2019-2020

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020

EXPLANATORY MEMORANDUM

 

(Circulated by authority of the Minister for Home Affairs, the Hon. Peter Dutton MP)

MIGRATION AND CITIZENSHIP LEGISLATION AMENDMENT (STRENGTHENING INFORMATION PROVISIONS) BILL 2020

OUTLINE

The Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020 (the Bill) amends both the Migration Act 1958 (the Migration Act) and the Australian Citizenship Act 2007 (the Citizenship Act).

The Bill amends the Migration Act to protect disclosure of confidential information provided by gazetted intelligence and law enforcement agencies where the information is used for decisions made to refuse or cancel a visa on character grounds, or revoke or set aside such decisions (Protected Information).

This part of the Bill responds to the High Court of Australia (the High Court) decision in Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection [2017] HCA 33 ( Graham and Te Puia ). In that decision, the High Court held that the Minister cannot be prevented from being required to divulge certain information to the High Court (when exercising its jurisdiction under paragraph 75(v) of the Constitution) or to the Federal Court of Australia (the Federal Court) (when exercising its jurisdiction under paragraph 476A(1)(c) and subsection 476A(2) of the Migration Act) in order to review a purported exercise of power by the Minister to refuse or cancel a visa on character grounds, or revoke or set aside such a decision, under sections 501, 501A, 501B and 501C of the Migration Act.

In response to the specific issues raised in Graham and Te Puia , the Bill amends the Migration Act to introduce a Protected Information framework, which will:

• provide that the High Court, the Federal Court or the Federal Circuit Court of Australia (the Federal Circuit Court) may order the Minister to produce or give in evidence Protected Information where the Court is satisfied that it is Protected Information and the production of it is for the purposes of substantive proceedings related to a decision to refuse or cancel a visa on character grounds, or revoke or set aside such a decision;

• if such an order is made, permit any person who is aware of the content of the Protected Information to make submissions to the Court concerning the use that the Court may make of the Protected Information, and any impact disclosing it would have on the public interest unless the content of the Protected Information was acquired unlawfully or in circumstances that would found an action for breach of confidence (whether or not the party was the person who acquired the content unlawfully or in those circumstances) ;
• for the purposes of hearing submissions about the use and impact of the Protected Information, provide that the Court must order that the applicant, or any other party to the proceedings, or their legal representatives, must not attend that hearing unless the applicant or the party is permitted to make submissions on the Protected Information to the Court . The Court may also order that no report of the part of the proceedings that relates to the Protected Information is to be published, and no person, without the consent of the Court, has access to a file or a record of the Court that contains the Protected Information;
• require the High Court, the Federal Court or the Federal Circuit Court to determine whether disclosing Protected Information would create a real risk of damage to the public interest, having regard to any of an exhaustive list of factors that the court considers relevant;
• if the High Court, the Federal Court or the Federal Circuit Court determines that disclosing the Protected Information would create a real risk of damage to the public interest, prevent the Court from disclosing the Protected Information to any person, including the applicant, any other party to the proceedings, their legal representatives and any other person who seeks access to a file or record of the Court that contains the Protected Information; and
• allow the High Court, the Federal Court or the Federal Circuit Court to give such weight to the Protected Information as the Court considers appropriate in the circumstances, taking into account any submissions made to the Court.

The Bill also amends the Migration Act to introduce new provisions to:

·          amend the definition of non-disclosable information to include Protected Information where the disclosure of such information would, in the Minister’s opinion, be contrary to Australia’s national interests;

·          provide that an officer performing functions under the Migration Act or Citizenship Act commits an offence if Protected Information is communicated to them and they disclose it to another person, other than in certain circumstances provided for by the provisions to be inserted by the Bill;

·          provide that a Commonwealth officer commits an offence if Protected Information is disclosed to them pursuant to a declaration by the Minister subject to conditions, and they engage in conduct, or omit to engage in conduct, and that conduct or omission contravenes a condition attached to the declaration; and

·           ensure that the Protected Information framework has effect despite any provisions of the Migration Act or Migration Regulations 1994 (the Migration Regulations) , any law of the Commonwealth and any law of a State or Territory.

The Bill also amends the Citizenship Act to introduce provisions (which are substantially similar to the provisions in the Migration Act described above) in order to protect Protected Information where the information is used for:

·          decisions to:

o    refuse to approve an application for citizenship;

o    cancel an approval of citizenship;

o    delay the making of the pledge by a conferral applicant who has had their application approved;

o    revoke a person’s citizenship;

o    make a determination by the Minister to cease a person’s Australian citizenship if the person has engaged in specified conduct;

o    make a determination by the Minister to cease a person’s Australian citizenship if the person has been convicted of a specified offence (and sentenced to at least 3 years’ imprisonment);

·          renunciations of citizenship by conduct;

·          cessation of citizenship for service outside Australia in armed forces of an enemy country or a declared terrorist organisation.

The Bill further amends the Citizenship Act to create a framework for the management of the disclosure to the Administrative Appeals Tribunal of information that has been certified by the Minister to be contrary to the public interest for specified reasons, or that was provided in confidence. The Bill also creates a power for the Secretary of the Department of Home Affairs to delegate any of his functions or powers under the Citizenship Act and the Australian Citizenship Regulation 2016 (the Citizenship Regulation) in writing to any person.

Finally, the Bill makes consequential amendments to the Freedom of Information Act 1982 (the FOI Act) and the Inspector of Transport Security Act 2006.

FINANCIAL IMPACT STATEMENT

There is no financial impact on Government revenue from this Bill. 

statement OF COMPATIBILITY with Human rights

A statement of compatibility with human rights has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 and is at Attachment A .

MIGRATION AND CITIZENSHIP LEGISLATION AMENDMENT (STRENGTHENING INFORMATION PROVISIONS) BILL 2020

NOTES ON INDIVIDUAL CLAUSES

Clause 1          Short Title

 

1.              This clause provides that the short title of this Bill, when enacted, is the Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Act 2020 .

 

Clause 2          Commencement

 

2.              This clause provides for the commencement of the provisions in the Bill when enacted.

 

3.              Subclause 2(1) provides that each provision of the Bill specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

4.              Table item 1 provides that sections 1 to 3 and anything in the Bill not elsewhere covered by this table commence on the day the Act receives the Royal Assent.

 

5.              Table item 2 provides that Parts 1 and 2 of Schedule 1 to the Bill commence on a single day to be fixed by Proclamation, unless the provisions do not commence within the period of 6 months beginning on the day the Act receives the Royal Assent. In this case, these provisions commence on the day after the end of that period.

 

6.              Table item 3 provides that Part 3 of Schedule 1 to the Bill commences on the later of:

·          immediately after the commencement of the provisions in Schedule 1 (Parts 1 and 2); and

·          the commencement of the Federal Circuit and Family Court of Australia Act 2020 .

