Australian Passports Determination 2005
EXPLANATORY STATEMENT
AUSTRALIAN PASSPORTS ACT 2005
AUSTRALIAN PASSPORTS (APPLICATION FEES) ACT 2005
Issued by the authority of the Parliamentary Secretary (Foreign Affairs and Trade)
Part 2 – Children’s passports. 2
Part 3 – Refusal to issue passports – law enforcement and security. 5
Section 3.1 – Competent authorities – Australian law enforcement matters. 6
Section 3.2 – Competent authorities - International law enforcement cooperation. 6
Section 3.3 – Reasons relating to potential harmful conduct 7
Section 3.4 – Competent authorities - Potential harmful conduct 7
Part 4 – Concurrent, diplomatic and official passports. 8
Section 5.1 – Period of validity. 8
Section 5.2 – Circumstances in which passports cease to be valid - damage. 10
Section 5.3 – Other circumstances in which passports cease to be valid. 10
Part 6 – Travel-related documents. 11
Section 6.1 – Convention travel documents. 11
Section 6.2 – Certificates of identity. 11
Section 6.3 – Documents of identity. 12
Section 6.4 – Provisional travel documents. 13
Section 6.5 – General restrictions on the issue of travel-related documents. 13
Part 7 – Performance of functions under the Australian Passports Act 14
Division 1 – Identity, citizenship or other requirements. 14
Section 7.1 – Disclosure of information to and by the Minister 15
Section 7.2 – Information that may be requested. 16
Section 7.3 – Method of disclosing information. 16
Division 2 – Disclosure of information - Lost, stolen or other particular purpose. 17
Section 7.4 – Lost, stolen and otherwise invalid travel documents. 17
Section 7.5 – Disclosure for particular purposes. 18
Section 8.1 – Amount of Fees. 19
Part 9 – Name on or endorsement of travel document 24
Section 9.1 – Name on travel document 24
Section 9.2 – Endorsements and observations. 25
Australian Passports Determination 2005
The Australian Passports Act 2005 (Australian Passports Act), the Australian Passports (Application Fees) Act 2005 (Application Fees Act) and this Determination introduce a modern legal structure to provide for the issue of passports to be used as evidence of identity and citizenship by Australian citizens who are travelling internationally and for related purposes.
The Passports Act 1938 (1938 Act), so far as it relates to Australian travel documents, and the Passports Regulations 1939 (1939 Regulations) are repealed.
This Determination, in summary, covers:
· special circumstances for the issue of a passport to a child;
· refusal and cancellation arrangements for matters relating to Australian law enforcement; international law enforcement or to potential harmful conduct;
· concurrent, diplomatic and official passports;
· validity periods;
· damaged passports;
· travel-related documents, such as convention travel documents, certificates of identity, documents of identity and provisional travel documents;
· disclosure of information, with requests for verification of that information or for further information, to enable the Minister to be satisfied as to identity, citizenship or other eligibility for a passport;
· disclosure of information for limited purposes:
- to inform a person about a lost, stolen or otherwise invalid passport;
- to confirm or verify information relating to a passport;
- to facilitate the travel of an Australian passport holder; or
- law enforcement;
· fees including lost or stolen and priority processing fees and waivers and refunds;
· names which appear on passports and endorsements and observations.
The modern legal structure in the Australian Passports Act provides a clearer line of responsibility with the Minister responsible for all decisions. Under the structure of the 1938 Act, these decisions were made by a range of officers as well as the Minister.
Delegation of powers to take decisions, established under the Australian Passports Act (section 51), applies to the circumstances specified in this Determination. Additional delegations in relation to the circumstances of damage, of waivers and refunds of fees and names which appear on Australian travel documents are set out in section 10.1.
Notes on Sections
1. The Determination commences on 1 July 2005, when the Australian Passports Act and the Application Fees Act commence.
Section 2.1 – Special circumstances
2. The Australian Passports Act allows exceptions to the basic requirements for the issue of a passport to a child in special circumstances (paragraph 11(2)(a)). These special circumstances apply when it is procedurally difficult or unreasonably expensive to meet the basic requirements. The objectives of the children’s passports provisions are to protect a child from abduction and to protect the rights of parents.
3. The basic requirements are that: (a) each person with parental responsibility for the child consents to the child travelling internationally; or (b) a court of the Commonwealth, a State or a Territory has made an order that allows the child to travel internationally (subsection 11(1)).
4. The Determination will codify the ‘special circumstances’ provisions operating through the Ministerial guidelines under the 1938 Act (subsections 7A(3) to (6)). Currently, approximately 3,500 children’s cases are considered under these provisions, annually. These provisions work well. A key objective in updating the provisions relating to children in the Australian Passports Act and this Determination is to ensure that terms are expressed and used in a manner consistent with the Family Law Act 1975.
5. The special circumstances, in which the Minister may issue a passport, address the different situations when another person who has parental responsibility for a child has not provided consent to the child travelling internationally (non-consenting parent). This may occur in a range of circumstances which may include when consent has been refused.
6. Subsection 2.1(2) provides that the special circumstances do not apply if the Minister has been provided with court documents demonstrating that there are proceedings in a court of the Commonwealth, a State or a Territory which may affect the rights of a person in relation to the child.
7. If there is an Australian court order preventing the child from travelling internationally, a passport must not be issued, in accordance with paragraph 12(1)(b)(i) and subsection 12(2) of the Australian Passports Act.
8. Even if an applicant satisfies one or more of the special circumstances, the Minister may refuse to issue a passport to meet the objectives of protecting a child from abduction or protecting the rights of a parent. Alternatively, depending on the specific circumstances, a limited (or shorter) validity passport or document of identity may be issued.
9. In addition, after a passport has been issued, based on a special circumstance in the Determination, it may be cancelled in limited situations. This can occur in two ways. The non-consenting parent may provide information to the Minister (or a delegate of the Minister) that would have permitted the delegate to refuse to issue the passport to the child had the delegate been aware of the circumstance immediately before the passport was issued (paragraph 22(2)(e)).
10. Alternatively, the passport may be cancelled if the non-consenting parent makes a request having obtained a court order preventing the child from travelling internationally (Australian Passports Act, subparagraph 12(1)(b)(i) and paragraph 22(2)(d)).
11. The Australian Passports Act sets out three other grounds in which a passport may be issued even if the basic requirements are not met. These are child welfare, family crisis and to enable a child, who departed Australia less than 12 months before, to return to Australia (paragraphs 11(2)(b) to (d)).
12. A person who has parental responsibility is defined, in the Australian Passports Act (subsection 11(5)), by reference to the presumptions in the Family Law Act 1975 (Subdivision 12D). However, the Australian Passports Act excludes fathers who are only presumed to be parents arising from the presumption of co-habitation (Family Law Act 1975, section 69Q). This exclusion affects a father whose name is not on the birth certificate of a child and who is not otherwise presumed to be the father on the grounds of marriage or by making any other legal acknowledgement of paternity. This implements the policy that the appropriate place for parents to commence the process of asserting their legal rights in relation to their children is through the family courts not the passports issuing system.
Paragraphs 2.1(3)(a) to (c) – parent unable to be contacted or does not respond
13. The paragraphs 2.1(3)(a) to (c) set out various circumstances in which the Minister (or a delegate of the Minister) may issue a passport where the person whose consent has not been provided is unable to be contacted or located within a reasonable period.
14. Paragraph 2.1(3)(a) sets out the circumstance when neither the applicant nor the Minister (or a delegate of the Minister) is able contact or locate the non-consenting parent within a reasonable period of time.
