Introductory Info

Date introduced: 10 December 2020
House: House of Representatives
Portfolio: Home Affairs
Commencement: Sections 1 to 3 commence on Royal Assent. Schedule 2, and Parts 1 and 2 of Schedule 1, commence on the earlier of Proclamation or six months after Royal Assent. Part 3 of Schedule 1 commences immediately after the later of: the commencement of Parts 1 and 2 of Schedule 1; or the commencement of the Federal Circuit and Family Court of Australia Act 2021.

Purpose of the Bill

The purpose of the Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020 (the Bill) is to amend:

• the Migration Act 1958 (Cth) to:
• amend the protections for confidential information provided to the Department of Home Affairs by law enforcement and intelligence agencies in relation to character test decisions, partly in response to a 2017 High Court of Australia decision and
• expand the definition of non-disclosable information, which is not required to be provided to a visa applicant or visa holder in connection with decision-making under the Act and
• the Australian Citizenship Act 2007 (Cth) to:
• insert provisions equivalent to those in the Migration Act protecting confidential information provided to the Department by law enforcement and intelligence agencies
• provide for the issuing of non-disclosure certificates preventing the disclosure of certain documents or information to the Administrative Appeals Tribunal (AAT) and
• provide for the delegation of the Secretary’s powers and functions.

Structure of the Bill

The Bill has two Schedules:

• Schedule 1, Part 1 amends the protected information provisions in the Migration Act, and inserts the same provisions into the Australian Citizenship Act
• Schedule 1, Part 2 makes consequential amendments to the Freedom of Information Act 1982 and Inspector of Transport Security Act 2006
• Schedule 1, Part 3 amends references to the Federal Circuit Court in the Migration Act and Australian Citizenship Act to reflect changes to be made by the Federal Circuit and Family Court of Australia Act 2021 and
• Schedule 2 amends the Australian Citizenship Act to provide for the issuing of non-disclosure certificates and the delegation of the Secretary’s powers and functions.

Background

Natural justice and disclosure of information

The common law recognises that administrative decision-makers have a duty to afford a person ‘procedural fairness’, or ‘natural justice’, before making a decision that affects them. The Australian Law Reform Commission explains that procedural fairness:

... traditionally involves two requirements: the fair hearing rule and the rule against bias. The hearing rule requires a decision maker to afford a person an opportunity to be heard before making a decision affecting their interests. In Kioa v West, Gibbs CJ said that the ‘fundamental rule is that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power’. The rule against bias ensures that the decision maker can be objectively considered to be impartial and not to have pre-judged a decision.[1]

The requirement to afford a person a ‘fair hearing’ typically requires a decision-maker to:

• give prior notice that a decision will be made which affects their interests
• disclose the ‘critical issues’ to be addressed, and the information that is credible, relevant and significant to the issues and
• provide a reasonable opportunity for the person to present their case—this may be through an oral or written hearing, depending on the circumstances.[2]

These common law requirements may be modified or excluded by statute, but only where the intention to do so is unambiguously clear. The High Court has stated that the exclusion of principles of natural justice may only occur by ‘plain words of necessary intendment’,[3] and that the principle of legality provides a presumption:

... that it is highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing its intention with irresistible clearness.[4]

The Migration Act modifies or excludes natural justice requirements in various ways. In particular, as discussed below, it restricts the circumstances in which relevant information or documents may be disclosed to persons beyond the primary decision-maker (that is, the Minister or a Departmental delegate). These provisions permit or require certain information to be withheld from a visa applicant or visa holder—and in some cases, a court or tribunal—on the grounds of national security or the public interest.

The Australian Citizenship Act currently has more limited restrictions on procedural fairness and the disclosure of information. These largely arise in the context of citizenship cessation, where natural justice is expressly excluded, the Minister may delay giving notice to a person that their citizenship has ceased, and disclosure of certain information is prevented on security or other public interest grounds.[5]

Protected information under the Migration Act

Sections 503A to 503D of the Migration Act protect information shared with the Department of Home Affairs by certain law enforcement and intelligence agencies (including some government departments), in connection with decisions to cancel or refuse to grant a visa on character grounds.[6] Where such information is communicated on the condition of confidentiality, it cannot be disclosed further, including to the visa holder or visa applicant to whom the information relates, or to a court, tribunal or parliamentary committee.[7] However, following consultation with the relevant agency, the Minister may authorise disclosure in specified circumstances and subject to conditions.[8]

Section 503A was first inserted into the Migration Act in 1998, as part of a suite of amendments which largely established the character test in its current form.[9] At the time of its introduction, then-Minister for Immigration and Multicultural Affairs, Philip Ruddock, explained that section 503A would better facilitate the sharing of criminal intelligence and related information, as:

... at present, it is difficult for my 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. Greater protection for such material would complement broader national and international strategies to counter transnational crime and the activities of those associated with it.[10]

The Federal Court has noted that the provisions effectively ‘remove what would otherwise be an entitlement to natural justice, or procedural fairness, for a person who is subject to the application of the character test’ in relation to a visa refusal or cancellation.[11] While a visa applicant or visa holder is typically entitled to receive notice of, and an opportunity to respond to, adverse character information on which the Minister (or delegate) might base a decision to refuse to grant or cancel a visa, this is not the case for information protected by section 503A.

Which agencies?

The provisions apply to confidential information provided to the Department by gazetted agencies—these are defined as Australian law enforcement or intelligence bodies specified by the Minister in a notice in the Gazette, foreign law enforcement bodies for a country specified by the Minister in a notice in the Gazette, or war crimes tribunals.[12] The most recent Gazette notice, which commenced on 1 April 2016, specifies 42 Australian agencies or bodies as well as 285 foreign law enforcement countries (or parts of countries) for the purposes of section 503A.[13] Specified Australian agencies include federal intelligence agencies, the Australian Federal Police (AFP) and state and territory police, as well as the Australian Taxation Office and federal and state government community and social services agencies.

Court access to protected information

Under the current provisions, a court can only access protected information where disclosure is authorised by the Minister. The Minister is not under any duty to consider authorising the disclosure.[14] However, this limitation has been found by the High Court to be partly invalid, and so its effect is restricted.

