1.1
On 4 February 2021, the Senate referred the provisions of the Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020 (the bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 10 March 2021.
1.2
The referral followed a recommendation of the Senate Standing Committee for the Selection of Bills which reasoned that the bill should be referred to the committee to allow for stakeholder feedback and investigation of the proposed legislation.
Conduct of the inquiry
1.3
Details of the inquiry were advertised on the committee's webpage. The committee also invited a number of organisations and individuals to submit by 19 February 2021. The committee received 15 submissions which are listed at Appendix 1.
1.4
The committee held one public hearing on 2 March 2021 in Canberra. Details of the public hearing, including a list of witnesses, are provided at Appendix 2.
Acknowledgement
1.5
The committee thanks all submitters and witnesses for their participation in the inquiry.
Structure of the report
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This report consists of two chapters:
This chapter outlines background, purpose and overview of the bill and provides administrative details relating to the inquiry.
Chapter 2 examines the key issues raised in evidence and provides the committee's view and recommendation.
Background to the bill
1.7
In Graham v Minister for Immigration; Te Puia v Minister for Immigration (2017) 263 CLR 1, the High Court considered the constitutional validity of section 503A of the Migration Act.
1.8
In that case, Mr Aaron Graham (the plaintiff) and Mr Mehaka Te Puia (the applicant) were New Zealand citizens who had been residing in Australia on class TY subclass 444 Special Category visas for 40 and 10 years, respectively. The then-Minister for Immigration and Border Protection, the Hon. Peter Dutton MP, had cancelled their visas under section 501(3) due to their assessed membership of an outlawed motorcycle gang and it being in the 'national interest'. In his reasons for doing so, the minister said that he had considered in the plaintiff's case, and based his decision on in the applicant's case, information which was protected from disclosure under section 503A of the Migration Act 1958 (the Migration Act).
1.9
The majority of the High Court held that section 503A(2)(c) of the Migration Act was invalid to the extent that it:
operated to prevent the Minister from being required to divulge or communicate information to the High Court when exercising jurisdiction under s 75(v) of the Constitution, or to the Federal Court when exercising jurisdiction under s 476A(1)(c) and (2) of the Act, to review a purported exercise of power by the Minister under ss 501, 501A, 501B or 501C to which the information is relevant.
1.10
It stated that 'Parliament cannot enact a law which denies to this Court when exercising jurisdiction under s 75(v)' of the Constitution which it identified to be 'the ability to enforce the legislated limits of the decision-making power conferred on an officer of the Commonwealth'.
Purpose of the bill
1.11
The bill was introduced into the House of Representatives on 10 December 2020 by the Minister for Home Affairs, the Hon Peter Dutton MP. In his Second Reading Speech, the minister explained the purpose of the bill and its provisions to amend the Migration Act 1958 (Migration Act):
Criminal intelligence and related information is vital to assessing the criminal background and associations of non-citizen visa applicants and visa holders. The measures in this bill will ensure that sensitive information – disclosed in confidence by law enforcement and intelligence agencies – is appropriately protected.
1.12
As the minister explained, the bill is designed to protect the identities of criminal informants and undercover police which, if disclosed, may otherwise disrupt active police or intelligence agency investigations. The minister also explained that the purpose of the amendments to the Citizenship Act 2007 (Citizenship Act) would replicate 'a similar power that already exists in the Migration Act'. In addition, the bill would also make unauthorised disclosures of confidential information by Commonwealth officers an offence, if it was provided by an intelligence agency and has been used in a character-related visa or citizenship decision. Minister Dutton stated that:
The creation of this offence highlights the seriousness with which the government regards the unauthorised disclosure of such information, due to the potential for severe damage to the public interest.
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The bill would also facilitate information sharing with foreign law enforcement agencies by giving those agencies greater confidence that the sharing of confidential information with the Australian government would be less likely, subject to the discretion exercised by the Australian courts, to compromise active investigations which would result in sharing confidential information with organised crime groups.
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The bill would also address the High Court's decision in Graham v Minister for Immigration by introducing a Protected Information framework. This framework would provide for the categorisation of information as 'confidential Gazetted Agency Information'. It would enable the High Court, Federal Court or the Federal Circuit Court of Australia to order the production, hear submissions on and make a determination on the disclosure of protected information relevant to the refusal, revocation or cancellation of the visa or citizenship the subject of the proceedings. The minister outlined the purpose of this new framework:
While the type of confidential information used in character related decisions may not necessarily meet the threshold for nondisclosure under the national security framework, it nonetheless warrants protection. This is because of the potential consequences if the information is divulged—including the risk of compromising Australia's national security and the operations, capabilities and sources of law enforcement and intelligence agencies.
Overview of the bill
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Amendments to the Migration Act and the Citizenship Act are provided in part one of the bill.
