2.1
As outlined in chapter 1, the Migration and Citizenship Amendment (Strengthening Information Provisions) Bill 2020 (the bill) would amend the Migration Act 1948 (Migration Act) and the Citizenship Act 2007 (Citizenship Act).
2.2
This chapter presents an overview of the key issues raised by inquiry participants including:
the need for the bill including the existing provisions and to take account of the 2017 High Court decision;
the creation of the disclosure offence;
human rights implications.
2.3
The chapter concludes by providing the committee’s view and recommendation.
The need for the bill
2.4
Several submitters to the inquiry raised concerns as to the necessity of the bill and asserted there was a lack of ‘justification’ for the proposed amendments. In particular, evidence highlighted the adequacy of the existing framework that governs disclosure of information received by a court and whether this bill would effectively respond to the 2017 ruling of the High Court.
Existing provisions
2.5
Submitters argued that the existing framework in place to protect prejudicial information from disclosure and to ensure the protection of the Australian community, the agencies and law-enforcement groups within the National Intelligence Community (NIC) and their investigations is working effectively. This framework includes the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act) and Public Interest Immunity (PII).
2.6
For example, the Australian Human Rights Commission (AHRC) observed that ‘the Commonwealth can rely on the NSI Act to protect “national security information”. This comprises information about Australia’s defence, security, international relations or law enforcement interests’. It did accept, however, that national security information was limited in its definition and did not include other sensitive information such as information in connection with organised crime groups.
2.7
The Kaldor Centre for International Refugee Law (Kaldor Centre) argued that while there may be exceptional cases where information must be protected from disclosure, this did not justify the provisions of the bill:
…existing mechanisms such as the [NSI Act] and the public interest immunity framework already provide a framework for this. No coherent case has been made for why the measures proposed in the Bill are needed in addition to these mechanisms.
Whether it is necessary and desirable to maintain a dedicated non-disclosure regime applicable in migration matters in light of the NSI Act is a question that has not been explored in depth, and one that it would be prudent to consider before expanding that regime in the manner proposed in the Bill.
2.8
The Law Council of Australia (Law Council) submitted that migration cases did not require a separate information process in addition to the protections afforded by the existing NSI Act:
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’ discussed above. 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.
2.9
Legal Aid NSW emphasised that the existing framework already contains a number of safeguards for protecting confidential information in addition to the NSI Act:
There are a number of safeguards and protections of that sort of information apart from the NSI Act. The public interest immunity provisions at common law are well developed and are not closed. There are appeal mechanisms through the courts and tribunals where a government would not be satisfied with a decision at an interlocutory level as to the application of the public interest immunity provisions. But, most importantly, there is section 130 of the Evidence Act. Section 130 does cover…[the] protection of the existence or identity of a confidential source of information relating to the enforcement of administration of a law of the Commonwealth or the state.
2.10
The Visa Cancellations Working Group recommended that prior to the passage of this bill, an inquiry into the existing legislation was required:
We already have specific guidelines about how we deal with confidential information. We already know as practitioners that there is protected information that is not disclosed to us. What we are saying is—and we agree with the Law Council's recommendation—an independent inquiry be conducted into existing legislation in this area and its adequacy. We are submitting that we already do have legislation that deals with this that is adequate, and this bill is so broad in what it may encapsulate and so broad in the ways that it may be exploited that we do not believe it's necessary. We believe that the existing framework is more than enough to deal with that competing public policy.
2.11
In testimony, each of the submitters conceded that they had not consulted with victims of crime groups as part of their submissions or prior to appearing at the public hearing.
2.12
The Department for Home Affairs (the department) stated that a separate framework was necessary as the existing provisions are unsatisfactory in protecting information that could be detrimental to the NIC and wider community:
…the protective framework for non-disclosure of national security related information under the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act) would not provide adequate levels of protection from non-disclosure for the type of protected information used in character-related decisions under the Migration Act and the Citizenship Act.
