 - IMMI 13/155 in the Second Report of the 44^th Parliament (February 2014) pp. 107–120; Fourth Report of the 44th Parliament (March 2014) pp.75–112; and Seventh Report of the 44th Parliament (June 2014) pp. 90–96.

[59] International Covenant on Civil and Political Rights, article 17. The UN Human Rights Committee further explains that this right is required to be guaranteed against all such interferences and attacks whether they emanate from State authorities or from natural or legal persons: UN Human Rights Committee, General Comment No. 16: Article 17 (1988).

[60] See, MG v Germany, UN Human Rights Committee Communication No. 1428/06 (2008) [10.1]. Note also that article 7 of the International Covenant on Civil and Political Rights expressly prohibits medical or scientific experimentation without the free consent of the person concerned. Article 7 may not be engaged in relation to non-experimental medical treatment, even when given without consent, unless it reaches a certain level of severity. See Brough V Australia, UN Human Rights Committee Communication No. 1184/03 (2006) [9.5], where the Committee concluded that the prescription of anti-psychotic medication to the author without his consent did not violate article 7, noting that the medication was intended to control the author's self-destructive behaviour and treatment was prescribed by a General Practitioner and continued after examination by a psychiatrist. However, with respect to persons with disability, the UN Committee on the Rights of Persons with Disabilities has held that 'forced treatment by psychiatric and other health and medical professionals is a violation of the right to equal recognition before the law an infringement of the rights to personal integrity (art. 17); freedom from torture (art. 15); and freedom from violence, exploitation and abuse (art. 16). This practice denies the legal capacity of a person to choose medical treatment and is therefore a violation of article 12 of the Convention': General comment No. 1 – Article 12: Equal recognition before the law (2014) [42].

[61] Convention on the Rights of Persons with Disabilities, articles 5, 12, 14, 17 and 25(d). See also Committee on the Rights of Persons with Disabilities, General comment No. 1 – Article 12: Equal recognition before the law (2014) [31].

[62] Committee on the Rights of Persons with Disabilities, General comment No. 1 – Article 12: Equal recognition before the law (2014) [41].

[63] Committee on the Rights of Persons with Disabilities, General comment No. 1 – Article 12: Equal recognition before the law (2014) [41].

[64] Statement of compatibility, p. 4.

[65] In another context, the Committee on the Rights of Persons with Disabilities has characterised undue influence as occurring 'where the quality of the interaction between the support person and the person being supported includes signs of fear, aggression, threat, deception or manipulation': General comment No. 1 – Article 12: Equal recognition before the law (2014) [22].

[66] International Covenant on Economic, Social and Cultural Rights, article 9. See also, UN Economic, Social and Cultural Rights Committee, General Comment No. 19: The Right to Social Security (2008).

[67] UN Committee on Economic, Social and Cultural Rights, General Comment No. 19: The Right to Social Security (2008) [22].

[68] UN Committee on Economic, Social and Cultural Rights, General Comment No. 19: The Right to Social Security (2008) [22].

[69] See, eg, UN Human Rights Committee, General Comment No. 16: The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation (Art. 17) (1988) [3]–[4].

[70] Pinkney v Canada, United Nations (UN) Human Rights Communication No.27/1977 (1981) [34]; Rotaru v Romania, European Court of Human Rights (Grand Chamber), Application No. 28341/95 (2000) [56]–[63]; Gorzelik and others v Poland, European Court of Human Rights (Grand Chamber), Application No. 44158/98 (2004) [64].

[71] Gorzelik and others v Poland, European Court of Human Rights (Grand Chamber), Application No. 44158/98 (2004) [64].

[72] General Comment No. 27, Freedom of Movement (Art. 12) (1999) [13]; Rotaru v Romania, European Court of Human Rights (Grand Chamber), Application No. 28341/95 (2000) [61].

[73] There are expansive cancellation powers under the Migration Act 1958 allowing a person's visa to be cancelled on public health, safety and security grounds: sections 116 and 133C.

[74] UNHCR, Detention Guidelines: Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention (2012) [35], [39].

[75] The committee has previously commented on the minister's discretionary powers under section 195A and the safeguard value of these powers in the context of the Migration Amendment (Clarifying International Obligations for Removal) Bill (now Act). See Parliamentary Joint Committee on Human Rights, Report 7 of 2021 (16 June 2020) pp. 100–124.

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Purpose	This instrument allows the minister to specify that certain bridging visas are subject to specified visa conditions
Portfolio	Home Affairs
Authorising legislation	Migration Act 1958
Last day to disallow	15 sitting days after tabling (tabled in the House of Representatives and the Senate on 11 May 2021). Notice of motion to disallow must be given by 11 August 2021 in the Senate^[2]
Rights	Liberty; privacy; freedom of movement; freedom of association; freedom of assembly; freedom of expression; work; rights of people with disability; social security; rights of the child; criminal process rights

Australian Parliamentary Joint Committee on Human Rights