Amendments to the Migration Act 1958
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The explanatory memorandum states that the bill would amend the Migration Act to:
protect disclosure of confidential information provided by gazetted intelligence and law enforcement agencies where the information is used for decisions made to refuse or cancel a visa on character grounds, or revoke or set aside such decisions (Protected Information);
provide that the High Court, the Federal Court or the Federal Circuit Court of Australia (the Federal Circuit Court) may order the Minister to produce or give in evidence Protected Information where the Court is satisfied that it is Protected Information and the production of it is for the purposes of substantive proceedings related to a decision to refuse or cancel a visa on character grounds, or revoke or set aside such a decision;
if such an order is made, permit any person who is aware of the content of the Protected Information to make submissions to the Court concerning the use that the Court may make of the Protected Information, and any impact disclosing it would have on the public interest unless the content of the Protected Information was acquired unlawfully or in circumstances that would found an action for breach of confidence (whether or not the party was the person who acquired the content unlawfully or in those circumstances);
for the purposes of hearing submissions about the use and impact of the Protected Information, provide that the Court must order that the applicant, or any other party to the proceedings, or their legal representatives, must not attend that hearing unless the applicant or the party is permitted to make submissions on the Protected Information to the Court. The Court may also order that no report of the part of the proceedings that relates to the Protected Information is to be published, and no person, without the consent of the Court, has access to a file or a record of the Court that contains the Protected Information;
require the High Court, the Federal Court or the Federal Circuit Court to determine whether disclosing Protected Information would create a real risk of damage to the public interest, having regard to any of an exhaustive list of factors that the court considers relevant;
if the High Court, the Federal Court or the Federal Circuit Court determines that disclosing the Protected Information would create a real risk of damage to the public interest, prevent the Court from disclosing the Protected Information to any person, including the applicant, any other party to the proceedings, their legal representatives and any other person who seeks access to a file or record of the Court that contains the Protected Information; and
allow the High Court, the Federal Court or the Federal Circuit Court to give such weight to the Protected Information as the Court considers appropriate in the circumstances, taking into account any submissions made to the Court.
amend the definition of non-disclosable information to include Protected Information where the disclosure of such information would, in the Minister's opinion, be contrary to Australia's national interests;
provide that an officer performing functions under the Migration Act or Citizenship Act commits an offence if Protected Information is communicated to them and they disclose it to another person, other than in certain circumstances provided for by the provisions to be inserted by the Bill;
provide that a Commonwealth officer commits an offence if Protected Information is disclosed to them pursuant to a declaration by the Minister subject to conditions, and they engage in conduct, or omit to engage in conduct, and that conduct or omission contravenes a condition attached to the declaration; and
ensure that the Protected Information framework has effect despite any provisions of the Migration Act or Migration Regulations 1994 (the Migration Regulations), any law of the Commonwealth and any law of a State or Territory.
Amendments to the Citizenship Act 2007
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The explanatory memorandum states that the bill would amend the Citizenship Act to:
introduce provisions (which are substantially similar to the provisions in the Migration Act described above) in order to protect Protected Information where the information is used for:
(1)
refuse to approve an application for citizenship;
(2)
cancel an approval of citizenship;
(3)
delay the making of the pledge by a conferral applicant who has had their application approved;
(4)
revoke a person's citizenship;
(5)
make a determination by the Minister to cease a person's Australian citizenship if the person has engaged in specified conduct;
(6)
make a determination by the Minister to cease a person's Australian citizenship if the person has been convicted of a specified offence (and sentenced to at least 3 years' imprisonment).
renunciations of citizenship by conduct; or
cessation of citizenship for service outside Australia in armed forces of an enemy country or a declared terrorist organisation.
create a framework for the management of the disclosure to the Administrative Appeals Tribunal of information that has been certified by the Minister to be contrary to the public interest for specified reasons, or that was provided in confidence.
create a power for the Secretary of the Department of Home Affairs to delegate any of his functions or powers under the Citizenship Act and the Australian Citizenship Regulation 2016 in writing to any person.
Consideration by other parliamentary committees
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The bill was considered by both the Senate Standing Committee for the Scrutiny of Bills (the scrutiny committee) and the Parliamentary Joint Committee on Human Rights (PJCHR).
Senate Standing Committee for the Scrutiny of Bills
1.19
The scrutiny committee raised the following concerns:
the proposed framework for protected information, while more flexible than the existing framework that was invalidated by the High Court decision Graham v Minister for Immigration still hinders on a court’s ability to conduct a judicial review;
the limitation placed on parliamentary scrutiny and the Parliament’s ability to review executive decision making;
the appropriateness of evidentiary certificates to be prima facie evidence;
the limitation of natural justice applicable to ministerial decisions and considerations, and in the course of Administrative Appeals Tribunal (AAT) hearings; and
the broad delegation of administrative powers afforded to the secretary of the department.
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The scrutiny committee requested an amendment to the bill to omit the prohibition on the production or giving of confidential gazetted agency information to the parliament or a parliamentary committee.
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The scrutiny committee requested the minister's advice on its concerns with the exception of its concern about the delegation of administrative powers. On that matter, the committee made no further comment in light of information published in the explanatory memorandum in relation to training and guidance for delegates.
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At the time of presenting this report, the response from the minister had not been published.
Parliamentary Joint Committee on Human Rights
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In its Human Rights Scrutiny Report 1 of 2021, the PJCHR did not form a concluded view on the bill and requested further information from the minister to assess the proportionality of measures in the bill. The PJCHR noted the bill pursued the legitimate objective of national security in upholding and protecting law enforcement and intelligence capabilities, however the bill also engaged and put limitations on the human rights of access to a fair trial and the prohibition against expulsion of an alien without due process.
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The PJCHR requested further information from the minister on the following matters:
whether the threshold within this bill should be 'national security' instead of 'public interest' when determining if confidential information can be disclosed to another person;
why it is not possible to allow partial disclosure of confidential information to ensure procedural fairness;
why procedural fairness is not included as a matter that the court must have regard to when determining whether to disclose information;
what other matters are likely to be specified in the regulations in relation to proposed subsections 52C(5) and 503C(5);
the absence of a special advocate or equivalent safeguard to represent the applicant’s interests; and
what other safeguards exist to ensure the proposed limit on the right to a fair trial and the prohibition against expulsion without due process.
1.25
At the time of presenting this report, the response from the minister had not been published.'
Note on references
1.26
In this report, references to Committee Hansard are to proof transcripts. Page numbers may vary between proof and official transcripts.