2.13
Specifically, the department expressed concern that currently, information used by the minister to make visa and citizenship character decisions may not meet the definition of national security yet its disclosure may have severe consequences. The department submitted:
Given the rapidly evolving and complex security challenges, the amendments are necessary to ensure protection of confidential information shared between the Department, law enforcement and intelligence agencies, and to uphold public and national security interests. Protection of protected information also supports broader strategies relating to counter-terrorism, transnational crime and related activities, and allows the Department to rely on this information in visa and citizenship decision making…
2.14
In response to questions about the disclosure of confidential information in connection with an organised crime group, and that such disclosure might give rise to serious risks such as endangering the lives of law enforcement personnel working undercover or informants, the department stated:
It's a broad set of law enforcement and security threats that we're looking at dealing with. Some of them would be about ongoing investigations. Some of them would be around sources and methods, about how we arrived at the decision. How did we arrive at the knowledge that allowed us to make a decision? An operation may be concluded, but the protection of the way that it was actually conducted and the methods that were used to either bring someone to justice or form an opinion about that person's security or criminal threat would potentially be at risk, if we were not to have these measures in place.
An effective response to Graham v Minister for Immigration and Border Protection
2.15
As discussed in Chapter 1, the High Court decision in Graham v Minister for Immigration found that section 503A of the Migration Act was 'invalid to the extent that s 503A(2)(C) would apply to prevent the Minister from being required to divulge or communicate certain information'. The AHRC summarised the High Court’s finding in its submission, noting that:
The High Court held that the secrecy provision in s 503A(2)(c) was so broad that it substantially curtailed the capacity of a court to discern and declare whether the Minister had acted within his statutory power. To that extent, this provision was found to be unconstitutional. The focus of the Court’s concern was the ability to keep information secret from a court that was reviewing a decision by the Minister or a delegate of the Minister to refuse or cancel a visa on character grounds.
2.16
The department submitted it had limited its ‘reliance on confidential information’ due to the uncertainty of information management following the High Court’s ruling:
There have been a number of operational cases in recent years, since the High Court decision, where it has not been possible to proceed with the full character decision, on the basis of the risk that the information provided could be disclosed by the court. There are not large numbers but the risks at stake in those cases are quite high. These relate to a strong association with criminal elements and/or security risk related matters as well.
2.17
The department submitted there are over a dozen national security and organised crime cases where visa cancellation matters have been delayed by an inability to protect confidential information from disclosure. The department argued this demonstrates both a need for the bill but also that the measures are not expected to be applied to a large volume of cases.
2.18
The Law Council explained that while the issue of validity of the bill would ultimately be decided by the court, a case could be made that a similar finding would be made:
One might argue that, in having the practical effect of preventing an applicant or their lawyer from knowing any essence of the case against them or making any submissions, the Bill impacts the Court’s ability to enforce the limits of an officer’s power and draw inferences adverse to the Minister to the degree required for a consideration of invalidity.
2.19
This concern was also raised by the Kaldor Centre which stated that it was not clear that the constitutional problems that were previously found with the Migration Act have been effectively addressed in this bill. The Kaldor Centre noted that in Graham v Minister for Immigration, the court found that the legislation was invalid as it deprived the federal courts with access to relevant information. It was argued that this bill contained the same limitation;
While the framework proposed in the Bill allows courts access to relevant confidential information, it does so in an extremely restrictive manner that will in many cases deny applicants the opportunity to make any submissions in relation to the use of the confidential information in relation to their case. It is arguable that, in at least some circumstances, this framework burdens a court’s ability to determine whether a power under review was exercised within its limits.
2.20
While some submitters queried the constitutional validity of the bill, these concerns primarily focussed on calls for further evaluation and consideration by experts to confirm that the bill would not be deemed invalid when considered by the High Court.
2.21
The department disputed the assertion that the bill was unconstitutional. They stated that they had sought ‘extensive advice in the process to ensure that the bill is now constitutional’:
Although the Bill creates a framework to safeguard protected information from unauthorised disclosure, it does not limit a Court’s ability to access all of the relevant information that the Minister or delegate considered to arrive at their decision.
The disclosure offence
2.22
Proposed sections 52A(6) and 52B(7) of the Citizenship Act as well as 503A(6) and 503B(7) of the Migration Act would create new offences for Commonwealth officers who make unauthorised disclosures. The penalty for such a disclosure is up to two years imprisonment.
2.23
The bill includes exceptions to this obligation of non-disclosure. Commonwealth officers can disclose information:
internally within the department or to the relevant minister;
if the minister gives permission in writing; or
to the High Court, the Federal Court or the Federal Circuit Court pursuant to an order to do so.
2.24
Submitters raised concerns with the proposed new offences, with Carina Ford Immigration Lawyers describing the creation of these offences as ‘disproportionate to the offence, broadly worded and simply not justified’. These sentiments were echoed by the Asylum Seeker Resource Centre, who called the offences ‘broadly worded’, ‘disproportionate’ and ‘unjustified’.
