Introduction
On 5 March 2021, less than a week before this report was tabled, the Minister for Home Affairs, Mr Dutton, told national television that ‘we adopt a rule of law in this country for a very good reasons and that is that there is innocence as a presumption’.
At the same time as he was paying lip service to the rule of law, however, the Minister was championing a bill in the Parliament that is fundamentally inconsistent with the rule of law. Under the Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020 ('the bill'), visitors to this country, long-term residents (including many New Zealanders) and dual citizens could be denied the presumption of innocence and even the most basic elements of natural justice, such as the right to know the case against them.
The government presents this bill as legislation aimed at hardened criminals, but it does not only affect people who have been proved to have committed a crime. The bill is really about the government's desire to make it easier to deport visa holders and dual citizens even if the Minister for Home Affairs has no more than a suspicion that they are persons of bad character. Under this bill, they could be denied access to justice, and suffer potentially indefinite detention if they are not deported.
The Minister is seeking the power to make such decisions on advice from domestic and foreign government entities that have a record of fallibility, as we have seen with Robodebt failures and the issuing of incorrect Interpol red notices. The Australian Human Rights Commission also drew our attention to factual errors by security agencies that were identified by the Hope royal commission.
This bill should ultimately be about the balance between what the need to protect the community, including protection of information and the source of that information, and the rights of individuals to due process and procedural fairness.
Each time bills amending the relevant sections of the Migration Act 1958 (Migration Act) have been brought forward, the debate has been about how to strike that balance.
The implications of this bill are extensive and have direct constitutional implications. The application of this bill will go well beyond the 13 visa cases and citizenship conferrals that the department is waiting to action. The Senate must take into consideration how these laws may be applied into the future and how that might be seen in different political circumstances.
Labor Senators fear that this bill may have unintended consequences because of its prohibition on the disclosure of confidential information to third parties —a prohibition that will override all other laws.
In the scheme of the Constitution, the courts and the Parliament provide checks and balances on each other. The Constitution deliberately confers great independence on the federal courts of Australia, and Parliament should not meddle with the principles of equality before the court.
Impact of the bill
Labor Senators understand that there needs to be effective communication between the security agencies and government, however, the framework proposed by the Government is woefully inadequate. The Parliament should not be providing a blank cheque, with no oversight from Commonwealth Ombudsman, the Australian Commission for Law Enforcement Integrity, the Office of the Australian Information Commissioner and the Inspector-General of Intelligence and Security, or the Parliament itself.
During the hearing Senators heard little in the way of examples of how this legislation would work in practice. Labor Senators offer the following example to illustrate the practical implications of the bill if passed in its current form.
Scenario:
A person contacts a state police force alleging an assault by a visa holder. For a range of reasons, state police do not pursue the matter, nor do they ever put the allegations to the visa holder.
Years later, the state police force — a gazetted agency – provide a Commonwealth official with details of the allegation against the visa holder on a confidential basis. That information is then provided to the Minister who cancels the visa holder's visa on character grounds – because, on reviewing the material, the Minister suspects that there is substance to the allegation (despite the allegation never having been investigated by the police, and never having been put to the visa holder). Under the provisions introduced by this bill, the non-citizen is informed of the decision to cancel his visa — but is denied access to the information from the state police force.
The now-former visa holder — who has no idea why his visa was cancelled —decides to have the Minister's decision reviewed by a court.
The court, which is unable to consider issues of fairness or the administration of justice in determining whether to give the visa holder access to the information because of the provisions in the bill, denies the applicant access to the material provided to the Government by the state police. Unable to know – let alone address – the allegation that led to his visa being cancelled, the allegation is not contradicted or addressed, and the court upholds the Minister's decision.
Of course, the individual in this scenario does not just lose their visa. As a result of the Minister's decision, the individual could lose his job, his career, and their home and family — based on nothing more than an allegation made years earlier and of which the individual is not even aware of.
Labor Senators use this example to highlight fundamental problems raised by this bill: under the framework introduced by the bill, individuals could have their visas cancelled—or Australian citizenship revoked—on the basis of information of which they have no knowledge. And, in considering whether those individuals should have access to such information, Australian courts would be prohibited from even considering issues of fairness or the administration of justice.
There has been a lot of public discussion about the rule of law over the past couple of weeks, especially by senior members of the current government. Labor Senators ask the Parliament to consider the following comments by the Attorney-General when considering the impact of this bill:
If I stand down from my position as Attorney-General because of an allegation about something that simply did not happen, then any person in Australia can lose their career, their job, their life's work, based on nothing more than an accusation that appears in print.
If that happens, anyone in public life is able to be removed simply by the printing of an allegation.
Every child we raise can have their lives destroyed by online reporting of accusations alone.