15. The Department will take reasonable measures to contact or locate the non-consenting parent including using automatically retrievable contact details held by the Department for the purpose of performing functions under the Australian Passports Act. These records, currently held on the Passports Issue and Control System and Delta Web, contain information from a number of different sources including: applicants, guarantors, parents or others who have raised Child Alerts, and the Australian Electoral Commission.
16. In practice in most cases, the period in which the non-consenting parent is given to respond to a written request for consent from a passport officer is 10 working days.
Paragraphs 2.1(3)(d) to (f) – no contact between child and parent
17. Paragraphs 2.1(3)(d) & (e) provide grounds to issue a passport to a child who has had no contact (including in person, or by telephone, mail or e-mail) for a substantial period with the non-consenting parent.
18. In practice in most cases, a substantial period during which there has been no contact is at least:
· for a child aged less 3 years – since the child’s birth; and
· for a child aged 3 years or more, but less than 16 years – 3 years.
19. Paragraph 2.1(3)(e) specifies the period in which there has been no contact for a child aged 16 years or more, without limiting the general provision in paragraph (d). Generally, it is 2 years (subparagraph (ii)(B)) but the period is reduced to 1 year if the child is ‘self supporting’ and living independently from all persons with parental responsibility (subparagraph (ii)(A)).
20. These provisions have been an important tool over the past 20 years for the Department to fulfil its obligation to issue passports to children when it is procedurally difficult or unreasonably expensive to meet the basic requirements while meetings its objectives to protect the child from abduction and protect the rights of parents.
21. Paragraph 2.1(3)(d) and subparagraph 2.1(3)(e)(B) implement the policy that the appropriate place for parents to commence the process of asserting their legal rights in relation to their children is through the family courts not the passports issuing system.
22. In practice in most cases, when the child is aged less than 5 years, and the delegate of the Minister is considering using the powers in paragraph (d), the Department will also take reasonable measures to contact the non-consenting parent including using automatically retrievable contact details held by the Department for the purpose of performing functions under the Australian Passports Act.
23. When the child is aged 5 years or more, the delegate of the Minister may request further information, including from the non-consenting parent. The difference in practice reflects the fact that children over the age of five are less likely to be removed unwillingly.
Paragraphs 2.1(3)(g) & (h) – family violence
24. Paragraph 2.1(3)(g) provides grounds to issue a passport to a child if an Australian family violence order has been issued against the non-consenting parent.
25. Family violence is, in summary, conduct or threats by the non-consenting parent to a member of his or her family or their property causing any member of the family to fear for their safety or well-being (subsection 2.1(4)). A family violence order includes an interim order and must be made under a prescribed law of a State or Territory. Family violence and family violence order are defined by reference to the Family Law Act 1975 (Part VII, section 60D). The prescribed laws are set out in the Family Law Regulations 1984 (Schedule 8).
26. Paragraph 2.1(3)(h) permits the Minister (or a delegate of the Minister) to consider other evidence of family violence if the child is overseas. This is necessary as family violence orders are defined as those made under a State or Territory law in Australia.
27. These two provisions have been important tools over the past 20 years for the Department to issue passports to children. In circumstances where there is family violence, it is often not appropriate to contact the non-consenting parent to seek consent. Ordinarily, this power would not be used if a court order (including a family violence order or family law order) permits access or contact between the non-consenting parent and the child.
28. This power complements the power to issue a passport if the Minister is satisfied that the child’s welfare would be adversely affected if the child were not able to travel internationally (Australian Passports Act, paragraph 11(2)(b)).
Paragraph 2.1(3)(i) – Convention country court orders
29. A passport may be issued when an order of a court in a country, in respect of which the Convention on the Civil Aspects of International Child Abduction (1987 ATS 2) has entered into force for Australia, permits a child to travel internationally. These countries are listed in the Family Law (Child Abduction Convention) Regulations 1986 (Schedule 2). This power is consistent with Australia’s obligation to effectively respect the rights of custody and of access under the law of other Contracting States, in accordance with Article 1 (b) of the Convention.
30. Paragraph 2.1(5) provides that a reference to an order of a court of a convention country permitting a child to travel internationally includes a reference to an order permitting the issue of a passport to the child.
31. This provision complements, for convention countries, the provision in the Australian Passports Act which assists with the interpretation of Australian court orders (paragraph 11(4)(b)). These orders are not always expressed in terms of ‘permitting a child to travel internationally’.
Paragraph 2.1(3)(j) – outside Australia - need to travel internationally
32. A passport may be issued, in the case of a child who is outside Australia, if the Minister (or a delegate of the Minister) considers there is a need for the child to travel internationally. This power complements Australia’s consular obligations to Australian citizens overseas. It must cover the large range of circumstances in which a child overseas may require consular assistance.
Travel-related documents
33. Part 2 also applies to the issue of travel-related documents, in accordance with subsections 6.5(1) and (2). Accordingly, the issue of a Convention travel document, certificate of identity or provisional travel document to a child would be subject to the same basic requirements, special circumstances and other grounds as apply to the issue of a passport. As noted below (section 6.3), a document of identity may be issued in circumstances where it was not desirable to issue a passport.
34. The procedure for refusal of an Australian passport (Australian Passports Act, Part 2 Subdivision B) is, in summary, that a competent authority makes a request to the Minister for Foreign Affairs that a person should not be issued with an Australian passport for reasons relating to:
· Australian law enforcement matters (section 12);
· international law enforcement cooperation (section 13); or
· potential for harmful conduct (section 14).
35. The structure of the Australian Passports Act is that the competent authorities who may make refusal/cancellation requests for law enforcement and security reasons and those reasons are set out in Part 2 Subdivision B (sections 12 to 14). Refusal/cancellation requests are treated as a request for refusal or cancellation (section 19). Paragraph 22(2)(b) then provides that the Minister may cancel an Australian travel document if a competent authority makes a refusal/cancellation request. Accordingly, competent authorities and law enforcement reasons specified in this Determination apply equally to the Minister’s power to cancel an Australian travel document.
Travel-related documents
36. This Part also applies to the issue of travel-related documents, in accordance with section 6.5. As noted above, a document of identity may be issued in circumstances where a passport is refused or cancelled.
37. Competent authorities relating to Australian law enforcement matters will typically be the Australian Federal Police (AFP) and State and Territory police. Such agencies do not need to be specified as they are described in paragraph (a) of the definition of competent authorities in subsection 12(3) of the Australian Passports Act.
38. The Attorney-General and the Secretary of and SES employees in the Attorney-General’s Department are specified as competent authorities. This codifies a practice established in 1997, under which the Attorney-General and his officers may request the refusal of a passport of a person who is wanted for prosecution by Commonwealth law enforcement agencies for serious criminal offences, and is overseas.
39. The power under the Australian Passports Act to refuse a passport for reasons relating to international law enforcement cooperation complements Australian law enforcement objectives to offer full and reciprocal assistance to counterparts around the world in enforcing foreign laws.
40. Competent authorities relating to international law enforcement cooperation matters will be limited to an agency or an employee of the Commonwealth. In this way, the Australian Passports Act and the Determination only give standing to Australian organisations to make these requests.
41. In practice, these requests will be made most frequently by the head of an Australian diplomatic mission or Australian consulate. These officers come within the description of competent authority in subsection 13(3) of the Australian Passports Act. The Honorary Consul, Vancouver is also specified in paragraph 3.2(2)(b). This consul is the Manager of the Australian Trade Commission office in Vancouver. The territory covered in the consular district of Vancouver is agreed between Australia and Canada and set out in the Schedule of Australian Overseas Missions and their Responsibilities issued by the Department.