Table item 3 further provides that if the Federal Circuit and Family Court of Australia Act 2020 does not commence, then Part 3 of Schedule 1 to this Act does not commence.

 

7.              Table item 4 provides that Schedule 2 to the Bill commences on a single day to be fixed by Proclamation, unless the provisions do not commence within the period of 6 months beginning on the day the Act receives the Royal Assent. In this case, these provisions commence on the day after the end of that period.

 

 

 

8.              A note under the table explains that the table relates only to the provisions of the Act as originally enacted. It will not be amended to deal with any later amendments of the Act.

 

9.              Subclause 2(2) provides that any information in column 3 of the table does not form part of the Act. Information may be inserted in this column, or information in it may be edited, in any published version of the Act.

 

Clause 3          Schedules

 

10.          This clause provides that legislation specified in a Schedule to the Bill is amended or repealed as set out in the applicable items in the Schedule concerned. In addition, any other item in a Schedule to the Bill has effect according to its terms.

 

 

SCHEDULE 1 - Strengthening information provisions for character and conduct

Part 1 - Main amendments

Australian Citizenship Act 2007

Item 1             Section 3

 

11.          This item inserts definitions in current section 3 of the Citizenship Act for authorised Commonwealth officer , Commonwealth officer and gazetted agency . The purpose of this item is to establish appropriate defined terms relevant to the operation of the provisions in new sections 52A-52D.

 

12.          The new defined term authorised Commonwealth officer means a Commonwealth officer whose duties consist of, or include, the performance of functions, or the exercise of powers, under or for the purposes of the Citizenship Act or the Migration Act. This definition mirrors the definition of authorised Commonwealth officer in amended subsection 503A(9) of the Migration Act (as amended by item 9 of this Schedule). This ensures consistency across the Citizenship Act and the Migration Act, and supports the implementation of a common Protected Information framework under both Acts.

 

13.          This item also inserts a new defined term Commonwealth officer in amended section 3 of the Citizenship Act, which provides that this term has the same meaning in the Citizenship Act as in section 121.1 of the Criminal Code Act 1995 (the Criminal Code), except where it appears in current subsection 51A(2) of the Citizenship Act. The term Commonwealth officer in subsection 51A(2) continues to apply in accordance with section 3ZQU of the Crimes Act 1914 , and has the same meaning as in that Act. A note included under the new defined term in amended section 3 also clarifies that a Minister is not a Commonwealth officer. This new definition reflects the new definition of Commonwealth officer inserted in subsection 5(1) of the Migration Act by item 5 of this Schedule, to ensure consistency between the two Acts.

 

14.          The new defined term gazetted agency is a signpost definition, providing that the term has the meaning given by subsection 503A(9) of the Migration Act, as amended by item 9 of this Schedule. A signpost definition is a definition that refers the reader to another provision for the complete definition of a particular term. By relying on the definition provided in amended subsection 503A(9) of the Migration Act, this ensures consistency in the Protected Information framework established by the amendments by this Schedule to the Citizenship Act and Migration Act.

 

 

Item 2             Paragraph 43(2)(f)

 

15.          This item substitutes the term “proceedings” for “a proceeding” in paragraph 43(2)(f). The purpose of this item is to ensure the term “proceedings” (as in, legal proceedings) is used consistently throughout the Citizenship Act, and to remove any potential ambiguity that might otherwise arise from use of the singular form “proceeding”.

 

Item 3             After section 52

 

16.          This item inserts new sections 52A-52D. These provisions operate collectively to establish a new Protected Information framework in the Citizenship Act, to protect disclosure of confidential information provided by gazetted intelligence and law enforcement agencies where the information is used in relation to:

·          decisions to:

o refuse to approve an application for citizenship;

o cancel an approval of citizenship;

o delay the making of the pledge by a conferral applicant who has had their application approved;

o revoke a person’s citizenship;

o make a determination by the Minister to cease a person’s Australian citizenship if the person has engaged in specified conduct;

o make a determination by the Minister to cease a person’s Australian citizenship if the person has been convicted of a specified offence (and sentenced to at least 3 years’ imprisonment);

·          renunciations of citizenship by conduct;

·          cessation of citizenship for service outside Australia in armed forces of an enemy country or a declared terrorist organisation.

 

Section 52A         Protecting information supplied by law enforcement or intelligence agencies etc.

 

17.          New subsection 52A(1) sets out the information that is to be protected by new section 52A, subject to the operation of new sections 52B-52D. It provides that new section 52A applies to information that is communicated to an authorised Commonwealth officer by a gazetted agency on condition that it be treated as confidential information, and the information is relevant to the exercise of a power under or in relation to:

·          subsection 17(1A), (3), (4) or (4A) (Minister’s refusals of citizenship by descent); or

·          subsection 19D(2), (4), (5) or (6) (Minister’s refusals of citizenship adoption); or

·          subsection 24(1A), (3), (4), (4A) or (6) (Minister’s refusals of citizenship by conferral); or

·          subsection 25(1) in relation to a cancellation referred to in subparagraph 25(2)(b)(iii) (person not of good character); or

·          subsection 26(3) (delayed making of pledge); or

·          subsection 30(1A), (3), (4) or (5) (Minister’s refusals of resumption of citizenship); or

·          section 34 (revocation of citizenship because of offences or fraud); or

·          section 36B (citizenship cessation for certain conduct); or

·          section 36D (citizenship cessation for certain convictions).

 

18.          A note is included beneath new subsection 52A(1). This note refers the reader to the definitions of authorised Commonwealth officer and gazetted agency in amended section 3 of the Citizenship Act.

 

19.          New subsection 52A(2) provides that an officer to whom information is communicated as referred to in new paragraph 52A(1)(a), or any officer to whom information is disclosed under new subsection 52A(2) must not, subject to new subsections 52B(1) and 52C(1), disclose the information to another person, except in certain circumstances. Those circumstances are where the disclosure is to the Minister or an authorised Commonwealth officer, where such disclosure is for the purposes of exercising powers under either:

 

·          a provision of the Citizenship Act referred to in new paragraph 52A(1)(b); or

·          a provision of the Migration Act referred to in paragraph 503A(1)(b) of the Migration Act as amended by item 9 of this Schedule.

 

20.          There are two notes accompanying new subsection 52A(2). Note 1 explains the effect of other relevant provisions, including that the Minister may allow the disclosure of the information under section 52B, and that the High Court, the Federal Court or the Federal Circuit Court may order the production or giving of the information under section 52C. Note 2 explains that an authorised Commonwealth officer who contravenes new subsection 52A(2) may commit an offence under new subsection 52A(6). New subsection 52A(6) is addressed below.

 

21.          The purpose of new subsection 52A(2) is to ensure that sensitive and confidential information communicated to an authorised Commonwealth officer by a gazetted agency is not disclosed to anyone other than an authorised Commonwealth officer or the Minister, and only then for the purpose of an exercise of power referred to in new paragraph 52A(1)(b) or in new paragraph 503A(1)(b) of the Migration Act as amended by item 9 of this Schedule.

