Bills Digest No. 135 2002-03
Migration Legislation
Amendment (Protected Information) Bill 2002
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Migration Legislation
Amendment (Protected Information) Bill 2002
Date
Introduced: 12 December
2002
House:
House of Representatives
Portfolio:
Immigration and Multicultural and
Indigenous Affairs
Commencement:
the day after Royal
Assent
to clarify that the Minister for Immigration s
authority to disclose confidential information is non-compellable,
and
to restrict the disclosure of protected
information to and by the Federal Court or the Federal Magistrates
Court in relation to the review of the Minister s exercise of
discretion to refuse visas on character grounds.
The main purpose of this Bill is to alter the
mechanism by which any information for reviewing character
decisions disclosed to the Federal Court or Federal Magistrates
Court(1) can be protected from further disclosure if the
Court considers that it is necessary to do so. Currently, the
Federal Court would protect such information if a claim of public
interest immunity had been made out, ie. that it is in the public
interest not to jeopardise possible information sources given the
possibility that confidential information could not be protected
after disclosure to the Court.
In general, as discussed below, claims of such
a public interest in the past have been upheld in favour of the
Minister.
Public interest immunity serves to protect
certain categories of information because the confidentiality of
the information is required by the public interest. In Sankey v
Whitlam, Acting Chief Justice Gibbs held that the object of
the immunity was to ensure the proper working of
government.(2) A court will only order disclosure where,
on balance, there is a greater public interest in having the
information disclosed. It is a matter for the judge deciding each
claim to immunity whether the documents for which immunity is
sought are to be inspected in determining the claim.
In general terms, there appears to be a debate
as to whether a certain rebuttable presumption against disclosure
exists for particular classes of documents such as cabinet
documents or whether there is a more general balancing of interests
test to be applied in each case. One commentator notes that:
the balancing process involves an assessment of
the nature of the proceedings, the public interest in maintaining
procedural fairness, the injury to the litigant if the documents
are withheld and the public interest in vindication of the wider
aspects of the public interest. (3)
Another relevant distinction in the balancing
process in the case law is whether the proceedings are criminal or
civil, with the implicit assumption that criminal proceedings
involve much more serious issues and effects. (4) In
other words, if it is a criminal matter, then the claim to immunity
would be weakened in the balancing process. In these cases, it
might be argued that the consequences are very serious for the
applicant, ie. refusal or cancellation of a visa, but that outcome
would not expose the applicant to criminal liability.
In general terms, the obligation to accord
procedural fairness, or natural justice or due process , is
described as a common law duty to act fairly... in the making of
administrative decisions that affect rights, interests and
legitimate expectations .(5) As a principle of fairness,
the content of the obligation must be flexible to take account of
what is fair in the circumstances,(6) but it often
obliges the decision maker to provide a hearing(7) and
an opportunity to deal with adverse information that is credible,
relevant and significant to the decision to be made .(8)
The right to a hearing and the right to cross examine others arises
where there are grave allegations(9) or where the
decision rests on personal characteristics.(10) National
security considerations may affect the content of procedural
fairness. Ultimately, however, and subject to the will of the
Parliament, they must be placed among other considerations in
determining these issues.
A form of character test was introduced into
the Migration Act 1958 by the then Labor Government in the
Migration (Offences and Undesirable Persons) Amendment Act
1992 (the Undesirable Persons Act).(11)
The purpose of the amendment was to allow the Minister to refuse
permission for people to enter or remain in Australia on the basis
of their character or conduct. Amongst other things, as a result of
the amendments in that Act, the Minister could refuse or cancel a
visa if satisfied, based on information available, that the person
was not of good character due to their past criminal conduct,
general conduct, or their association with another person or group
who the Minister had reasonable grounds to believe had been or was
involved in criminal conduct.
The Digest for the Undesirable Persons Act
noted its origins in the proposal by the Hell s Angels Motorcycle
Club to hold their World Run in Adelaide in November 1991. The
Minister refused to issue visas to known members because the
organisation was allegedly involved in criminal activities. Members
of the Club successfully argued that the Minister had wrongly taken
into account the applicant s membership and the Club s alleged
involvement in criminal activity.(12)
The current character test was introduced by
the Migration Legislation Amendment (Strengthening of
Provisions relating to Character and Conduct) Act 1998 (the
1998 Act). The issue for the present Bill is whether the Federal
Court should protect certain information relating to character and
conduct from disclosure. Currently, for information to be protected
under section 503A it must meet the following conditions, the
information must be:
communicated by a gazetted agency (domestic
and international intelligence and law enforcement
bodies)(13)
communicated by that agency to a person who is
an authorised migration officer
communicated on condition that it be treated
as confidential, and
relevant to the exercise of the Minister s
power to make a character decision.
