On 10 August 2017, the Senate referred the provisions of the Migration
Amendment (Validation of Decisions) Bill 2017 (the bill) to the committee for
inquiry and report by 4 September 2017.
The Selection of Bills Committee made this recommendation because:
The complex nature of the Migration Act and the impact any
change may have on people seeking a visa, industry bodies, Australian business
and residents warrants further consultation and investigation.
The Selection of Bills Committee also noted that the bill is a response
to an ongoing challenge in the High Court to section 503A of the Migration
Act 1958 (Migration Act):
[The Bill] will protect visa cancellation decisions that have
relied upon information under section 503A of the Act. Information provided
under section 503A is currently protected from disclosure to Courts and
Background and purpose
of the bill
The bill is a response to the High Court cases Graham v Minister for Immigration
(M97/2016) and Te
Puia v Minister for Immigration (P58/2016), which challenge the
constitutional validity of section 503A of the Migration Act.
The High Court notes that the plaintiffs, Mr Aaron Joe Graham and
Mr Mehaka Lee Te Puia, are New Zealand citizens who have been resident in
Australia on class TY subclass 444 Special Category (Temporary) visas.
In both cases, the plaintiffs' visas were cancelled by the Minister for
Immigration and Border Protection, the Hon Peter Dutton MP (the Minister), referring
to protected information provided to him under section 503A of the Act.
According to the High Court, these visas were cancelled:
...on the grounds that that the plaintiff failed the character
test and that it was in the 'national interest' to cancel his visa...The Minister
provided a statement of reasons which referred to certain information which is
protected from disclosure under s 503A of the Act...
It has been reported that both men are members of motorcycle gangs, and
that they are currently in Australian immigration detention pending the
findings of the High Court.
According to the High Court, the questions being considered in the case
Are either or both of s 501(3) and 503(A) of the Act invalid,
in whole or in part, on the ground that they:
- Require a Federal Court to
exercise judicial power in a manner which is inconsistent with the essential
character of a court or with the nature of judicial power; or
- So limit the right or
ability of affected persons to seek relief under s 75 (v) of the
Constitution as to be inconsistent with the place of that provision in the
The Department of Immigration and Border Protection (the department)
summed up the case in its submission:
Section 503A is being challenged on the basis that the
Minister cannot be compelled to provide or disclose protected information to a
court, and that this power impairs the independence and impartiality of a
Section 503A of the Migration Act
Hon Michael McCormack MP, Minister for Small Business, noted in his
second reading speech on the bill that:
Section 503A of the act protects information from disclosure
when it is provided to the Department of Immigration and Border Protection by
gazetted law enforcement or intelligence agencies to support a section 501
character visa application refusal or cancellation decision.
Specifically, at 503A(2)(c) the Act currently provides that protected
information can be provided to the Minister to make decisions, but that
...the Minister or officer must
not be required to divulge or communicate the information to a court, a
tribunal, a parliament or parliamentary committee or any other body or person...
Section 503A was inserted into the Act in 1998.
Since then, a significant number of individuals, including Mr Graham and Mr Te
Puia, have been subject to adverse visa decisions made by the Minister or a
delegate referring to protected information, and these individuals have not been
able to access this information to use as part of an appeals process.
Purpose of the bill
In his second
reading speech, the Minister for Small Business noted that the bill's provisions
are intended to strengthen character provisions of the Migration Act to cancel
a visa, regardless of the High Court's decision in Graham and Te Puia:
In late 2014, this government strengthened the character
provisions of the Migration Act, making it mandatory to cancel a visa if a
noncitizen does not pass the character test. Since those changes, the Minister
for Immigration and Border Protection has cancelled the visas of over 2,600
noncitizen criminals, including more than 140 organised crime figures.
The purpose of this bill is to uphold the visa cancellations,
and application refusals, on character grounds of certain noncitizens who have
committed crimes in Australia and who pose a risk to the Australian community.
specifically, the Explanatory Memorandum states the bill would:
....[amend] the Migration Act 1958 (Migration Act) to preserve
existing section 501 character decisions made relying on information provided
by gazetted law enforcement and intelligence agencies, which is protected, or
purportedly protected, from disclosure under section 503A.