My guess is that if I were to resign and that set a new standard, there wouldn't be much need for an Attorney-General anyway, because there would be no rule of law left to protect in this country…
Had the accusation ever been put to me before they were printed, I would have at least been able to say the only thing that I can say—likely the only thing that I'm ever going to be able to say, and it's the truth—and that is that nothing in the allegations that have been printed ever happened [emphasis added].
While the context is different, the principle is the same: In Australia, people should be entitled to be informed about against the case against them and ought to be permitted to respond to that case. The rule of law requires no less.
Conduct of inquiry
This bill was introduced into the Parliament on the last sitting day of 2020. In the first sitting week of 2021 the Senate resolved to refer the bill to the Legal and Constitutional Affairs Legislation Committee, with a reporting date of 10 March 2021.
With such a short timeframe the committee closed submissions on 19 February 2021, giving submitters only 11 working days to analyse the bill and provide advice to the committee.
Similarly, this short timeframe gave the committee only two weeks to consider the submissions, hold a public hearing and prepare a detailed report for tabling in the Senate.
Many of the witnesses and submitters noted the short timelines and the impact that this had on their ability to give evidence to the inquiry. This was compounded given the detail of the bill and the lack of an exposure draft process.
The committee sought to gain in-person expert evidence from the Law Council of Australia, but they were unable to arrange adequate representation to present in a public hearing given the tight deadlines. There were only four days between the hearing being scheduled and the hearing occurring.
The government must stop treating the Senate Committee processes with such contempt. Senate Committees play an important role in scrutinising legislation, and the insidious pattern of expedited committee inquiries on important bills—many of which ultimately just end up languishing on the Notice Paper—must come to an end. It is not fair to the Senate, and not fair to stakeholders and interest groups who want to participate in the 'democratic opportunity'.
Past legislation
Several of the witnesses and the Department of Home Affairs (the department) raised the point that the character test provisions of the Migration Act which the committee is considering were inserted in 1998 and strengthened in 2003.
Many of the concerns that are stressed by current submitters and witnesses stem back to this original legislation and amendment. However, as the Law Council contends, the powers at the time were much more contained:
Notably, when the regime was enacted, the provisions in the Migration Act enabling the Minister to cancel a visa on character grounds were substantially more limited. Accordingly, the circumstances to which non-disclosure could apply, were more contained. Today, the section 501 character test framework imposes low thresholds for failure on character grounds, capturing a range of individuals who would not under normal criminal law definitions be considered to have committed serious offences. As the Law Council has previously submitted this legislative expansion unnecessary and disproportionate, it has strong concerns regarding any nondisclosure regime that is substantively attached to it.
Migration Legislation Amendment (Protected Information) Bill 2003
Labor Senators do feel that it is worth referring to what was said about this legislation the last time changes were made to character test and information provisions. The department claimed that at that time there was extensive consideration and debate of the legislation. However, in the Senate in 2003 that was not the case.
At the time Senator Sherry made comment on the bill on behalf of the opposition:
Clearly, in opposition Labor does not have access to the specific details of the sorts of visa cancellation matters with which this bill is designed to deal. It therefore becomes difficult to objectively assess the dimensions of any defects with the current legislative scheme. Even in the absence of such detailed information, it seems reasonable to assume that there would be a very limited number of matters in which information is so sensitive that it must be completely protected. However, denying an applicant and his or her legal representatives information on which a court will rely in making a decision is a very significant matter that warrants serious consideration. The bill ensures that the final decision on these two competing considerations is made by a court. If the court accepts that the security arguments are so serious that the information cannot be disclosed to the applicant or his or her legal representatives, it can make the nondisclosure order. If the court does not accept the security arguments, it can decline the nondisclosure order.
By the scheme described in the bill, the minister for immigration is also put under pressure to behave reasonably in relation to these matters. If the minister seeks to protect information that does not in truth need protection, it can be expected that the court will reject the minister's application for a nondisclosure order. If this occurs, the minister can only continue to protect the information by prejudicing the likely success of the case for visa cancellation. If the minister wants to rely on the information in the visa cancellation proceedings, then, in the face of the court determining that it is not worthy of a non-disclosure order, the minister will have to disclose it. If the minister fails to disclose it, the minister will be unlikely to succeed in the visa cancellation proceeding because the key information will not be available for the court to rely on.
All in all, the bill should be supported, given that, under this scheme, as contained in the bill, the court remains the ultimate arbiter.
For the record, it is worth nothing that the Senate debate on the bill occurred on Thursday, 26 June 2003 at 2:32 am by having all three speeches incorporated into Hansard.
This does not constitute considerable debate. As the department claimed during the committee hearing:
Mr Deane: I just wanted to make the point that there was considerable debate in 2003.
Senator KIM CARR: Where? In this parliament?
Mr Deane: Yes.