 

22.          The reason information may be disclosed for the purpose of an exercise of power referred to in either new paragraph 52A(1)(b) or in new paragraph 503A(1)(b) of the Migration Act is that the same information communicated by a gazetted agency may be relevant for the purposes set out in new paragraph 52A(1)(b) as well as those set out in new paragraph 503A(1)(b). For example, the information from a gazetted agency may be communicated and relied upon when considering whether to approve or refuse an applicant citizenship. The same information may also be relevant to considering whether the same applicant’s visa should be cancelled (if they have one).

 

23.          Subsection 52A(2) applies subject to new subsection 52B(1) (the Minister’s discretion to allow disclosure of certain information, which is addressed below) and new subsection 52C(1) (the power of the High Court, the Federal Court and the Federal Circuit Court to order disclosure in certain circumstances, which is addressed below). 

 

24.          New subsection 52A(3) provides that an officer to whom information is communicated under new paragraph 52A(1)(a), or the Minister or an authorised Commonwealth officer to whom information is communicated under new subsection 52A(2), must not be required to:

 

·          produce the information to a court, a tribunal, a parliament, a parliamentary committee or any other body or person; or

 

·          give the information in evidence before a court, a tribunal, a parliament, a parliamentary committee or any other body or person;

 

subject to the operation of new subsections 52B(1) and 52C(1).

 

25.          Subject only to the Minister authorising disclosure under new section 52B or the High Court, Federal Court or Federal Circuit Court ordering disclosure in certain circumstances under new section 52C, it is intended that new subsections 52A(2) and (3) will operate together to protect sensitive and confidential information communicated to officers by gazetted agencies from being disclosed. It is important for the Department of Home Affairs (the Department), as the agency whose officers exercise powers under the Citizenship Act, to maintain robust information and intelligence-sharing relationships with gazetted agencies both domestically and internationally. This will uphold the Government’s policy to maintain the integrity of Australia’s border protection framework, to protect the Australian community, and to uphold the integrity of Australian citizenship and the privileges that attach to it.

 

26.          New subsection 52A(4) provides that the hearsay rule does not apply to evidence that is given for the purpose of establishing that information is covered by new subsection 52A(1). Further, new subsection 52A(5) provides that a certificate, signed by an authorised Commonwealth officer, that states that information was communicated to that officer by a gazetted agency (without disclosing the name of the agency) is prima facie evidence of the matters stated in the certificate.

 

27.          The purpose of new subsections 52A(4) and (5) is to provide a clear evidential basis that such information is information covered by new subsection 52A(1). The effect of these provisions is to ensure that sensitive and confidential information communicated to officers from gazetted agencies is protected in accordance with new subsections 52A(1), (2) and (3), including in relation to court proceedings.

 

28.          New subsection 52A(6) provides that an authorised Commonwealth officer commits an offence where information is communicated or disclosed to that officer under new paragraph 52A(1)(a) or new subsection 52A(2); the officer discloses that information to another person; and that disclosure of information is not in accordance with new subsection 52A(2), a declaration made under new subsection 52B(1) or an order made under new subsection 52C(1). The penalty for such an offence is up to 2 years’ imprisonment.

 

29.          The purpose of new subsection 52A(6) is to establish an offence for disclosures of sensitive and confidential information communicated by Australia’s domestic and international intelligence and law enforcement partners, other than disclosures made in accordance with subsection 52A(1), subsection 52B(1) or an order made under subsection 52C(1). The creation of such an offence highlights the seriousness with which the Government regards unauthorised disclosures of such information. 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 penalty reinforces the Government’s approach to ensuring that the disclosure of sensitive and confidential information is appropriately regulated. It 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.

30.          New subsection 52A(7) provides that new section 52A has effect despite anything in any provisions of the Citizenship Act or the Citizenship Regulation, any other law of the Commonwealth and any law (written or unwritten) of a State or Territory, whether the provision or law commences before or after the commencement of new section 52A. The purpose of new subsection 52A(7) is to ensure that the legislative framework established by the amendments made by this Schedule for the protection of sensitive and confidential information communicated by gazetted agencies takes primacy over other laws of the Commonwealth, States and Territories.

 

31.          A note beneath new subsection 52A(7) explains that section 52A, as affected by section 52D (details of gazetted agency is to be treated as confidential information), is specified in Schedule 3 to the FOI Act (as amended in Part 2 of this Schedule and addressed below). This has the effect that documents containing information protected from disclosure by new section 52A of the Citizenship Act are exempt documents under the FOI Act.

 

32.          New subsection 52A(8) provides that if information is disclosed in accordance with new subsection 52A(2), the disclosure is taken, for the purposes of the Australian Privacy Principles, to be authorised by the Citizenship Act. The Australian Privacy Principles are set out in Schedule 1 to the Privacy Act 1988 .This provision makes clear that a disclosure made in accordance with a declaration under new subsection 52A(2) is authorised under the Citizenship Act, in relation to the operation of the Australian Privacy Principles.

 

Section 52B         Minister may allow disclosure of information supplied by law enforcement or intelligence agencies

 

33.          New subsection 52B(1) provides a mechanism for the Minister to authorise the disclosure of information covered by new subsection 52A(1) to certain specified persons or bodies. New subsection 52B(1) allows the Minister to make a written declaration that specified information covered by new subsection 52A(1) may be disclosed in specified circumstances to a specified Minister, Commonwealth officer (subject to any specified conditions, including in relation to further disclosure of the information), court or tribunal. The Minister must first consult the gazetted agency from which the information originated before making the declaration.

 

34.          The effect of new subsection 52B(1) is to give the Minister a discretion to allow the disclosure of specified information in specified circumstances to other Ministers, Commonwealth officers, courts or tribunals, provided the Minister consults the relevant gazetted agency first. This requirement is intended to uphold the integrity of the information and intelligence-sharing relationship between that gazetted agency and the Minister and the Department. This does not affect the power of the High Court, the Federal Court and the Federal Circuit Court  to order specified information covered by new subsection 52A(1) to be produced under new section 52C.

 

35.          There are two notes accompanying new subsection 52B(1). Note 1 clarifies that, in addition to subsection 52B(1), the High Court, the Federal Court or the Federal Circuit Court may order specified information covered by subsection 52A(1) to be produced or given under section 52C. Note 2 refers the reader to the definition of Commonwealth officer in amended section 3.

 

36.          New subsection 52B(2) provides that a Commonwealth officer to whom information is disclosed under new subsection 52B(1) must comply with any conditions specified in the declaration. A note accompanying new subsection 52B(2) explains that a Commonwealth officer who contravenes such a condition may commit an offence under new subsection 52B(7), which is addressed below.