The department made it clear that the bill's amendments would ensure
that non-citizens who have been found to 'pose a risk to the Australian
community' and have therefore had their visas cancelled:
...will not have their visas re-instated as a result of the
High Court decision in the cases of Graham or Te Puia. Reinstatement of such
visas could result in either release from immigration detention or the ability
to return to Australia. These non-citizens are of serious character concern,
and range from members of outlawed motorcycle gangs to those with serious
criminal records. Their release from immigration detention, or their ability to
enter Australia, while their cases are reconsidered for character cancellation
or refusal puts the Australian community at an unacceptable risk....
Concerns raised by the Scrutiny of Bills Committee
The committee is aware that the Senate Standing Committee for the
Scrutiny of Bills has raised several concerns with the bill's provisions,
including noting that the committee generally 'has a long-standing scrutiny concern
about provisions that apply retrospectively, as it challenges a basic value of
the rule of law that, in general, laws should only operate prospectively (not
The Scrutiny Committee has requested the Minister to provide a:
...detailed justification for seeking to retrospectively
validate decisions made in circumstances which may have denied an applicant the
right to a fair hearing, and where the practical effect of the legislation
would be to reverse any High Court declaration of constitutional invalidity.
The committee understands that, at the time of writing, the Scrutiny of
Bills Committee has not received comments from the Minister on these matters.
Concerns raised by the Parliamentary Joint Committee on Human Rights
The committee is aware that the Parliamentary Joint Committee on Human
Rights has raised concerns about the potential ramifications of the bill, and
sought further clarification from the Minister on a number of matters, namely
the compatibility of the bill's provisions with:
The right to due process prior to expulsion under article 13 of
the International Covenant on Civil and Political Rights (ICCPR), 'particularly
regarding the inability of affected individuals to contest or correct
information on which the refusal or cancellation is based, and the absence of
any standard against which the need for confidentiality of section 503A
information is independently assessed or reviewed'.
The right to liberty under Article 9 of the ICCPR, particularly
why it is necessary to validate a class of decisions, when the
Minister could make a renewed decision to cancel visas on an individual basis;
any alternative means available to protect information only to
the extent required for national security, or alternative processes that could
allow such information to be tested in some way before a court or tribunal; and
any potentially less rights-restrictive criminal justice or
national security mechanisms to address any risk posed by relevant individuals.
The right to protection of the family under article 17 of the
Australia's commitment to non-refoulement obligations contained
in the Refugee Convention, the ICCPR, and the Convention Against Torture (CAT).
The right to freedom of movement is protected under article 12 of
The right to an effective remedy, as protected by article 2 of
The committee understands that, at the time of writing, the Parliamentary
Joint Committee on Human Rights has not received comments from the Minister on
Explanatory Memorandum includes a financial impact statement that indicates the
bill would have 'a low financial impact' on the Commonwealth.
Explanatory Memorandum states that the bill is compatible with Australia's
human rights obligations, observing that:
These amendments are for a legitimate purpose and are
compatible with human rights. The Bill maintains the status quo for affected
persons who have already been assessed as non-citizens of character concern in
accordance with section 501 of the Act. To the extent that these amendments may
limit human rights, the Government considers those limitations as reasonable,
proportionate and necessary.
Conduct of the inquiry
the inquiry were advertised on the committee's website, including a call for
submissions by 23 August 2017.
received four submissions, which are listed at appendix 1 of this report.
These submissions are also available in full on the committee's website.
Structure of this
consists of two chapters:
This chapter provides a brief background and overview of the
bills, as well as the administrative details of the inquiry.
Chapter 2 sets out the proposed amendments that would be made by
the bill, and discusses matters raised in submissions to the inquiry.
thanks all organisations and individuals that participated in this inquiry by
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