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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Migration Amendment (Bridging Visa Conditions) Bill 2023: amends the
Migration Act 1958 and Migration Regulations 1994 in response to the High
Court’s judgement in NZYQ v Minister for Immigration, Citizenship and
Multicultural Affairs & Anor (S28/2023) to provide for certain
conditions to be placed on bridging visas granted to non-citizens released from
immigration detention.
Migration Amendment (Bridging Visa Conditions and Other Measures) Bill
2023: amends the Migration Act 1958 to complement and reinforce
amendments made by the Migration Amendment (Bridging Visa Conditions) Act
2023. It introduces new criminal offences for relevant visa holders, and
clarifies collection, use and disclosure of information provisions.
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Portfolio
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Home Affairs
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Introduced
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Migration Amendment (Bridging Visa Conditions) Bill 2023: House of
Representatives on 16 November 2023
Migration Amendment (Bridging Visa Conditions and Other Measures) Bill
2023: House of Representatives on 27 November 2023
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Bill status
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Migration Amendment (Bridging Visa Conditions) Bill 2023: received Royal
Assent on 17 November 2023
Migration Amendment (Bridging Visa Conditions and Other Measures) Bill
2023: before the House of Representatives
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1.15 The Migration Amendment (Bridging Visa Conditions) Bill 2023 (the first bill) was introduced in the House of Representatives on 16 November 2023 and passed that day subject to substantive amendments. Then, on 27 November 2023, the Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023 (the second bill) was introduced in the House of Representatives, seeking to amend provisions of the Migration Act 1958 as recently amended by the first bill on 16 November 2023.
1.16 This entry considers the amendments made by the first and second bills in their entirety given the interconnected nature of the amendments.
1.17 The committee notes with concern the speed with which the Migration Amendment (Bridging Visa Conditions) Bill 2023 (the first bill) was introduced and passed. The first bill (now Act) was introduced in the House of Representatives on 16 November 2023 and passed the Senate later that day. The committee seeks to consider and report on all bills while still before the Parliament in order to inform debate. The committee considers that such a rapid process limits parliamentary scrutiny and debate, and that proper consideration of all matters within the bill, particularly in relation to serious impacts on personal rights and liberties, may not have occurred.
1.18 Notwithstanding that its scrutiny of the legislation was not possible prior to the passage of the first bill through the Parliament, the committee intends to raise its significant scrutiny concerns, and questions which have arisen from its consideration, with the minister, and to carefully consider the responses it receives.
1.19 The committee also notes with concern the rapid and frequent legislative amendments to the Subclass 070 (Bridging (Removal Pending)) visa (BVR) scheme that have occurred since the first bill was introduced on 16 November 2023.
1.20 The first bill was introduced and then amended in the House of Representatives later that day, with the second bill being introduced within a week and again making substantive and significant amendments to the BVR regime.
1.21 For example, the committee notes that as originally introduced in the first bill, paragraph 76E(4)(b) provided that the minister could grant a BVR without specific mandatory conditions if satisfied that there are compelling and compassionate reasons to grant the second visa, and that it is not contrary to the public interest to grant the second visa. This provision was amended later that day in the House of Representatives and the test for granting a second BVR without specific mandatory conditions was amended to require the minister be satisfied that the individual does not pose a risk to the community. Now, the second bill is proposing to amend this threshold test for a third time, proposing that paragraph 76E(4)(b) provide that the minister must be satisfied that ‘those conditions are not reasonably necessary for the protection of any part of the Australian community’.[10]
1.22 These rapid and frequent amendments prevent certainty in the law, which is of special concern noting the significant trespass on rights and liberties as a result of the new criminal offence provisions attaching to breach of BVR conditions.
1.23 The committee leaves to the attention of the Senate as whole the significant impact on parliamentary scrutiny imposed by passing and amending a bill within one day, with proposed significant and substantial amendments being introduced shortly after.
1.24 Item 2 of Schedule 1 to the first bill[12] introduces subsection 68(5), which provides that a Subclass 070 Bridging (Removal Pending) Visa (the first visa) held by a non-citizen will not come into effect again during the visa period if:
• the first visa ceases to be in effect under subsection 82(3) of the Migration Act 1958 (the Act) because another Subclass 070 (Bridging (Removal Pending)) visa (BVR) comes into effect; and
• if at the time the BVR is granted, there was no real prospect of the removal of the non-citizen from Australia becoming practicable in the reasonably foreseeable future.[13]
1.25 The second visa imposes a number of additional conditions that are more rights-restrictive in nature.
1.26 Item 7 of Schedule 2 to the first bill provides the mandatory conditions that attach to the BVR. These include regulations 8550, 8551, 8553, 8554, 8555, 8556, 8560, 8561, 8562, 8563, 8612, 8613, 8614, 8615, 8616, 8617, 8618, 8619, 8622 and 8623, which are located in Schedule 8 of the Migration Regulations 1994 (the regulations) as well as conditions listed under regulation 070.611 of the regulations.[14] Item 8 of Schedule 2 to the first bill also inserts clause 070.612A into the regulations, which requires conditions 8620 and 8621 to be imposed on visa holders, unless the Minister for Home Affairs (the minister) is satisfied they that those conditions are not reasonably necessary for the protection of any part of the Australian community.