Senator KIM CARR: In the Australian Senate—there was considerable debate?
Senator Sherry's 2003 comments acknowledged that this would be a very contained power and that the court itself would be in the best position to determine its proceedings without intervention or instruction by the executive.
Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998
Just as in 1998, the bill currently before the committee goes to serious matters of principles and justice. Many of the concerns that are raised in this report are the same or similar to the concerns that were raised in the second reading debate in 1998. It is worth noting that the 1998 bill took over 12 months to progress through the parliament and, although it passed, it was done so with a caveat of concern and warning.
Senator Cooney made comments reflecting concerns that are still held now:
What this bill seeks to do is strengthen the provisions relating to character and conduct. A country is entitled to take in whom it will and to exclude whom it will. That is understood on the international scene. But, putting aside that legal concept, there is also a moral concept that we should conduct ourselves around the world in a decent and fair way. I am afraid this bill does not live up in all respects to that test.
[T]here are dangers in this legislation in so far as it reflects an attitude towards immigration and migration legislation that needs to be watched.
At all times, no matter what the legislation, we should be very hesitant about taking an approach in Australia that would come down upon us and affect, either directly or indirectly, those civil rights and civil liberties that we enjoy.
[The] issue that I raised the other night, and that I raise again now, is that of due process. If anybody is to be thrown out of the country, if anybody is to have their reputation besmirched, if anybody is to have action taken against them, that should be done only after the facts have been ascertained to a reasonable degree of proof. This bill endangers that proposition because it removes, in certain instances, the ability of courts to review decisions.
Although the 1998 Bill passed the parliament with the support of the opposition the Minority report of opposition senators did highlight significant concerns, including:
Reversing the onus of proof
The prescriptive nature of the character test
The withholding of information
Restriction on the presentation of evidence.
Even in 1998 Labor Senators understood that that bill (in a much more limited form than the bill before us today) was ultimately required to strike a balance between individual rights, natural justice, protection of the community and diplomacy:
Our views are based on our adherence to the rule of law and protection of civil liberties of the Australian people. We are jealous of rights and sensitive to the views of other nations.
National Security Information (Criminal and Civil Proceedings) Act 2004
The committee was told by many of the witnesses that a robust framework for the protection of confidential information already exists under the provision of the National Security Information (Criminal and Civil proceedings) Act 2004 (NSI Act).
As the Law Council submission explains:
This includes relevant mechanisms to protect such material that is adduced, or sought to be adduced, in legal proceedings. In particular, the NSI Act creates a framework for national security information to be adduced in evidence, subject to various protective mechanisms (including agreed arrangements for access, storage and handling, and the security clearance of counsel) provided that the court considers the arrangements to be compatible with the right to a fair hearing.
Unlike the current bill, the NSI Act contains a detailed definition of what information may be protected.
The Australian Human Rights Commission put to the committee that the existence of the NSI act is a very strong reason for the bill not to be passed:
The Commission recommends that the Bill not be passed because it is not necessary having regard to the other protections available for confidential information under the NSI Act and pursuant to applications for public interest immunity.
Constitutionality
This Bill is not the first time the government has come into conflict with the Constitution in seeking to deport long-term residents and visa holders on character grounds.
The Government's confidence in the constitutional validity of its legislation has not, however, always been shared by the High Court.
The case of Love and Thoms
In the judgment of 11 February 2020, the High Court found that the two plaintiffs, Daniel Love and Brendan Thoms, were not to be considered 'aliens' within the meaning of section 51(xix) of the Constitution, and thus could not be subject to deportation on character grounds, despite never having taken up Australian citizenship.
The two plaintiffs identified as Aboriginal men, and claimed connection to Aboriginal communities and lands. Mr Love was born in Papua New Guinea (PNG) to an Aboriginal father and PNG mother, and Mr Thoms was born in New Zealand to an Aboriginal mother and New Zealand father. Despite having lived in Australia for many years, neither had taken up Australian citizenship and both were residents on visas. Both had been found to fail the character test.
The nexus between the Migration Act's character test and the Constitution was a point of a discussion by constitution law experts at the Legal and Constitutional Affairs Reference Committee inquiry into Nationhood, national identity and democracy.
At the committee's roundtable hearing, Constitutional law specialist, Professor Elisa Arcioni, said the case of Love and Thoms went to the heart of who is a member of the Australian people, and who is not an alien, and the High Court found that Aboriginal persons could not be considered aliens under Australia's Constitution.
Professor Irving contended that the judgment 'affirmed and firmly established…a right of abode of Australian citizens', challenging what she saw as increasing executive power in relation to citizenship inherent in legislative measures passed in recent years.