 

37.          New subsection 52B(3) provides that a member of a tribunal to whom information is disclosed under new subsection 52B(1) must not disclose the information to any person (other than the Minister or a Commonwealth officer to whom the information has been disclosed in accordance with a declaration under subsection 52B(1)).

 

38.          The purpose of new subsections 52B(2) and 52B(3) is to ensure that Commonwealth officers only disclose information they receive in accordance with the conditions imposed by the Minister, and that a tribunal member does not disclose information they receive unless to a Commonwealth officer to whom the information has been disclosed in accordance with a declaration under new subsection 52B(1), or the Minister.

 

39.          New subsection 52B(4) provides that a Minister, a Commonwealth officer or a member of a tribunal to whom information is disclosed under new subsection 52B(1) must not be required to produce, or give in evidence, such information to any court. This obligation is subject to the operation of new subsection 52C(1), and in particular, any order made by the High Court, Federal Court or Federal Circuit Court under that provision.

 

40.          New subsection 52B(5) provides that a Minister, a Commonwealth officer or a member of a tribunal to whom information is disclosed under new subsection 52B(1) must not voluntarily produce or give in evidence to any court the information specified in a declaration made under new subsection 52B(1), unless this action is expressly permitted by the declaration.

 

41.          The obligations in new subsections 52B(3), (4) and (5) collectively provide that the Minister may appropriately control the management of sensitive and confidential information communicated to the Department by its intelligence and law enforcement partners, subject only to the High Court, Federal Court or Federal Circuit Court ordering disclosure of the information in accordance with new subsection 52C(1). The Minister has discretionary powers under new subsection 52B(1) to authorise the disclosure of  the information (having first consulted with the relevant gazetted agency) to specified persons or bodies or courts.

 

42.          New subsection 52B(6) is a deeming provision. It provides that information produced or given voluntarily to a court in accordance with new subsection 52B(5) is taken, for the purposes of the Citizenship Act, to have been produced to the court as a result of an order made under new subsection 52C(1). New subsection 52B(6) operates so that sensitive and confidential information may be disclosed to the Court without the need for the Court to order its disclosure, but also ensures that such information is managed in accordance with the provisions of new section 52C. This includes the provisions in that section relating to limitations on the use and further disclosure of information provided in that section, and the obligation on the Court to determine whether further disclosing information would create a real risk of damage to the public interest. 

 

43.          New subsection 52B(7) provides that a person who is a Commonwealth officer commits an offence where information is disclosed to that officer in accordance with a declaration under new subsection 52B(1), the declaration specifies one or more conditions, and the officer engages in, or omits to engage in, conduct that contravenes the condition or conditions. The penalty for such an offence is up to 2 years’ imprisonment. This penalty 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 penalty reinforces the Government’s approach to ensuring that the disclosure of sensitive and confidential information is appropriately regulated. It reflects the fact that Commonwealth officers are in a trusted position to access to certain sensitive and confidential information in order to carry out their duties, and that this position comes with the responsibility to protect such information, including abiding by any conditions imposed upon an officer when such information is disclosed to them, including condition as to further disclosure or use of that information. This is due to the severe impact that unauthorised disclosures could have on the public interest - including compromising national security.

44.          The purpose of new subsection 52B(7) is to create an offence for a Commonwealth officer who contravenes, by conduct or omission, any conditions set out in the declaration made by the Minister in relation to sensitive and confidential information. The creation of such an offence highlights the seriousness with which the Government regards breaches of conditions relating to such information, including (without limitation) the further disclosure of such information.

 

45.          New subsections 52B(8) and (9) provide that the Minister does not have a duty to consider whether to exercise the power to make a declaration under new subsection 52B(1) and, if the Minister decides to do so, that the rules of natural justice do not apply to the exercise of such power. The effect of these new subsections is to make clear that the Minister’s power under new subsection 52B(1) is non-compellable and that the rules of natural justice do not apply to any exercise of that power by the Minister.

 

46.          New subsection 52B(10) provides that a declaration made under new subsection 52B(1) is not a legislative instrument. New subsection 52B(10) accords with paragraph 8(6)(a) of the Legislation Act 2003 , which provides that an instrument is not a legislative instrument if it is declared by an Act not to be a legislative instrument.

 

47.          New subsection 52B(11) provides that if information is disclosed in accordance with new subsection 52B(1), the disclosure is taken, for the purposes of the Australian Privacy Principles, to be authorised by the Citizenship Act. This provision makes clear that a disclosure made in accordance with a declaration under new subsection 52B(1) is authorised under the Citizenship Act, in relation to the operation of the Australian Privacy Principles.

 

Section 52C         Courts may order disclosure of information supplied by law enforcement agencies or intelligence agencies

 

48.          New section 52C creates a framework under which the High Court, Federal Court and Federal Circuit Court may order the disclosure of information covered by new subsection 52A(1) in specified circumstances. It also establishes certain parameters in certain circumstances around the further disclosure of, and access to, that information.

 

49.          New subsection 52C(1) provides that , d espite new subsections 52A(3) and 52B(4), the High Court, the Federal Court or the Federal Circuit Court may order the Minister to cause specified information to be produced to, or given in evidence before, the Court. For this to occur, the Court must be satisfied the information is covered by new subsection 52A(1), and the production or giving of the information is for the purposes of proceedings relating to an exercise of power under a provision referred to in new paragraph 52A(1)(b). Such proceedings are referred to as the substantive proceedings for the purposes of new subsection 52C.

 

50.          The purpose of new subsection 52C(1) is to ensure that new sections 52A, 52B and 52C address the High Court’s judgment in Graham and Te Puia , which held (in the context of section 503A of the Migration Act) that the Minister cannot be prevented from being required to divulge certain information to the High Court and Federal Court. The effect is that the High Court, Federal Court and Federal Circuit Court may order the Minister to disclose certain sensitive and confidential information to it, subject to the parameters set out in the remainder of new section 52C.

 

51.          New subsection 52C(2) provides that, if information is produced to, or given in evidence before, the Court in accordance with an order under new subsection 52C(1), any party to the substantive proceedings may, subject to new subsection 52C(3), and to the control of the Court, make certain submissions. This comprises of making submissions concerning the use the Court should make of the information for the purpose of the substantive proceedings (including any weight to be attributed to it), as well as making submissions and if appropriate, tendering evidence, concerning any impact that disclosure of the information may have on the public interest.

 

52.          The purpose of new subsection 52C(2) is to ensure that any party to the substantive proceedings may, subject to new subsection 52C(3) and to the control of the Court, may be heard by the Court by making submissions in line with new paragraphs 52C(2)(a) and (b). For example, the Minister could make submissions that disclosure of certain information could reveal the identity of a gazetted agency’s informant which could discourage informants from giving information in future, or threaten the safety of the informant.