1.27 The first bill sets out a range of offences which are enlivened when conditions are breached. These conditions have been grouped into various categories that relate to the offences created by the first and second bill, such as:
• ‘monitoring conditions’ in relation to the offence under section 76B;
• conditions relating to wearing and maintaining monitoring devices;
• conditions requiring that the person not perform any work or participate in any regular organised activity involving more than incidental contact with a minor or other vulnerable person;
• conditions requiring a person not go within a specified distance of a school, childcare centre or daycare centre; and
• a condition relating to remaining at a specified address.
1.28 Item 4 of Schedule 1 to the first bill introduces subsections 76B(1), 76C(1), 76D(1), 76D(2), 76D(3) and 76D(4) to the Act, which provide that the following are offences:
• Failing to comply with a requirement of the monitoring conditions, which includes a mandatory condition that requires the visa holder to: notify the minister or the department; to report at a specified time or times and a specified place or in a specified manner; and to attend at a specified place on a specified day and time.[15]
• Breaches of conditions 8617, 8618, 8619 and 8621 of the regulations are excluded from the scope of this offence.[16]
• For example, the committee understands that if conditions 8401, 8513, 8550 or any other applicable monitoring conditions are breached, this offence is enlivened.[17]
• Failing to comply with a requirement to remain at notified address.[18]
• If condition 8620 is breached, this offence is enlivened.
• Failing to comply with a requirement relating to monitoring devices, such as: wearing the device;[19] allowing an authorised officer to fit, install, repair or remove the device;[20] taking specified and any other reasonable steps to ensure the device remains in good working order;[21] and notifying an authorised officer as soon as the visa holder becomes aware that the device is not in good working order.[22]
• If condition 8621 is breached, this offence is enlivened.
1.29 The Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023 (the second bill) seeks to introduce subsections 76DAA, 76DAB, and 76DAC into the Migration Act, which provide that the following are offences:
• failing to comply with a visa condition requiring the person not perform any work, or participate in any regular organised activity, involving more than incidental contact with another person who is a minor or other vulnerable person;[23]
• failing to comply with a visa condition requiring that the person not go within a particular distance of a school, childcare centre or day care centre;[24]and
• failing to comply with a visa condition requirement where a person has been convicted of an offence involving violence or sexual assault, and the visa is subject to a condition requiring that the person not contact or attempt to contact the victim or a member of their family.[25]
1.30 The offences under subsections 76B(1), 76C(1), proposed subsections 76DAA(1), 76DAB(1) and 76DAC(1), and under section 76D carry maximum penalties of 5 years imprisonment or 300 penalty units. Section 76DA imposes a mandatory minimum sentence of 1 year imprisonment on any of the above offences.
1.31 The committee notes that the mandatory conditions listed above automatically attach to all visa holders in the affected cohort in the absence of an individualised assessment of the risk posed by the visa holder to the community.[26] The committee further notes that in this instance, the mandatory measures attaching to the BVR result in serious encroachments on personal liberties. This includes for example: condition 8620, which imposes a requirement to remain at a specified address at specified times on the visa holder; and condition 8621 which imposes a requirement on the visa holder to wear a monitoring device at all times. The explanatory memorandum provides:
Ordinarily, a visa holder who does not comply with a condition of their visa may be considered for visa cancellation on the basis of that breach – and if cancelled, would be liable to be detained as an unlawful non-citizen. For the NZYQ-affected cohort[27], immigration detention is not an available option where visa cancellation results in them being an unlawful non-citizen. As such, the prospect of visa cancellation for a breach of a visa condition is not an effective deterrent against non-compliance with reporting requirements. Establishing an offence specifically for NZYQ-affected BVR holders and future BVR holders granted without application by the Minister, makes it clear that compliance with requirements to report to the Department and to notify the Department of changes in circumstances, including address, household, employment and other matters ensures the person remains engaged with the Department. Importantly, the offence encourages compliance with relevant visa conditions and ongoing cooperation in arrangements relating to removal from Australia.[28]
1.32 The explanatory memorandum also provides the following:
Of the current known cohort, the majority were refused a visa, or had their visa cancelled, on character grounds. Others in the cohort had their visa cancelled on other grounds, but had not previously been granted a bridging visa due to risks they present to the Australian community.[29]
1.33 The supplementary explanatory memorandum provides the following:
The amendments make the imposition of conditions relating to curfews and electronic bracelets mandatory rather than discretionary, but only if the Minister is satisfied that the holder does not pose a risk to the community. This helps ensure that the imposition of the conditions is reasonable, necessary and proportionate to the individual circumstances.[30]
1.34 While some conditions attaching to the BVR may be appropriately attached to the visa of a particular individual, it is not apparent to the committee that every condition that attaches to the BVR should be applied to every BVR visa holder. Nor is it apparent to the committee that a mandatory one year imprisonment would be a proportionate sentence for each breach of the offence provisions. At common law, it is understood that the purpose of a criminal sentence is that it reflects the objective seriousness of the offence committed and that there must be a reasonable proportionality to the circumstances of the offending.[31]
1.35 The committee is therefore concerned that the automatic imposition of conditions on the affected cohort may prove to be disproportionate responses to community risk in their application to individual circumstances and cases. Further, the automatic imposition of conditions, and the mandatory sentences for breaches of the offence provisions amount to serious deprivations of liberty. The committee does not consider that the justifications in the explanatory materials address the question of proportionality of the approach as applied to individual cases.