Professor Rubenstein proposed the case demonstrated a need to revisit the issue of long-term residents of Australia who have not taken up citizenship, 'for whatever reason':
We have…a very concerning period where we have Australians in all but law…removed to countries they have no association with other than a formal citizenship certificate because we can remove them. It hails back to our origins as a penal colony, where the executive decides to remove criminals because they can rather than recognising [their] true connection to community.
The government needs more than this poorly put together bill to address systemic issues that face our migration and citizenship systems.
Graham and Te Puia
At the committee's hearing into the present bill, Senators were told that it was unclear whether it would address the concerns raised in the High Court judgments of Graham and Te Puia, despite contrary assertions by the Government. As Dr Pillai of the Kaldor Centre for International Refugee Law put to the committee:
My response is very short, and it's that I'm a constitutional lawyer and I'm not confident that this bill avoids the constitutional issue in Graham. So, if that's been the department's response to that decision, it's entirely possible that the same risk would apply. It's not clear—it's a murky area of law—but it's very possible that, because of the extremity of this bill, the same constitutional issue arises and the department would be in the same position.
Labor Senators were not convinced that suitable consultation and effort had occurred to ensure that the bill would in fact be constitutional:
Senator KIM CARR: On the constitutionality issues, the Solicitor-General, presumably. Who else?
Mr Rice: AGS, the Australian Government Solicitor, and a range of Commonwealth agencies as well, in the way we would normally do that.
Senator KIM CARR: Are there any civil organisations, any legal bodies, like the Law Council? Was there any consultation, for instance, with any of the witnesses that have appeared today?
Mr Rice: Not to my knowledge.
Senator KIM CARR: Why not?
Mr Rice: It's probably been a question of our sense that we could work through it with our own legal advisers.
Senator KIM CARR: It is convention in the Commonwealth to consult with civil organisations and third-party organisations, particularly in the area of immigration law, is it not?
Mr Rice: And we do, on many occasions.
Independence of the courts
Concerns remain from Labor Senators that this bill impinges on the independence of the courts and their ability deliver justice and due process.
The Australian Human Rights Commission put to the committee that the current bill does not allow the courts to strike the balance emphasised by this report:
Mr Edgerton: Sure. And that is one of the things that courts should be able to balance, which I think was the point that you were making earlier. There should be able to be a judicial assessment of the risks of disclosing information versus the prejudice to an applicant in an individual case. But I think it comes back to what Senator Scarr was saying before. There needs to be a balance struck between those two things. And the problem with this bill is that it fetters the court's ability to strike that balance because it says to the court, 'You can only take into account this particular list of factors and only that list of factors,' and it doesn't let the court take into account the factors that are on the other side of the scale. So it's not a balancing exercise that the court's undertaking. Whereas, under a public interest immunity test, which we have at the moment, the court is able to take into account a full range of factors. It will hear the evidence from agencies about risks to investigations, weigh that appropriately and then make a decision based on all of those facts.
Expansion of executive powers
Labor Senators hold serious concerns about the extent to which this bill expands the power of the executive and seems to deny transparency and oversight under the guise of protection and confidentiality.
For example, the blanket prohibitions in the bill on the disclosure of confidential information to third parties will override all other laws, including the Public Interest Disclosure Act 2013 and the Freedom of Information Act 1982, and the immunities for individuals who make good faith disclosures to the integrity agencies such as the Commonwealth Ombudsman, the Australian Commission for Law Enforcement Integrity, the Office of the Australian Information Commissioner and the Inspector-General of Intelligence and Security.
As the department explained to the committee:
Senator KIM CARR: Thank you. Section (7) of the bill has effect despite anything in:
(a)
any other provision of this Act or the regulations; or
(b)
any other law of the Commonwealth
…Does that mean that this bill overrides all other Commonwealth legislation and all other state or territory legislation?
Mr Deane: Sorry, which provision are you—
Senator KIM CARR: I'm referring here to the provisions of the act under schedule 1, in regard to the disclosure provisions, 53B, 503C(1). The provisions that are outlined on page 139 of the bill itself in section 7.
Mr Deane: That's the effect of it.
Senator KIM CARR: That's the effect of it?
Mr Deane: Yes.
The department went on to confirm the impact of a blanket prohibition on disclosure of information:
Mr Rice: This legislation has, I think, a blanket prohibition on disclosure.
Senator KIM CARR: So people would not be able to make disclosures to the Commonwealth Ombudsman, the Australian Commission of Law Enforcement and Integrity, Information Commissioner, Inspector-General of Intelligence and Security, in regard to matters contained within this bill. Is that your intention?
Mr Deane: If information comes to the department from a gazetted agency on condition that it be treated as confidential, then it attracts provisions of the bill. But then it could well be a matter for the minister to decide to disclose it—
The bill will have a direct impact on the way in which whistle-blowers would be protected if they were to raise matters with oversight agencies or even the Parliament. On this point the Asylum Seeker Resource Centre told the committee:
Dr Graydon: I think it will result in a very careful, conservative and fearful approach by those with access to that information, to widen the scope of information that won't be disclosed in order to protect themselves from potential prosecution under fairly draconian provisions that do not seem proportionate to the issues raised.