The current section 503A is about protecting
information that is provided to the Minister on a confidential
basis by intelligence and law enforcement organisations. In
introducing the 1998 Act, the Minister stated:
Criminal intelligence and related information is
critical to assessing the criminal background or associations of
non-citizen visa applicants and visa holders. At present, it is
difficult for the Department to use such information in making
character decisions because its disclosure might be threatened.
Australian and international law enforcement agencies are reluctant
to provide sensitive information unless they are sure that both the
information and its sources can be protected This Bill increases
the level of protection for such information. I cannot overstate
the importance of this protection of preventing the entry of
foreign criminals to Australia (14)
In the debates on the Bill, it was argued that
the provisions of the Bill relating to confidential information
perhaps went too far. Support was expressed for the Administrative
Appeals Tribunal submissions to the Senate inquiry into the Bill
which stated that the information should at least be available to
the members of the Tribunal on a confidential basis for the purpose
of review.(15) Subsection 503A(3) states that it is a
matter for the Minister as to whether he or she will make a
declaration allowing for the release of protected information to
specified parties on particular conditions.
In general terms, a simplified fact scenario
would be as follows:
an application for a visa is refused on the
grounds of character under section 501 based on
information that the Minister has gained through intelligence and
supported by a claim of protecting national interest
the applicant denies the allegations of their
involvement in criminal activity or associations with criminal
organisations and appeals to the Federal Court
the Minister makes a public interest immunity
claim in relation to certain information upon which he or she has
relied, and
the applicant seeks access to that information
in order to be granted an opportunity to answer the claims against
them.
The history of cases involving possible
disclosure of protected information in similar circumstances is
worth noting in order to better explain relevant situations and
evaluations that have been made in relation to them by courts in
the past. In general, claims of public interest immunity were
upheld against applications for further details regarding the
information relied upon to inform the Minister s refusal or
cancellation of visas on character grounds.
In Choi v Minister for Immigration and
Multicultural Affairs,(16) the applicant had failed
to meet the character requirements under paragraph 501(2)(a) of the
Migration Act and the Minister was satisfied that the visa refusal
was in the national interest. It was alleged that the applicant was
a member of the Wo Shing Tong Triad group. The applicant sought to
inspect the relevant documents but the Minister and the Australian
Federal Police claimed public interest immunity. Mr. Choi
consistently maintained that he was not a member of, or associated
with, the Triad group. Lindgren J acknowledged it is difficult, if
not impossible for him to disprove the allegation made against him,
at least without having access to the information upon which the
Minister has relied .(17) However, Lindgren J upheld the
public interest immunity claim by stating that, in this case, the
public interest immunity in the open administration of justice was
outweighed by the public interest in the free flow of confidential
information internationally in respect of grant entry visas and
keeping out of Australia persons of bad
character.(18)
In Chu Sing Wun v Minister for
Immigration and Ethnic Affairs, the Regional Migration
Director said in his refusal letter to Mr. Chu that the Department
had
given great weight to confidential material that
strongly implicated Mr. Chu as being directly involved in criminal
activity and identified him as a known associate of Triad and
criminal elements.(19)
Allegations made against Mr. Chu were more
extensive than the ones made about Mr. Choi.
The applicant made three applications to the
Federal Court for review of the respondent s
decisions.(20) The non-disclosure of confidential
information was central to these applications. In the first
application, public interest immunity was claimed in respect to
some documents relating to law enforcement, national security,
international relations and the proper working of Government
.(21) The Department refused the applicant s request to
view the information stating that:
to disclose to Mr. Chu the details of the adverse
material could reveal the sources of that material and cause
serious harm to those sources and to Australia s ability to rely on
those sources in the future.(22)
The Department also argued that disclosure
would be contrary to the national interest. Justice French
stated:
Where the interests affected by the disclosure of
documents involve national security or the relationships with other
governments the impact of which is peculiarly within the knowledge
of the executive, the contentions of the Executive will be given
particular weight.(23)
Another application for review was based upon
grounds of a denial of natural justice.(24) The
applicant alleged that he was given no, or no reasonable
opportunity, to place evidence or submissions before the respondent
on the confidential materials and that the delegate s decision was
effectively incontestable and unchallengeable. (25) The
applicant relied on the reasoning of the Full Court in Minister
for Immigration and Local Government and Ethnic Affairs v
Kurtovic(26) where Gummow J noted that:
procedural fairness requires that the nature of
the allegations raised be disclosed to the applicant or his legal
representatives, so that advice may be given to the respondent on
whether to accept the appellant s invitation to make written
submissions, and if so, how these submissions should be
framed.(27)
In Kurtovic, the applicant was not
given any summary of the matters before the decision maker and was
merely invited to make submissions without having any means of
knowing what adverse matters might have been taken into account.