 

53.          New subsection 52C(3) provides that, in relation to information produced to or given in evidence to the Court, a party to the substantive proceedings may make submissions and tender evidence pursuant to new subsection 52C(2) only if the party is aware of the content of the information and that such content was not acquired unlawfully or in circumstances that would found an action for breach of confidence (whether or not the party was the person who acquired the content unlawfully or in those circumstances).

 

54.          The effect of new subsection 52C(3) is that a party may not make submissions or tender evidence unless the requirements of new subsection 52C(3) are met. After considering the information itself and any submissions made under new subsection 52B(2), the Court must then determine whether disclosing the information would create a real risk of damage to the public interest pursuant to new subsection 52C(5). For example, if one party is not allowed to make submissions because the requirements of new subsection 52C(3) are not met, but the other party is allowed to make submissions, then the Court will consider the information and the submissions of the party permitted to make submissions when determining whether disclosing the information would create a real risk of damage to the public interest.

 

55.          New subsection 52C(4) provides that, for the purposes of hearing submissions under new subsection 52C(2), the Court must order that any person who the Court is satisfied under new subsection 52C(3) may not make submissions or tender evidence be excluded from the hearing. This includes the applicant in the substantive proceedings, any other party to those proceedings, and their legal representatives. This subsection also provides that the Court must order that no report of the part of the proceedings that relates to the information is to be published, and that no person, without the consent of the Court, has access to a file or a record of the Court that contains the information.

 

56.          The purpose of new subsection 52C(4) is to ensure that in a hearing on submissions on the use by the court of the information (including weight to be given to it), and the impact further disclosure would have on the public interest, the court must exclude persons who are not permitted to make such submissions. New subsection 52C(4) also ensures that there is no report of those hearings and that no person, without the consent of the Court, has access to a file or a record of the Court that contains the information. The effect of this provision is that sensitive and confidential information is not made available to persons while the Court is in the process of deciding whether or not the disclosure would create a real risk of damage to the public interest (see new subsections 52C(5) and (6)). The inclusion of the legal representative of a party to the substantive proceedings at new subparagraph 52C(4)(a)(iii), alongside the applicant and any other party (at new subparagraphs 52C(4)(a)(i) and (ii) respectively), ensures the Court must determine whether a legal representative must be excluded from the hearing, independent of the party they represent.

 

57.          New subsection 52C(5) provides that the Court must determine, after considering the information and any submissions made under new subsection 52C(2), whether disclosing the information would create a real risk of damage to the public interest, having regard to the matters (and only those matters) as set out in paragraphs 52C(5)(a) - (h) that the Court considers relevant. New subsection 52C(6) provides that, if the Court determines under new subsection 52C(5) that disclosing the information would create a real risk of damage to the public interest, the Court must not disclose the information to any person, including to the applicant in the substantive proceedings, any other party to those proceedings, their legal representatives or any person who seeks access to a file or record of the Court that contains the information.

 

58.          The purpose of new subsections 52C(5) and (6) is to ensure that the High Court, Federal Court and the Federal Circuit Court do not disclose sensitive and confidential information to any person, if to do so would create a real risk of damage to the public interest, having regarding to the matters (and only those matters) listed in new subsection 52C(5). These matters are:

 

·          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; and

·          such other matters (if any) as are specified in the regulations, which, in the context of Australian citizenship, is the Citizenship Regulation.

 

59.          New subsection 52C(7) provides that the Court may give such weight in the substantive proceedings to the information as the Court considers appropriate in the circumstances, taking into account any submissions made to the Court under new subsection 52C(2). This ensures that the Court may perform its functions in attributing weight to information before it in the substantive proceedings, after taking into account submissions made.

 

Section 52D         Details of gazetted agency to be treated as confidential information

 

60.          New section 52D provides that new sections 52A to 52C apply to information relating to a gazetted agency in the same way as those sections apply to information that is communicated by the gazetted agency. A note accompanies this new section to provide an example of the practical effect of the provision. The agency’s name would be information relating to the agency and so would be able to be disclosed only in accordance with those sections. This is to ensure that information relating to a gazetted agency is treated and managed in the same way as information covered by new subsection 52A(1). Information that relates to a gazetted agency needs to be treated and managed appropriately in order to protect the Department’s relationships with its intelligence and law enforcement partners, both domestically and internationally.

 

Item 4             Application and transitional provisions

 

61.          This item provides for the application of the amendments of the Citizenship Act made by Part 1 of this Schedule. These amendments apply after the commencement of Part 1 of this Schedule in relation to any information covered by new subsection 52A(1), whether the information is communicated or originated, and any proceedings of a court, tribunal, parliament, parliamentary committee, body or other person are commenced, before or after the commencement of this Part. This ensures that sensitive and confidential information is protected appropriately, regardless of when the information originated or was communicated. The amendments do not have retrospective effect, and only apply after the commencement of Part 1 of this Schedule.

 

Migration Act 1958

Item 5             Subsection 5(1)

62.          This item amends subsection 5(1) of the Migration Act by inserting several new signpost definitions to support the operation of the provisions in amended sections 503A - 503D of the Migration Act. A signpost definition is a definition that refers the reader to another provision for the complete definition of a particular term. For example, this item inserts a signpost definition of foreign law enforcement body , which refers the reader to amended subsection 503A(9) of the Migration Act, as amended by item 9 of this Schedule. Item 5 also inserts signpost definitions for Australian law enforcement or intelligence body , authorised Commonwealth officer , Commonwealth officer and gazetted agency , again referring the reader to amended subsection 503A(9) of the Migration Act, as amended by item 9 of this Schedule, for the full definition of each of these terms.

 

63.          This item also inserts a new signpost definition of Commonwealth officer in subsection 5(1), providing that this term has the same meaning as in section 121.1 of the Criminal Code , except where it appears in subsection 488AA(2) of the Migration Act. A note included under this new definition clarifies that a Minister is not a Commonwealth officer. By inserting this definition in subsection 5(1), it ensures that the term is defined consistently where it appears throughout the Migration Act.

 

Item 6             Subsection 5(1) (after paragraph (a) of the definition of non-disclosable information )

 

64.          This item inserts new paragraph (aa) in the definition of non-disclosable information after current paragraph (a) of the definition in subsection 5(1) of the Migration Act.

 

65.          New paragraph (aa) provides that non-disclosable information includes information or a matter disclosed by a gazetted agency and the information or matter is relevant to the exercise of a power under or in relation to section 501, 501A, 501B, 501BA, 501C or 501CA, and the further disclosure of the information or matter would, in the Minister’s opinion (after consulting the gazetted agency), be contrary to the national interest.

 

66.          Consistent with the current definition of non-disclosable information in subsection 5(1) of the Migration Act, the information or matter described by new paragraph (aa) of the definition also includes any document containing, or any record of, such information or matter.