Ms Saravanamuthu: I'd also like to say that, as I shared regarding freedom-of-information requests, we regularly see over-redaction of information that isn't actually confidential information or a risk to national security. So if we're already seeing that with serious offences being in place it's likely to widen the scope, as Carolyn said.
NSW Council for Civil Liberties expressed its concern that it had ‘never seen anything like it’.
Visa Cancellation Working Group confirmed that in its assessment, the bill would have a direct impact on access to oversight and integrity agencies:
Senator KIM CARR: Is it not the proposal of this bill to override any other law of the Commonwealth—I repeat: any other law of the Commonwealth—to prevent people providing access to the Commonwealth Ombudsman, the Australian Commission for Law Enforcement Integrity, the Information Commissioner and the Inspector-General of Intelligence and Security? Is that not the provision of this legislation?
Ms Caldwell: Yes, we believe the bill would enable that.
The Human Rights Commission argued that this provision of the bill would have serious implications for the Commonwealth Public Service and the security agencies, and:
may impede their investigations into conduct that:
is contrary to law, perverts the course of justice, constitutes maladministration, is an abuse of trust, or unreasonably results in a danger to the health of safety of a person.
amounts to a maladministration of Commonwealth laws.
relates to the legality or propriety of activities of an intelligence or security agency.
There does not appear to be a suitable public policy justification to interfere with the ordinary operations of these oversight agencies, merely because a 'gazetted agency' has provided information to the Department of Home Affairs in confidence for use in a character assessment under the Migration Act or a relevant decisions under the Citizenship Act.
Significantly, the breadth of these secrecy provisions is not replicated in other jurisdictions such as New Zealand.
Equity, access to justice and refugee implications
The bill's failure to strike the necessary balance means that many affected individuals would be deprived of access to justice. Access to meaningful review would be significantly impaired by the fact that there is limited access to confidential information except when the Minister has exercised a discretionary power to allow it.
The fairness and efficacy of any review would be significantly reduced because the bill's provisions are skewed towards excluding affected individuals and their legal representatives from knowing or being able to respond to key aspects of the case against them. This is particularly dangerous given that the consequences of losing a visa or citizenship for an individual are so significant.
The result could be that an individual is expelled from Australia – in some cases to a country where they do not speak the language, have no connection or have never lived. In circumstances where removal is not possible, they face indefinite immigration detention.
For refugees and others who have fled harm or persecution the consequences are more severe – they potentially face being returned to a country where they may suffer imprisonment, torture or death.
As the Scrutiny of Bills Committee and Parliamentary Joint Committee of Human Rights has noted, the bill could erode procedural fairness and the right to a fair hearing, and that would impinge on the prohibition against expulsion of people without due process.
Both Legal Aid New South Wales and Victoria Legal Aid explained to the committee the challenges visa holders and dual citizens face in seeking legal representation for a judicial and or merits review of their cancellation. This highlights the inequity in access to justice that this bill will create.
In questions on notice, Victorian Legal Aid provided startling statistics on how many litigants are unsuccessful in gaining legal representation:
In relation to the judicial review process, in FY 2019/20, 120 applications were filed nationally seeking review of character-based decisions of visa refusals or cancellations. Of those, 62 – over 50% – were unrepresented litigants, and 19 were represented by Legal Aid Commissions. These numbers exclude applications filed in the appellate jurisdiction and, we understand from the Judicial Registrar in migration matters, are generally reflective of the number of applications over the past several years.
In relation to judicial review of decisions to refuse applications for protection visas, from 2013–2019 there were 5812 cases decided in the Federal Circuit Court. Fifty-seven per cent of applicants were unrepresented; 38% had some form of legal representation (with the presence of a solicitor and/or barrister) and 5% of applicants made no appearance. An analysis of judicial review data suggests that applicants with legal representation were on average six times more likely to succeed than unrepresented applicants. Unrepresented applicants were successful in judicial review in just 79 cases out of the 422 successful cases in total. In contrast, represented applicants were successful in 343 cases out of the 422 cases.
Victorian Legal Aid explained that the trend of almost 50 per cent of litigants being unrepresented also extended to the administrative Appeals Tribunal:
According to the AAT's 2019/2020 Annual Report, there were 317 visa-related decisions relating to character finalised during the financial year. Of those, 31 were represented by an advocate or agent, 17 by a friend or relative, 144 by a legal representative and 125 were self-represented.4 Again, thisamounts to less than 50% of people receiving legal representation.