Beaumont J in the Federal Court distinguished the reasoning in
Kurtovic from the case in question arguing that although
Mr. Chu was not given the details of the confidential information,
he was given a summary of information and he was on notice of its
essential features and therefore the matters that might have been
taken into account.(28)
The question to the Full Federal Court was
whether the Court should be invited to view the material for
purposes of deciding whether its contents were adequately
summarised and fairly put to the applicant. The appellant asked
that relevant documents be taken into evidence for the Court to
assess. The respondent (the Minister) asked the Court to impose an
onus upon the applicant to establish that it was on the cards that
the confidential information would be helpful to him in
establishing one or other of his grounds upon which he based his
application for an order of review.(29) As a matter of
procedure, it was not permissible for the applicant to merely
conduct a fishing expedition . Carr and Sundberg JJ rejected the
Minister s argument in holding that the applicant was reasonable in
requesting that relevant documents be taken into evidence, on a
confidential basis, in order for the Court to decide at least the
procedural fairness issue.(30) Kiefel J, dissented by
asserting that courts should not examine such material absent some
reason for doubting the summary of factors which led to the
delegate s decision that the requirement of good character was not
met. It was noted that do so would be to undertake an investigation
to assess what weight ought to be given to pieces of information,
without evidence or explanation from the delegate.
(31)
The majority summarised the position of where
a claim for procedural fairness may arise:
Judicial review of the confidential material might
be seen simply as the price payable (on particular occasions such
as a this), for adjusting procedural fairness requirements
downwards in the course of protecting another public interest
We do not think that judicial examination of the
confidential material at the urging of the appellant amounts to
condonation of a fishing expedition. We would distinguish this case
from the mainstream of public immunity cases. This is, of course,
an administrative law case. The confidential information is a
central part of the case. If the confidential information
is sufficiently summarised and disclosed to the fullest extent as
is consistent with protection of the source or sources, then that
will dispose of the procedural fairness point in favour of the
respondent.(32)
The majority inspected the documents in this
case, and held that the details in the departmental report amounted
to adequate disclosure of the information and that the appellant
was clearly accorded procedural fairness.
The implication of the introduction of section
503A is that the Minister was no longer required to rely on a claim
of public interest immunity in order to protect information from
being disclosed to the Federal Court. However, in cases
where information was disclosed under a subsection 503A(3)
declaration to the Federal Court, the Minister would have to argue
that there was a public interest immunity in not making this
information available to the applicant or the public. This is the
main concern of the present Bill.
Both Choi and Chu concerned
the impact of using confidential information on the obligation to
accord procedural fairness. Access by the courts to that
information was only required to satisfy the procedural point.
Given that the content of the procedural fairness obligation can be
determined by statute, the introduction of 503A has been held to
resolve this issue.
This is evidenced by the most recent case of
Wong v Minister for Immigration and Multicultural and
Indigenous Affairs which is a decision to refuse a renewal of
a student visa under section 501.(33) Under this power,
the Minister can refuse to grant a visa to a person where he or she
reasonably suspects that a person does not pass the
character test and is satisfied that the refusal is in the national
interest. Subsection 501(5) states that the rules of natural
justice do not apply to such a decision.
Mr Wong was given a decision record which
stated that there was a reasonable suspicion based on protected
information that he did not pass the character test because of his
past and present general conduct. The record also stated that the
national interest could be damaged if Australia was seen to provide
a safe haven for people who have committed serious crimes in
another country and seek to evade that country s law enforcement
action. In the Department s submission to the Minister, it was
noted that Mr Wong may, on the basis of the record, be able to
convince the Minister to exercise his power to revoke the decision.
The trial judge agreed that:
The tenor of [the Record of Decision] is to the
effect that Mr Wong may be able to discern the type of case which
is being made against him although he will not have access to the
specific information which he would normally be entitled to in the
absence of s 503A. His entitlement to such information and
specific allegations might otherwise result from the implication
into the Act of the principles of natural justice. However,
there is an express prohibition in s 503A which shows a clear
intent to limit disclosure of information which can be provided to
an applicant. Such a clear expression is effective to preclude the
operation of the audi alteram partem [hear the other
side] rule in the fullest sense: see Twist v The Council of
the Municipality of Randwick (1976)
136
CLR 106 at 109-110. Section 501(5)
in terms provides that natural justice is not to apply to a
decision made under s 501(3). (34)
Mr Wong argued that he could not address
specific matters based on this general information in the decision
record and that the Minister should have been advised that the
failure to provide the protected information would render it
impossible to answer the claims made against him. He failed in the
argument that he had not been given a sufficient summary.