High Court challenge

The validity of section 503A was subject to a High Court challenge in 2017, in the cases of Graham v Minister for Immigration and Border Protection and Te Puia v Minister for Immigration and Border Protection (Graham and Te Puia).[15] The applicant in each case was a New Zealand citizen who was resident in Australia, and whose visa was cancelled on character grounds under subsection 501(3) of the Migration Act. In each case, the Minister’s decision was based on information protected from disclosure under section 503A, preventing the applicant from having access to a copy of the information or any details of it.[16]

Before the High Court, the plaintiffs sought a writ of prohibition to prevent the Minister from acting on his decision to cancel the visas, and a writ of certiorari to quash the decisions, on the basis that subsection 503A(2), prohibiting disclosure of protected information, was invalid. They argued that the provision, by permitting the withholding of admissible documents from judicial proceedings, amounted to an impermissible interference with the essential function of federal courts to find facts relevant to the determination of rights in issue.[17]

A 6:1 majority of the High Court rejected the argument that subsection 503A(2) substantially impaired the institutional integrity of federal courts;[18] however, it found the provision was invalid to the extent that it would prevent the production of relevant information to the High Court in its original jurisdiction under section 75(v) of the Constitution, or to the Federal Court exercising the same original jurisdiction under the Judiciary Act 1903. Section 75(v) of the Constitution provides the High Court with original jurisdiction in respect of matters where ‘a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth’. Section 39B of the Judiciary Act provides the Federal Court with the same original jurisdiction.

The High Court majority stated:

What Parliament cannot do … is enact a law which denies to this Court when exercising jurisdiction under s 75(v), or to another court when exercising jurisdiction within the limits conferred on or invested in it under [the Constitution], the ability to enforce the legislated limits of an officer’s power. The question whether or not a law transgresses that constitutional limitation is one of substance, and therefore of degree. To answer it requires an examination not only of the legal operation of the law but also of the practical impact of the law on the ability of a court, through the application of judicial process, to discern and declare whether or not the conditions of and constraints on the lawful exercise of the power conferred on an officer have been observed in a particular case.[19]

In this case, the Court found that the practical impact of subsection 503A(2) was to prevent the High Court or Federal Court from obtaining access to a category of information relevant to the purported exercise of power under review, and therefore relevant to the Court’s determination of the legality of that exercise of power.[20] The provision operated in practice ‘to shield the purported exercise of power from judicial scrutiny’, and to ‘[strike] at the very heart of the review for which s 75(v) provides’.[21] To the extent that it did this, the Court held that subsection 503A(2) was invalid.

Section 503A remains otherwise valid.[22] This means, for example, that the Minister may still validly prevent protected information from being disclosed to a visa holder or applicant, or to a parliamentary committee or tribunal.

The current Bill responds in part to the High Court’s decision. It enables the High Court, Federal Court or Federal Circuit Court to order the Minister to disclose protected information to the Court, and sets out a scheme for the Court’s handling of such information.

Validation of Decisions Act

In September 2017, in anticipation of the High Court’s decision on the issue of invalidity of subsection 503A(2), Parliament passed the Migration Amendment (Validation of Decisions) Act 2017 (Validation of Decisions Act). The Act commenced on 6 September­ 2017—the same day the High Court’s decision was issued in Graham and Te Puia.[23] It inserted section 503E into the Migration Act, which protected the validity of any character test decisions made before commencement of the Validation of Decisions Act, in which the Minister may have relied on, had regard to or failed to disclose information covered by section 503A, or made the decision on the basis of an erroneous understanding of section 503A, in the event that section 503A was found wholly or partly invalid.[24]

Other protections against disclosure

The Migration Act contains other provisions preventing the disclosure of information or documents in certain circumstances.

Non-disclosable information

Although the Act typically requires adverse information to be provided to a visa applicant or visa holder prior to a decision being made, and an opportunity given to them to respond, these requirements do not apply to a category of information called ‘non-disclosable information’—broadly defined as information, the disclosure of which the Minister considers would be contrary to the national or public interest. This is discussed further below under ‘Key issues and provisions’.

Non-disclosure certificates

The Migration Act also provides for the issuing of non-disclosure certificates. These can prevent the Department from giving relevant information to the AAT for the purposes of the Tribunal conducting merits review of migration decisions, if the Minister believes such disclosure is contrary to the public interest because of prejudice to security, defence or international relations, or because it would disclose Cabinet deliberations or decisions.[25]

In other circumstances, the Minister may certify on public interest grounds that information must not be disclosed other than to the AAT—this permits the Tribunal to have regard to the information but prevents it from disclosing it to other persons, including to the applicant or their legal representatives.[26] Alternatively, the Minister may certify that it would be contrary to the public interest for information to be disclosed and leave it to the discretion of the Tribunal as to whether the information should be provided to the applicant or a witness.[27]

Committee consideration

Legal and Constitutional Affairs Committee

On 4 February 2021, the Bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry and report by 10 March 2021. Fifteen submissions were received, a number of which argued that insufficient time had been provided for the inquiry.[28]

The Committee issued its report on 10 March 2021, with the majority recommending that the Bill be passed.[29] The majority report stated:

The committee recognises the concerns put forward by some inquiry participants that the bill may result in negative impacts on procedural fairness. Ultimately, the committee holds the view that this bill has a legitimate purpose and that its provisions are reasonable, necessary and proportionate.

The committee encourages the government to consider additional safeguards such as the creation of a special advocate program to represent the interests of the applicant when the court has ruled against disclosure.[30]

ALP Senators and the Australian Greens issued separate, dissenting reports opposing the Bill—these are discussed further under ‘Policy position of non-government parties/independents’.

Senate Standing Committee for the Scrutiny of Bills

The Scrutiny of Bills Committee reported on the Bill on 29 January 2021.[31] The Committee raised concerns about the following matters:

• provisions in the Bill may ‘continue to operate to undermine the practical efficacy of judicial review in many cases’—the Committee noted that under the framework proposed by the Bill:
  • the court has ‘no flexibility to seek any feedback from the applicant to assist in performing its judicial review task’
  • in determining whether disclosure of information would create a real risk to the public interest, the court is not able to balance that risk against the possibility the applicant may assist the court in proper exercise of its judicial review function
  • the court is not able to disclose part of the secret information, even where partial disclosure could assist the court without creating a real risk of damage to the public interest
  • intelligence and law enforcement agencies within the scheme are specified by way of Gazette notice rather than primary or delegated legislation and
  • the Minister has no obligation to consider the exercise of power to allow disclosure of protected information, including to tribunals undertaking merits review of relevant decisions[32] and
• measures in the Bill may limit parliamentary scrutiny and Parliament’s ability to review or oversee executive decision-making, by preventing protected information from being disclosed to a parliament or parliamentary committee—the Committee noted the Senate has ‘well-established processes in which the executive may make claims for public interest immunity’[33]
• provision 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 may impede ‘one of the few substantive bases for review under the new protected information framework’[34]
• the Bill abrogates the natural justice hearing rule and seeks to limit the rules of natural justice in relation to AAT reviews[35]
• regulations may prescribe additional matters to which the court may have regard in determining whether disclosure would create a real risk to the public interest—the Committee noted that no justification is provided as to why it is necessary for such significant matters to be set out in delegated legislation[36] and
• the Bill amends the Australian Citizenship Act to provide the Secretary with broad powers to delegate any or all of their powers or functions under the Act or the regulations.[37]

The Committee requested further advice and information from the Minister on each of these matters except for the delegation issue, in respect of which it noted that detailed information was provided in the Explanatory Memorandum.