42. The other competent authorities are the Secretary of and SES employees in the Attorney-General’s Department and the AFP (subsection 3.2(1) and paragraph 3.2(2)(a), respectively). These authorities have responsibility for, or powers, functions or duties in relation to international law enforcement cooperation matters. The AFP's functions are set out in the Australian Federal Police Act 1979 and are subject to the direction of the Minister responsible (section 8 and subsection 37(2)). The direction issued on 31 August 2004 expects the AFP to give special emphasis to, among other things, preventing, countering and investigating transnational and multi-jurisdictional crime and contributing effectively to the Government's international law enforcement interests.
43. A competent authority may request the Minister to refuse to issue an Australian passport where the competent authority suspects on reasonable grounds that: (a) the person is likely to engage in specified conduct; and (b) the person should be refused an Australian passport in order to prevent the person from engaging in that conduct (Australian Passports Act, subsection 14(1)). The Australian Passports Act specifies various types of conduct (paragraphs 14(1)(a)(i) to (iv)). The first three were elements in the 1938 Act. The fourth type is conduct that might constitute an indictable offence against the Australian Passports Act.
44. Schedule 1 specifies the Commonwealth indictable offences which might constitute the conduct, as permitted under the Australian Passports Act (paragraph 14(1)(a)(v)). The offences include many of the offences in the Criminal Code which have an extended geographical jurisdiction. Other offences - relating to internationally protected persons, drug trafficking, prohibited imports and prohibited exports, child sex tourism and child abduction - are transnational in nature. Refusing to issue a passport if a person’s conduct might constitute such an offence ensures that the passport legislation complements Australia’s law enforcement objectives.
45. Subsection 3.4(1) specifies as competent authorities the Secretary of and SES employees and Directors in the Department of Foreign Affairs and Trade whose duties include the performance of functions under the Australian Passports Act. They are specified to confirm that senior officers of the Department may request the refusal of a passport to prevent a person from engaging in conduct which might constitute an indictable offence against the Australian Passports Act (subparagraph 14(1)(a)(iv)).
46. The Secretary of and SES employees in the Attorney-General’s Department and the AFP are specified (subsection 3.4(2) and paragraph 3.4(3)(b), respectively). These authorities have responsibility for, or powers, functions or duties in relation to international law enforcement cooperation matters as noted above (section 3.2). The elements of many of these matters overlap with the elements of potential harmful conduct.
47. Paragraph 3.4(3)(a) specifies the Australian Customs Service. Customs has responsibility for, or powers, functions or duties in relation to indictable offences under the Customs Act 1901 which are specified in this Determination (Schedule 1 Part 2).
48. Paragraph 3.4(3)(c) specifies the Australian Security Intelligence Organisation. One of its functions is to advise the Minister for Foreign Affairs in respect of matters relating to security where those matters are relevant to the Minister’s functions and responsibilities (Australian Security Intelligence Organisation Act 1979, paragraph 17(1)(c)). This advice takes the form of a refusal request for the reason that a person would be likely to engage in conduct that might prejudice the security of Australia or a foreign country (Australian Passports Act , subparagraph 14(1)(a)(i)).
49. Paragraph 3.4(3)(d) specifies the Australian Trade Commission to the extent that it performs consular functions within the consular district of Vancouver. It is specified for the same administrative reasons as it was in relation to international law enforcement cooperation (paragraph 3.2(2)(b)).
50. A passport may not be issued to a person who has already been issued with an Australian passport that is still valid (Australian Passports Act, subsection 17(1)), except in the circumstances specified in this Part.
51. Paragraph 4.1(a) provides for the issue of a concurrent passport to avoid significant delays waiting for a visa to be issued. In considering whether the delays are significant, the Minister’s delegate will consider whether the travel is essential and cannot be deferred.
52. Paragraph 4.1(b) provides for the issue of a concurrent passport where a country will not accept travel documents showing travel to certain other countries.
53. Paragraph 4.1(c) provides for the issue of a concurrent passport in other exceptional circumstances. An example may be when a passport is temporarily unavailable to the holder in circumstances outside the passport holder’s control and it is unreasonable to cancel the unavailable passport (for example, because it has valid visas in it). In these circumstances, a concurrent passport with a limited period of validity may be issued.
54. Section 4.2 provides for the issue a diplomatic or official passport to a person who has already been issued with an ordinary passport, and vice versa.
55. These provisions codify existing practice and updates the 1938 Act (section 7D). Australian passports include diplomatic, official and emergency passports. In practice, the term ‘concurrent’ passport applies to multiple passports issued in circumstances set out in section 4.1.
56. The Australian Passports Act permits the Minister to specify the time at which an Australian passport ceases to be valid (subsection 20(2)). The Determination codifies existing practice and updates and modernises the 1939 Regulations (Regulation 7).
57. Validity periods are expressed as maximums and may be reduced by the Minister (or a delegate of the Minister) depending on the circumstances of the applicant.
58. Paragraph 5.1(2)(d) sets to a maximum of five years the validity of a passport issued to a person who has reported as lost or stolen three or more travel documents in the last five years. This sets the standard approach in such a situation. It complements the power in the Australian Passports Act to refuse to issue a passport to a person who has lost or had stolen two or more passports in the past five years (section 15).
59. These provisions are important parts of a key policy objective for the revision of the Australian passports legislation – to minimise the problems caused by lost or stolen travel documents. Lost or stolen travel documents can provide criminals with the potential to assume another identity, to carry out criminal activity in another name, and to travel illegally. These provisions are part of a range of measures in this Determination, which include:
· issue of documents of identity when issue of a passport is undesirable (paragraph 6.3(1)(a));
· notification of lost, stolen and otherwise invalid travel documents (section 7.4); and
· additional fees for replacement of lost or stolen travel documents (subsection 8.1(3)).
In addition, an Australian travel document which has been reported lost or stolen will be permanently and immediately cancelled (Australian Passports Act, paragraph 22(2)(b)).
60. Depending on the circumstances, rather than refuse to issue a passport, the Minister (or a delegate of the Minister) may decide to issue a passport but reduce the validity period, for example, to meet the immediate travel needs of the applicant. In other circumstances, the Minister (or a delegate) may refuse to issue a passport but issue a document of identity to meet the immediate travel needs of the applicant, as noted below (section 6.3).
61. Paragraph 5.1(2)(e)) sets the validity of a concurrent passport issued to avoid significant delays waiting for visas to be issued (paragraph 4.1(a)). This is restricted to the duration of the proposed travel plus six months up to the maximum of three years.
62. Paragraph 5.1(2)(f) sets the maximum validity of emergency passports. The validity is restricted to meet the immediate travel needs of the client up to a maximum of 1 year.
63. An emergency passport may be issued in circumstances where:
· an applicant cannot complete the full requirements for the issue of an ordinary passport but the Minister (or a delegate of the Minister) is satisfied of the basic requirements for the issue of a passport with a maximum (or full) validity period. These basic requirements are evidence of identity and entitlement (such as citizenship, no refusal requests, or full consent of all persons with parental responsibility for a child); or
· an applicant satisfies the Minister (or a delegate of the Minister) of all requirements and has a need to travel before the standard period for producing an ordinary passport, which is currently 10 working days.