Importantly however, another case has referred
to the possibility of the impact of using such information on the
court s ability to conduct judicial review for an error of law.
Access in these cases is a more serious issue. In Wu v Minister for Immigration and
Multicultural Affairs,(35) it was argued that, for
the Minister to form a reasonable suspicion as to bad character,
the grounds for that suspicion, ie. information that formed the
basis of that suspicion, had to be made available to the court and
the applicant in order to be (objectively) tested. This argument
relied on cases such as Liversidge v. Anderson which deal
with the power of a court to examine the reasonableness of a
reasonable suspicion:
Reasonable
cause for an action or a belief is just as much a positive fact
capable of determination by a third party as is a legal right .[a]
'reasonable cause' for a belief, when the subject of legal dispute,
has always been treated as an objective fact, to be proved by one
or other party and to be determined by the appropriate
tribunal.(36)
However,
the court rejected this approach, following cases such as R v
Connell; Ex parte The Hetton Bellbird Collieries which deal
with the power of a decision maker to form his or her own suspicion
or opinion on a matter:
[W]here
the existence of a particular opinion is made a condition of the
exercise of power, legislation conferring the power is treated as
referring to an opinion which is such that it can be formed by
a reasonable man who correctly understands the meaning of the law
under which he acts. (37)
What the court
does do is to enquire whether the opinion required by the relevant
legislative provision has really been formed. If the opinion which
was in fact formed was reached by taking into account irrelevant
considerations or by otherwise misconstruing the terms of the
relevant legislation, then it must be held that the opinion
required has not been formed. In that event the basis for the
exercise of the power is absent, just as if it were shown that the
question was arbitrary, capricious, irrational or not bona fide.
(38)
The
position in Australia thus appears to be that the information
forming the basis of the reasonable suspicion need not be
objectively tested (as would have been required by a
Liversidge style argument). However the Full Federal Court
in Wu did, in passing, refer to the possibility, since
evidence of Mr Wu s good character was before the Minister and the
Minister could have disclosed it under paragraph 503A(3), of an
argument that an evidentiary burden should pass to the Minister.
The Court stated that in the absence of any explanation as why the
Minister had not followed the course described, it would be open to
the court to conclude that the no evidence ground provided for
under paragraph 476(1)(g) could be made out. However, since that
submission did not form part of Mr Wu s submissions, the Court refrained to
express a view on the issue.(39)
Although
it is always a matter for the Minister, in practice, even after the
introduction of section 503A, the need to disclose at least that
much information as to put the person affected by the information
on notice of its essential features would nevertheless appear to be
a consideration. It is possible that the Minister, although not
technically legally obliged to disclose any protected information
under existing subsection 503A(3), would still choose, after
consulting the gazetted agency, to disclose as much of the
information as he or she can. This is not least because of concerns
regarding basic notions of procedural fairness and accountability
in the use of confidential national security information, but
because, despite the fact that the rules of natural justice are not
to apply to character decisions on national interest grounds
(subsection 501(5)), there is still a remote possibility of review
if there is considered to be an error of law.
This may
consist of a contention that there is no basis at all for the
Minister s decision, no evidence , or that the decision that an
individual did not meet the good character requirements is so
unreasonable that no reasonable person could have drawn that
conclusion.(40) To say the least, these grounds of
review would appear to set an extremely high standard for
applicants, particularly in the context of the legislative intent
evinced by the privative clause provisions (section 474).
Nevertheless, they may be relevant in the context of the current
climate of judicial review in the Federal Court and High Court. A
court faced with a completely closed shop in terms of
access to protected information may be more ready to embark on an
examination of character decisions for jurisdictional error, based
on these grounds. As recent litigation on privative clauses has
demonstrated,(41) judicial review courts are likely to
react against any attempt to completely exclude them from
considering fundamental questions at the threshold.
The proposed amendments seek to clarify that a
power to make a declaration in order to release information under
subsection 503A(3) is non-compellable. In other words, the Minister
cannot be required to make a decision as to whether certain
confidential information is made available for the purpose of
reviewing an adverse character decision.
This is similar to existing non-compellable
discretions under the Migration Act. For example, the Minister has
powers to override an adverse decision of the Migration or Refugee
Review Tribunals (sections 351 and 417 respectively) and the failed
results of Administrative Appeals Tribunal appeals to those
decisions (sections 391 and 454 respectively). This means that the
Minister can exercise his or her discretion in favour of an
applicant that has failed an appeal or review process.