1.36 Further, in relation to the justification of the automatic imposition of onerous visa conditions, the committee notes that there are a range of character-based reasons that have contributed to a person having their visa cancelled. For example, a visa may have been cancelled if a person committed certain types of offences,[32] or on the basis of having a substantial criminal record, which includes receiving a sentence of 12 months imprisonment.[33]
1.37 As such, the reasons for the cancellation of a visa on character grounds can occur as a result of a range of offending, and the actual risk to the community posed by an individual in the NZYQ cohort or future cohorts is variable. The committee does not consider that the cancellation of a visa on character grounds in and of itself is sufficient as a justification for these measures.
1.38 In reaching this conclusion, the committee has been mindful of the operation of subsections 76E(3) and 76E(4), which provide for a process by which a visa holder may make representations to the minister to relax the application of the conditions automatically attached to their visa. Nevertheless, the committee does not consider that this process will ensure that a proportionate approach is taken to assessing risk in light of the significant liberty interests affected by the visa conditions. Of particular concern to the committee are the unclear standards to be considered by the minister (i.e. that those conditions are not reasonably necessary for the protection of any part of the Australian community), and the fairness of the process associated with the minister’s exercise of the power to relax liberty-restricting conditions. These matters are the subject of further consideration below.
1.39 The committee’s concerns regarding the likely undue trespass on personal rights and liberty occasioned by the automatic imposition of conditions are exacerbated by three further features of the offence provisions. First, as noted above, a breach of these, or any mandatory condition attached to an offence provision, would result in the visa holder being subject to a minimum of 1 year imprisonment. Relatedly, the maximum penalty of 5 years imprisonment which has not been adequately justified in the explanatory materials by reference to the principles set out in the Attorney-General’s Department’s Guide to framing Commonwealth Offences, Infringement Notices and Enforcement Powers.[34]
1.40 Second, due to the application of subsection 4K(2) of the Crimes Act 1914,[35] if the breach continued over a period of several days, it would result in multiple offences, each of which carry a minimum sentence of 1 year imprisonment and a maximum penalty of 5 years imprisonment.
1.41 In the committee’s view, mandatory minimum sentencing necessarily raises questions about the proportionality of a penalty in light of the seriousness of particular instances of offending. In relation to the maximum penalty, the statement of compatibility provides:
The offences carry a maximum penalty of 5 years imprisonment or 300 penalty units. The purpose of the maximum penalty available for the offences established by proposed sections 76B, 76C, and 76D is to appropriately reflect the seriousness of these offences and the need to make clear that non-compliance with visa conditions that are aimed at protecting community safety is viewed seriously. The maximum penalty provides flexibility for courts to consider individual circumstances and treat different cases differently, according to the circumstances of the offending.[36]
1.42 While the committee acknowledges the importance of maintaining community safety, it is not apparent that there is a need for such significant penalties to be applied to any visa holder for the breach of a visa condition.
1.43 It is the committee’s understanding that visa conditions which attach to offence provisions under section 76B of the bill include, for example, condition 8401 which relates to reporting to a time or place specified, orally or in writing, by the minister, and condition 8513 which relates to notifying the department of a change of residential address within 5 working days.
1.44 Further, the committee understands that it is the mere breach of these conditions that is criminalised, with no requirement for any risk of harm to the community to be realised. In this instance, the explanatory memorandum to the first bill has not justified the seriousness of the offences, which may occur by merely failing to report at a specified location or failing to notify the department of a change of address, and why these offences warrant such a significant penalty, including a mandatory minimum sentence. The explanatory memorandum to the second bill further adds:
By applying to those individuals with a history of criminal offences involving minors, vulnerable people or sexual assault, these offences are targeted towards those who pose the most risk to Australian community. The particular conduct engaged in by breaching these offences puts at risk the most vulnerable members of society and disregards community expectations about the protection of especially vulnerable members of society.
Ordinarily, a visa holder who breaches a condition on their visa would be subject to visa cancellation, detention and removal. However, for the NZYQ affected cohort, this usual course of action is not available. The government therefore considers that the strengthened requirements of the minimum mandatory sentences, targeted towards only those individuals with serious criminal history, are necessary, reasonable and proportionate for protecting the most vulnerable members of society.
Mandatory minimum sentences appropriately reflect the seriousness of these offences and the need to make clear that non-compliance with visa conditions that are aimed at protecting community safety is viewed seriously.[37]
1.45 The third exacerbating feature is that a number of conditions attaching to the BVR, which are listed in Schedule 8 of the Migration Regulations 1994, are not conditions that relate to monitoring, remaining at a specified address, or the wearing or maintenance of a monitoring device, which are the conditions captured by the offence provisions in the bill. As such, it is unclear to the committee from the bill and the explanatory memorandum which conditions will lead to an offence if breached and which conditions will not.