2.25
The Law Council questioned the necessity of the proposed offences in the bill on the basis that they duplicate the secrecy provisions included in the Criminal Code Act 1997 (the Criminal Code). The Law Council was of the view that the existing provisions are sufficient to safeguard the information that this bill attempts to cover and notes that unlike the Criminal Code, this bill does not provide for permissible disclosure to oversight bodies
Notably, they also do not contain the extensive exceptions in section 122.5, which provide defences for disclosures to certain oversight bodies, such as the Commonwealth Ombudsman, the Inspector-General of Intelligence and Security, and the Law Enforcement Integrity Commissioner, as well as for disclosures in accordance with the Public Interest Disclosure Act 2013 (Cth) (PID Act) and the Freedom of Information Act 1982 (Cth) (FOI Act). Such defences are important to ensure some balance between the need for secrecy within the public service, and transparency and accountability of public administration. Nor, as discussed below, are there exceptions for providing the information to a court outside the narrow circumstances contemplated by subsections 52C(1) and 503C(1).
2.26
The Law Council argued that the proposed new offences would have negative effects on the administration of justice by courts, and would restrict parliamentary scrutiny and independent oversight. They therefore recommended the removal of the offences entirely, or, ‘at minimum include defences which align with section 122.5 of the Criminal Code’.
2.27
The department explained that these offences were ‘designed to protect information’ that if disclosed, would be detrimental to Australian interests should they be released;
The creation of these offences highlights the seriousness with which the Government regards the unauthorised disclosure of such information or the contravention of conditions attached to any disclosure of that information to a Commonwealth officer, due to the potential for severe damage to the public interest. Both offences may be punishable by a maximum sentence of 2 years’ imprisonment.
2.28
The department explained that the two year imprisonment penalty was consistent with comparable legislation:
The penalty of up to 2 years’ imprisonment is consistent with the penalties for making unauthorised disclosures of certain information under the secrecy provisions of the Australian Border Force Act 2015 and the Australian Federal Police Act 1979. The offence is proportionate to the seriousness with which the Government regards unauthorised disclosures of confidential information. The seriousness is owing to the potential for severe damage to the public interest.
Procedural fairness
2.29
A number of inquiry participants raised concerns regarding proposed subsections 52B(9) and 503B(9) which state that the ‘rules of natural justice do not apply to the consideration or exercise of the power’ under subsection (1) of their respective sections. Common themes raised were that the applicant was unable to answer the accusations put against them, and that the bill placed extensive limitations on courts in their consideration of disclosing information to the applicant.
Consideration by the courts
2.30
The bill would provide that the courts are empowered to exercise discretion and disclose the information to the applicant in accordance with a range of considerations as outlined in proposed sections 503C(5) and 52C(5).
2.31
The considerations provided in the bill are listed as follows:
the fact that the information was communicated, or originally communicated, to an authorised Commonwealth officer by a gazetted agency on condition that it be treated as confidential information;
the risk that the disclosure of information may discourage gazetted agencies and informants from giving information in the future;
Australia’s relations with other countries;
the need to avoid disruption to national and international efforts relating to law enforcement, criminal intelligence, criminal investigation and security intelligence;
in a case where the information was derived from an informant—the protection and safety of informants and of persons 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;
such other matters (if any) as are specified in the regulations.
2.32
According to Refugee Legal, these provisions limit the ability of the courts to properly consider whether to disclose the information. Refugee Legal stated that the exhaustive list is:
…heavily weighted towards non-disclosure. Put simply, the proposed bill operates to create a framework where the executive and its agencies in effect determine which information—material decisions affecting the rights of people—is made available to that affected person.
2.33
Similarly, the AHRC outlined its concerns:
Effectively, the court is being asked to assess only one side of the test that would ordinarily be considered in a public interest immunity application. It may assess the strength of the Executive’s claim that the information is confidential, but it may not assess whether disclosure of the information is necessary to achieve justice in the proceeding.
2.34
Victoria Legal Aid did not support the proposed amendments and submitted that by prescribing what the court can and cannot consider, the bill would undermine the ‘long-established principle that there is a public interest in a fair hearing’.
2.35
The NSW Council for Civil Liberties (NSWCCL) stated that by only allowing the courts to assess one side of the test, the bill is prohibiting ‘any consideration at all of matters on the other side of the scale’, thus attempting to influence a particular outcome.
