Notable decisions

Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3

On 11 February 2020, the majority of the High Court found that Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1) are not within the reach of the Parliament’s power to make law with respect to aliens (s 51(xix) of the Constitution). That is the case even if the person holds foreign citizenship and is not an Australian citizen.

Under the tripartite test membership of an Aboriginal society depends on (a) biological descent from an Indigenous person(s), (b) self-identification and (c) recognition by elders or other persons enjoying traditional authority. A person must meet all three limbs of the tripartite test by reference to the same Aboriginal society.

The result of the decision is that the Commonwealth may not, under the Migration Act 1958, detain or remove from Australia Aboriginal Australians who meet the tripartite test.

Civil litigation

Under the Legal Services Directions 2017, monetary claims can only be settled in accordance with legal principle and practice. Such a settlement requires the existence of at least a meaningful prospect of liability being established.

At 30 June 2020, departmental records indicate that 229 claims for compensation were in the courts or with the Fair Work Commission. This includes but is not limited to claims for unlawful detention or personal injury arising from detention, personal injury relating to or sustained in a regional processing centre, employee-related matters, privacy complaints and other claims arising from activities of the Department.

Reports from the Office of the Australian Information Commissioner

The Department continued to work closely with the Office of the Australian Information Commissioner (OAIC) to provide assurance to the Australian public that personal information held by the Department and privacy breaches are handled in accordance with the Privacy Act 1988. OAIC assessment reports, and the Department’s responses, are published on the OAIC website.1

During 2019–20, the OAIC issued the following reports on privacy assessments regarding the Department and the ABF:

• Department of Home Affairs’ handling of passenger name record data (assessment undertaken March 2018, report published 19 December 2019)
• Department of Immigration and Border Protection’s handling of passenger name record data (assessment undertaken May 2017, report published 30 October 2019)
• Department of Immigration and Border Protection’s handling of personal information using SmartGate systems (assessment undertaken December 2016, report published 24 October 2019)
• IBM’s handling of personal information using SmartGate systems (assessment undertaken December 2017, report published 24 October 2019) 2
• SITA’s handling of personal information using the advance passenger processing system (assessment undertaken April 2017, report published 18 October 2019). 3

At the Department’s request, OAIC conducts annual assessments of our handling of passenger name record data. We provide funding to OAIC for this through a Memorandum of Understanding. Passenger name record data is information provided by passengers to air carriers to enable processing of travel reservations. Our collection and use of passenger name record data is important for law enforcement as it assists with preventing, detecting and investigating serious crimes, including terrorism, drug trafficking, human trafficking and child exploitation.

During 2019–20, the Department, together with OAIC, began preparations for the 2018–19 passenger name record assessment. The scope and objective of the assessment was agreed and the Department provided preliminary documentation as requested by OAIC. Fieldwork was scheduled to take place in May 2020, however this work was postponed due to COVID-19 restrictions. The Department and OAIC are yet to decide on a new date for the fieldwork.

Separately, the Department responded to OAIC’s follow-up activities on the implementation of recommendations from OAIC’s assessments on the Department’s use of powers under the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (the Act).

Specifically, these follow-up activities relate to these schedules of the Act:

• Schedule 5—regarding handling of personal information throughout the arrivals and departures border clearance process (assessment report published October 2016)
• Schedule 6—regarding handling of personal information about departing air and maritime travellers (assessment report published October 2016).

Both reports have been finalised and are awaiting publication by OAIC.

Australian Human Rights Commission

The Australian Human Rights Commission (AHRC) can inquire into complaints of breaches of human rights and workplace discrimination under the Australian Human Rights Commission Act 1986.

Three reports concerning complaints against the Department were tabled in the Australian Parliament and subsequently published on the AHRC website:4

• No. 130 Use of force in immigration detention – October 2019
• No. 132 Mr TA and Miss TB v Commonwealth (Department of Home Affairs) – July 2019
• No. 133 Mr Nauroze Anees v Commonwealth of Australia (Department of Home Affairs) – November 2019.

This a slight increase from the two reports tabled in 2018–19. The Department’s responses to these reports are available on the AHRC website.

The AHRC’s role also includes monitoring the conditions in immigration detention centres from a human rights compliance perspective. The Department worked with the AHRC to ensure legal obligations and community expectations are met. This includes providing access to immigration detention facilities and to departmental records, case notes and decisions.

Reports from the Office of the Commonwealth Ombudsman

The Commonwealth Ombudsman released the following two reports concerning the Department’s activities in 2019–20:

• Report to the Minister for Home Affairs on agencies’ compliance with the Surveillance Devices Act 2004 for the period 1 January to 30 June 2019
• Review of the Ombudsman’s activities in overseeing immigration detention, January to June 2019.

The Commonwealth Ombudsman is required under the Migration Act 1958 to report on the appropriateness of immigration detention arrangements for each person detained for more than two years. Each report is provided to the Minister for Immigration along with a de-identified version that the Minister must table in the Australian Parliament.