1.46 Given the significant custodial penalties attaching to the offences under the bill, the committee considers it crucial for the bill to expressly state which visa conditions, if breached, will lead to the commission of an offence. The committee also considers it important to state on the face of the bill the consequence of breaching a visa condition that does not attach to an offence provision, as visa cancellation and immigration detention are not possible consequences.
1.47 Further to the matter above, the committee notes that a number of the conditions that must be imposed on the BVR are drafted in unclear terms. For example, condition 8303 requires that the visa holder must not become involved in activities disruptive to the Australian community, but it is unclear how ‘disruptive’ is intended to be understood in this context. In this instance, it is also unclear what the consequence of engaging in a disruptive activity would be, as this is a condition that is not attached to an offence provision. As such, visa holders are left uncertain as to possible criminal liability for an offence under this bill and which may also result in incurring a significant custodial penalty.
1.48 In relation to offences, the committee acknowledges that subsections 76B(2), 76C(2) 76D(5), proposed subsection 76DAA(2), proposed subsection 76DAB(2), and proposed subsection 76DAC(2) introduce defences of reasonable excuse in relation to the offences under subsections 76B(1), 76C(1), 76D(1), 76D(2), 76D(3), 76D(4), and proposed subsections 76DAA(1), 76DAB(1) and 76DAC(1). The effect of the defence of reasonable excuse is that the defendant would be required to provide evidence suggesting a reasonable probability that the conduct that resulted in the breach of the visa condition, and constitutes the offence, is conduct that forms a ‘reasonable excuse’ for breaching the condition.
1.49 Although this defence has the potential to ameliorate the likely undue trespass on liberty interests by the operation of offences for the breach of visa conditions discussed above, two matters limit that potential. First, at common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. This is an important aspect of the right to be presumed innocent until proven guilty. Provisions, such as in these defences, that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.
1.50 Second, and significantly, it is not clear in this instance what conduct is intended to fall within the scope of ‘reasonable excuse’. The explanatory memorandum does not provide guidance as to how a defence of reasonable excuse should be understood, other than explaining that imposition of an evidential burden on the non-citizen:
The note under new subsection 76B(2) provides that the non-citizen will bear the evidential burden of establishing they have a reasonable excuse consistent with subsection 13.3(3) of the Criminal Code. An evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. If the non-citizen discharges that evidential burden, the prosecution must disprove that matter beyond reasonable doubt.[38]
1.51 ‘Reasonable excuse’ is an overly broad term that can encompass a wide range of conduct. In the context of these offences, where no risk to the community must be realised by the breach of a visa condition and where a defendant can be liable for imprisonment for a minimum of 1 year and a maximum of 5 years for each offence, the lack of clarity in the ambit of the term ‘reasonable excuse’ is likely to promote a very conservative interpretation of the defence by visa holders given the substantial penalties they may face. As such, the defence of ‘reasonable excuse’ is unlikely to ensure that liberty is only restricted in a proportionate way.
1.52 In relation to the ‘reasonable excuse’ defence in proposed subsection 76DAC(3) for the offence in proposed subsection 76DAC(1), as introduced by the second bill, the committee notes that some further guidance as to the operation of the provision has been provided when compared to the other reasonable excuse defences.
1.53 In light of the above, the committee is also concerned as to the chilling effect these conditions may have on individuals. The committee considers that individuals may fail to attend to normal tasks out of a fear that doing so may lead to a breach of a visa condition that does not constitute a ‘reasonable excuse’ and consequently, that they may face imprisonment. The unclear nature of the conditions heightens this risk.
1.54 The committee requests the minister’s detailed justification as to:
• why it is proposed to have conditions that result in a serious deprivation of personal rights and liberties, such as a requirement to remain in a specified address for a specified period of time[39] and a requirement to wear a monitoring device at all times[40] mandatorily apply to all holders of the Bridging (Removal Pending) Visa.
• why it is proposed to have significant penalties of a mandatory minimum sentence of 1 year imprisonment and a maximum penalty of 5 years imprisonment applicable to the offences under subsections 76B(1), 76C(1), 76D(1), 76D(2), 76D(3) and 76D(4), and proposed subsections 76DAA(1), 76DAB(1) and 76DAC(1), when these offences relate to breach of visa conditions and do not require consideration as to whether the conditions are reasonably necessary for the protection of the Australian community. The committee’s consideration of this matter would be assisted by reference to the Attorney-General’s Department’s Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers;[41]
• whether a list confirming the visa conditions under Schedule 8 of the Migration Regulations that attach to the offence provisions under subsections 76B(1), 76C(1), 76D(1), 76D(2), 76D(3) and 76D(4), and proposed subsections 76DAA(1), 76DAB(1) and 76DAC(1) can be provided;
• what the consequences of breaching a visa condition that does not attach to the offences under subsections 76B(1), 76C(1), 76D(1), 76D(2), 76D(3) and 76D(4), or proposed subsections 76DAA(1), 76DAB(1) and 76DAC(1) are; and
• what conduct may fall within the scope of ‘reasonable excuse’, whether examples can be provided of such conduct, and what measures will be implemented to minimise the risk that visa holders are likely to be overly cautious in considering whether the reasonable excuse defence is applicable to their circumstances.