64. Paragraphs 5.1(2)(i) to (k) set restricted validity periods for passports in specified circumstances to complement the policy that the application fee for the passport is waived (paragraphs 8.2(b) and (c)). These circumstances are terminally ill children, change of name because of marriage, divorce, or death of a spouse, replacement for a passport originally issued to a child during his or her first year of life.
65. The Australian Passports Act also permits the Minister to specify other circumstances under which an Australian passport ceases to be valid (subsection 20(2)).
66. Subsection 5.2(1) provides that a passport ceases to be valid if it is damaged and the Minister is satisfied that it is no longer usable as evidence of the identity and citizenship of its holder or to facilitate international travel. Subsection 5.2(2) sets out evidence that the Minister must take into account in making the decision that a passport is damaged.
67. The purpose of this provision is to remove unusable passports from circulation to prevent fraudulent use. The primary purpose is not to deprive an Australian of a passport. Accordingly, the decision of the Minister (or a delegate of the Minister) that a passport is no longer usable is not reviewable. An officer may demand that a person surrender a passport that has ceased to be valid (Australian Passports Act, section 24).
68. In certain circumstances, such as faults as a result of error by the Department or damage due to natural disasters, the fee for a replacement passport may be waived (paragraphs 8.2(e) & (j)).
69. The Minister’s powers and functions under this provision have been delegated (subsection 10.1(1)). Delegations are to members of diplomatic staff of Australian missions, consular officers, other employees of the Department who would be presented with such documents, Customs officers, as well as employees (at APS 6 level and above) of the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA):
· at airports and seaports; and
· engaged in its onshore compliance program; and
· engaged as airline liaison officers, located overseas.
Travel-related documents
70. Section 5.2 also applies to the issue of travel-related documents, in accordance with section 6.5.
71. Subsection 5.3(1) provides that a passport ceases to be valid when a specified circumstance occurs. The circumstance may be mentioned in an endorsement (or in other advice in writing to the holder). For example, the holder may have been issued a one-way travel document for law enforcement purposes. The travel document ceases to be valid after the holder has used the document to enter the intended country of destination. In Australia, Customs officers, and employees (at APS 6 level and above) of DIMIA at airports, seaports and engaged in its onshore compliance program have the power to demand the surrender of such invalid documents (subsection 10.1(1) and Australian Passports Act, section 24).
72. Subsection 5.3(2) provides that a passport ceases to be valid if the holder dies or is longer a citizen.
73. These provisions are important for the integrity of the Australian passports system and complement national law enforcement and security objectives.
Travel-related documents
74. Section 5.3 also applies to the issue of travel-related documents, in accordance with section 6.3
75. The Australian Passports Act permits the Minister to issue specified kinds of travel-related documents in specified circumstances (section 9).
76. Part 6 updates the 1939 Regulations for Convention travel documents, certificates of identity and documents of identity and codifies administrative arrangements for provisional travel documents.
77. A convention travel document (also referred to as a titre de voyage), is issued to a person recognised by Australia as a refugee, in accordance with the Convention relating to the Status of Refugees (1954 ATS 5) and the Protocol relating to the Status of Refugees (1973 ATS 37) (collectively called the Refugee Convention). Article 28 is the key provision. A convention travel document will allow a holder to re-enter Australia only if the holder has a valid Australian visa with re-entry rights. This section updates the 1939 Regulations (Regulation 8).
78. A certificate of identity may be issued to a person who:
· is not an Australian citizen and is about to leave Australia; and
· is stateless or is unable to obtain a travel document from their country of nationality
79. These are often issued to holders of certain Special Humanitarian or Special Assistance Australian visas. A certificate of identity will allow a holder to re-enter Australia only if the holder has a valid Australian visa with re-entry rights.
80. Subparagraph 6.2(1)(c)(i) provides that the Minister (or a delegate of the Minister) may issue a certificate of identity to a person recognised by Australia as a stateless person, in accordance with the Convention relating to the Status of Stateless Persons (1974 ATS 20). Article 28 is the key provision.
81. There are several changes to the 1939 Regulations (Regulation 9). These changes are consistent with the wide range of measures to improve the integrity of the passport system. These new provisions will ensure that only those people who are eligible to hold a certificate of identity do so, as the circumstances of justifying their eligibility may change.
82. Paragraph 6.2(2)(a) provides that certificates of identity are now valid for a maximum of three years, instead of five. This codifies longstanding practice. Subsection 6.2(4) provides, as an exception to paragraph 6.2(2)(a), that when certificates are extended overseas, the total period of validity may be no more than five years. These provisions more accurately reflect existing practice.
83. Paragraph 6.2(2)(b) provides that when the holder returns to the holder’s country of citizenship and is able to obtain a travel document from that country’s passport issuing authority, the certificate ceases to be valid.
84. Subsection 6.2(3) retains the provision that a certificate may be extended, overseas. However, it may not be extended if the holder is able to obtain a travel document from that country’s passport issuing authority (subparagraph (b)(ii)). This will ensure consistency with paragraph 6.2(2)(b).
85. Subsection 6.2(5) provides for the issue of a replacement certificate of identity if the original document has been lost, stolen or damaged overseas and the applicant has a valid Australian visa with re-entry rights. This mirrors the provisions in relation to convention travel documents (subsection 6.1(7)).
86. Validity periods are expressed as maximums and may be reduced depending on the circumstances of the applicant. For example, the validity period may be reduced because the applicant has applied for Australian citizenship but cannot postpone travel until after naturalisation.
· A document of identity is normally issued to Australian citizens in relation to whom the Minister (or a delegate of the Minister) considers it is either unnecessary or undesirable to issue a passport (paragraph 6.3(1)(a)).
87. An important example of when a document of identity may be issued when it is unnecessary or undesirable to issue a passport is when a person has lost or had stolen two or more passports and the Minister (or a delegate of the Minister) has decided to refuse to issue another passport. The person may be issued with a document of identity for international travel for a particular purpose. This enables the Government to balance the competing policy priorities in the International Covenant on Civil and Political Rights (1980 ATS 23, Article12) ensuring freedom of movement for a person while enabling the Minister (or a delegate) to act where there are reasonable grounds to believe that the person is allowing others to use the passports for identity fraud or other criminal activity, or that the applicant is simply not adequately protecting his or her passport.
88. Such a power is an important part of a key policy objective for the revision of the Australian passports legislation – to minimise the problems caused by lost or stolen travel documents. Lost or stolen travel documents can provide criminals with the potential to assume another identity, to carry out criminal activity in another name, and to travel illegally. These provisions are part of a range of measures in this Determination, which include:
· limitation of the period of validity (paragraph 5.1(2)(d));
· notification of lost, stolen and otherwise invalid travel documents (section 7.4); and
· additional fees for replacement of lost or stolen travel documents (subsection 8.1 (3)).
In addition, an Australian travel document which has been reported lost or stolen will be permanently and immediately cancelled (Australian Passports Act, paragraph 22(2)(b)).
89. Other examples include:
· Australian citizens travelling to or from Norfolk Island; and
· Australian citizens who request a document of identity instead of a passport; and
· Australian citizens who are transgender, that is are living in the identity of a member of the opposite sex; and
· Australian citizens being repatriated or deported to Australia or extradited; and
· Australian citizens in circumstances when an identity document is required to permit travel to a country in which there is an Australian embassy, high commission or consulate to obtain a passport; and
· Australian citizens to travel until the Minister (or a delegate of the Minister) is satisfied the person meets all the requirements (such as citizenship, no refusal requests, or full consent of all persons with parental responsibility for a child); and
· Australian citizens whose travel the Minister believes should be restricted.