 

67.          The purpose of this item is to expand the definition of non-disclosable information to include information and matters provided by gazetted intelligence and law enforcement agencies where, after consultation with the gazetted agency, the further disclosure would be, in the Minister’s opinion, contrary to the national interest.

 

Item 7             Paragraph 474(7)(a)

 

68.          This items replaces the reference to current subsection 503A(3) in paragraph 474(7)(a) of the Migration Act with a reference to amended subsection 503B(1). Paragraph 474(7)(a) provides that certain decisions are privative clause decisions (within the meaning of subsection 474(2) of the Migration Act). One of these decisions is a decision of the Minister under current subsection 503A(3) to declare that neither current subsection 503A(1) nor (2) prevents the Minister from disclosing specified information in certain circumstances to certain persons.

 

69.          This power will be transferred from current subsection 503A(3) to amended subsection 503B(1) by effect of the amendments to the Migration Act made by item 9 in this Schedule. The power in amended subsection 503A(3) will remain, in substance, the same as in current subsection 503A(3). This amendment therefore ensures that a decision of the Minister not to exercise, or not to consider the exercise of the Minister’s power under amended subsection 503B(1) is preserved as a privative clause decision within the meaning of current subsection 474(2), in spite of its transfer from current subsection 503A(3).

 

Item 8         Paragraph 500(6F)(c)

70.           This item inserts the words “(subject to section 503A)” after “the Minister must” in current paragraph 500(6F)(c) of Part 9 of Division 2 of the Migration Act.

71.           Current subsection 500(6F) applies to an application made to the Administrative Appeals Tribunal (AAT) for a review of a decision under section 501 of the Migration Act, or a decision under subsection 501CA(4) of the Migration Act not to revoke a decision to cancel a visa where the decision relates to a person in the migration zone. In these circumstances, the Minister must lodge with the AAT, within 14 days after the day on which the Minister was notified that the application had been made, a copy of every document in the Minister’s possession or under the Minister’s control that is relevant to the making of the decision and contains non-disclosable information. 

72.          The amendment to paragraph 500(6F)(c) makes this obligation on the Minister subject to amended section 503A. The purpose of this amendment is to make the operation of paragraph 500(6F)(c) subject to the Protected Information Framework established by amended sections 503A - 503D of the Migration Act (as amended by item 9 of this Schedule).

Item 9         Sections 503A to 503D

73.           This item repeals current sections 503A - 503D of the Migration Act and substitutes amended sections 503A - 503D.

Section 503A       Protecting information supplied by law enforcement or intelligence agencies etc.

 

74.           New subsection 503A(1) sets out the information which is to be protected by new section 503A. It is information which is communicated to an authorised Commonwealth officer by a gazetted agency on condition that it be treated as confidential information, and the information is relevant to the exercise of a power under or in relation to section 501, 501A, 501B, 501BA, 501C or 501CA.

75.           A note accompanies new subsection 503A(1), directing attention to the definitions of authorised Commonwealth officer and gazetted agency in new subsection 503A(9).

76.          New subsection 503A(2) provides that an officer to whom information is communicated in accordance with new paragraph 503A(1)(a) or an officer to whom information is disclosed under this subsection must not, subject to new subsections 503B(1) and 503C(1), disclose the information to another person, except in certain circumstances. Those circumstances are where the disclosure is to the Minister or an authorised Commonwealth officer, where such disclosure is for the purposes of exercising powers under either:

 

·          the Migration Act, as referred to in paragraph 503A(1)(b) of the Migration Act; or

·          the Citizenship Act, as referred to in new paragraph 52A(1)(b), as amended by item 3 of this Schedule.

 

77.          There are two notes accompanying new subsection 503A(2). Note 1 clarifies the effect of other relevant provisions, including that the Minister may allow the disclosure of the information under section 503B, and that the High Court, the Federal Court or the Federal Circuit Court may order the production or giving of the information under section 503C. Note 2 clarifies that an authorised Commonwealth officer who contravenes new subsection 503A(2) may commit an offence under new subsection 503A(6), which is addressed below.

 

78.   The purpose of new subsection 503A(2) is to ensure that sensitive and confidential information communicated to an authorised Commonwealth officer by a gazetted agency is not disclosed to anyone other than an authorised Commonwealth officer or the Minister, and only then for the purpose of an exercise of power referred to in new paragraph 503A(1)(b) or in new paragraph 52A(1)(b) of the Citizenship Act as amended by item 3 of this Schedule.

 

79.   The reason information may be disclosed for the purpose of an exercise of power referred to in either new paragraph 503A(1)(b) or in new paragraph 52A(1)(b) of the Citizenship Act is that the same information communicated by a gazetted agency may be relevant for the purposes set out in new paragraph 503A(1)(b) as well as those set out in new paragraph 52A(1)(b). For example, the information from a gazetted agency may be communicated and relied upon when considering whether to cancel a person’s visa. The same information may also be relevant for considering whether to approve or refuse the same person’s application for citizenship (if they have made such an application).

 

80.   Subsection 503A(2) applies subject to new subsection 503B(1) (the Minister’s discretion to allow disclosure of certain information, which is addressed below) and new subsection 503C(1) (the power of the High Court, the Federal Court and the Federal Circuit Court to order disclosure in certain circumstances, which is addressed below). 

 

81.          New subsection 503A(3) provides that an officer to whom the information is communicated under new paragraph 503A(1)(a), or the Minister or an authorised Commonwealth officer to whom information is communicated under new subsection 503A(2), must not (subject to the operation of new subsections 503B(1) and 503C(1)) be required to:

 

·          produce the information to a court, a tribunal, a parliament, a parliamentary committee or any other body or person, or

 

·          give the information in evidence before a court, a tribunal, a parliament, a parliamentary committee or any other body or person.

 

82.          Subject only to the Minister authorising disclosure under new section 503B or the High Court, Federal Court or Federal Circuit Court ordering disclosure in certain circumstances under new section 503C, it is intended that new subsections 503A(2) and (3) will operate together to protect sensitive and confidential information communicated to officers by gazetted agencies from being disclosed. It is important for the Department, as the agency whose officers exercise powers under the Migration Act, to maintain robust information and intelligence sharing relationships with gazetted agencies both domestically and internationally. This will thereby uphold the Government’s policy to maintain the integrity of Australia’s border protection framework, to protect the Australian community, and to uphold the integrity of Australia’s migration framework.

 

83.          New subsection 503A(4) provides that the hearsay rule does not apply to evidence that is given for the purpose of establishing that information is covered by new subsection 503A(1). Further, new subsection 503A(5) provides that a certificate, signed by an authorised Commonwealth officer, that states that information was communicated to that officer by a gazetted agency (without disclosing the name of the agency) is prima facie evidence of the matters stated in the certificate.

 

84.          The purpose of new subsections 503A(4) and (5) is to provide a clear evidential basis that such information is information covered by new subsection 503A(1). The effect is to ensure that sensitive and confidential information communicated to officers from gazetted agencies is protected accordingly.