Access to justice and recourse is critical given the large list of gazetted agencies and the potential for the use of inaccurate or erroneous information. As the Law Council put to the committee:
Confidential information' may further include information which is ultimately erroneous, ranging from gazetted agency records regarding a person's unpaid debt under the Centrelink online compliance scheme ('Robodebt') which is later disproved, to an Interpol red notice issued which relates to a wrongful conviction which was made in absentia.31 The Law Council is unaware of what kind of guidance is given to gazetted agencies to determine what should be considered 'confidential information'. However, it considers that guidance should not be considered a substitute for appropriately tight legislative definitions.
These concerns were shared by the Australian Human Rights Commission, which argued that the bill could result in people being placed in indefinite detention:
Senator KIM CARR: There's also the question of refoulement, is there not? How does that issue reflect on our human rights obligations?
Mr Edgerton: The concern that we expressed in our submission was more about the possibility of indefinite detention. Someone may well have a protection visa cancelled on character grounds and then they're put in the invidious position of being a person who isn't able to be returned to a particular country because Australia continues to have protection obligations to that person despite their protection visa being cancelled. But, because their visa has been cancelled on character grounds, almost certainly they won't be released from immigration detention, because government policy is that those people's cases don't get referred for the consideration of discretionary ministerial powers—for example, under section 195A of the Migration Act, to grant someone a visa or, under 197AD, to put someone into community detention. So the effect is that they can't be returned home and they can't be released from detention, and they face the prospect of indefinite detention.
Labor Senators have reviewed the evidence of stakeholders in order to identify measures that could be adopted to reduce the impact that the bill has on an individual's rights without detracting in any obvious way from its purpose.
Labor Senators believe there are significant implications for equity, access to justice and refugees that need to be taken in account before this can be supported by the parliament.
Consultation
Labor Senators were surprised to learn how little consultation was conducted by the Government in the preparation of the bill.
Broad, genuine consultation with stakeholders and relevant interest groups is the bedrock of participatory democracy and of good policy.
This philosophy is reflected in guidance from Prime Minister Morrison's own department, which, in February 2016, advised all Australian government agencies that:
Of the 10 principles for Australian Government policy makers in the Australian Government Guide to Regulation, two are related to consultation:
(1)
Policy makers should consult in a genuine and timely way with affected businesses, community organisations and individuals.
(2)
Policy makers must consult with each other to avoid creating cumulative or overlapping regulatory burdens.
A genuine consultation process ensures that you have considered the real-world impact of your policy options. This is likely to lead to better outcomes and greater acceptance in the community, particularly among any stakeholders who may be adversely affected by the policy.
Labor Senators expected to hear a long list of consultations conducted as this legislation was drafted. This bill responds to a 2017 High Court decision, so, obviously, the Government saw no urgent need to develop a legislative response: the Bill was introduced into the House of Representatives on 10 December 2020.
There was time to consult widely. And there was reason to do so. The Government's arguments for the Bill were outlined by the Department in their appearance before the Committee:
The bill proposes a number of amendments to … protect sensitive information…use[d] in visa and citizenship decision-making in order to enhance the government's ability to manage risk to the community posed by certain individuals of character concern. The amendments…respond to a High Court decision in 2017…
This bill includes measures known to generate concerns among different groups in the Australian community, as well as internationally. These concerns are considered elsewhere in this report and include, inter alia: the constitutionality of the proposed measures; human rights issues; matters of legal process and, in particular, the right of individuals to know the case against them; knock-on effects to other legislation and legal procedures; the future role of Parliamentary oversight on these citizenship and visa matters.
Intra-government consultations
The Department's evidence presents a picture of incomplete consultations with agencies within the Australian government. The Department confirms that they consulted legal advisers, and, presumably, those agencies identified as 'gazetted agencies' for the purposes of this legislation.
However, it remains unclear whether there was an Inter Departmental Committee (IDC) process in which all relevant Commonwealth agencies could provide input to the proposed legislation. IDCs are a proven method of testing a Minister's policy intentions against broader government interests.
Because of departmental officers' vague responses to the Committee, Labor Senators can only conclude that there was no real IDC process. Firstly, the Department confirmed that it had consulted 'AGS, the Australian Government Solicitor, and a range of Commonwealth agencies as well, in the way we would normally do that' and that '…there's some fairly significant consultation that's needed to be undertaken with the agencies.'
But the Department was unable to confirm there was an IDC process to garner wider views and advice inside Government:
Senator KIM CARR: I take it there was an IDC process before this bill was drafted?
Mr Rice: It certainly involved consultation with a range of government agencies and our portfolio agencies.
Senator KIM CARR: So, it would have been gone beyond just the Attorney-General's Department, wouldn't it? It would have gone beyond the Solicitor-General and it would have gone beyond the Human Rights Commission, wouldn't it?
Mr Rice: Certainly to a range of agencies.