90. A document of identity may also be issued to people who possess the nationality of another Commonwealth country who have an urgent need to travel but cannot obtain a travel document from their own country (paragraph 6.3(1)(b)).
91. The change to the 1939 Regulations (Regulation 10) is that documents of identity now specify the maximum validity as three years. This change is consistent with the wide range of measures to improve the integrity of the passport system. This provision will ensure that only those people who are eligible to hold a document of identity do so, as the circumstances of justifying their eligibility may change.
92. Validity periods are expressed as maximums and may be reduced depending on the circumstances of the applicant. In most cases, a document of identity is issued for a short-term or single journey. For example, for a document of identity issued to a citizen of another Commonwealth country, a maximum validity period of three months is normally sufficient. Documents of identity for travel to and from Norfolk Island have a validity of three years.
93. This section codifies existing administrative arrangements for the issue of provisional travel documents to Australian citizens overseas. These documents may be issued if an identity document is required to permit travel to a country in which there is an Australian embassy, high commission or consulate to obtain a passport or other Australian travel document. It is issued by Australian Honorary Consuls and other countries’ missions (such as missions representing Canada) in places where Australia has put in place consular sharing arrangements.
94. Subsection 6.5(1) ensures that the provisions in the Australian Passport Act and this Determination in relation to refusal to issue a passport apply to travel-related documents (except documents of identity). These general restrictions cover children, Australian law enforcement matters, international law enforcement cooperation, potential harmful conduct and concurrent passports (Part 2, Division 2, Australian Passports Act and Parts 2 and 3 of the Determination).
95. Subsection 6.5(2) generally applies the restrictions in the Australian Passport Act and this Determination relating to the refusal to issue a passport to the issue of documents of identity. However, provisions relating to refusal to issue a passport in relation to Australian law enforcement matters (section 12) do not apply to documents of identity. One example of the implementation of this provision is an Australian law enforcement agency (or other competent authority) may request the refusal or cancellation of a person’s passport but want the person to travel internationally so that the reason for the refusal/cancellation request, such as facing trial, can be supported.
96. Another example is where the Minister (or a delegate of the Minister) decides to issue a document of identity to permit travel. Most frequently, the travel will be for consular reasons.
97. Subsection 6.5(3) provides that a travel-related documents ceases to be valid if:
· it is damaged and no longer usable as evidence of identity to facilitate international travel, in circumstances set out in section 5.2;
· a circumstance set out in subsection 5.3(1) occurs; or
· the holder dies or loses citizenship (subsection 5.3(2)).
98. Subsection 6.5(4) provides that before issuing a travel related document the Minister must be satisfied of the citizenship of the person. The Australian Passports Act already requires that the Minister must be satisfied of the identity of the person (section 10). These two provisions complement the requirements for passports, which are that the Minister must be satisfied of the identity and citizenship of the person before issuing a passport (Australian Passports Act, section 8)
99. There are two distinct objectives addressed under these provisions:
· collection and use of information which relates to satisfying the Minister (or a delegate of the Minister) before issuing an Australian travel document of a person’s identity, citizenship and, if necessary, entitlement (such as the absence of a refusal request or full consent of all persons with parental responsibility for a child).
· disclosure information for the limited purposes of notification that a travel document is lost or stolen or otherwise invalid, confirmation or verification of information relating to a holder of a travel document or applicant, assistance with international travel by a holder of a travel document; and law enforcement.
100. Division 1 provides for disclosure of information to the Minister and disclosure of information by the Minister so that the Minister may be satisfied as to identity, citizenship or other entitlement requirements. Collection and use of this information is regulated by the Australian Passports Act (sections 42 to 44) and the Privacy Act 1988. The Determination specifies what information may be collected and from whom the information may be collected.
101. Section 7.1 is a key operational provision. It specifies the personal information (in addition to the information provided with an application) which the Minister (or a delegate of the Minister) may request to satisfy identity or entitlement criteria (such as citizenship) for the issue of a travel document or for the performance of other functions under the Australian Passports Act. It specifies the persons who are authorised to provide this information (subsection (1) and paragraph (2)(a)). Finally, it specifies what information may be disclosed to these persons, so that the specified persons can confirm or verify existing information or provide further information (subsection (3)).
102. Paragraph 7.1(1)(a) specifies the Australian Electoral Commission. Its documents are not provided with an application. This information is provided in accordance with the Commonwealth Electoral Act 1918 (subsection 90B(4) Item 4 & paragraph 91A(2A)(c)).
103. Paragraph 7.1(1)(b) specifies persons who issued or signed a document which is relied on by the applicant as evidence of identity, address or entitlement. In the Department’s current practice, these persons include:
· State and Territory Registrars of Births, Deaths and Marriage (Registrars) in Australia (and overseas equivalents), for the purposes of validation details of birth, death, marriage, divorce, name change or sex of applicant
· DIMIA, to verify citizenship details (for Australians) or residency / visa status (for non-Australians)
· State and Territory Road Traffic Authorities, for confirming driving licence details presented as evidence of identity
· Financial institutions, for confirming account card details provided as part of the identity validation process
· Courts, to confirm status of proceedings and details of orders, particularly in relation to applications for a child where parents or others with parental responsibility have not provided consent to the child travelling internationally
· Any other person whose document is relied on in an application for a travel document, such as a school (or a school teacher) who provided information concerning a child.
104. Paragraph 7.1(1)(c) specifies persons who can provide other information that the Minister considers is necessary for the purpose of satisfying the Minister as to the person’s identity or entitlement (such as citizenship).
105. Subsection 7.1(2) specifies that the Minister (or a delegate) may disclose the information to a person mentioned in an application or a person specified in subsection (1).
106. Subsection 7.1(3) specifies the personal information that the Minister (or a delegate of the Minister) may disclose. In order to be able to verify information provided by an applicant, the Department needs to be able to disclose the minimum necessary information to the persons specified in the Australian Passports Act (subsection 42(1)) and in subsection 7.1(1).
107. These provisions support the Australian Passports Act which provides that the Minister (or a delegate of the Minister) may request persons who are mentioned in an application (such as guarantors and parents) to disclose information to the Minister or to a delegate (subsection 42(1)).
108. The Australian Passports Act provides express authority or direction for these persons to disclose the information to the Minister (or a delegate of the Minister), if necessary for the purposes of the Privacy Act 1988 and any equivalent State or Territory law (subsection 42(3)).
109. Section 7.2 specifies that the Minister (or a delegate of the Minister) may request any information mentioned in the application form. The application forms must be approved by the Minister (Australian Passports Act, paragraph 7(3)(a)). This provision removes any ambiguity about whether particular pieces of information can be reasonably requested, by the Minister (or a delegate), so that the Minister can be satisfied of the identity or entitlement (such as citizenship) of an applicant.
110. The current forms, approved by the Minister, refer to:
· Birth, marriage, divorce, death, name change, citizenship certificates
· Australian State or Territory or foreign driving licences
· Birth card
· Medicare card
· Department of Veterans Affairs card
· Centrelink card
· Credit card or account card
· Motor vehicle registration /insurance documents
· Property rates or lease documents
· Home insurance documents
· Utility Bills
· Bank or other financial institution statements
· Foreign residency card
· Foreign travel document
· Foreign social security card
· Foreign health card
· National insurance card
111. The Australian Passports Act provides that the Minister (or a delegate) is not prevented from requesting information that is not specified in this provision so that the Minister can be satisfied as to the identity or entitlement (such as citizenship) of an applicant (subsection 43(2)).