Section 48A states that an applicant who has
been refused a protection visa cannot apply for one again. Section
48B gives the Minister a power to grant exemptions to this rule.
Other such discretions include the ability of the Minister to grant
an exemption to apply for a visa where such a person would
otherwise be banned (see sections 91F, 91L, 91Q), and the power to
change the duration of temporary safe haven visas (subsections
37A(2) or (3)). All of these provisions are powers for the Minister
to exercise a discretion, and each set of provisions contains a
non-compellable element along the following lines:
The Minister does not have a duty to consider
whether to exercise the power in respect of any decision, whether
he or she is requested to do so by the applicant or by any other
person, or in any other circumstances.
It is proposed that similar words be added
into section 503A in order to clarify that the Minister is not
obliged to consider authorising the disclosure of protected
information.
Item 1 inserts the discretion
as to whether to make a declaration authorising protected
information to a list of discretions that cannot be reviewed by the
Federal Court.
Item 2 inserts
proposed subsection 503A(3A) which states that the
Minister does not have a duty to consider whether to declare that
specified information in specified circumstances may be disclosed
to a specified Minister, Commonwealth agency, court or tribunal as
provided for in existing subsection 503A(3). Before making a
declaration under subsection 503A(3), the Minister must consult the
gazetted agency from which the information came.
In other words, the Minister s choice not to
exercise his discretion to disclose information is not a reviewable
decision.
Existing subsection 503(4) states that a
Commonwealth officer who receives information under a subsection
503A(3) declaration must only disclose that information in
accordance with the conditions of that declaration. Item
3 inserts proposed subsection 503A(4A)
which states that any information disclosed to a Commonwealth
officer under a subsection 503A(3) declaration cannot be required
to be disclosed or given in evidence to the Federal Court or the
Federal Magistrates Court without:
a separate declaration under existing
subsection 503A(3) for disclosure to the Court.
a declaration under proposed subsection
503B(6). Proposed subsection 503B(6) provides for disclosures to be
made to the Federal Court or the Federal Magistrates Court in order
for it to determine whether it should make a permanent
non-disclosure order rather than for a substantive purpose, eg. for
review of a character decision (see item 6 below).
Existing subsection 503(5) states that a
tribunal which receives information under a subsection 503A(3)
declaration must only disclose that information in accordance with
the conditions of that declaration. Item 4 inserts
proposed subsection 503A(5A) which is a
restriction provision identical to proposed subsection 503A(4A) for
disclosures made to Tribunal members (rather than Commonwealth
officers).
Item 6 inserts
proposed section 503B allows for the Federal Court
to make permanent non-disclosure orders which must be read
in conjunction with proposed section 503C which
requires the Minister to apply for interim non-disclosure
orders.
Proposed subsection 503B(1)
states that the Federal Court or the Federal Magistrates Court may,
on application by the Minister, make appropriate orders to ensure
that if a subsection 503A(3) declaration comes into force (ie. that
information is disclosed), that the information received under it
is not divulged or communicated to the applicant or their legal
representative in relation to the substantive proceedings, nor
disclosed to any other member of the public. Before such a
non-disclosure order can be made by the Federal Court or Federal
Magistrates Court, the following conditions must be satisfied:
the information was communicated to an
authorised migration officer by a gazetted agency on the condition
that it be treated as confidential information and the information
is relevant to the exercise of a power to make a decision in
relation to the refusal or cancellation of a visa on character
grounds (existing sections 501-501C) or information is communicated
to the Minister or an authorised migration officer under paragraphs
503A(1)(a) or (b), and
the information is relevant to proceedings
before the Federal Court or the Federal Magistrates Court
(substantive proceedings) that relate to the refusal or
cancellation of a visa on character grounds, and
no subsection 503A(3) declaration is in force
authorising the disclosure of the information to the Federal Court
of the Federal Magistrates Court for the purposes of substantive
proceedings.
Proposed subsection 503B(2)
clarifies that non-disclosures made under proposed subsection
503B(1) include an order that:
some or all of the public are to be excluded
during some or all of the substantive proceedings
no report of some or all of the proceedings is
to be published, or
no person has access to a file or a record of
the Federal Court or Federal Magistrates Court containing protected
information without its consent.
Proposed subsection 503B(4)
states that the power to make permanent non-disclosure orders is to
be exercised by a single Judge or Magistrate.