1.55 Item 4 of Schedule 1 to the first bill introduces subsection 76E(3), which provides that once a non-citizen has been granted a BVR, the minister must notify the non-citizen of the decision. The minister must then invite the person to make representations within a period and manner specified by the minister, as to why one or more of the conditions attaching to the BVR should not apply.[43] Under subsection 76E(4), if the non-citizen makes representations in accordance with the invitation, and the minister is satisfied that the visa conditions are not reasonably necessary for the protection of any part of the Australian community,[44] the minister must grant a visa that is not subject to the BVR conditions.[45]
1.56 A number of scrutiny concerns arise in relation to this process. First, it is unclear what information, if any, other than a written notice setting out the decision must be disclosed to the applicant.[46] Second, there is no guidance provided to the minister in determining whether ‘the conditions are not reasonably necessary for the protection of any part of the Australian community’. The process cannot, therefore, be considered to adequately address the concerns raised above regarding the potential that conditions will be applied in a disproportionate manner.
1.57 This problem is exacerbated by the practical burden resting on a non-citizen being able to convince the minister that visa conditions are not reasonably necessary for the protection of the community. Not only is it difficult to prove a negative, but this problem is also amplified in all instances where a person has previously been convicted of an offence, unless some effort is made to specify what is considered not reasonably necessary for the protection of the community.
1.58 The committee notes that applying this standard to citizens who have been released after serving a custodial sentence would not be consistent with the assumptions of the common law criminal justice system. Finally, without more detailed criteria to guide the minister’s satisfaction of whether a person is not a risk to the community, that assessment may be applied overly cautiously as a matter of practical decision-making by a minister.
1.59 In this context, the committee notes that there are no criteria for the visa holder to address in their representations, and no stated considerations the minister must consider in order to be satisfied that the conditions are not reasonably necessary for the protection of any part of the Australian community. The committee is therefore concerned that subsections 76E(3) and 76E(4) provide the appearance that a visa holder has the option to make representations in order to be subjected to fewer conditions, but that the minister’s judgement is not subject to meaningful procedural requirements nor, given the breadth of the subjective criterion to be applied, to substantive constraints.
1.60 In light of the above, the committee requests the minister’s detailed justification as to the fairness of the process in section 76E. The committee requests that the justification include:
• what information must be provided to the visa-holder by the minister when inviting the visa-holder to make representations;
• what information must be disclosed by visa-holders when making representations to the minister regarding the application of conditions;
• why 'the conditions are not reasonably necessary for the protection of any part of the Australian community’' is an appropriate test for removing mandatory visa conditions, noting it is a subjective standard and that broad and restrictive conditions are applied on all individual visa holders within the class;
• why ‘are not reasonably necessary for the protection of any part of the Australian community’ is the only criterion considered relevant to the relaxation of conditions;
• why more guidance has not been included in the legislation to guide the minister’s determination of whether conditions of ‘are not reasonably necessary for the protection of any part of the Australian community’; and
• whether decisions made by the minister under subsection 76E(4) are eligible for independent merits review by the Administrative Appeals Tribunal and, if not, why not.
1.61 Items 9, 10, 11 and 12 of Schedule 2 to the bill amend regulations 8401, 8542, 8543 and 8561 of Schedule 8 to the regulations. The effect of these amendments is that the minister is able to direct visa holders to report at a specified time at a specified location either orally or by writing.[48]
1.62 As neither the bill nor its explanatory memorandum provide a justification for why a visa holder may be directed orally, the committee queries the inclusion of the term ‘orally’ in relation to these conditions. Requiring an individual to comply with a certain direction provided to them orally may result in that individual not having sufficiently clear information as to what they are required to comply with, such as the location they must report to. The committee considers that it may also be possible that an individual in these circumstances would require a written record of the specifications they were required to comply with, in order to provide to a legal representative or for the purpose of raising evidence to rely on the ‘reasonable excuse’ defence under sections 76B, 76C and 76D.
1.63 In this instance, the committee’s concerns are heightened as these conditions are monitoring conditions that are not prescribed under subsection 76B(1). For example, condition 8401 requires an individual to report to a location at a time specified by the minister. Breaching these conditions will result in a visa holder becoming liable for an offence to which significant custodial penalties are attached.
1.64 The committee expects that in relation to matters that may affect an individual’s liberty, at a minimum, information must be provided in writing so the affected individual has a written record of obligations they must comply with in order to avoid facing a term of imprisonment. The committee also notes that the desire for administrative efficiency or flexibility is not sufficient as a justification, particularly as in this context, the matter relates to an individual facing criminal liability. It is unclear to the committee why oral notice is considered sufficient in light of the serious consequences an individual may face if they are unable to comply with a BVR condition.