The Minister’s response was published and considered by the Committee on 17 March 2021.[38] The Minister emphasised that law enforcement and intelligence agencies provide confidential information to the Department on the basis that it can be protected from disclosure, and that the designation of information as confidential is done by the individual agencies. The Minister pointed to the sensitive nature of the information involved to argue that permitting partial disclosure would risk damaging the public interest, and that imposing a duty on the Minister to consider whether to authorise disclosure to Tribunals would not be appropriate. The Minister further noted that gazetted agencies would be publicly identifiable and therefore did not need to be listed in primary or delegated legislation.[39]

On the issue of restricting parliamentary scrutiny, the Minister advised that public interest immunity may not provide the kind of comprehensive protection required for the full range of confidential information protected under the Bill.[40] In respect of evidentiary certificates and the capacity to lead hearsay evidence, the Minister stated that this was crucial to allowing the Court to exercise its functions and simultaneously protect highly sensitive and confidential information.[41] The Minister further advised that allowing delegated legislation to prescribe further matters relevant to the Court’s determination of whether to disclose information would provide flexibility and allow the relevant matters to ‘reflect changing circumstances and evolving security challenges’.[42]

In response, the Committee reiterated its scrutiny concerns, including that the provisions in the Bill may operate to undermine the practical efficacy of judicial review, and curtail the Parliament’s powers and responsibility to effectively review executive decision-making.[43] It left to the Senate as a whole the appropriateness of the measures in the Bill.

Policy position of non-government parties/independents

Labor Senators and the Australian Greens issued separate, dissenting reports to the Senate Committee report, opposing the Bill.

Labor Senators recommended the Bill not be passed in its current form.[44] The minority report raised concerns with insufficient timeframes for the conduct of the Senate inquiry, recommending that the Bill be sent to the Parliamentary Joint Committee on Intelligence and Security for further inquiry, as well as undergo detailed stakeholder consultation to ensure ‘a genuine consultation process that considers the real-world impact of the Bill’.[45] Labor Senators expressed concern about a range of aspects of the Bill, including: its constitutionality; the potential impact on the independence of the courts; the expansion of executive powers; the impact on access to justice, particularly in light of the potential consequences of migration and citizenship decisions; and the concerns of foreign governments including New Zealand in the context of visa cancellations and citizenship revocation. It recommended an extensive list of amendments if the Government decided to proceed with the Bill.[46]

The Greens also recommended that the Bill be rejected.[47] They cited concerns from submitters and the Parliamentary Joint Committee on Human Rights about the Bill’s impact on the right to a fair hearing and due process; potential infringement of section 75(v) of the Constitution; and the Bill’s impact on AAT merits review and parliamentary scrutiny. The Greens argued that ‘no clear or compelling case has been made by the government for the bill.’[48]

Other non-government parties and independents do not appear to have commented on the Bill at the time of writing.

Position of major interest groups

All submissions to the Senate inquiry, other than the Department’s, opposed the Bill. Similar issues were raised across the submissions—the key points made are summarised below.

Sufficient existing protections

Many submitters pointed to existing mechanisms by which the Government may protect the disclosure of confidential or national security information, arguing that no compelling case had been made as to why a separate scheme was required for migration and citizenship decisions.[49] They pointed to two mechanisms in particular:

• National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act), which prevents the disclosure of national security information in federal criminal and civil proceedings where the disclosure is likely to prejudice national security, except to the extent that doing so would seriously interfere with the administration of justice[50] and
• the doctrine of public interest immunity, both under the common law and section 130 of the Evidence Act 1995 (Cth), which protects information from disclosure in the course of litigation if the court determines that disclosure would injure an identified public interest.[51]

Pointing to the ‘expansive’ definition of national security information under the NSI Act, the Law Council of Australia stated:

The Law Council queries what confidential information that would pose a risk of harm should it be disclosed is not covered under the NSI Act, noting the very expansive definition of ‘national security information’... It considers that if the Government wishes to argue the necessity of maintaining this protected information regime in the Migration Act in addition to the NSI Act regime, it needs to make clear the additional harm there is to be remedied, which cannot be dealt with under the broader NSI Act.[52]

Further noting the availability of public interest immunity claims, which it suggested would appear to cover the ‘Minister’s central concern about protecting ‘the operations, capabilities and sources of law enforcement and intelligence agencies’’, the Law Council stated that ‘it cannot identify why information beyond this type of information relating to character decisions should be kept confidential’.[53]

The Australian Human Rights Commission (AHRC) noted that the Explanatory Memorandum for the Bill states that the current framework protecting against harmful disclosure of confidential information ‘does not adequately capture the type of confidential information which is critical to character-related decision-making, such as a person’s criminal background or associations’. The AHRC argued that there therefore ‘appears to be no concern about the adequacy of the protection of national security information’, and that the issue appears to be in relation to the balancing exercise performed by a court in assessing a claim for public interest immunity. The AHRC stated:

The Explanatory Memorandum acknowledges that it would be open to the Executive to make a claim for public interest immunity in relation to information about these additional matters such as a person’s criminal background or associations. However, it says that the test applied by a court or tribunal in assessing a claim for public interest immunity— weighing competing public interests and potentially releasing information if it forms the view that it is in the interests of justice to do so—creates a ‘real risk’ that some confidential information may be released.

It appears that the rationale for this Bill is based in a view that public interest immunity is insufficient and that it is aimed at further limiting the discretion of a court or tribunal to release information the Government considers confidential.[54] (Emphasis added)

Legal Aid NSW stated that ‘no examples are provided of the inadequacy of the current arrangements… In our experience the Department already resorts too readily to exclusions without proper consideration of the nature of the contents’.[55]

Restricting right to fair hearing

A central concern of many submitters has been that the measures proposed in the Bill will significantly restrict procedural fairness, and particularly the right to a fair hearing of persons affected by a negative citizenship or migration decision made in connection with protected information. They have argued that this is particularly important in light of the gravity of the implications of such decisions.