Proposed subsection 503B(5)
sets out an exhaustive list of matters to which the Federal Court
or the Federal Magistrates Court must have regard when exercising
its power to make a non-disclosure order. It is worth noting that
despite the list being exhaustive, it contains the interests in the
administration of justice factor :
the fact that the information was originally
communicated to an authorised migration officer by a gazetted
agency on condition that it be treated as confidential
information
Australia s relations with other countries
the need to avoid disruption to national and
international efforts relating to law enforcement, criminal
intelligence, criminal investigation and security intelligence
in a case where the information was derived
from an informant the protection and safety of informants and of
persons associated with them
the protection of the technologies and methods
used (whether in or out of Australia) to collect, analyse, secure
or otherwise deal with, criminal or security intelligence
Australia s national security
the fact that the disclosure of information
may discourage gazetted agencies and informants from giving
information in the future
the effectiveness of the investigations or
official inquiries and Royal Commissions
the interests of the administration of
justice, and
such other matters (if any) as are specified
in the regulations,
and must not have regard to other matters.
Proposed subsection 503B(6)
states that the general prohibition on disclosure of confidential
information as set out in existing subsections 503A(1) and (2) does
not prevent the disclosure of information to the Federal Court for
the purposes of deciding whether the application for non-disclosure
order should be allowed (non-substantive purposes). Disclosure for
this purpose is to be distinguished from disclosure for the purpose
of substantive proceedings which would require a declaration under
existing subsection 503A(3) (proposed subsection
503B(7)). The Minister can make such a declaration under
existing subsection 503A at any time, including whilst the Federal
Court is considering whether to make a non-disclosure order under
proposed subsection 503B(1) (proposed subsection
503B(10)). Even if the Minister is successful in gaining a
non-disclosure order from the Federal Court, he or she may
nevertheless refuse to disclose the information under subsection
503A(3). In other words, even if the Federal Court agrees to make a
non-disclosure, ie. making it an offence for a person to engage in
conduct that would contravene the order not to disclose, the
Minister can nevertheless refuse to exercise his or her power to
authorise disclosure (proposed subsection
503B(11)).
Proposed subsection 503B(8)
requires that the Minister and the applicant in relation to the
substantive proceedings must consent to any variation or revocation
of a non-disclosure order.
Proposed subsection 503B(9)
states that the Minister can withdraw his or her application for a
non-disclosure order at any time.
Proposed subsection 503B(12)
states that a person is guilty of an offence punishable by up to 2
years imprisonment if the person engages in conduct contravening a
non-disclosure order that is in force
Proposed subsection 503B(13)
states that the section has effect despite anything in any other
provision of the Migration Act or any other law of the
Commonwealth.
Proposed subsection 503B(14)
defines the applicant for the purposes of the section with regard
to the proceedings that would be covered by it.
Proposed subsection 503B(15)
includes:
a definition of conduct that encompasses the
failure to do an act that may lead to a contravention of a
non-disclosure order.
a definition of proceeding which encompasses
any court proceeding, whether between parties or not, and including
any incidental proceedings and appeals.
Proposed section 503C would
allow the Federal Court to make interim non-disclosure
orders. These orders are designed to protect information that has
not been disclosed to assist with the resolution of substantive
proceedings (subsection 503A(3) declaration), but merely disclosed
to enable the Federal Court to decide whether an application for a
non-disclosure order should proceed (in accordance with subsection
503B(6)).
At least 7 days before making a permanent
non-disclosure application (proposed subsection 503B(1)), the
Minister must give the Federal Court written notice of the
intention to make the application. If such a notice has been given,
the Federal Court may make such orders it considers appropriate to
ensure that information, disclosed in accordance with subsection
503B(6), is not communicated in circumstances that might undermine,
prejudice or pre-empt the Federal Court s consideration of the
permanent non-disclosure application or the Minister s
consideration of whether to make a declaration authorising the
disclosure of information to the Federal Court.
Again, the Federal Court s orders can include
that some or all of the public are to be excluded during part or
all of the proceedings, that part or all of the application report
not be published, and an order for ensuring that no person has
access to a file or a record of the Federal Court that contains the
information.
The remaining provisions for interim
non-disclosure orders are similar to those for permanent
non-disclosure orders.
Relevant precedents suggest that the Federal
Court may be unlikely to find that the public interest in
protecting the confidentiality of such information would be
outweighed by the fundamental right of review interests of an
applicant. In the Minister s view, it would nevertheless appear
that traditional reliance upon the public interest immunity test
does not provide enough certainty for possible disclosures by the
Federal Court. As a result, the Bill seeks to codify a mechanism
through which subsequent disclosures can be limited.
It is worth noting that there does appear to
be at least one instance in which the Federal Court has ruled
against the Minister with regard to the disclosure of information.