2.36
The Law Council submitted concerns that, in accordance with the bill, the court may not have regard to any 'broader factors' including the proper 'administration of justice' and the ‘potential ramifications' on the applicant and their family. The Law Council did not support the bill, however it detailed two amendments that, in its view, should be added if the bill was to pass:
the inclusion of the phrase 'any other matter that the court considers relevant to the administration of justice' in the list of considerations that the court must have regard to when evaluating the disclosure of information; and
that the 'Minister's ability to specify other matters in the regulations should be deleted. The Court should also be permitted to provide for partial disclosure' that allows an applicant to respond to the case without compromising national security.
2.37
The department identified that the bill ‘provides a clear test for the court when it is considering whether to disclose protected information’. Furthermore, the department explained that:
[the court] must determine only whether disclosure of the information would create a real risk of damage to the public interest. The Court also has a clear list of matters which it may regard when considering its determination. These matters are all broadly related to the public interest, and reflect and emphasise the highly sensitive nature of the protected information.
2.38
The department emphasised that the bill would facilitate greater opportunities for courts to consider law enforcement and national security information:
unlike public interest immunity, where if a claim is upheld by a court the information is not admitted into evidence at all, the information will be admitted in evidence [under the bill]. It may not be disclosed to the applicant, but it will always be admitted in evidence, and then the court has the ability to give it such weight as it considers appropriate. In that respect, it's stronger than public interest immunity, because it means that the court doesn't exclude the evidence or the information from its purview.
Information available to the applicant
2.39
Under proposed sections 52C and 503C, should a court deem not to disclose the information, the applicant and their legal representative are unable to know, or submit a response to the information the minister relied upon when making an adverse character judgement in relation to their visa or citizenship.
2.40
A number of submitters raised concerns with regard to this provision. In opposing the bill, the Visa Cancellations Working Group recognised that a key principle of a fair trial was the ability of the applicant to ‘respond to adverse information’ and the case against them. The Working Group argued that the adoption of a provision where an applicant would not be informed of the case against them would ‘set a very dangerous precedent and, fundamentally, has the ability to result in practical injustices’. They stated:
This bill, as it's currently framed, will deprive applicants and their legal representatives, should they have legal representation, from knowing that adverse information against them has been found and taken into account. It will prevent applicants and their legal representatives from being able to respond to that information. Therefore—without the right of reply, without the right to even know what has been taken into account in terms of making this decision—it will deny the right of a fair trial and it fails to observe the principles of natural justice.
2.41
The AHRC also opposed provisions which restricted the applicant in presenting their case. Quoting Chief Justice French from Condon v Pompano, the AHRC noted that the method of administering justice by the court cannot be done if each party does not have the ‘full opportunity to present its own case and to meet the case against it’.
2.42
The Refugee Council of Australia (RCOA) submitted that provisions restricting the applicant to be aware of, or to respond to any information provided by a gazetted agency, departed from the ‘usual requirement[s] of natural justice’. They submitted that:
It undermines our legal processes and required the court to depart from procedural fairness principles. As the Scrutiny of Bills Committee notes, ‘the court has no flexibility to seek any feedback from the applicant to assist in performing its judicial review task’. As such, there is a real risk that information relied upon by the Minister or the Court may be inadequate or lacking appropriate context necessary to reach to a correct decision.
2.43
Several submitters recommended an amendment to the bill that would allow the applicant to be represented by a lawyer with appropriate clearances, or a special advocate who could represent their interests when the court would not allow disclosure of the information provided to it by the minister.
2.44
The department did not agree that these provisions impact the rights of the applicant or procedural fairness as the bill would provide courts with the discretion to disclose the information, thus providing a safeguard in the process:
The measures in the bill do not alter existing rights to seek merits review or judicial review of character related decisions. The bill allows courts to admit the confidential information into evidence and to decide how much weight to give it in the evidence, which provides a safeguard to affected persons—particularly in a situation where the court has determined not to disclose the information to them.
2.45
The department confirmed that in the Australian legal system, there are longstanding arrangements where, in a number of different respects, one party may not have input into a decision in every single respect, such as an ex parte application for an injunction or court applications for search warrants.
International obligations
2.46
Inquiry participants expressed concern that the bill engaged some human rights, notably the expulsion of an alien without due process and the right to a fair trial. The AHRC asserted that these rights are covered by articles 13 and 14 of the International Covenant on Civil and Political Rights.