Refugee organisations have emphasised that these concerns are heightened for refugees, asylum seekers and stateless persons. The United Nations High Commissioner for Refugees (UNHCR) stated:

The cancellation or refusal of a visa on character grounds has significant consequences for asylum-seekers, refugees and stateless persons in Australia. The ordinary operation of Australian law has the practical effect that a person whose visa is cancelled or refused on character grounds remains in detention until they are removed from Australia. Where a person is not able to be removed, because they continue to be in need of international protection, Australian law allows them to remain in immigration detention indefinitely…

In view of the nature of the risks involved and the grave consequences of an erroneous determination, including the risk of return in breach of Australia’s non-refoulement obligations, it is essential that asylum-seekers, refugees and stateless persons be afforded full procedural safeguards and guarantees at all stages of the visa and citizenship determination process.[56]

The Kaldor Centre for International Refugee Law has described the framework as ‘heavily unbalanced’ with the potential to ‘deprive a large number of individuals who are denied or stripped of an Australian visa or Australian citizenship of the chance to respond to key information relied upon to reach a decision against them’. It further argued that ‘these things are particularly dangerous given that the consequences of losing a visa or citizenship for an individual are dire’.[57]

Restraints on discretion of court

Particular concerns were raised about the fact that the Bill specifies an exhaustive list of factors to which a court may have regard in determining whether disclosure of protected information (including to the applicant) would create a real risk of damage to the public interest.[58] Many interest groups have noted that the factors which the court may consider all weigh against disclosure—the court is not permitted to consider ‘broader factors in determining the public interest, including the interests of the administration of justice… or the potential ramifications of the information and proceedings for the applicant or their family’.[59]

It was also noted that the existing list of factors for the court to consider includes ‘such other matters (if any) as are specified in the regulations’, enabling the Government to specify additional matters through delegated legislation.[60]

Legal bodies including Victorian Legal Aid, Legal Aid NSW and the Law Council recommended various amendments to the public interest test for the courts, including:

• making the factors the court can consider inclusive, rather than exclusive[61]
• enabling 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 the court considers relevant to the proper administration of justice[62] and
• removal of the ability for additional factors to be prescribed through delegated legislation.[63]

Impact on ability to challenge decision

Submitters expressed strong concern that the measures in the Bill limit the ability for the person to whom the information relates to effectively challenge an adverse decision made against them. One key concern was that the applicant is unlikely to be able to make submissions to the court on whether information should be disclosed, due to the requirement that parties may only do so if they are aware of the content of the information and did not acquire that content unlawfully.[64] Submitters pointed out that applicants will rarely be aware of the relevant information or be able to lawfully acquire it.[65] The Kaldor Centre noted that this effectively means:

…at the preliminary hearing the Minister will be able to put forward arguments for non-disclosure of the information, while nobody will be able to present counterarguments weighing in favour of disclosure.[66]

Victorian Legal Aid argued:

The ability of the court to hear from both parties about the public interest in disclosure or non-disclosure is important to the court’s ability to balance risks. It is also important to the integrity of the system, as it ensures that agencies remain accountable for the veracity of the information they seek to pass on. The affected person should be allowed to make submissions and tender evidence about the disclosure of protected information and the weight attributed to it. The affected person should not be subject to a blanket exclusion from the hearing; this should be done rarely, after careful balancing of the risks.[67]

More broadly, concerns were raised that the inability to access protected information will adversely affect a person throughout the decision-making process, by ‘limiting the applicant’s ability to obtain and understand the underlying reasons for an adverse decision in which confidential or protected information is relied upon’.[68] The Australian Human Rights Commission stated:

A key aspect of a fair hearing is the principle of ‘equality of arms’. This principle requires that each side be given the opportunity to contest all of the arguments and evidence adduced by the other party.

Further, the Bill runs counter to a strong tradition at both common law and in Commonwealth legislation, that the state should not be permitted to rely on secret evidence in cases where a person’s liberty is at stake.[69]

A number of submitters recommended the Bill make provision for the applicant’s interests to be represented. UNHCR suggested that some adjustment to the proposed procedures be considered, stating its belief that:

it is possible to implement a process that protects the interests of the State but which also offers asylum-seekers, refugees and stateless persons access to the evidence against him or her, and which would allow some meaningful opportunity to challenge the information and adverse decision upon which it is made.[70]

Suggested amendments included:

• allowing the applicant’s lawyer or a special advocate to be present at the preliminary hearing dealing with the confidential information[71]
• allowing an applicant to make submissions going to the nature of the protected information and the weight to be attributed to it, with the court retaining the discretion as to whether or not to exclude an applicant from a hearing[72]
• development of a list of authorised, security-cleared legal representatives to review and respond to confidential information on behalf of their client, as is provided for under the NSI Act[73]
• requiring that where the court determines that disclosure of protected information would create a real risk of damage to the public interest, it must make an order requiring a relevant person to give the applicant sufficient information, including by way of summary of the information or a statement of relevant facts, to enable the applicant to make meaningful submissions[74]
• and/or permitting the court to order partial disclosure of information—for example, as much information as can be revealed without risking the safety of members of the relevant intelligence or security agencies.[75]

AAT and state/territory courts

Submissions also noted that the Bill imposes further limitations on the power of the Administrative Appeals Tribunal (AAT) to access protected or non-disclosable information. Unlike the Federal Circuit Court, Federal Court or High Court, the Bill does not provide the AAT with the power to order disclosure of information by the Minister—the Tribunal can only access such information if the Minister allows the disclosure or the Court orders the disclosure. In circumstances where the Minister allows the AAT to view protected material, the Tribunal will be prevented from disclosing the information to the applicant.[76]

Legal Aid NSW, for example, noted:

this further limitation on the AAT’s power to have access to what is now called non-disclosable information is an unjustified limitation on the ability of the AAT to conduct a proper merits review of the reviewable decision.

Merits review is a crucial right for an applicant facing visa cancellation or refusal on character grounds. The rights of the visa holder are substantially affected as a cancellation/non-revocation decision carries a lifetime bar on re-entry to Australia and as noted above, may impact on other fundamental rights (e.g. not to be returned to a county where they face persecution or significant harm). A tribunal may be lower in the judicial hierarchy, but for an applicant it represents the last time that the merits of their case can be argued. If they do not succeed at the tribunal then they are limited to arguing jurisdictional error in the superior courts.[77]

Other legal organisations noted that merits review of character decisions involves tight statutory timeframes, which may be impeded by a requirement that the applicant seek judicial intervention in order to access protected information. For example, Refugee Legal stated:

In most circumstances, where the AAT’s jurisdiction is limited by strict statutory timelines, such intervention would not be possible to achieve in a timely manner. Such delays are of serious concern, as they inevitably result in deprivation of liberty, prolonged separation of families and exacerbation of mental ill-health of vulnerable persons.[78]

This point was also made by Carina Ford Immigration Lawyers, who suggested that consideration be given to amending the Bill to empower the AAT, in such circumstances, to make timetabling orders to allow for the suspension of the application before it to allow applicants to both consider their options in respect of protected information, and pursue any application for disclosure in an appropriate court.[79]

Legal Aid NSW also queried the Bill’s potential impact on proceedings in courts other than the High Court, Federal Court and Federal Circuit Court, noting that while those three courts may order production of protected information, state and territory Supreme and other courts have no such powers. It expressed concern that the proposed protected information framework ‘may extend to prevent the disclosure or production of evidence in criminal and related proceedings for Commonwealth offences and in respect of high risk terrorist offender applications’.[80]

Fallibility of information

Stakeholders further noted that information from intelligence and law enforcement agencies will not always be completely accurate, and may be ‘incomplete, unreliable or erroneous’.[81] The Refugee Council of Australia stated:

Information obtained from intelligence and law enforcement agencies is not always reliable or accurate. Information may be missing crucial details, may not give the whole picture of events, or may be missing broader context. This may result [in] errors in decision making where decision makers are only relying on documents provided by intelligence and law enforcement agencies. This risk of incorrect decisions being made is increased when applicants are denied a chance to respond to confidential information or provide additional documents that may assist the decision maker coming to the correct and preferable decision in accordance with the law…

For example, in 2012 the Australian Government appointed an Independent Reviewer of Adverse Security Assessments to review the Australian Security Intelligence Organisation (ASIO) adverse security assessments given to the Department of Home Affairs in relation to people who have been found to be refugees but who have not been granted a protection visa because of an adverse security assessment… After the appointment of an Independent Reviewer of Adverse Security Assessments, at least 57 refugees who had previously been assessed by ASIO as a high security risk had their assessments downgraded to either qualified or the lower level ‘nonprejudicial’ status. This demonstrates that information provided by intelligence and law enforcement agencies is fallible, and further review of such information may assist decision makers, including the courts, from reaching the correct determination.[82]

Uncertain scope of the Bill

Submitters also queried the uncertain and potentially very broad scope of the Bill, noting that the proposed protected information framework under both the Migration Act and Australian Citizenship Act is enlivened by a decision of a gazetted agency to communicate information as confidential information.[83]

The Law Council argued that the definition of gazetted agency grants an ‘overly broad discretion to the Executive to determine the gatekeepers, and potential scope, of the proposed legislative scheme’.[84] It noted that a ‘very broad range of bodies’, beyond those traditionally considered law enforcement or intelligence bodies, may fall within this definition, and that gazette notices are not subject to parliamentary review.[85] It suggested that this definition, in connection with the absence of any definition for the term confidential information, appeared to protect any information from disclosure that any of the gazetted agencies ‘subjectively consider should be confidential’:

With respect to Australian gazetted agencies, this could include information relating, for example, to individuals’ cognitive disabilities or other health information, to welfare payments or other social security information, to low level offences such as minor road traffic offences or shoplifting. It could also include information which is politically sensitive, or may embarrass a Minister or department, such as information which discloses poor administration.

With respect to gazetted agencies which are foreign law enforcement bodies, the relevant information may concern activities that are considered crimes in other countries but not in Australia, or for which fair trial guarantees are lacking (eg, regarding charges arising from corrupt systems). It may include, essentially, any information. The threshold appears to be left to each gazetted agency to determine and the Bill includes no independent safeguard to achieve appropriate levels of consistency and no avenue for review.[86]

The Asylum Seeker Resource Centre also argued that the decision types affected by the Bill are too wide, with many ‘in no way related to any national security issues, which is the usual rationale provided for why some modification to usual standards of public and transparent legal processes, is considered necessary’.[87]

Financial implications

The Explanatory Memorandum states that the Bill will have no financial impact on Government revenue.[88]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[89]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights (PJCHR) reported on the Bill on 3 February 2021.[90] The Committee found the Bill to engage and limit the right to a fair hearing and (so far as it relates to decisions about the expulsion or deportation of non-citizens from Australia) the prohibition against expulsion of aliens without due process, to the extent that it restricts a person’s access to information relevant to the decision which affects them, and excludes the person from hearings where they are not lawfully aware of the contents of the information.[91]

The PJCHR stated that while it considered the Bill to pursue the legitimate objective of upholding law enforcement and intelligence capabilities, it required further information to assess the proportionality of the proposed measures. The Committee noted a number of concerns, including:

• the Bill being drafted in broad terms, which require courts to consider the potential damage to the ‘wider concept of public interest, not only national security, in determining whether to order onwards disclosure’, therefore appearing to create a lower threshold for prohibiting disclosure[92]
• whether there are sufficient safeguards in place, noting that the court’s role is ‘severely restricted by the practical operation’ of the provisions, which:
  • effectively exclude the applicant and their legal representatives from proceedings which consider the disclosure of information
  • prescribe an exhaustive list of matters to which the court must have regard, giving it ‘minimal flexibility’ to consider matters and information it considers appropriate and necessary in each case
  • do not permit the court to undertake a balancing exercise which involves weighing the risk of damage to the public interest against the right to a fair hearing or other matters it considers appropriate or necessary and
  • does not permit the court to treat individual cases differently, such as by ordering partial disclosure or a summary of confidential information[93] and
• that while review of migration and citizenship decisions in the AAT and courts is ‘theoretically available’, the proposed measures ‘appear to render the practical efficacy of review meaningless in many cases’:

Without access to all relevant information, notably critical information on which the decision was based, it is unclear on what basis an affected person would be able to effectively challenge the decision. Furthermore, as discussed above, the court’s ability to properly perform its judicial review task is severely hampered by the measure. This raises serious concerns that there may not be effective access to review.[94]

To assess the proportionality of the proposed measures, the PJCHR requested the following advice from the Minister:

• why it is necessary and appropriate to use ‘public interest’ rather than ‘national security’ as the threshold concept for determining whether confidential information can be disclosed
• why it is necessary and appropriate for the matters specified in proposed subsections 52C(5) and 503C(5), to which the Court must have regard in determining whether disclosure of information would create a real risk of damage to the public interest, to be exhaustive
• why procedural fairness, particularly as it relates to the applicant, is not included as a matter to which the Court must have regard
• what other matters are likely to be specified in regulations for the purposes of proposed subsections 52C(5) and 503C(5)
• why it is not possible to allow the Court to disclose the relevant information—or a summary of it—to the extent necessary to ensure procedural fairness in circumstances where partial disclosure could be achieved without creating a real risk of damage to the public interest
• why there is no provision for a special advocate or equivalent safeguard to be able to represent the applicant’s interests if it is determined that relevant information be withheld and
• what, if any, other safeguards exist to ensure the proposed limit on the right to a free trial and prohibition against expulsion without due process are proportionate.[95]

The Minister’s response was published by the Committee in its report dated 17 March 2021.[96] The Minister advised the measures in the Bill are necessary to strengthen the Government’s ability to uphold public safety and the good order of the Australian community, and that they provide safeguards to the applicant by allowing the courts to decide how much weight to give to the confidential information submitted in evidence.[97] The Minister stated:

The balance reflected in the Bill will enable law enforcement agencies to continue to provide confidential information to the Department to make fully informed visa and citizenship decisions on character grounds, while providing fairness to applicants seeking merits or judicial review of a departmental decision. This is essential to the Government's core business of regulating, in the national interest, who should enter and remain in Australia, and who should be granted Australian citizenship and the privileges which attach to it.[98]

The Committee concluded there was a significant risk the Bill’s measures impermissibly limit the right to a fair hearing and the prohibition against expulsion of aliens without due process. It stated that the Court would have ‘minimal flexibility’ to treat different cases differently and would have difficulty properly testing the reliability, relevance and accuracy of protected information. The Committee further noted that access to review might not be effective in practice because the applicant is unable to access critical information on which the decision was based.[99] It suggested the proportionality of the Bill’s measures may be assisted if it was amended to provide:

• the matters specified in proposed subsections 52C(5) and 503C(5), to which the Court must have regard in determining whether disclosure of information would create a real risk of damage to the public interest, be non-exhaustive to enable the Court to consider any other appropriate and necessary matter
• proposed subsections 52C(5) and 503C(5) specify the Court must have regard to procedural fairness and the rights of the applicant
• the Court be afforded the discretion to disclose partial information, or a summary, where doing so does not create a real risk of damage to the public interest and
• a process by which a special advocate or equivalent safeguard be created to represent the applicant’s interests if it is determined the relevant information cannot be disclosed to the applicant.[100]

Protection against non-refoulement

In submissions to the Senate inquiry into the Bill, the Kaldor Centre and Refugee Council of Australia noted the PJCHR had not considered the Bill’s impact on the principle of non-refoulement—the prohibition on removal of persons to countries in which they have a well-founded fear of persecution or otherwise face a real risk of serious harm.[101] The Refugee Council stated:

…compliance with the obligation of non-refoulement requires that sufficient safeguards are in place to ensure a person is not removed in contravention of this obligation.

Inherent in this obligation is the requirement that applicants be afforded a fair hearing and a chance to present their case. The procedural fairness requirement of the non-refoulement obligation ensures states are adhering to their non-refoulement obligation and not returning refugees back to harm. As such, under international law, refugee applicants must be afforded a fair process and the right to address any adverse information used in deciding their case…

There is no derogation permissible from the obligation to ensure refugee applicants are afforded procedural fairness, including a chance to review and respond to any adverse information. The Bill as it stands would deny certain applicants this right, in contravention with Australia’s non-refoulement obligations.[102]

The United Nations High Commissioner for Refugees (UNHCR) similarly argued that the Bill represents 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’.[103]

Key issues and provisions

Migration Act amendments

Protected information—existing provisions

Existing sections 503A, 503B, 503C and 503D of the Migration Act deal with the use and disclosure of information (‘protected information’) that meets the following criteria:

• it is communicated to an authorised migration officer (a Commonwealth officer exercising powers or performing duties under the Migration Act)
• it is communicated by a gazetted agency (an Australian or foreign law enforcement agency or intelligence body specified by the Minister in the Gazette, or an international war crimes tribunal)
• it is communicated on the condition that it be treated as confidential and
• it is relevant to the exercise of a power under sections 501–501CA of the Migration Act (the character test powers).[104]

Such information cannot be disclosed other than to the Minister or another authorised migration officer for the purpose of exercising one of the character test powers.[105] Subsection 503A(2) provides that if an authorised officer or the Minister receives information under these provisions, they must not be required to divulge or communicate it to, or give the information in evidence before, a court, tribunal, parliament, parliamentary committee or any other body or person.

Permitted disclosures

Currently, the only circumstances in which protected information may be disclosed is where the Minister makes a written declaration under subsection 503A(3), authorising disclosure to a specified Commonwealth officer, court or tribunal. The Minister must consult the gazetted agency from which the information originated before making such a declaration.[106] The Minister’s power to make a declaration is non-compellable.[107] However, as discussed above, this has been found invalid by the High Court to the extent that it prevents the High Court or Federal Court from obtaining access to information relevant to the purported exercise of power under review, and therefore relevant to the Court’s determination of the legality of that exercise of power.

A person or body to whom information is disclosed under these provisions, is restrained from further disclosing the information (unless a new declaration is made).[108]

Court powers and orders

Under the existing scheme, there is no provision for a court to order disclosure of protected information.

Sections 503B and 503C provide that on application by the Minister, the Federal Court and Federal Circuit Court may make permanent and interim non-disclosure orders, respectively, in anticipation of the Minister making a declaration permitting disclosure of protected information to the Court. The non-disclosure orders may be in such form as the Court considers appropriate for the purpose of ensuring that, if such a declaration comes into force, any information disclosed to the Court is not disclosed to:

• the applicant in relation to the substantive proceedings
• the legal representative of the applicant or
• any other member of the public.[109]

Non-disclosure orders may exclude members of the public from all or part of the hearing, prevent publication of a report of (or relating to) all or part of the proceedings, or prevent access to Court files or records which contain the protected information.[110] In making a permanent non-disclosure order, the Court’s discretion is limited—it must only have regard to matters contained in subsection 503B(5). These include matters such as the confidential nature of the information; Australia’s national security and international relations; the potential for disclosure to discourage future information-sharing by gazetted agencies and informants; the need to avoid disruption to national and international law enforcement and intelligence efforts; and the interests of the administration of justice.

It is an offence to engage in conduct which contravenes a non-disclosure order, or interim non-disclosure order, with an applicable maximum penalty of two years imprisonment.[111]

Protected information—amendments

Item 9 of Schedule 1 repeals sections 503A to 503D, and inserts proposed sections 503A to 503D.

The same information is treated as protected for the purposes of the proposed provisions.[112] As with existing section 503A, an authorised Commonwealth officer who receives such information may disclose it to another officer or the Minister for the purpose of exercising powers in relation to the character test.[113] Proposed paragraph 503A(2)(b) inserts an additional circumstance in which protected information can be disclosed—where it is disclosed to an authorised Commonwealth officer or Minister for the purposes of the exercise of certain powers under the Australian Citizenship Act.

Proposed section 503D states that the protected information provisions apply to information relating to a gazetted agency in the same way as they apply to information communicated by the agency. This protects, for example, the relevant agency’s name, and is equivalent to existing section 503D.

Permitted disclosures

Proposed subsection 503B(1) provides the Minister with a power to make written declarations authorising the disclosure of specified information otherwise protected under proposed section 503A. This is equivalent to the Minister’s power under existing subsection 503A(3) of the Migration Act—as is the case with the existing power, the Minister will not have a duty to consider whether to make a declaration.[114]

As with the current provisions, a Commonwealth officer to whom information is disclosed in accordance with a Ministerial declaration must comply with any conditions specified in the declaration.[115] Any person or body receiving information in accordance with a declaration must not disclose it or voluntarily produce it in evidence before a court, otherwise than as permitted by the declaration.[116] Additionally, a Minister, Commonwealth officer or tribunal member must not be required to produce the information to a court (subject to proposed section 503C, discussed below).[117]

Proposed subsection 503B(9) expressly states that the rules of natural justice do not apply to the consideration or exercise of the Minister’s power to issue a declaration. This means the Minister is not required to provide notice of their intention to issue or not issue a declaration (for example), or provide affected persons with the opportunity to be heard on the issue. There is no similar statement under the existing provisions.