In that case, it was decided that the source of the information,
ie. the identity of the agency, and proof that it was provided to
the Minister on a confidential basis, could be disclosed because
those particular facts were not held to be protected information
under section 503A.(42) The Government amendments in the
House of Representatives include provisions to address this
situation.(43)
In general terms, the Minister already has
control over the initial disclosure of the information to any party
in subsection 503A(3), including to a court or a tribunal. In the
past, it has been possible to at least infer the nature of the case
to answer from the documents made available to the court. Documents
were made available, presumably, because there remains at least a
possibility that an adverse character decision is reviewable by the
Federal Court on the grounds of an error of law. It is possible
that the mechanism of interim and permanent non-disclosure orders
may, in practice, have the effect of enabling the Minister to
further rely on protected information in making character decisions
secure in the knowledge that further disclosure would be an
offence. It is difficult to imagine a circumstance in which the
Minister would authorise the disclosure of any information if the
Federal Court is likely to find that a non-disclosure order is not
justified in the terms sought. Indeed, the legislation makes it
clear that even if a permanent or interim non-disclosure order is
granted, the Minister could nevertheless refuse to authorise the
disclosure of any information.
- Hereinafter, for convenience, references to
the Federal Court should be taken to include references to the
Federal Magistrates Court where appropriate.
- Sankey v Whitlam (1978) 142 CLR 1
per Gibbs ACJ at 40.
- Anne Cossins, Revisiting Open Government
Federal Law Review, Vol. 23, No. 2, 1995,
p. 253.
- ibid.
- Kioa v West (1985) 159 CLR 550 per
Mason J at 584.
- Mobil Oil Australia Pty Ltd v Federal
Commissioner of Taxation (1963) 113 CLR 475 per Kitto J at
504; Salemi v Minister for Immigration and Ethnic Affairs
(1977) 14 ALR 1 at 19; Kioa v West, loc. cit. per Mason J
at p. 585; Haoucher v Minister for Immigration and Ethnic
Affairs (1990) 169 CLR 648 per Deane J at 652.
- F.A.I. Insurances Ltd v Winneke
(1982-83) 151 CLR 342 per Mason J at 363.
- Kioa v. West, loc. cit. per Brennan
J at 629; See Cooper v. Wandsworth Board of Works (1863)
143 ER 414; Commissioner of Police v. Tanos (1958) 98 CLR
383 per Dixon CJ and Webb J at 395; T. A. Miller Ltd v.
Minister of Housing and Local Government [1968] 1 WLR per
Denning MR, at 995; Twist v. Randwick Municipal Council
(1976) 136 CLR 106.
- Roderick v AOTC (1992) 111 ALR
83.
- Excell v Harris (1983) 51
ALR 137.
- Previously, there were regulations which
deemed an applicant not to be of good character, if for example, he
or she has, in the reasonable belief of the Minister, been involved
in activities indicating contempt or disregard for the law or for
human rights.
- For further information see
Bills Digest on the Migration (Offences and Undesirable
Persons) Amendment Bill 1992, 12 December 1992.
- It is worth noting that questions have been
raised about whether the Gazettal, which consisted of a reference
to law enforcement bodies in a generic list of Countries, was
specific enough. For example, see NAAO v Secretary, Department
of Immigration and Multicultural Affairs [2002] FCA 292; 66
ALD 545, where it was questioned whether a reference to the Chinese
Government itself was sufficiently specific at 553 4.
Government Amendments introduced into the House of
Representatives on 19 March 2003 (amendment 2) address this
situation by providing definitions for gazetted agency and foreign
law enforcement body.
- Second Reading Speech, Migration Legislation
Amendment (Strengthening of Provisions relating to Character and
Conduct) Bill 1998. House of Representatives Debates, 2
December 1998, p. 1240.
- See for example, speeches by Senator
Margetts, Senate Debates, 25 November 1998, p. 662 and Mr
Laurie Ferguson MP, House of Representatives Debates, 2
December 1998, p. 1240.
- Chu Sing Wun v Minister for
Immigration and Ethnic Affairs (1998) 55 ALD 140.
- Choi v Minister for Immigration and
Multicultural Affairs (1998) 55 ALD 140 at: 142.
- Choi v Minister for Immigration and
Multicultural Affairs (1998) 55 ALD 140 at: 145 6.
- Chu
Sing Wun v The Minister for Immigration and Local Government
and Ethnic Affairs No. WAG195 of 1992 FED NO. 407 Practice and
Procedure, FCA (WA), French J, 2 June 1993.
