The Australian Greens thank everyone who made a public submission and/or public representation to this inquiry into the Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020 (the bill).
The bill, as submitted by the Refugee Council of Australia, would:
prevent refugee and citizenship applicants from reviewing confidential information used against them in their application. It would also prevent the Administrative Appeals Tribunal (AAT) from viewing protected information, essentially denying such applicants their right to merits review. It would also require the courts to prevent applicants and their legal representatives from viewing or responding to such information.
This inquiry allowed just two weeks for public submissions to be made. In that time, 15 submissions were provided to the committee. Except for a submission by the Department of Home Affairs, all these submissions were made by government and non-government experts on, and advocates for, human rights and refugees.
All these expert submitters recommended that the bill not be passed in its current form, with many rejecting it in its entirety. The Law Council of Australia and Victoria Legal Aid recommended more time for this inquiry, with the Law Council of Australia further recommending the bill not be considered before the existing legislative framework for protecting confidential information under the Migration Act 1958 (the Migration Act) is reviewed by an independent inquiry.
The Parliamentary Joint Committee on Human Rights (PJCHR) has also reported on the bill with preliminary international human rights legal advice (Human Rights Scrutiny Report 1 of 2021).
Consistent in expert submissions and PJCHR reporting were concerns regarding the bill’s engagement with, and limitation of, legal requirements and protected rights to a fair hearing and due process.
Regarding engagement with, and limitation of, the legal requirement and protected right to a fair hearing, the PJCHR was advised that the bill:
appears to have the effect of withholding sufficient information from the person to the extent that they are unable to effectively provide instructions in relation to, and challenge, the information, including possible criminal allegations against them.
Regarding engagement with, and limitation of, the legal requirement and protected right to due process, the PJCHR was advised that the bill limits the requirement by restricting:
a person’s access to information that informed the decision leading to their expulsion or deportation, as well as their ability to make submissions on the use of that information or the weight to be attributed to the information by the court.
As submitted by the United Nations High Commissioner for Refugees, these engagements and limitations represent ‘a further weakening of the ability of Australian law to ensure the protection of asylum-seekers, refugees and stateless persons in accordance with relevant international instruments to which Australia is party’.
These long-established and fundamental legal requirements and protected rights are important for anyone seeking access to justice. But for non-citizen visa applicants and visa holders in Australia, access to justice is particularly high-stakes. As submitted by the Refugee Advice & Casework Service, for this cohort:
information can be essentially determinative of whether a person is granted a vital migration outcome or not. In humanitarian cases, these stakes can boil down to literally life or death; in citizenship matters, they are at a minimum about whether a person will be permitted to “belong” to the Australian community in the fullest sense.
Decisions in these legal cases can also result in indefinite detention, refoulement, and permanent separation from families and children.
Several expert submitters also raised constitutional concerns. As submitted by the Andrew & Renata Kaldor Centre for International Refugee Law:
while the framework proposed in the Bill is designed to address the constitutional problems with the current Migration Act regime identified in Graham, it is by no means clear that they actually do so.
Regarding the bill’s possible infringement of section 75(v) of the Constitution, which provides that the High Court shall have original jurisdiction in all matters ‘in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth’, the Law Council of Australia has argued ‘it would not be prudent to pass the bill into law without proper examination of this constitutional issue’.
The bill may also prevent the Administrative Appeals Tribunal (AAT) from performing its statutory merits review functions. The bill also avoids parliamentary review, and provides only discretionary executive scrutiny. As submitted by the Asylum Seeker Resource Centre, the bill would:
in effect neuter the applicant’s right to merits review [by the AAT], removing a crucial safety net for ensuring that the correct and preferable decision is arrived at in an individual case … [while also ensuring] that the non-disclosure of Protected Information enjoys a worrying ‘cloak of invisibility’, from the courts, which will have only limited ability to scrutinise the use of these powers, and will completely exclude the AAT and the parliament from providing any scrutiny.
Finally, and importantly, no clear or compelling case has been made by the government for the bill. This was a concern raised by several witnesses who provided evidence to the committee during the public hearing for this inquiry. As submitted by Refugee Legal, the ‘lack of a clear and compelling justification for the bill is of particular concern given the dire consequences facing applicants subject to visa cancellations and refusals’.
Recommendation
The Australian Greens recommend that the bill be rejected by the Senate.
Senator Nick McKim
Greens Senator for Tasmania