2.47
The AHRC submitted that there were ‘substantial human rights implications’ in the bill’s provisions. In opposing the bill, the AHRC stated that the most significant right that this bill engaged was the ‘right to a fair and public hearing’. They proposed that this right cannot be upheld if the applicant is unable to know and respond to the case made against them:
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.
2.48
Further, they stated that alternative measures already exist that achieve the same aim without having such a significant impact on human rights;
When you're considering whether the bill is reasonable, necessary and proportionate, or whether it's a reasonable limitation on the right to a fair hearing, one thing that you need to take into account is whether there are other measures that would be less restrictive of human rights but would be as effective in terms of achieving the overall objective. We say that there are measures that currently exist that are effective and that are less restrictive on human rights, and those are the legislative provisions in the NSI Act and resort to public interest immunity claims.
2.49
The Law Council expressed concern that the bill 'conflicts with a number of principles underpinning the rule of law, and Australia's international human rights obligations'. The Law Council disagreed with the Statement of Compatibility with Human Rights which stated that the bill was 'necessary, reasonable and proportionate'.
2.50
The United Nations High Commissioner for Refugees (UNHCR) submitted similar concerns. While they acknowledged the need for information sharing provisions that protect the Australian community, the UNHCR called for there to be an ‘appropriate balance’ that also upholds ‘Australia’s international protection and human rights obligations’. Furthermore:
it is possible to have a process that protects the interests of the State but which also offers an affected individual 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.
2.51
Refugee Legal raised concerns that as a result of the bill, asylum-seekers, refugees, and stateless persons would be left in indefinite detention:
If they're not sent because of the character context we're talking about, some people are not deported but are instead held in prolonged and indefinite detention, which in Australia, as we know, can mean many, many years with no end in sight being locked up, often without charge or trial.
2.52
In response to these concerns, the department explained that 'natural justice, access to justice, and procedural fairness' had been 'taken into account in the design of the scheme'. It pointed to the fact that the bill would establish a regime 'for the way the court should deal with the information'. It outlined the way in which the regime would vest the court with the power to decide whether or not this information should be disclosed:
[I]t requires the court to make a determination against certain criteria that are specified in the bill so that the court has that say on whether the information should be disclosed or not.
2.53
This position was reflected in the Statement of Compatibility on Human Rights in the explanatory memorandum, which acknowledged that the bill engages the right to equality before courts and tribunals because it may limit a person's entitlement to a fair and public hearing by their exclusion from hearings or the prevention of information being shared with them. However, it stated that this limitation is 'reasonable, proportionate and justified'. It explained that the bill:
strikes a balance in preserving the right to a fair and public hearing…while protecting disclosure of confidential information as assessed independently by the Courts as positing a real risk to the public interest.
2.54
The department highlighted in particular that appropriate considerations of Australia’s non-refoulement obligations would continue to be taken into account:
We obviously take non-refoulement into account in a range of our decision-making. There are a range of factors around cancellation of visas and opportunity for revocation and so forth which give the applicant the full gamut of the challenges to the decisions. In our view, this would not change that. We would still be making decisions based on risk of the individual, but we still need to take non-refoulement into account as well.
Other issues
2.55
Inquiry participants raised a series of broader issues regarding the bill. Issues that were raised in evidence but are not examined in this report include the impact on the Administrative Appeals Tribunal and the relevant certificate regime; the lack of clear definition of what constitutes protected information; and the extensive list of gazetted agencies and countries that this bill will apply to, and the alternative of a regularly reviewed exhaustive list.
Committee view
2.56
The protection of the Australian community is a critical objective for the Commonwealth government. The committee considers it vital that the information provisions within the Migration Act and the Citizenship Act are strengthened in order to respond to the High Court decision in Graham v Minister for Immigration. The proposed amendments in this bill would provide assurances to law enforcement and intelligence agencies and provide courts with the appropriate materials to conduct judicial and merits-review as required.
2.57
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.
2.58
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.
2.59
The bill retains existing rights for applicants to seek merits review or judicial review of character-related decisions and provides safeguards through the discretion provided to the courts in regard to the matter of disclosure. The bill adequately balances the rights of the applicant with the rights of the Australian community to be safe.
2.60
The committee therefore recommends that the Senate pass the bill.
2.61
The committee recommends that the Senate pass the bill.
Senator the Hon Sarah Henderson
Chair