These reports, including the Department’s responses are publicly available at the Commonwealth Ombudsman’s website.5

Reports from the Australian National Audit Office

The Auditor-General released six performance audit reports that examined the Department and the ABF in 2019–20:

• Procurement of Garrison Support and Welfare Services

The objective of this audit was to assess whether the Department has appropriately managed the procurement of garrison support and welfare services for offshore processing centres in Nauru and Papua New Guinea.

• Delivery of the Humanitarian Settlement Program

The objective of this audit was to examine whether the Humanitarian Settlement Program is being delivered effectively through examination of design and management of contracts, and the achievement of program outcomes.

• Management of the Tourist Refund Scheme

The objective of this audit was to examine whether the tourist refund scheme is being effectively administered, with the appropriate management of risks.

• Aboriginal and Torres Strait Islander Participation Targets in Major Procurements (cross-entity audit)

The objective of this audit was to assess the effectiveness of the administration of the mandatory minimum requirements for Aboriginal and Torres Strait Islander participation in major government procurements in achieving policy objectives.

• Commonwealth Resource Management Framework and the Clear Read Principle (cross-entity audit)

The objective of the audit was to examine the effectiveness of the design and implementation of the clear read principle under the Commonwealth Resource Management Framework.

• Fraud Control Arrangements in the Department of Home Affairs

The objective of this audit was to assess the effectiveness of the Department’s fraud control arrangements, including compliance with mandatory requirement of the Commonwealth Fraud Control Framework, and promotion of a fraud aware culture.

These audit reports, including the Department’s responses, are publicly available on the ANAO’s website.6

Royal Commission into Institutional Response to Child Sexual Abuse

The Royal Commission delivered its Final Report on 5 December 2017. It made 409 recommendations in total, of which the Home Affairs Portfolio is the Australian Government lead for 69.

The Department and the ABF coordinated the Portfolio’s response to the Australian Government’s Annual Progress report 2019. The report is publically available on the Royal Commission’s website.7

In 2019–20, there has been significant progress, with the majority of the Portfolio’s recommendations now implemented.

Key activities over the last 12 months include:

• leading finalisation of the National Standards for Working with Children Checks, publicly released by the Minister for Home Affairs on 13 December 2019. The Department remains engaged with states and territories on implementing the National Standards through the Working with Children Check Working Group (for which the Department is Chair)
• strengthening the Commonwealth’s framework of offences for child sexual abuse through reforms to the Combatting Child Sexual Exploitation Legislation Amendment Act 2019 and the Crimes Legislation (Sexual Crimes Against Children and Community Protection Measures) Act 2020
• new provisions in the Criminal Code Act 1995 (Cth), in response to recommendations of the Royal Commission, relating to child protection offences for certain Commonwealth officers who fail to report child sexual abuse, or fail to protect a child from sexual abuse, and offences for grooming a third party to make it easier to procure a child for sexual activity
• the publication of the revised Home Affairs Child Safeguarding Framework which incorporates the Child Safe Standards as recommended by the Royal Commission.⁸ These standards are now reflected in the National Principles for Child Safe Organisations (National Principles).

To further promote the National Principles, the Department:

• updated and published a number of policy statements, procedural instructions and support to reflect the recommendations of the Royal Commission including the implementation of the National Principles
• implemented a child safeguarding communications strategy to actively promote the Department’s commitment to the National Principles
• developed two new e-learning modules to increase staff capability to apply the National Principles – Child Safeguarding Essentials and Working in a Child-related Role
• conducted the inaugural Child Safeguarding Assurance Program to measure the implementation of the National Principles. The findings of the assurance program will identify gaps and risks, and identify areas for continuous improvement and prioritisation of effort in becoming a child safe organisation. The annual public report on the implementation of the National Principles is expected in the second half of 2020
• implemented the remaining Child Protection Panel recommendations. Closure of the last outstanding recommendation is pending the completion of the Child Safeguarding Assurance Program. A reexamination of the effective accountability arrangements for children, with particular focus on child safeguarding inquiries, will be undertaken before December 2020
• strengthened the child wellbeing officer network through upskilling officers, establishing internal relationships with state-based operational teams, maintaining appropriate oversight of the wellbeing of minors in immigration detention and the tightening of child-related incident management processes.

A dedicated team within the ABF continues to respond to requests from the National Redress Scheme on behalf of the Portfolio. The Scheme began on 1 July 2018 to offer eligible survivors of institutional child sexual abuse access to psychological counselling, provision of a direct personal response, and/or monetary payment. The Scheme will run for 10 years and is operated by the Department of Social Services and administered by Services Australia. All requests applicable to the Department relate to people who initially arrived in Australia in the mid-twentieth century as a child migrant.

Royal Commission into National Natural Disaster Arrangements

On 20 February 2020, the Prime Minister announced the establishment of the Royal Commission into National Natural Disaster Arrangements in response to the extreme bushfire season of 2019–20.