 

85.          New subsection 503A(6) provides that an authorised Commonwealth officer commits an offence where information is communicated or disclosed to that officer under new paragraph 503A(1)(a) or new subsection 503A(2); the officer discloses that information to another person; and that disclosure of information is not in accordance with new subsection 503A(2), a declaration made under new subsection 503B(1) or an order made under new subsection 503C(1). The penalty for such an offence is up to 2 years imprisonment.

 

86.          The purpose of new subsection 503A(6) is to establish an offence for disclosures of sensitive and confidential information communicated by Australia’s domestic and international intelligence and law enforcement partners, other than disclosures made in accordance with subsection 503A(1), subsection 503B(1) or an order made under subsection 503C(1). The creation of such an offence highlights the seriousness with which the Government regards unauthorised disclosures of such information. 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 penalty reinforces the Government’s approach to ensuring that the disclosure of sensitive and confidential information is appropriately regulated. It 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.

87.          New subsection 503A(7) provides that new section 503A has effect despite anything in any provisions of the Migration Act or the Migration Regulations, any other law of the Commonwealth and any law (written or unwritten) of a State or Territory, whether the provision or law commences before or after the commencement of new section 503A. The purpose of new subsection 503A(7) is to ensure that the legislative framework established by the amendments made by this Schedule for the protection of sensitive and confidential information communicated by gazetted agencies takes primacy over other laws of the Commonwealth, States and Territories.

 

88.          A note beneath new subsection 503A(7) explains that section 503A, as affected by section 503D (details of gazetted agency is to be treated as confidential information), is specified in Schedule 3 to the FOI Act) (as amended in Part 2 of this Schedule and addressed below). This has the effect that documents containing information protected from disclosure by new section 503A of the Migration Act are exempt documents under the FOI Act.

 

89.          New subsection 503A(8) provides that if information is disclosed in accordance with new subsection 503A(2), the disclosure is taken, for the purposes of the Australian Privacy Principles, to be authorised by the Migration Act. The Australian Privacy Principles are set out in Schedule 1 to the Privacy Act 1988 (Cth).This provision makes clear that a disclosure made in accordance with a declaration under new subsection 503A(2) is authorised under the Migration Act, in relation to the operation of the Australian Privacy Principles.

 

90.          New subsection 503A(9) provides definitions for Australian law enforcement or intelligence body , authorised Commonwealth officer , foreign law enforcement body and gazetted agency . The purpose of this subsection is to supply appropriate defined terms for the operation of the provisions in new sections 503A - 503D. These new definitions reflect the existing definitions in current subsection 503CA(9) of the Migration Act, and are identical to those defined terms. The exception is that the new defined term of authorised Commonwealth officer has been inserted to replace the older term of authorised migration officer .

 

Section 503B       Minister may allow disclosure of information supplied by law enforcement or intelligence agencies

 

91.          New subsection 503B(1) provides a mechanism for the Minister to authorise the disclosure of information covered by new subsection 503A(1) to certain persons and bodies. The subsection allows the Minister to make a written declaration that specified information covered by new subsection 503A(1) may be disclosed in specified circumstances to a specified Minister, Commonwealth officer (in accordance with any specified conditions, including in relation to further disclosure of the information), a specified court or specified tribunal. The Minister must first consult the gazetted agency from which the information originated before making the declaration.

 

92.          The effect of new subsection 503B(1) is to give the Minister a discretion to allow the disclosure of specified information in specified circumstances to other Ministers, Commonwealth officers or bodies, provided that the Minister consults the relevant gazetted agency first in order to uphold the integrity of the information- and intelligence-sharing relationship between that gazetted agency, and the Minister and the Department. This does not affect the power of the High Court, the Federal Court and the Federal Circuit Court to order specified information covered by new subsection 503A(1) to be produced under new section 503C.

 

93.          There are two notes accompanying new subsection 503B(1). Note 1 explains that, in addition to subsection 503B(1), the High Court, the Federal Court or the Federal Circuit Court may order specified information covered by subsection 503A(1) to be produced or given under section 503C. Note 2 refers the reader to the definition of Commonwealth officer in amended subsection 5(1).

 

94.          New subsection 503B(2) provides that a Commonwealth officer to whom information is disclosed under new subsection 503B(1) must comply with any conditions specified in the declaration. A note accompanies new subsection 503B(2),  explaining that a Commonwealth officer who contravenes such a condition may commit an offence under new subsection 503B(7), which is addressed below.

 

95.          New subsection 503B(3) provides that a member of a tribunal to whom information is disclosed under new subsection 503B(1) must not disclose the information to any person (other than the Minister or a Commonwealth officer to whom the information has been disclosed in accordance with a declaration under new subsection 503A(1)).

 

96.          The purpose of new subsections 503B(2) and 503B(3) is to ensure that Commonwealth officers only disclose information they receive in accordance with the conditions imposed by the Minister, and that a tribunal member does not disclose information they receive unless to a Commonwealth officer to whom the information has been disclosed in accordance with a declaration under new subsection 503B(1), or the Minister.

 

97.          New subsection 503B(4) provides that a Minister, a Commonwealth officer, or a member of a tribunal, to whom information is disclosed under new subsection 503B(1) must not be required to produce, or give in evidence, such information to any court. This obligation is subject to the operation of new subsection 503C(1), and in particular, any order made by the High Court, Federal Court or Federal Circuit Court under that provision.

 

98.          New subsection 503B(5) provides that a Minister, a Commonwealth officer, or a member of a tribunal, to whom information is disclosed under new subsection 503B(1) must not voluntarily produce, or voluntarily give in evidence, the protected information to any court unless this is permitted by a declaration of the Minister made under new subsection 503B(1).

 

99.          The obligations in new subsections 503B(3), (4) and (5) collectively provide that the Minister may appropriately control the management of sensitive and confidential information communicated to the Department by its intelligence and law enforcement partners, subject only to the High Court, Federal Court or Federal Circuit Court ordering disclosure of the information in accordance with new subsection 503C(1). The Minister has discretionary powers under new subsection 503B(1) to allow the disclosure of the information (having first consulted with the relevant gazetted agency) to specified persons or bodies or courts. 

 

100.      New subsection 503B(6) is a deeming provision. It provides that information produced or given voluntarily to a court in accordance with new subsection 503B(5) is taken, for the purposes of the Migration Act, to have been produced to the court as a result of an order made under new subsection 503C(1). New subsection 503B(6) operates so that sensitive and confidential information may be disclosed to the Court without the need for the Court to order its disclosure, but also ensures that such information is managed in accordance with the provisions of new section 503C. This includes the provisions in that section relating to limitations on the use and further disclosure of information provided in that section, and the obligation on the Court to determine whether further disclosing information would create a real risk of damage to the public interest. 