112. Section 44 of the Australian Passports Act permits the Minister to specify that information is to be disclosed in a particular manner or a particular form. Paragraph 7.3(a) requires that information disclosed in electronic form must be in a manner compatible with the systems of the Department operated for the purposes of performing functions under the Act. Paragraph 7.3(b) requires that information disclosed in hard-copy form must be original documents.
113. These administrative arrangements are necessary to enable the Department to efficiently issue more than 1 million passports annually, within the standard period for producing a passport, which is currently no more than 10 working days.
114. The disclosure of this information is regulated by the Australian Passports Act (sections 45 and 46) and the Privacy Act 1988. The Determination specifies what and to whom information may be disclosed (Schedules 2 and 3, respectively). The disclosure of this information is important for the integrity of the Australian passports system, to assist Australian travellers and to complement Australia’s law enforcement and other whole of government objectives.
115. It is intended that disclosure of this information will be subject to memoranda of understanding (or similar arrangements). The principles governing these arrangements are:
· that the minimum necessary information will be disclosed;
· procedures are in place to ensure that genuine passport holders are not unnecessarily hampered and that invalid travel documents are removed from circulation; and
· if information is disclosed to another country, that country commits to protect the information in the same manner as it maintains information concerning its own citizens.
116. The notification of information about lost, stolen and suspicious documents is an important part of a key policy objective for the revision of the Australian passports legislation – to minimise the problems caused by lost or stolen travel documents. Lost or stolen travel documents can provide criminals with the potential to assume another identity, to carry out criminal activity in another name, and to travel illegally. This provision updates the 1939 Regulations (subregulation 12(1)(a)).
117. These provisions are part of a range of measures in this Determination, which include:
· limitation of the period of validity (paragraph 5.1(2)(d));
· issue of documents of identity when issue of a passport is undesirable (paragraph 6.3(1)(a)); and
· additional fees for replacement of lost or stolen travel documents (subsections 8.1(3));
In addition, an Australian travel document which has been reported lost or stolen will be permanently and immediately cancelled (Australian Passports Act, paragraph 22(2)(b)).
118. The Australian Government has in place memoranda of understanding with New Zealand, the United States and the International Criminal Police Organisation (Interpol) (Schedule 3 Part 1), as part of a strategy to establish these arrangements with other countries with which Australia shares a high volume of travellers.
119. Disclosure of this information enables countries which are party to the Convention on International Civil Aviation (1957 ATS 5) to meet their obligation to seize the travel documents from a person impersonating the rightful holder of the travel document (Annex 9, Facilitation, 3.56).
120. In practice, when a person presents an Australian travel document, which is listed as lost, stolen or otherwise invalid, to a border control authority, the Department has in place procedures so that its Watch Office is notified as soon as practical. The Watch Office will advise on the validity and authenticity of the travel document. The purpose of this advice is to assist the foreign border control authority to determine whether the holder may enter or transit that authority's jurisdiction.
121. The Department provides information on lost, stolen and otherwise invalid documents to Interpol’s ASFMail database for Stolen Travel Documents (STD) through AFP, which is Interpol’s Australian National Central Bureau. The Interpol General Secretariat may authorise a National Central Bureau or an authorised national institution to access the police information system directly, to download an item of information from the ASFMail STD database to a national database, or to make interconnections between the network and the ASFMail STD database, in accordance with Interpol's Rules on the processing of information for the purposes of international police cooperation (Article 20).
122. Authorised national institutions (such as a border control authority) means any national institution, or any entity, fulfilling the role of a public institution concerned with enforcement of the criminal law or likely to be able to provide effective assistance to international police cooperation which has received the authorisation of its country's National Central Bureau (Article 1(f)).
123. The Department, through the AFP, shall retain control over the access rights to the information on lost, stolen or otherwise invalid documents, including which countries’ National Central Bureaux, authorised national institutions or other entities may have access to the information (Article 5). In this way, it will ensure that the principles governing this arrangement (set out above) are complied with.
124. Section 46 of the Australian Passports Act permits the disclosure of personal information, on request, for the following purposes:
a. confirming or verifying information relating to an applicant for an Australian travel document or a person to whom an Australian travel document has been issued; and
b. facilitating or otherwise assisting the international travel of a person to whom an Australian travel document has been issued; and
c. law enforcement.
125. Subsection 7.5(1) provides for confirmation or verification of information relating to a travel document. The standard situation when an organisation may request this information is when the passport is presented as identification for another service. The organisations which may currently request this information are set out in Schedule 3 Part 2. The Department will provide information in a manner consistent with the principles governing set out above. The arrangements would usually be set out in a memorandum of understanding.
126. In practice, the Department has established a secure on-line verification system. An accredited organisation may request confirmation or verification by submitting the details on the data page of the travel document and will receive automated advice that the travel document is valid, or invalid. If the advice is that the document is invalid, procedures will be put in place, managed by the Department’s Watch Office, to ensure that genuine passport holders are not unnecessarily hampered and that invalid travel documents are removed from circulation.
127. Subsection 7.5(2) provides for traveller facilitation. Traveller facilitation is a term familiar to the travel industry. It describes arrangements which make immigration processing faster and smoother for travellers and which more effectively assure passenger safety and border security.
128. The Department of Foreign Affairs and Trade, in co-operation with the Australian Department of Immigration and Multicultural and Indigenous Affairs, is establishing traveller facilitation arrangements with foreign governments’ immigration authorities (initially New Zealand) so that they will be able to verify the validity of Australian travel documents. As a result, the vast majority of travellers can be processed with minimal intervention and delay. In this way, Australians can benefit from the same arrangements when travelling to other countries as they do when returning to Australia. This provision updates the 1939 Regulations (subregulation 12(1)(b)).
129. Traveller facilitation is set out in detail in the Convention on International Civil Aviation (Annex 9 Facilitation), which provides that:
3.1. In order to facilitate and expedite the clearance of persons entering and departing by air, Contracting States shall adopt border control regulations appropriate to the air transport environment and shall apply them in such a manner as to prevent unnecessary delays.
130. Specifically, in relation to inspection of documents, the Annex provides that:
3.53 Operators shall take precautions at the point of embarkation to ensure that passengers are in possession of the documents prescribed by States of transit and destination for control purposes as described in Chapter 3, Section B.
3.54 Contracting States and operators shall cooperate, where practicable, in establishing the validity and authenticity of passports and visas that are presented by embarking passengers.
131. Section 8.1 (together with Schedule 4 - Fees) updates the structure of the 1939 Regulations (Regulation 6 and subregulation 13(1)). Government policy is that the application fees for travel documents specified in Schedule 4 are indexed annually by a formula based on the All Groups Consumer Price Index (CPI, being the weighted average of the 8 capital cities).
132. An important change is that the fee is now charged for the lodgement of an application form rather than for the issue of the travel document itself. Ordinarily, this fee would not be refunded if, for example, an applicant decided to withdraw an application or the application was refused because of false or insufficient information. Refunds of fees in special circumstances are addressed in subsection 8.3(6).
Priority processing fee
133. Subsection 8.1(2) provides for the priority processing fee for issue of a travel document within 48 hours after the provision of all the information requested by the Minister (or a delegate of the Minister) for the purpose of being satisfied of the identity or entitlement of the person in order to issue the document. This fee is in addition to the standard application fee. Refunds of the priority processing fee are addressed in subsections 8.3(2) & (3). It updates 1939 Regulations (subregulations 6(1) & (2)).