Additionally, the Minister’s power to make a declaration is non-compellable, which means a person cannot challenge the Minister’s failure to make a declaration, or to even consider whether to make a declaration.[118] A declaration is not a legislative instrument.[119]

New offences

Unlike the current provisions, which only make it an offence to breach non-disclosure orders made by a court, the Bill creates two new offences in relation to protected information.

Proposed subsection 503A(6) makes it an offence for an authorised Commonwealth officer to disclose protected information to another person otherwise than as provided for under proposed sections 503A, 503B or 503C.

Proposed subsection 503B(7) provides for an offence where a Commonwealth officer receives information in accordance with a Ministerial declaration subject to one or more conditions, and contravenes the condition(s).

The maximum penalty for both offences is two years’ imprisonment. The Explanatory Memorandum states that the creation of these offences ‘highlights the seriousness with which the Government regards’ unauthorised disclosures of protected information and breaches of conditions relating to such information.[120] It further states that the applicable penalty:

… reflects the fact that Commonwealth officers are in a trusted position to access certain sensitive and confidential information in order to carry out their duties, and that this position comes with the responsibility to protect such information. This is due to the severe impact that unauthorised disclosures could have on the public interest – including compromising national security.[121]

Court powers and orders

Unlike the current provisions, proposed subsection 503C(1) gives the High Court, Federal Court or Federal Circuit Court the power to order the Minister to cause specified information to be produced to, or given in evidence before, the Court. This new power appears to largely respond to the High Court’s decision in Graham and Te Puia, recognising that the Government cannot prohibit information being provided to the High Court or Federal Court where doing so would impede the courts exercising of their original jurisdiction to review the legality of administrative actions.

The power to make a disclosure order exists where:

• the relevant court is satisfied the information is ‘protected information’ under proposed subsection 503A(1) and
• the production or giving of the information is for the purposes of substantive proceedings relating to the exercise of one of the character test powers.[122]

If information is produced to, or given in evidence before, the court in accordance with a disclosure order under proposed subsection 503C(1), a party to the substantive proceedings may make submissions concerning:

• the use that the Court should make of the information (including any weight to be given to the information) and
• the impact that disclosing the information may have on the public interest—the party may also tender evidence on this issue if appropriate.[123]

However, a party may only make such submissions if they are aware of the content of the information, and the content of the information was not acquired (by the party or another person) unlawfully or in breach of confidentiality requirements.[124]

If a party does not meet these criteria, the Court must order that they be excluded from the hearing of any submissions regarding the use of the protected information—this is the case even if the party is the applicant to the substantive proceedings. The Court must also order that no part of the proceedings relating to the information is to be published, and that no person has access to Court files or records containing that information without consent of the Court.[125]

After considering the information and any submissions made in relation to it, the Court must determine whether disclosing the information would create a real risk of damage to the public interest, and if so, must not disclose the information to any person, including the applicant and any other party to the substantive proceedings or their legal representatives. In making this assessment, the Court must only have regard to the following matters that it considers relevant:

• the fact the information was originally communicated to an authorised Commonwealth officer by a gazetted agency on condition that it be treated as confidential information
• the risk that disclosure may discourage gazetted agencies and informants giving information in the future
• Australia’s relations with other countries
• the need to avoid disruption to national and international law enforcement, criminal intelligence, criminal investigation and security intelligence efforts
• the protection and safety of informants and people associated with informants
• the protection of the technologies and methods used (whether in or out of Australia) to collect, analyse, secure or otherwise deal with criminal intelligence or security intelligence
• Australia’s national security and
• such other matters, if any, specified in the regulations.[126]

Non-disclosable information—amendments

In addition to the amendments to the protected information provisions of the Migration Act, item 6 of Schedule 1 amends the definition of non-disclosable information in subsection 5(1) of the Act.

Although the Migration Act generally requires adverse information to be given to a visa applicant where it is relevant to a decision to refuse to grant a visa,[127] and to a visa holder where it is relevant to a decision to cancel their visa,[128] non-disclosable information is exempted from these requirements. Similarly, the AAT does not have to provide non-disclosable information to an applicant even where it will be relevant to the Tribunal’s decision in the applicant’s matter.[129]

Currently, the definition of non-disclosable information means information or matter:

• whose disclosure would, in the Minister’s opinion, be contrary to the national interest by prejudicing Australia’s security, defence or international relations, or by involving the disclosure of Cabinet deliberations or decisions
• whose disclosure would, in the Minister’s opinion, be contrary to the public interest for a reason that could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings or
• whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence.

Item 6 inserts proposed paragraph (aa) into the definition, to capture information or matter:

• which was disclosed by a gazetted agency and is relevant to the exercise of, or in relation to, a character test power and
• the further disclosure of which would, in the Minister’s opinion (after consulting the gazetted agency), be contrary to the national interest.

The effect of the amendment will be to expand the types of information which do not have to be provided to a person both before an adverse decision is made in respect of a visa, and when providing written reasons for a visa decision.

The amended definition will apply in relation to particulars, reasons or documents given after commencement of item 6.[130]

Application

The new offences under proposed subsections 503A(6) and 503B(7) will apply in relation to any contravention occurring after commencement of Part 1 of Schedule 1.[131] All other amendments to the Migration Act will apply in relation to:

• any protected information, whether it is communicated or originated before or after commencement and
• to any court, tribunal or parliamentary proceedings, whether they are commenced before or after commencement.[132]

Citizenship Act amendments

Protected information—existing provisions

Currently, the Australian Citizenship Act contains limited provisions protecting information from disclosure on security grounds. There are no existing provisions akin to sections 503A to 503D of the Migration Act which specifically dealing with confidential information conveyed to the Department by law enforcement and security agencies.

The existing provisions relate primarily to citizenship cessation. The Minister is typically required to give a person notice of their citizenship having ceased and the basis for this.[133] However, information must not be disclosed to a person where it includes operationally sensitive information;[134] where disclosure could prejudice Australia’s security, defence or international relations, or the performance by a law enforcement or security agency of its functions; or where disclosure could endanger a person’s safety or otherwise be contrary to the public interest.[135] Similar provisions apply in respect of applications to the Minister for revocation of a citizenship cessation determination,[136] and revocations on the Minister’s own initiative.[137]

Protected information—amendments

Items 1 to 3 of Schedule 1 amend the Australian Citizenship Act to provide for the protection of certain information from disclosure. These provisions are in largely equivalent terms to proposed sections 503A to 503D of the Migration Act, discussed above.