- Chu Sing Wun v The Minister for
Immigration and Local Government and Ethnic Affairs No. WAG195
of 1992 FED NO. 407 Practice and Procedure, FCA (WA), French J, 2
June 1993; Chu
Sing Wun v Minister for Immigration (1995) 39 ALD 328,
Carr J; and Chu
Sing Wun v The Minister for Immigration and Local Government
and Ethnic Affairs 45 FCR 540.
- The claim for public interest immunity came
on for hearing before Sweeney J on 22 April 1993, cited in
Chu Sing Wun v The Minister for Immigration and Local
Government and Ethnic Affairs No. WAG195 of 1992 FED NO. 407
Practice and Procedure, FCA (WA), French J, 2 June 1993, at 4.
- Letter from the Department, Chu
Sing Wun v Minister for Immigration (1995) 39 ALD
328, at 330.
- Chu Sing Wun v The Minister for
Immigration and Local Government and Ethnic Affairs No. WAG195
of 1992 FED NO. 407 Practice and Procedure, FCA (WA), French J, 2
June 1993, at 7.
- Chu Sing Wun v The Minister for
Immigration and Ethnic Affairs (1997) 78 FCR 314.
- Chu Sing Wun v The Minister for
Immigration and Ethnic Affairs (1997) 78 FCR 314 at [6] under
natural justice .
- Minister for Immigration and Local
Government and Ethnic Affairs v Kurtovic (1990)
92 ALR 93.
- Minister for Immigration and Local
Government and Ethnic Affairs v Kurtovic (1990)
92 ALR 93 at 124.
- Chu Sing Wun v The Minister for
Immigration and Local Government and Ethnic Affairs 45 FCR 540
at 19.
- Carr and Sundberg JJ, Chu
Sing Wun v The Minister for Immigration and Ethnic Affairs
(1997) 78 FCR 314 at 341.
- Chu Sing Wun v The Minister for
Immigration and Ethnic Affairs (1997) 78 FCR 314. The
respondent relied upon Lord Fraser in Air Canada v Secretary of
State of Trade (1983) 1 All ER 718-719 which explained that,
as a matter of practice and procedure, it was not enough for the
party seeking disclosure to show that the documents would help
establish the truth one way or the other. The party seeking
discovery or disclosure of documents at an interlocutory stage, it
was held, must show that the documents are likely to assist his own
case.
- Chu Sing Wun v The Minister for
Immigration and Ethnic Affairs (1997) 78 FCR 314 at 345.
- Chu Sing Wun v The Minister for
Immigration and Ethnic Affairs (1997) 78 FCR 314 at 345,
emphasis added.
- Wong v Minister for Immigration and
Multicultural and Indigenous Affairs [2002] FCAFC 440 (20
December 2002).
- http://www.austlii.edu.au/au/cases/cth/federal_ct/2002/959.html
at 41.
- Wu v Minister for Immmigration and
Multicultural Affairs [2001] FCA 89 (16 February 2001).
- Liversidge v. Anderson [1942] AC 206 per Atkin LJ at 228 229.
- R v
Connell; Ex parte The Hetton Bellbird Collieries
(1944) 69 CLR 407
- ibid., per
Latham
CJ
at
432.
- Wu v Minister for Immmigration and
Multicultural Affairs [2001] FCA 89 (16 February 2001),
16.
- Traditionally, this is known as Wednesbury
unreasonableness , Lord Greene MR stated the ground was designed to
permit decisions that were manifestly absurd, disagreement with the
decision maker s conclusions would certainly not suffice.
Australian courts have generally followed Lord Greene s
characterisation as a starting point. Associated Provincial
Picture Houses v Wednesbury [1948] 1 KB 223. In the sphere of
character decisions, it is difficult to envision a circumstance in
which a court would hold that the Minister s decision would be
manifestly absurd in this sense. There has been much debate about
the appropriateness and scope of unreasonableness as a ground of
review. See, for example, Naomi Sidebottom,
Is there still a role for unreasonableness? Murdoch
University Electronic Journal of Law Vol. 8, No.
1 (March 2001).
- Plaintiff S157/2002 v Commonwealth
of Australia (Plaintiff S157/2002) (2003)
195 ALR 23; [2003] HCA 2.
-
NAAO v Secretary, Department of Immigration and Multicultural
Affairs, [2002] FCAFC 292, Full Federal Court, 20 March 2002,
Joint judgement of Spender, Gyles and Conti JJ.
- See proposed new section
503D and item 4 of proposed new
Schedule 2 of the
Government Amendments (amendments 3 and 5) introduced into the
House of Representatives on 19 March 2003.
Sudip Sen
16 April 2003
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