134. The need to meet the demand for the urgent issue of travel documents, by more than 10% of applicants, significantly affects the Department’s capacity to provide the full range of passport services. The fee reflects the added demand that priority requests place on the passport issuing system.
Lost or stolen fee
135. Subsections 8.1(3) and (4) provide for additional fees for the replacement of lost or stolen travel documents. These fees will emphasise the importance of protecting travel documents. These provisions are an important part of a key policy objective for the revision of the Australian passports legislation – to minimise the problems caused by lost or stolen travel documents. Lost or stolen travel documents can provide criminals with the potential to assume another identity, to carry out criminal activity in another name, and to travel illegally. These provisions are part of a range of measures in this Determination, which include:
· limitation of the period of validity (paragraph 5.1(2)(d));
· issue of documents of identity when issue of a passport is undesirable (paragraph 6.3(1)(a)); and
· notification of lost, stolen and otherwise invalid travel documents (section 7.4).
In addition, an Australian travel document which has been reported lost or stolen will be permanently and immediately cancelled (Australian Passports Act, paragraph 22(2)(b)).
136. The fee also reflects the fact that the added demand of managing the problem of lost or stolen travel documents significantly affects the Department’s capacity to provide the full range of passport services.
137. The additional fee is calculated by reference to how many travel documents the applicant has lost or had stolen in the period of 5 years before applying for the travel document (Subsection 8.1(3) and Schedule 4, Items 4.2 to 4.4). The fees are calculated as follows:
· 1 travel document lost or stolen, approximately one third of the ordinary adult application fee;
· 2 travel documents lost or stolen, an amount equivalent to the ordinary adult application fee; and
· 3 or more travel documents lost or stolen, twice the ordinary adult application fee.
138. Paragraph 8.1(3)(b) provides that the lost and stolen fee is only payable to replace a travel document that has been lost or stolen. This addresses the circumstance where a person may have lost or had stolen travel documents in the five years before applying but the travel document being replaced with the current applicant was not lost or stolen. In this case, the lost or stolen fee is not payable.
139. Subsection 8.1(4) provides that in determining the number of lost or stolen travel documents, travel documents for which the fee for the replacement of which has been waived (under paragraph 8.2(j)) or a refund has been given (under subsection 8.3 (4), only) do not count.
140. As the lost or stolen fees are based on a percentage of the ordinary adult application fee, government policy is that these fees are also indexed annually. Moreover, the fee applies equally for the replacement of all Australian travel documents regardless of the status of the applicant.
141. The lost or stolen fee may be waived or refunded in limited circumstances (paragraph 8.2(j) and subsections 8.3(4) and (5), respectively).
142. This provision codifies existing practice and updates the 1939 Regulations (subregulation 13(2)(c)), which provides for grant of an exemption from fees if the Minister is of the opinion that in view of special circumstances it is not desirable that any fees should be charged. A travel document issued when the fee is waived is usually referred to as a ‘gratis’ document.
143. Paragraph 8.2(b) waives the application fee on change of name because of marriage or divorce, or on death of a spouse if the application is made within 1 year of the event. This provision accommodates the desire of many people to update their passports when they change their name. This provision will also encourage passport holders to replace their passports as soon as possible after the event. This will minimise the problems for passport holders that may occur when the identity shown on their passport is different from other identity or travel documents. It will also minimise the potential for identity fraud.
144. The replacement passport on change of name in these circumstances is valid for period ending when the passport being replaced would otherwise have ceased to be valid (paragraph 5.1(2)(j)).
145. Paragraph 8.2(c) waives the fee for an application for a passport issued to a terminally ill child or an accompanying family member for the purpose of travel sponsored by an Australian charitable organisation. The validity of such a passport is set at 1 year (paragraph 5.1(2)(i)).
146. Paragraph 8.2(d) waives the fee for an application for a document of identity for travel by an Australian citizen between Australia and Norfolk Island. This updates the 1939 Regulations (Schedule 2, Item 9).
147. Paragraph 8.2(f) waives the fee for an application for a certificate of identity by or on behalf of a person who is to be deported. The procedures for deportation are governed by Migration Act 1958 (Division 9).
148. Paragraph 8.2(g) waives the fee for an application to replace a passport if the period of validity of the original passport was less than the maximum. Such passports would be issued when an applicant cannot complete the full requirements for the issue of an ordinary passport but the Minister (or a delegate of the Minister) is satisfied of the basic requirements for the issue of a passport. These basic requirements are evidence of identity and entitlement (such as citizenship, no refusal requests, or full consent of all persons with parental responsibility for a child).
149. Paragraph 8.2(j) retains the general discretion to waive the application fee if the applicant is a person in respect of whom the Minister is of the opinion that in view of special circumstances it is not desirable that any fees should be charged. Special circumstances which may fall into this category are natural disasters. The fee may be waived for applicants who lose their travel documents or whose travel documents are damaged in a natural disaster. While the Minister’s powers and functions under paragraph (j) may be delegated (subsection 10.1(1)), the Minister has not done so.
150. The circumstances in which application fees may be refunded may be specified (Australian Passports Act, paragraphs 56(2)(b) and (c)). The term application fee includes priority processing fees and lost or stolen fees which are payable in addition to the standard application fee.
Priority processing fee
151. Subsection 8.3(2) updates the 1939 Regulations (subregulation 6(3)). The additional priority processing fee is payable as specified in subsection 8.1(2).
152. Paragraph 8.3(2)(a) provides the additional fee may be refunded if the travel document is not issued within the 48 hours period specified in subsection 8.1(2).
153. Paragraph 8.3(2)(b) provides the additional fee may be refunded if the Minister (or a delegate of the Minister) is satisfied there are compassionate grounds. This provision maintains the balance between ensuring the fee reflects the added demand that priority requests place on the passport issuing system and ensuring that passports system operates fairly for all Australians.
154. Subsection 8.3(3) codifies the existing practice for a refund for compassionate grounds when the need to travel is due to the death or serious illness of the mother, father, son, daughter, brother, sister, mother-in-law or father-in-law of the applicant.
Lost and stolen fee
155. There are two circumstances in which the lost and stolen fee may be refunded (subsections 8.3(4) & (5)). The additional lost and stolen fee is payable as specified in subsections 8.1(3) & (4).
156. Subsection 8.3(4) provides for a refund if the person to whom the original document was issued:
· applies for a refund within 3 months after the issue of the replacement travel document (paragraph (c))
· could not reasonably be regarded as having caused or contributed to the loss or theft (paragraph (c)); and
· the circumstances of the loss or theft are not covered by an insurance policy (paragraph (d)).
157. Subsection 8.3(4) is consistent with the Insurance Contracts Act 1984 (subsection 54(2)), which sets out when amounts are not payable due to acts within the control of the holder. In practice, a refund will not be made if the loss or theft was not in any way a result of the holder’s carelessness. Paragraph (c) ensures that an applicant is not refunded under this Determination and also able to claim under an insurance policy.
158. Subsection 8.3(5) permits a refund when:
· a lost or stolen document is reported lost or stolen (original document); and
· a lost or stolen fee is paid for the replacement of the original document; and
· the original document is then found or recovered; and
· returned by the person to whom the original document was issued to the Department or an Australian diplomatic mission or consulate; and
· a refund is applied for within 3 months after the original document was recorded by the Department as lost or stolen.
159. This provision reflects the objective of ensuring that lost or stolen travel documents are removed from circulation and, therefore, minimise the potential for identity fraud.
