Australian Passports Determination 2015

Australian Passports Act 2005

Dec 06, 2015

With the creation of the Department of Immigration and Border Protection has come new uniforms and new attitudes

So, you have passed the always mildly stressful process of check-in, boarding pass and passport in the top pocket. You've filled out your departure form and wished you were taking more than $10,000 in cash out of the country. The gen Y with dark uniform and badges from Akela demands you surrender your passport. That is, he intends to keep it. Not give it back to you. You ask him what gives him the right. He says he's Border Force and it may be a crime where you get one year imprisonment if you don't surrender your Australian passport.

So what's the law these days?

Under s24 of the Australian Passports Act 2005

(1)  An officer may demand that a person surrender an Australian travel document to the officer if: 

(a)  the document has been cancelled; or 

(b)  the document has otherwise ceased, under section 20, to be valid except because of a suspension under section 22A

The "officer" referred to in that section means

(a)  an APS employee in the Department; 

(b)  a member of the diplomatic staff of an Australian mission, being a person who is a member of the diplomatic staff of the mission within the meaning of the Vienna Convention on Diplomatic Relations; 

(c)  a consular officer of an Australian consulate, being a person who is a consular officer (but not an honorary consular officer) within the meaning of the Vienna Convention on Consular Relations; 

(d)  an officer of Customs within the meaning of the Customs Act 1901 ; 

(e)  a member or a special member of the Australian Federal Police; 

(f)  an officer of the police force of a State or Territory; 

(g)  a person, or a person who is one of a class of persons, authorised in writing by the Minister under section 52.

An "officer of Customs" means:

(a)  the Secretary of the Department (of Immigration and Border Protection); or 

(b)  the Australian Border Force Commissioner (including in his or her capacity as the Comptroller-General of Customs); or 

(c)  an APS employee in the Department; or 

(d)  a person authorised under subsection (1B) to exercise all the powers and perform all the functions of an officer of Customs; or 

(e)  a person who from time to time holds, occupies, or performs the duties of an office or position (whether or not in or for the Commonwealth) specified under subsection (1C), even if the office or position does not come into existence until after it is so specified ( subsection (1C) provides that the Comptroller-General of Customs may, by writing, specify an office or position (whether or not in or for the Commonwealth). 

The first thing to note is that the Border Protection officer, is not acting as a delegate of the Minister of Foreign Affairs and Trade. The power which they exercise to demand the surrender of your Australian passport is a power they possess as an APS employee in the Department of Immigration and Border Protection. Border protection officers may be confused about that. I have seen on at least two occasions where Border Protection officers claim to be acting on behalf of the Department of Foreign Affairs and Trade. It appears to be standard practice for them to say that and confirm it in writing, but it does not appear to coincide with the true legal position.

Under s52(1) the Minister for Foreign Affairs and Trade may, in writing, authorise a person, or a class of persons, to exercise specified powers and to perform specified functions of an officer under this Act. Even if the Minister of Foreign Affairs and Trade does that for a DIBP officer, that does not make them a delegate of the Minister, that makes them an officer exercising their own powers, albeit subject to any directions of the Minister for Foreign Affairs and Trade.

The standard DIBP letter given when the surrender of a passport is demanded states that the decision to demand the surrender of your passport is a reviewable decision under section 48 of the (Australian Passports) Act. It then goes on to provide advice about what to do if you wish to seek a review of the decision.

Regrettably, that standard advice is misleading. The reason is that while a decision to demand the surrender an Australian passport under s24(1) of the Australian Passports Act is indeed a "reviewable decision" within the meaning of s48, section 48 does not actually give any right of review. The rights of review given by the Australian Passports Act are contained in s49, and they only include a right of review of decisions made by a delegate of the Minister. The DIBP officer when demanding the surrender of your passport is not a delegate of the Minister of Foreign Affairs and Trade in making the decision. You have no right of internal review or right of review to the Administrative Appeals Tribunal.

The reason you should NOT follow the standard letter DIBP legal advice is that in doing so you may lose or overlook your actual legal rights.

You have a right of judicial review under the Administrative Decisions (Judicial Review) Act 1977. That may mean an application to the Federal Court of Australia or the Federal Circuit Court of Australia. That carries a financial and time cost, although one can well imagine circumstances which might warrant an urgent hearing. At the time the surrender of your passport is demanded, you may well have already checked in for your flight, your luggage will be on the A380, and your board meeting in London a day and a bit away. The first thing to bear in mind is - do you actually need your Australian passport to get where you are going? Australian citizen and New York resident had the persistence just to get on the flight to the US regardless and sorted out the mess created by the Department of Immigration and Border Protection officer at the other end. Here's his story.

The second thing to bear in mind is that the power to demand surrender of an Australian passport is discretionary. The DIBP officer is not obliged to demand its surrender. You may be able to persuade the officer that you need to keep a passport which has been cancelled because it has foreign country visas in it. If the officer tells you they are obliged to demand the surrender of your passport, that could be evidence of an error of law making their decision void or voidable.

Whatever the actual circumstances behind the demand for the surrender of your passport, upon making a written request of the person who made the decision, you will have an entitlement to written reasons for the decision setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving reasons for the decision. Those written reasons for decision must be given to you as soon as practicable.

It is useful if you ascertain the officer who has made the decision. They will provide you their badge name and position number. Ask them exactly why they have demanded the surrender of your passport. When you write your request for reasons, carefully and without embellishment note what they told you their reasons were. This will assists you because while the officer will not be trying to be dishonest, his later reasons will suffer from the human frailty of wanting to have made the right decision in the right way. My observation in life is that people often remember things which reflect well upon them and other things are remembered with less ease.

Where the surrender of an Australian passport is demanded under s24 on the basis that it has been "deemed invalid", raises some legal issues. The standard DIBP letter which uses the passive voice in that manner obfuscates the position that the passport must actually be invalid in order for the power to arise. Arguably a decision to demand the surrender of your passport because it has been "deemed invalid" is jurisdictional error of law and void because the passport must actually be invalid and the decision-maker has not asked the right question. if the passport is valid, then nothing the DIBP officer can do or say will validate the demand for the surrender of the passport. 

A word of warning. Comply with the demand. Whether or not the officer has the right to demand your passport, it may still be a crime if you do not deliver it up to them immediately. The criminal offence does not require their demand to be justified, it only requires that they tell you they are authorised, they make the demand, you have the passport and you don't give it to them immediately. Do it, tell them you do so under protest, and argue about who's in the right at a later time. Play it that way no matter how pressing your itinerary and no matter how unreasonable the officer may have been. Nothing you can do or say will change whether they are right or wrong.

If you find yourself in this position you need legal advice about how to proceed. You may need re-orientation because you are angry, bewildered or under pressure to meet commitments which have been thrown into disarray because of DIBP actions. There are practical aspects, legal rights you may wish to insist upon and potentially a claim for damages and judicial review. It depends how much you value your right to hold your Australian passport not on the whim of government.

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