Item 3 inserts proposed provisions 52A to 52D into the Australian Citizenship Act. Proposed subsection 52A(1) provides that information will fall within the scope of these provisions if it is communicated to an authorised Commonwealth officer by a gazetted agency on the condition of confidentiality, and is relevant to the exercise of a power under or in relation to the following:

• refusal of an application for citizenship by descent under section 17
• refusal of an application for citizenship on the basis of adoption under section 19D
• refusal of an application for citizenship by conferral under section 24
• the cancellation of an approval of citizenship by conferral, on the basis that the person is not of good character (section 25)
• a determination under subsection 26(3) that a person delay making the pledge of commitment for a specified period of time
• refusal of an application to resume citizenship under section 30
• revocation of citizenship on the basis of certain criminal offences or fraud (section 34)
• cessation of citizenship for engaging in specified conduct demonstrating the person has ‘repudiated their allegiance’ to Australia (section 36B) and
• cessation of citizenship on the basis of certain criminal convictions (section 36D).[138]

The same restrictions on disclosure of such information as provided for under the Migration Act apply under the Australian Citizenship Act. An authorised Commonwealth officer or the Minister may disclose protected information for the purpose of one of the provisions listed above, or the exercise of one of the character test powers under the Migration Act.[139] The Minister may also authorise disclosure to a specified Minister, Commonwealth officer, court or tribunal, by way of a written declaration under proposed subsection 52B(1). The Minister must consult the gazetted agency from which the information originated before making such declaration.

Offences

The proposed provisions also contain offences equivalent to those inserted into the Migration Act, discussed above. It is an offence for a Commonwealth officer to:

• disclose protected information other than as authorised by proposed sections 52A, 52B or 52C[140] or
• contravene a condition (or conditions) imposed by the Minister as part of a written declaration under proposed subsection 52B(1).[141]

Each offence is punishable by a maximum penalty of two years’ imprisonment.

Court powers and orders

Proposed section 52C provides that the High Court, Federal Court or Federal Circuit Court may order the Minister to cause protected information to be produced to, or given in evidence before the Court, if it is for the purpose of proceedings relating to the exercise of a power under one of the provisions of the Australian Citizenship Act, as set out above.

The procedures, powers and restrictions provided for under proposed section 52C are the same as those provided for under proposed section 503C of the Migration Act, discussed above.

Application provisions

The amendments to the Australian Citizenship Act will apply to any information captured by proposed subsection 52A(1), whether it is communicated or originated before or after commencement of Part 1 of Schedule 1 of the Bill. The amendments will similarly apply to any court, tribunal or parliamentary proceedings commenced before or after commencement.[142]

Non-disclosure certificates and the AAT

Schedule 2 of the Bill makes other amendments to the Australian Citizenship Act relating to the disclosure of information, including to provide for the issuing of non-disclosure certificates by the Minister.

The Migration Act currently permits the Minister to issue a non-disclosure certificate preventing the Secretary of the Department from providing a document or information to a merits review tribunal, where the disclosure would be contrary to public interest:

• because it would prejudice Australia’s security, defence or international relations or
• because it would involve the disclosure of Cabinet deliberations or decisions.[143]

Item 5 of Schedule 2 inserts proposed section 52G into the Australian Citizenship Act. This provides, in substantively identical terms to the Migration Act provisions, that the Minister may issue a non-disclosure certificate preventing the Secretary from disclosing a document or information to the AAT on the grounds that it would prejudice Australia’s security, defence or international relations or involve Cabinet disclosures.

The provision enables certain information relied on by the Minister (or a delegate) in making citizenship decisions to be withheld from the AAT. The effect of this is different from withholding information from a court undertaking judicial review. The AAT is required to make a decision afresh (or de novo) based on the relevant information before it at the time of reconsideration, rather than review the original decision-maker’s exercise of power.[144] Consequently, the withholding of information under proposed section 52G means that the Tribunal cannot take such information into account when making the ‘correct and preferable’ decision in a particular matter.

However, proposed section 52H does permit the disclosure of certain confidential information to the AAT, but not necessarily to the applicant in the Tribunal matter. It applies to a document or information which is either:

• subject to a non-disclosure certificate issued on public interest grounds (other than those covered by proposed section 52G) which could form the basis for a claim by the Crown in right of the Commonwealth, in a judicial proceeding, that the document should not be disclosed or
• given to the Minister, or an authorised Commonwealth officer, in confidence.

Where the Secretary gives the document or information to the AAT in accordance with a requirement under the Australian Citizenship Act in relation to the Tribunal’s review of a decision, the Secretary:

• must notify the Tribunal that proposed section 52H applies and
• may give the Tribunal any written advice the Secretary thinks relevant about the significance of the document or information.

After receiving such notice, the AAT may have regard to the document or information for the purpose of exercising its powers in relation to the reviewable decision, and if it thinks it is appropriate to do so, may disclose any matter contained in the document, or the information, to the applicant or any other person who has given evidence to the Tribunal in the matter.[145]

If the AAT discloses a matter under this provision, and is satisfied it is in the public interest that further disclosure be prohibited or restricted, it must give a non-publication or non-disclosure direction to this effect under the Administrative Appeals Tribunal Act 1975.[146]

The provision allows the AAT to take a document or information into account when making its decision, without the applicant being provided with such information or given an opportunity to respond, unless the AAT thinks it is appropriate to do so. The High Court has previously determined, in respect of equivalent provisions in the Migration Act, that procedural fairness requires the AAT to notify the applicant of the existence of a notification by the Secretary.[147]

Secretary’s delegation power

Item 7 of Schedule 2 inserts proposed subsection 53(3) into the Australian Citizenship Act, providing that in addition to the existing delegation powers of the Minister, the Secretary may also delegate to any person all or any of the Secretary’s functions or powers under the Act or Regulations. This replaces the Secretary’s broad delegation power under section 53 of the Australian Border Force Act 2015 to the extent that the existing provision applies to the Secretary’s powers and functions under the Australian Citizenship Act.[148]

Concluding comments

The Bill’s amendments to the protected information provisions in the Migration Act respond in part to the High Court’s decision in Graham and Te Puia. The amendments recognise that Parliament cannot prevent disclosure of information to the High Court or Federal Court where doing so will impede the exercise of either court’s original jurisdiction to review the legality of administrative actions, and set out parameters by which the courts may use and disclose such information. The Bill also introduces the same protected information provisions into the Australian Citizenship Act.

While these amendments enable courts to access information for purposes of conducting judicial review of a decision made under the Migration Act or Australian Citizenship Act, they have been strongly criticised by legal, refugee and human rights groups for restricting an applicant’s ability to effectively challenge an adverse decision made in reliance on protected information. The Bill provides that a court may disclose such information to an applicant or their legal representatives only where it determines that doing so would not create a real risk of damage to the public interest, with the statutory test not permitting the court to consider public interest factors favouring disclosure, such as procedural fairness and the proper administration of justice. An applicant is not permitted to make submissions regarding disclosure unless they have lawfully obtained access to the information.

Furthermore, outside of the protected information provisions the Bill expands the circumstances in which certain information relevant to migration or citizenship decisions can be withheld. This includes by extending the definition of ‘non-disclosable information’ under the Migration Act, and providing for the issuing of non-disclosure certificates under the Australian Citizenship Act.