160. In either of the circumstances set out in subsections (4) or (5), refunds may not be made when it is not desirable to do so, for example, when the Minister (or a delegate of the Minister) is not satisfied with the information provided when the refund is sought.
Extenuating or unusual circumstances
161. Subsection 8.3(6) provides that the Minister (or a delegate of the Minister) may refund a fee if the Minister (or a delegate) is of the opinion that, in view of extenuating or unusual circumstances it is desirable that any fees should be refunded. A fee includes an ordinary application fee, a priority processing fee and a lost or stolen fee. This provision complements the similar waiver power (paragraph 8.2(j)).
Delegations
162. The Minister’s powers and functions under this provision have been delegated to officers authorised to issue travel documents including members of diplomatic staff of Australian missions and consular officers (subsection 10.1(1)). The power to refund a fee in extenuating or unusual circumstances is restricted to senior passports officers (subsection 8.3(6)).
163. The name of the person to whom an Australian travel document is issued must be the name on the person’s birth certificate, Australian citizenship certificate, registered marriage certificate or registered change of name certificate, except in circumstances specified in a Minister’s determination (Australian Passports Act, subsection 53(3)).
164. These provisions complement the requirement that the Minister must be satisfied of the identity of the person (Australian Passports Act, section 8). There are limited legal powers relating to the name of a person under Commonwealth law. This makes the Minister’s responsibility of satisfying him or herself as to the identity of the person more difficult. The legal responsibility for recording names resides with the Registrars of Births, Deaths and Marriages under State and Territory laws. Accordingly, the name registered with these Registrars will normally be used, as part of the process for the Minister to be satisfied of the identity of the applicant. These provisions codify the practice put in place from 1 September 2003 to prevent the potential for identity fraud through using names which have been changed but cannot be verified. They also update the 1939 Regulations (subregulation 5(2)).
165. These provisions also implement the policy that, whenever possible, only documents that can be verified with the organisation that issued the document will be accepted as evidence of identity or entitlement (such as citizenship). The department has in place a program for automated verification of certificates with the Registrars and DIMIA.
Change of name
166. Subsection 9.1(2) permits a person to request the use in a travel document of a previous name after the death of a spouse or divorce if the name is registered, is on an Australian citizenship certificate or is in a previous passport issued after 20 August 1986 (with a validity of two years or more).
167. Paragraph 9.1(5)(b) is the standard rule for a person to change his or her name on a new travel document. The person may use a different name in a travel document only if the name, by which he or she is registered, changes. There are exceptions, most commonly after the death of a spouse or divorce (subsection 9.1(2)).
168. Subsections 9.1(7) and (8) provide the framework for a person, who was born overseas and is unable to obtain a certificate from a Registrar, to change his or her name on a new travel document.
169. Paragraph 9.1(2)(b) and subsections 9.1(4) to (8) are designed to ensure that, whenever possible, the Minister can rely on a verifiable trail of names for a person to be satisfied of the identity of the person. As noted, Registrars (not the Department) are the appropriate authority with responsibility for recording change of names.
170. Subsection 9.1(4) addresses the circumstance where a person’s name on an Australian citizenship certificate may be different from the name on the person’s foreign birth certificate.
171. Subsections 9.1(5) and (6) address the circumstance when a person may have different names on an Australian citizenship certificate, registered marriage certificate or registered change of name certificate. A person may only use a different name if the name by which he or she is registered changes.
172. Subsection 9.1(12) provides that registered means registered on the register of births, deaths and marriages (however described) of any State or Territory.
Indigenous Australians
173. Subsection 9.1(3) specifies arrangements for indigenous Australians whose birth has not been registered. The use of the person’s name must be confirmed by the person’s community elders or supported by other evidence, such as advice from a religious or appropriate Government organisation within the person’s cultural area.
Exceptional circumstances
174. Subsection 9.1(9) provides that if on request of a person, in exceptional circumstances, the Minister considers it desirable that another name appear on the travel document, the person may use that name. An example may be a court order changing a child’s name in circumstances when this change could not be registered.
Unacceptable names
175. Subsection 9.1(10) provides that a name may not be a name that the Minister considers to be unacceptable.
176. Paragraphs 9.1(11)(a) to (h) specify categories of terms which may be treated as unacceptable, without limiting the general power in subsection 9.1(10). An Australian travel document remains the property of the Commonwealth at all times (Australian Passports Act, section 54). Australian passports are issued in the name of the Governor-General (Australian Passports Act, section 53(1)). In this context, it is not appropriate for Australian travel documents to contain names which fall into the categories specified in paragraphs (a) to (h).
177. Paragraphs 9.1(10)(i) to (k) specify categories of characters and symbols which may be treated as unacceptable to ensure the travel document conforms with operational standards. The international standards and recommended practices and procedures for travel documents adopted in accordance with the Convention on International Civil Aviation ([1957] ATS 5) (Article 37) referred to in paragraph (k) are currently set out in Document 9303 Machine Readable Travel Documents issued under Annex 9 Facilitation of that Agreement.
178. The Minister may endorse, or make observations on, Australian travel documents to specify particulars as the Minister thinks fit. This section updates the 1939 Regulations (Regulation 11).
179. Examples of what endorsements and observations may indicate include the status of the holder of a diplomatic or official passport; or a title, award or decoration conferred by the Crown; or that a document of identity was issued for travel between Australia and Norfolk Island.
180. A travel document ceases to be valid when on the occurrence of a circumstance specified in an endorsement, for example, when it is issued for travel which has been restricted for law enforcement purposes (subsection 5.3(1)). In this circumstance, the travel document would ordinarily be endorsed “Valid for one way travel to country”. The travel document ceases to be valid after the holder has used the document to enter the intended country of destination.
181. The Minister’s powers and functions under this provision have been delegated to officers authorised to issue travel documents including members of diplomatic staff of Australian missions and consular officers (subsection 10.1(1)).
182. The modern legal structure in the Australian Passport Act provides a clearer line of responsibility with the Minister responsible for all decisions. Furthermore, the regime for review of these decisions varied depending on who had made the decision.
183. The delegations of powers to take decisions, established under the Australian Passports Act (section 51), apply to most circumstances specified in this Determination. The review provisions in the Act (Part 5 Division 3) also apply. Additional delegations and review provisions in relation to the circumstances of damage, of waivers and refunds of fees and names which appear on travel documents are set out in sections 10.1 and 10.2.
184. The Minister’s powers and functions under this Determination which may be delegated are:
· in circumstances in which the Minister is satisfied that a passport (or travel document) is no longer usable as evidence of the identity and citizenship of its holder or to facilitate international travel (paragraph 5.2(1)(b) and subsection 6.5(3));
· in deciding to waive or refund fees (sections 8.2 and 8.3); and
· in deciding that a name other than a name on a person’s birth certificate, Australian citizenship certificate, registered marriage certificate or registered change of name certificate, may appear on an Australian travel document (section 9.1).
185. Currently these decisions are made by officials. Under the structure of the 1938 Act, these decisions are managed through an array of approved representatives, approved officers and authorised officers. The modern legal structure in this Determination will provide a clearer line of responsibility.
186. Decisions made under this Determination which will be reviewable in accordance with the procedures set out in the Australian Passports Act as if they were a reviewable decision under that Act (sections 48 to 50) are:
· waiver or refund of fees (sections 8.2 and 8.3); and
· in deciding that in exceptional circumstances, it is desirable that another name appears in the travel document or that a name is unacceptable (subsections 9.1(7) to (9)).