External consultations
Both the Department and various organisations who submitted to or appeared before the Committee on 2 March 2021 confirmed that there were no consultations with relevant non-government, civil society groups.
Senator KIM CARR: Are there any civil organisations, any legal bodies, like the Law Council? Was there any consultation, for instance, with any of the witnesses that have appeared today?
Mr Rice: Not to my knowledge.
When Senator Carr asked why had there not been any consultations with 'civil organisations', the Department replied:
Mr Rice: It's probably been a question of our sense that we could work through it with our own legal advisers.
Senator KIM CARR: It is convention in the Commonwealth to consult with civil organisations and third-party organisations, particularly in the area of immigration law, is it not?
Mr Rice: And we do, on many occasions.
Senator KIM CARR: But not on this occasion.
Mr Rice: It would appear not.
Senator KIM CARR: Obviously not. I'm trying to get to the why.
Mr Rice: I'm not sure. Maybe we should come back to—
Senator KIM CARR: Will you take that on notice as well, please?
Organisations that appeared before the committee confirmed that they had not been consulted, nor had they seen an exposure draft of the bill. Labor Senators can only conclude that either the Government and the Department did not care what any stakeholders thought about their proposals, or that having taken so long to respond to the High Court's 2017 decision, the Government is determined to rush this bill through Parliament.
International concerns
The Government appears to have ignored actual and anticipated concerns about this legislation held by foreign governments, including our closest friend, New Zealand.
The Department's submission explains that:
…the Court may order the disclosure to it of protected information if it is for the purposes of the proceedings before it…the Court must determine whether disclosure of the information would create a real risk of damage to the public interest having regard to the following matters …[including] Australia's relations with other countries.
Despite this reference to concern about 'Australia's relations with other countries' it remains unclear to Labor senators whether the New Zealand Government was properly consulted in the development of this Bill.
At the hearing, department officials said that there had been some contact with NZ police agencies. Later, in a written answer to the Committee, the Department confirmed that the Department of Foreign Affairs and Trade (DFAT) ‘was consulted on measures proposed in the Bill'. Labor Senators have to presume that DFAT told the Department of Home Affairs of New Zealand's likely response, with or without direct contact with the New Zealand Government (beyond police agencies.)
Labor Senators consider this bill has the potential to be a major 'foreign affairs' mistake by the Government. New Zealand leaders have publicly expressed opposition to the processes and likely outcomes of this Bill relates, including refusal and cancelation of visas and cancellation of Australian citizenship.
On 16 February 2021, the New Zealand Prime Minister, the Rt. Hon Jacinda Ardern, publicly criticised Australia's decision to cancel a dual citizen's Australian citizenship, having previously described similar Australian government actions as having a corrosive effect on Australia-New Zealand relations.
This response from New Zealand was not news to the Australian Government. A year earlier, at a press conference with Prime Minister Morrison, Prime Minister Ardern said of actions by the Australian Government like those addressed in the current bill:
Australia is well within its rights to deport individuals who break your laws. New Zealand does the same. But we have a simple request – send back Kiwis. Genuine Kiwis. Do not deport your people and your problems.
New Zealand's High Commissioner, Dame Annette King, made similar comments before the Legal and Constitutional Affairs Legislation Committee's inquiry into the Migration Amendment (Strengthening the Character Test) Bill 2019:
I think it shows the concern and disappointment that we have in the changes that have been made, particularly since 2014. We have on many occasions from our previous Prime Minister, John Key, through to our current Prime Minister, raised this at the highest level.
Clearly, foreign governments, and especially New Zealand, should have been consulted about the Government's intentions in this legislation.
Regarding international consultation, the Department is correct in pointing out that different countries have different rules, reflecting local conditions and political and strategic environments. However, closer attention could have been paid to how New Zealand handles confidential information in the visa and citizenship situations at the centre of this bill. According to Australia's Human Rights Commission:
the New Zealand legislation relating to the protection of classified information ensures greater safeguards for the visa holder, including at the respective stages of primary decision making, merits review and judicial review. The person is entitled to a summary of allegations arising from the classified information so that they can respond to them. Further, if classified information is relied upon, the person is entitled to be represented by a special advocate.
Disallowance
Significant concerns have been raised by the Senate Standing Committee on the Scrutiny of Bills about this bill. The committee's concerns go to:
adequacy of judicial review;
significant matters in delegated legislation;
lack of parliamentary scrutiny;
natural justice concerns; and
broad delegation of administrative powers.
Central to the concerns of Labor Senators is the fact that the items such as the gazetted list of intelligence and law enforcement agencies and the list of foreign law enforcement countries is not in the primary legislation and is not subject to review or disallowance by the Parliament. As the department confirmed:
Senator KIM CARR: What aspects of this bill will be subject to parliamentary scrutiny and what won't be, including those measures that are contained in the bill for the gazetting of the law enforcement agencies and the enforcement countries?