1.65 In light of the above, the committee requests the minister’s detailed justification as to why items 9, 10, 11 and 12 of Schedule 2 have been amended to allow for the minister to orally specify matters for a visa holder to comply with, noting that oral notice is not as clear as written notice.
1.66 Schedule 2 of the bill provides amendments that are made to the Migration Regulations. These include amendments to regulation 070 of the regulations,[50] which relate to amendments to the visa subclass itself and amendments to Schedule 8 of the regulations, which list general visa conditions that may be applied to any subclass of visa.[51]
1.67 Although in this instance the amendments to the regulations have been made by the primary legislation, the committee notes that the minister is empowered to make changes to regulations through delegated legislation. While the elements of the offence of breaching a visa condition are contained within sections 76B, 76C and 76D of the bill, the general conditions listed under Schedule 8 of the regulations include the conditions that must be complied with in order to not commit an offence under the above sections. Effectively, the conduct that may constitute an offence is a significant matter that has been left to delegated legislation. As such, there is an ongoing legislative power reposed in the executive government to change the nature of the offences under sections 76B, 76C and 76D by amending the regulations.
1.68 The committee's view is that significant matters should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the explanatory memorandum contains no justification regarding why it is necessary to allow such significant matters to be set out in delegated legislation.
1.69 In light of the above, the committee requests the minister's detailed advice as to why it is considered necessary and appropriate to allow delegated legislation to change the visa conditions that form elements of the offences under sections 76B, 76C and 76D.
1.70 Item 4 to schedule 1 to the second bill seeks to introduce proposed new section 76F which seeks to provide new powers relating to monitoring devices and the collection, use and disclosure of information by ‘authorised officers’. An ‘authorised officer’ is defined to be anyone authorised in writing by the minister, secretary or the Australian Border Force Commissioner to act as such, as per schedule 1, item 4, proposed subsection 76F(6).
1.71 In relation to a person who is subject to monitoring, proposed subsection 76F(1) provides that an authorised officer may do all things necessary or convenient to be done to:
• install, fit or remove the person’s monitoring device or related equipment;[53]
• maintain, repair or otherwise keep the device in good working order;[54]
• operate or use the person’s monitoring device or related equipment;[55] and
• determine or monitor the location of the person or an object relating to them through the operation of a monitoring device or equipment.[56]
1.72 Proposed subsection 76F(2) provides that an authorised officer may collect, use or disclose to any other person, information (including personal information) for the following purposes:
• determining whether a requirement of a condition of a visa held by a person who is subject to monitoring is being, or has been complied with;[57]
• whether a person who is subject to monitoring has committed an offence against this Act or the regulations;[58]
• protecting the community in relation to persons who are subject to monitoring;[59]
• facilitating the location of a person subject to monitoring who is suspecting of having failed to comply with a requirement of a condition of a visa held by the person;[60]
• facilitating the location of a person who is or has been subject to monitoring in the event that either or both of the following apply:
• there is a real prospect of the removal of the person from Australia becoming practicable in the reasonably foreseeable future;[61]
• a visa held by the person ceases to be in effect;[62]
• facilitating the performance of functions, and exercise of powers, of authorised officers under this Act (including this section) and the regulations in relation to persons who are or have been subject to monitoring.[63]
1.73 The committee has consistently drawn attention to legislation that allows the delegation of administrative powers to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, the committee prefers to see a limit set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated. The committee's preference is that delegates be confined to the holders of nominated offices or to members of the Senior Executive Service. Where broad delegations are provided for, the committee considers that an explanation as to why these are considered necessary should be included in the explanatory memorandum.
1.74 The explanatory memorandum to the second bill does not provide any further information to clarify the operation of these provisions beyond describing the clauses.
1.75 The committee is concerned that these power which trespass on the visa holder’s rights and liberties, are liable to be performed by anyone who is authorised to do so by the minister, secretary or the Australian Border Force Commissioner, regardless of their skills, qualifications and training.
1.76 These powers include sensitive actions such as physically installing a monitoring device on a person. This may require, in the committee’s view, specially trained personnel who are equipped with the skills, knowledge and experience to both operate such devices and to recognise and appropriately navigate the sensitivities of such intrusive conduct. It is therefore concerning to the committee that it appears that any person could be employed to do such a task.
1.77 In addition, the committee is concerned that the wording in proposed subsection 76F(1) is overly broad, as it empowers the authorised officer to ‘do all things necessary or convenient’ in relation to the prescribed powers. This is an extremely broad authorisation as nearly any requirement could be justified on the grounds that it is convenient for the officer to impose in this context. This could encompass, for example, requirements that a person subject to monitoring travel vast distances to facilitate the authorised person maintaining the monitoring equipment, at unreasonable times and for unreasonable amounts of time. The committee notes that there is no requirement for reasonableness attached to these powers, nor does the explanatory memorandum provide any further information as to how these powers may be exercised in practice and whether any safeguards or limitations apply to prevent ‘convenience’ from justifying unreasonable requirements.