The Royal Commission is examining the coordination, preparedness for, response to and recovery from disasters, including improving resilience, adapting to changing climate conditions and mitigating the impact of natural disasters. The Royal Commission is considering the need to establish new powers for the Australian Government to declare a national state of emergency which would trigger direct Australian Government responses to national disasters, such as direct deployment of the Australian Defence Force.

The Department has engaged extensively with the Royal Commission to provide information and assistance on a range of areas, including:

• the roles and functions of Emergency Management Australia
• national emergency management frameworks and plans
• Disaster Recovery Funding Arrangements
• the protection of critical infrastructure.

This has included:

• providing over 400 documents covering different categories sought by the Royal Commission under four Notices to Produce
• responding to two Notices to Give addressing 58 questions posed by the Royal Commission
• providing two witness statements which responded to 62 questions posed by the Royal Commission
• providing information for Commonwealth submissions responding to the Royal Commission’s issues papers on a Commonwealth emergency declaration power, local governments, health arrangements, and firefighting and emergency services.

In addition, the Department appeared before the Royal Commission on 3 June 2020.

The Royal Commission is expected to deliver a final report by 28 October 2020.

New South Wales Special Commission of Inquiry: Ruby Princess

The New South Wales (NSW) Special Commission of Inquiry into the Ruby Princess was established on 15 April 2020. The Special Commission is inquiring into and will report on the information provided to, communications between, and divisions and actions of Commonwealth and NSW agencies. The Special Commission is also making inquiries into communications by Commonwealth and NSW agencies to passengers disembarking the Ruby Princess, and policies and protocols applied by Commonwealth and NSW agencies with respect to managing suspected or potential COVID-19 cases.

The Department, in conjunction with the Department of Health and the Department of Agriculture, Water and the Environment has provided the Inquiry with a voluntary statement with information on:

• the roles and responsibilities of the Commonwealth and state agencies, including particular arrangements between the Commonwealth and NSW
• a chronology of events around the disembarkation of passengers from the Ruby Princess.

The Special Commission must report to the Premier and the Governor of NSW by 14 August 2020.

Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability

The Disability Royal Commission was established in April 2019 in response to community concern about widespread reports of violence against, and the neglect, abuse and exploitation of, people with disability. These incidents might have happened recently or be historical. The Disability Royal Commission will investigate:

• preventing and better protecting people with disability from experiencing violence, abuse, neglect and exploitation
• achieving best practice in reporting, investigating and responding to violence, abuse, neglect and exploitation of people with disability
• promoting a more inclusive society that supports people with disability to be independent and live free from violence, abuse, neglect and exploitation.

The Department, through the Attorney-General’s Department, is assisting the Royal Commission by providing information on areas of relevance to the Home Affairs Portfolio, including:

• criminal justice
• emergency planning and response
• the use of restrictive practices.

The Commission is expected to deliver a final report to the Australian Government by 29 April 2022.

Reports from parliamentary committees

The Parliament of Australia may refer bills, policies or issues affecting the wider community to a parliamentary committee of inquiry. Tables 10 and 11 outlines parliamentary committee reports released during 2019–20 when the Department was the lead agency.

Table 10 – Joint Standing Committees, 1 July 2019–30 June 2020

Table 11 – Senate Committees, 1 July 2019–30 June 2020

Commonwealth Ombudsman

The Department received 112 complaints from the Commonwealth Ombudsman in 2019–20, a decrease from 129 complaints in 2018–19.

A total of 105 complaints were finalised during 2019–20.

Australian Human Rights Commission

The Department received 54 complaints from the Australian Human Rights Commission in 2019–20, an increase from 47 received in 2018–19.

A total of 68 complaints were finalised during 2019–20 of which 54 were received in 2019-20 and 14 were received in prior years.

Office of the Australian Information Commissioner

During 2019–20 financial year, the Department received 12 privacy complaints from OAIC. This was an increase from nine received in 2018–19. Eight privacy complaints were closed in the 2019–20 financial year, of which three complaints were received in 2018–19 and the remainder received in 2019–20.

Freedom of information

In 2019–20, the Department received 18,214 Freedom of Information (FOI) requests, including 653 amendment requests,9 compared with 18,387 requests in 2018–19. Of the FOI requests received in 2019–20, 16,319 were for personal information and 1895 for non-personal information.

The Department finalised 17,234 FOI requests, including 644 amendment requests, compared with 17,050 requests in 2018–19. Of the requests finalised in 2019–20, 15,445 were requests for personal information and 1789 for non-personal information. Of the 16,590 access requests finalised:

• 8193 cases were granted full access
• 5145 cases were granted part access
• 1438 cases were refused access10
• 1814 cases were transferred to other agencies, or saw applicants withdraw their requests before a decision on access was made.

In 2019–20, the proportion of finalised requests that were finalised within statutory timeframes was 66.8 per cent, compared to 75.0 per cent in 2018–19. At 30 June 2020, the Department had 3685 requests on hand.