Ms Ringi: That gazette notice as now and under the bill would not be disallowable.
Additionally, the committee noted the explanatory memorandum contained no justification for significant matters being placed into delegated legislation.
The Scrutiny of Bills Committee has also raised serious concerns with the bill's intention to:
the treatment of information from an undisclosed gazetted agency being treated as prima facie evidence and,
removal of rules of natural justice.
Labor Senators concur with the concerns of the Scrutiny of Bills Committee and ask the government to clearly explain:
why it is considered necessary and appropriate for evidentiary certificates to be prima facie evidence of the fact that information was communicated to an officer by a gazetted intelligence or law enforcement agency;
why it is considered necessary and appropriate to provide that the rules of natural justice do not apply to the consideration or exercise of the power for the minister to make a declaration to allow the disclosure of information; and
why it is considered necessary and appropriate for proposed section 52J to provide that proposed sections 52G and 52H are exhaustive statements of the natural justice hearing rule in relation to review of a decision by the Administrative Appeals Tribunal.
Labor Senators are also concerned that the bill allows for the delegation of administrative powers to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. We agree with the Scrutiny of Bills committee that limits should be set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated. With delegates being confined to the holders of nominated offices or to members of the Senior Executive Service of the Commonwealth government.
Recommendations
Recommendation
Labor Senators recommend that the bill not be passed in its current form.
Recommendation
Labor Senators recommend that the bill is sent to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) for further inquiry.
The Committee has a fundamental role in being briefed on citizenship issues with national security implications.
As recently as 2019, the PJCIS reviewed the Australian Citizenship Amendment (Citizenship Cessation) Bill and conducted a review of the Australian Citizenship renunciation by conduct and cessation provisions.
The PJCIS also receives regular briefings on citizenship cancellations.
It is important that this bill is subject to a lengthier and more thorough inquiry process. Given the PJCIS's lengthy experience in reviewing citizenship matters it would be well-placed to examine this bill.
Recommendation
Given the inadequate timeframe, Labor Senators recommend the bill also undergo detailed stakeholder consultation in line with the Department of Prime Minister and Cabinet's Best Practice Consultation guidelines, ensuring a genuine consultation process that considers the real-world impact of the bill.
In particular, Labor Senators encourage further consultation on matters raised by the Law Council of Australia noting the Committee did not have time to consider these submissions sufficiently.
The Government must allow for far more realistic reporting timelines for inquiries, that treat submitters and witnesses with due respect.
Recommendation
Should the Government not withdraw the bill or consider further stakeholder consultation through PJCIS, and they secure enough votes for a second reading of the bill, Labor Senators recommend the bill be amended to:
list the bodies that are 'gazetted agencies' in primary legislation;
amend the 'public interest' test to enable the court to consider and balance competing objectives in addition to those currently prescribed, including the right to a fair hearing, issues of procedural fairness and any other matter that it considers relevant to the proper administration of justice;
enable the High Court, the Federal Court and the Federal Circuit Court the flexibility to permit partial disclosure of confidential information to applicants and/or their lawyers, sufficient to ensure that they understand, and can respond to, the gist of the information and the allegations made;
ensure for the purposes of the preliminary hearings that the applicant may be represented by a lawyer (if necessary, a security cleared lawyer) or have their interests represented by a special advocate. This would require the lawyer to be able to access the confidential information so that they can make submissions and tender evidence concerning the use that the Court should make of the information, and the impact that not disclosing the information may have on the public interest (including the proper administration of justice);
prescribe a minimum level of officers within a 'gazetted agency' who can communicate such information;
review exceptions to the current general prohibitions for disclosure to oversight and integrity agencies, or in relation to disclosures made in accordance with the Public Interest Disclosure Act and the Freedom of Information Act;
ensure disclosure and declaration offences align with the Criminal Code;
introduce safeguards regarding the ability of a gazetted agency to communicate information on condition that it be treated as confidential, including:
introducing a definition of 'confidential information';
independent review of such decisions;
enable the High Court, the Federal Court and the Federal Circuit Court to order disclosure in relation to any proceedings, rather than only substantive proceedings relating to the exercise of listed citizenship powers and section 501-character test regime powers;
ensure that officers are not prevented from providing information or evidence to other courts where such courts also order such disclosure and have appropriate procedures for managing disclosure-related risks;
remove the blanket prohibition against disclosure to Parliament and parliamentary committees, noting that the PJCIS already receives regular briefings on citizenship cancellations; and
review the expanded definition of 'non-disclosable information' in line with stakeholder comments.
Senator the Hon Kim CarrSenator Anthony Chisholm
Deputy ChairLabor Senator for Queensland