1.78 The committee’s scrutiny concerns in relation to these provisions are heightened by the impact they have on an individual’s right to privacy. Enabling an authorised officer under proposed subsection 76F(1) to do all things ‘necessary or convenient’ to be done relating to a person’s monitoring device likely limits the right to privacy. This is due to a person required to wear the device being required to make the device (which is attached to them) available to the authorised officer in order for them to maintain the device. Further, providing the authorised officer the power to determine or monitor the location of the person through the operation of the monitoring device also limits the visa holder’s right to privacy.
1.79 Additionally, proposed subsection 76F(2) likely limits an individual’s right to privacy as it provides an authorised officer with the power to collect, use or disclose personal information to any person for a wide variety of purposes. This would relate to the personal information of the person subject to monitoring but would also include any other person if that information was related to any of the broadly listed purposes.
1.80 Further, proposed subsection 76F(2) provides that personal information may be shared with ‘any other person’ for the broad purpose of ‘protecting the community in relation to persons who are subject to monitoring’. Noting that this is stated to operate despite any other law,[64] this would appear to allow authorised officers to share information about the person with the media, including their name and address, if they consider it would help protect the community.
1.81 Where a bill contains provisions for the collection, use or disclosure of personal information, the committee expects the explanatory memorandum to the bill to address why it is appropriate for the bill to provide for the collection of personal information. The committee also expects the explanatory memorandum to detail what safeguards are in place to protect the personal information, and whether these are set out in law or policy (including whether the Privacy Act 1988 applies).
1.82 In this case, the explanatory memorandum explains that information collected by an authorised officer in relation to a person who has committed an offence is protected under the Privacy Act 1988 and the Australian Privacy Principles (APP).[65] The explanatory memorandum explains that under APP 6, an APP entity (of which the explanatory memorandum states that an authorised officer is one) must not use or disclose personal information that was collected for a particular purpose for another purpose, unless the individual has consented or an exception applies. An exception is where a disclosure is required or authorised by or under Australian law, and as this bill proposes to enact ‘required disclosures’, the explanatory memorandum explains that these provisions are lawful exceptions to the APP 6.
1.83 The committee considers that while the explanatory memorandum has sought to justify why such exceptions are lawful in relation to the Privacy Act 1988, it does not explain whether any privacy safeguards are available to protect an individual’s personal information, including the person subject to monitoring and any other person.
1.84 Further, proposed subsection 76F(4) provides that an authorised officer’s exercise of powers under subsection 76F(1) is subject to any conditions, restrictions or limitations prescribed by regulations. These are potentially significant matters that could affect the rights and liberties of individuals and the committee is concerned that the scope of these already extensive powers may be extended via delegated legislation.
1.85 The committee also notes the effect of subitem 7(1) of schedule 1 to the second bill which provides that the new powers for authorised officers in proposed subsection 76F apply in relation to persons who became subject to monitoring, or to monitoring devices and equipment issued, before commencement of the bill. Retrospective application challenges a basic principle of the rule of law that laws should only operate prospectively. The committee therefore has long-standing scrutiny concerns in relation to provisions which have the effect of applying retrospectively. These concerns will be particularly heightened if the legislation will, or might, have a detrimental effect on individuals.
1.86 Generally, where proposed legislation will have a retrospective effect, the committee expects that the explanatory materials will set out the reasons why retrospectivity is sought, whether any persons are likely to be adversely affected and the extent to which their interests are likely to be affected. If an individual's interests will, or may, be affected by the retrospective application of a provision, the explanatory memorandum should set out the exceptional circumstances that nevertheless justify the use of retrospectivity. In this instance, the explanatory memorandum does not address any impact the retrospectivity may have on affected individuals.
1.87 The committee requests the minister’s advice as to:
• why it is necessary and appropriate to allow powers relating to monitoring devices and equipment to effectively be delegated to any person;
• whether the bill can be amended to provide legislative guidance as to the categories of people to whom those powers might be delegated;
• whether any safeguards or limitations exist on the operation of an authorised officer’s powers under proposed subsection 76F(1), noting that there appears to be no limits on what may be ‘convenient’ for an authorised officer to require a person subject to monitoring to do;
• why it is necessary and appropriate to provide that an authorised officer can disclose information, including personal information, to any other person for such a wide range of purposes under proposed subsection 76F(2);
• what safeguards are in place to protect the personal information of both individuals subject to monitoring and any other person whose information has been collected, used or disclosed; and
• why it is considered necessary and appropriate to leave conditions, restrictions or limitations on an authorised officer’s exercise of powers under subsection 76F(1) to delegated legislation.
1.88 The committee also requests the minister’s advice as to whether actions provided for under proposed section 76F undertaken prior to the commencement of the bill had lawful basis, noting that the bill appears to retrospectively validate such actions.
[8] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Migration Amendment (Bridging Visa Conditions) Bill 2023, Scrutiny Digest 15 of 2023; [2023] AUSStaCSBSD 232.
[9] The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(v).
[10] To be amended by proposed item 3 of schedule 1 to the Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023.
[11] Schedule 1, items 2 and 4. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).
[12] All references in this entry will be to the bill as passed by both Houses.
[13] Migration Amendment (Bridging Visa Conditions) Bill 2023, Schedule 1, item 2, subsection 68(5).
