Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2013-2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
Australian Security Intelligence Organisation Amendment (Restoring
Merits Review) Bill 2014
EXPLANATORY MEMORANDUM
Circulated by authority of
Andrew Wilkie MP
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
Australian Security Intelligence Organisation Amendment (Restoring Merits
Review) Bill 2014
This bill is compatible with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of the Bill
This is a Bill primarily to amend the Australian Security Intelligence Organisation
Act 1979 (`the ASIO Act') to restore the right of all asylum seekers to access merits
review through the Administrative Appeals Tribunal (`AAT') if they are the subject
of an adverse security assessment. The Bill makes a consequential amendment to
the Administrative Appeals Tribunal Act 1975 to help facilitate and remove doubt
as to these rights. This Bill complements the Migration Amendment (Ending the
Nation's Shame) Bill 2014 also introduced by the Member for Denison granting,
inter alia, the right to access the AAT to asylum seekers who have their claim
rejected. Due to the specific operation of the ASIO Act in relation to rejections on
security grounds, this Bill is necessary to afford all asylum seekers equal access to
the right of appeal regardless of how they arrive in Australia and what are their
cited grounds for rejection.
Human rights implications
This Bill engages with Australia's responsibility under the Convention and
Protocol Relating to the Status of Refugees (`the Refugee Convention'), as does the
Migration Amendment (Ending the Nation's Shame) Bill 2014. Under Article 31 of
the Refugee Convention, no person seeking asylum shall be penalised for arriving
in the country of refuge illegally if they present themselves for processing on
arrival. Certain asylum seekers are currently penalised due to the grounds on which
they are rejected, even if they present in the same way as all the other asylum
seekers and in accordance with international law. The Bill also engages Article 16,
which relates to accessing a fair judicial system. Currently, there are some
administrative rejections that allow judicial review and some which do not, and this
is not equal or fair access to the judicial system.
Conclusion
This Bill is not only compatible with human rights but necessary to bring Australia
in line with international humanitarian law. Without this Bill, Australia will be
operating contrary to and incompatibly with its human rights obligations.
Mr Andrew Wilkie MP, Member for Denison
Australian Security Intelligence Organisation Amendment (Restoring
Merits Review) Bill 2014
Clause 1: Short Title
1. This clause is a formal provision and specifies the short title of the
Bill, once enacted, as the Australian Security Intelligence
Organisation Amendment (Restoring Merits Review) Bill 2014.
Clause 2: Commencement
2. This clause provides for the commencement of all Sections of the
Act the day after the Act receives the Royal Assent.
Clause 3: Schedule(s)
3. This clause establishes that, as the intent of the Bill is to be realised
through amendments to other Acts, the Schedules of this Bill will
amend those Acts accordingly.
Schedule 1 - Amendments
Australian Security Intelligence Organisation Act 1979
Item 1: Subsection 35(1) (paragraph (b) of the definition of prescribed
administrative action)
1. Item 1 removes action taken under the Migration Act 1958 from the
definition of prescribed administrative action, thereby limiting the
ability of powers exercised as a prescribed administrative action from
treating those covered by the Migration Act as a special class.
Item 2: Paragraph 36(b)
2. Item 2 repeals one of the exclusions to the persons who are affected
by Part IV of the Act. Part IV outlines the process for receiving and
dealing with security assessments. Within Part IV it is outlined how
review of adverse or qualified security assessments are managed
and who may access a review in accordance with Part IV. Section 36
of the Act details groups of persons to whom the normal procedure
for security assessments does not apply. One of these groups is
persons who are the subject of prescribed administrative action
(which is defined in the Act) relating to migration, which means that
currently many irregular maritime arrivals with adverse or qualified
security assessments do not have access to the same review
mechanisms available to others. Repealing paragraph 36(2) will
open these review mechanisms, such as the AAT, to asylum seekers
currently precluded.
Item 3: Subsection 37(3)
3. Item 3 qualifies the existing subsection relating to the ability of the
regulations to prescribe matters that may be considered by the AAT
and limits the existing subsection 37(3) subject to the insertion of the
new subsection 37(3A).
Item 4: After subsection 37(3)
4. Item 4 specifies that a person's status as an asylum seeker, or a
person's characterisation as belonging to a class of persons defined
as asylum seekers, cannot be used as a reference for any matters
prescribed to be taken into account by the AAT, thus not limiting the
AAT's ability to examine all the evidence and information relating to
that person in an equitable way to all other applications.
Item 5: Subsection 54(2)
5. Item 5 omits the words relating to migration security assessments
from section 54, which currently prevents certain migration security
assessments from being reviewed if new information is available,
resulting in equal rights to appeal an AAT decision when new
information is available for all persons covered by Part IV of the Act.