[14] This regulation lists conditions 8303, 8401, 8513, 8514, 8541, 8542 and 8543, of which conditions 8401 is of particular concern as it relates to the requirement to report at a specified location at a specified time.
[15] Migration Amendment (Bridging Visa Conditions) Bill 2023, Schedule 1, item 4, subsection 76B(4).
[16] Migration Amendment (Bridging Visa Conditions) Bill 2023, Schedule 2, item 3, clause 2.25AC.
[17] The committee understands that the following conditions are monitoring conditions as defined under subsection 76B(4): regulations 8401, 8513, 8542, 8543, 8550, 8552, 8561, 8612, 8614, 8615, 8616.
[18] Migration Amendment (Bridging Visa Conditions) Bill 2023, Schedule 1, item 4, paragraph 76C(1)(c).
[19] Migration Amendment (Bridging Visa Conditions) Bill 2023, Schedule 1, item 4, subsection 76D(1).
[20] Migration Amendment (Bridging Visa Conditions) Bill 2023, Schedule 1, item 4, subsection 76D(2).
[21] Migration Amendment (Bridging Visa Conditions) Bill 2023, Schedule 1, item 4, subsection 76D(3).
[22] Migration Amendment (Bridging Visa Conditions) Bill 2023, Schedule 1, item 4, subsection 76D(4).
[23] Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023, Schedule 1, item 1, proposed subsection 76DAA(1).
[24] Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023, Schedule 1, item 1, proposed subsection 76DAB(1).
[25] Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023, Schedule 1, item 1, proposed subsection 76DAC(1).
[26] Item 1 of schedule 1 to the Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023 relates to visa condition 8623 in Schedule 8 to the Migration Regulations, which applies to persons convicted of an offence that involves a minor or any other vulnerable person.
[27] The cohort as affected by the outcome of the decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor (S28/2023), noting that the explanatory memorandum foreshadows that these conditions could apply to future cohorts.
[28] Migration Amendment (Bridging Visa Conditions) Bill 2023, Explanatory memorandum, p. 4.
[29] Migration Amendment (Bridging Visa Conditions) Bill 2023, Explanatory memorandum, p. 30.
[30] Migration Amendment (Bridging Visa Conditions) Bill 2023, Supplementary explanatory memorandum, p. 7.
[31] Veen v The Queen (No 2) 164 CLR 465 at [477].
[32] Migration Act 1958, section 501.
[33] Migration Act 1958, paragraph 501(7)(c).
[34] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011) pp. 37–38.
[35] Sections 76B, 76C, 76D, and proposed sections 76DAA, 76DAB, and 76DAC.
[36] Migration Amendment (Bridging Visa Conditions) Bill 2023, Explanatory memorandum, p. 46.
[37] Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023, explanatory memorandum, p. 21.
[38] Migration Amendment (Bridging Visa Conditions) Bill 2023, Explanatory memorandum, p. 14.
[39] Regulation 8620 of the Migration Regulations 1994.
[40] Regulation 8621 of the Migration Regulations 1994.
[41] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011) pp. 37–38.
[42] Schedule 1, item 4, subsection 76E(3). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(ii).
[43] Paragraphs 76E(3)(a) and 76E(3)(b).
[44] Paragraph 76E(4)(b) as it is proposed to be amended by item 3 of schedule 1 to the Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023. The provision as amended and passed both Houses of Parliament on 16 November 2023 required the minister be satisfied that the individual does not pose a risk to the community. The original provision when the bill was introduced in the House of Representatives earlier that day required that the minister be satisfied that there are compelling and compassionate reasons to grant the second visa, and that it is not contrary to the public interest to grant the second visa.
[45] Subsection 76E(4).
[46] Migration Amendment (Bridging Visa Conditions) Bill 2023, Schedule 1, item 4, paragraph 76(3)(a).
[47] Schedule 2, items 9, 10, 11 and 12. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).
[48] Migration Amendment (Bridging Visa Conditions) Bill 2023, Schedule 2, items 9, 10, 11 and 12, clauses 8401, 8542, 8543 and 8561.
[49] Schedule 2. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(iv).
[50] Migration Amendment (Bridging Visa Conditions) Bill 2023, Schedule 2, items 3-8.
[51] Migration Amendment (Bridging Visa Conditions) Bill 2023, Schedule 2, items 9-13.
[52] Schedule 1 to the Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i), (ii) and (iv).
[53] Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023, proposed paragraph 76F(1)(a).
[54] Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023, proposed paragraph 76F(1)(b).
[55] Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023, proposed paragraph 76F(1)(c).
[56] Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023, proposed paragraph 76F(1)(d).
[57] Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023, proposed paragraph 76F(2)(a).
[58] Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023, proposed paragraph 76F(2)(b).
[59] Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023, proposed paragraph 76F(2)(c).
[60] Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023, proposed paragraph 76F(2)(d).
[61] Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023, proposed subparagraph 76F(2)(e)(i).
[62] Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023, proposed subparagraph 76F(2)(e)(ii).
[63] Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023, proposed paragraph 76F(2)(f)
[64] See proposed subsection 76F(3).
[65] Explanatory memorandum, pg. 13.
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