 

101.      New subsection 503B(7) provides that a Commonwealth officer commits an offence where information is disclosed to that officer in accordance with a declaration under new subsection 503B(1), the declaration specifies one or more conditions, and the officer engages in, or omits to engage in, conduct which contravenes the condition or conditions. The penalty for such an offence is up to 2 years imprisonment. This penalty 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 penalty reinforces the Government’s approach to ensuring that the disclosure of sensitive and confidential information is appropriately regulated. It reflects the fact that Commonwealth officers are in a trusted position to access to certain sensitive and confidential information in order to carry out their duties, and that this position comes with the responsibility to protect such information, including abiding by any conditions imposed upon an officer when such information is disclosed to them, including condition as to further disclosure or use of that information. This is due to the severe impact that unauthorised disclosures could have on the public interest - including compromising national security.

 

102.       The purpose of new subsection 503B(7) is to create an offence for a Commonwealth officer who contravenes, by conduct or omission, any conditions set out in the declaration made by the Minister in relation to sensitive and confidential information. The creation of such an offence highlights the seriousness with which the Government regards breaches of conditions relating to such information, including (without limitation) the further disclosure of such information.

 

103.      New subsections 503B(8) and (9) provide that the Minister does not have a duty to consider whether to exercise the power to make a declaration under new subsection 503B(1) and, if the Minister decides to do so, that the rules of natural justice do not apply to the exercise of such power. The effect of these new subsections is to make clear that the Minister’s power under new subsection 503B(1) is non-compellable and that the rules of natural justice do not apply to any exercise of that power by the Minister.

 

104.      New subsection 503B(10) provides that a declaration made under new subsection 503B(1) is not a legislative instrument. New subsection 503B(10) accords with paragraph 8(6)(a) of the Legislation Act 2003 , which provides that an instrument is not a legislative instrument if it is declared by an Act not to be a legislative instrument.

 

105.      New subsection 503B(11) provides that if information is disclosed in accordance with new subsection 503B(1), the disclosure is taken, for the purposes of the Australian Privacy Principles, to be authorised by the Migration Act. This provision makes clear that a disclosure made in accordance with a declaration under new subsection 503B(1) is authorised under the Migration Act, in relation to the operation of the Australian Privacy Principles.

 

Section 503C       Courts may order disclosure of information supplied by law enforcement agencies or intelligence agencies

 

106.      New section 503C creates a framework under which the High Court, Federal Court and Federal Circuit Court may order the disclosure of information covered by new subsection 503A(1) in specified circumstances. It also sets certain parameters in certain circumstances around the further disclosure of, and access to, that information.

 

107.      New subsection 503C(1) provides that , d espite new subsections 503A(3) and 503B(4), the High Court, the Federal Court or the Federal Circuit Court may order the Minister to cause specified information to be produced to, or given in evidence before, the Court. For this to occur, the Court must be satisfied the information is covered by new subsection 503A(1), and the production or giving of the information is for the purposes of proceedings relating to an exercise of power under a provision referred to in new paragraph 503A(1)(b). Such proceedings are referred to as the substantive proceedings for the purposes of new subsection 503C.

 

108.      The purpose of new subsection 503C(1) is to ensure that new sections 503A, 503B and 503C address the High Court’s judgment in Graham and Te Puia , which is described above. The effect is that the High Court, Federal Court and Federal Circuit Court may order the Minister to disclose certain sensitive and confidential information to it, subject to the parameters set out in the remainder of new section 503C.

 

109.      New subsection 503C(2) provides that, if information is produced to, or given in evidence before, the Court in accordance with an order under new subsection 503C(1), any party to the substantive proceedings may, subject to new subsection 503C(3), and to the control of the Court, make submissions. This comprises of making submissions concerning the use the Court should make of the information for the purpose of the substantive proceedings (including any weight to be attributed to it), as well as making submissions and if appropriate, tendering evidence, concerning any impact that disclosure of the information may have on the public interest.

 

110.      The purpose of new subsection 503C(2) is to ensure that persons who are aware of the content of the information, including the Minister, may be heard by the Court by making submissions in line with new paragraphs 503C(2)(a) and (b), subject to new subsection 503C(3) and the control of the Court. For example, the Minister could make submissions that disclosure of certain information could reveal the identity of a gazetted agency’s informant which could discourage informants from giving information in future, or threaten the safety of the informant.

 

111.      New subsection 503C(3) provides that, in relation to information produced to or given in evidence to the Court, a party to the substantive proceedings may make submissions and tender evidence pursuant to new subsection 503C(2) only if the party is aware of the content of the information and that such content was not acquired unlawfully or in circumstances that would found an action for breach of confidence (whether or not the party was the person who acquired the content unlawfully or in those circumstances).

 

112.      The effect of new subsection 503C(3) is that a party may not make submissions or tender evidence unless the requirements of new subsection 503C(3) are met. After considering the information itself and any submissions made under new subsection 503B(2), the Court must then determine whether disclosing the information would create a real risk of damage to the public interest pursuant to new subsection 503C(5). For example, if one party is not allowed to make submissions because the requirements of new subsection 503C(3) are not met, but the other party is allowed to make submissions, then the Court will consider the information and the submissions of the party permitted to make submissions when determining whether disclosing the information would create a real risk of damage to the public interest.

 

113.      New subsection 503C(4) provides that, for the purposes of hearing submissions under new subsection 503C(2), the Court must order that any person who the Court is satisfied under new subsection 503C(3) may not make submissions or tender evidence be excluded from the hearing. This includes the applicant in the substantive proceedings, any other party to those proceedings, and their legal representatives. This subsection also provides that the Court must order that no report of the part of the proceedings that relates to the information is to be published, and that no person, without the consent of the Court, has access to a file or a record of the Court that contains the information.

 

114.      The purpose of new subsection 503C(4) is to ensure that in a hearing on submissions on the use by the court of the information (including weight to be given to it), and the impact further disclosure would have on the public interest, the court must exclude persons who are not permitted to make such submissions. New subsection 503C(4) also ensures that there is no report of those hearings and that no person, without the consent of the Court, has access to a file or a record of the Court that contains the information. The effect of this provision is that sensitive and confidential information is not made available to persons while the Court is in the process of deciding whether or not the disclosure would create a real risk of damage to the public interest (see new subsections 503C(5) and (6)). The inclusion of the legal representative of a party to the substantive proceedings at new subparagraph 503C(4)(a)(iii), alongside the applicant and any other party (at new subparagraphs 503C(4)(a)(i) and (ii) respectively), ensures the Court must determine whether a legal representative must be excluded from the hearing, independent of the party they represent.

 

115.      New subsection 503C(5) provides that the Court must determine, after considering the information and any submissions made under new subsection 503C(2), whether disclosing the information would create a real risk of damage to the public interest, having regard to the matters (and only those matters) as set out in paragraphs 503C(5)(a) - (h) that the Court considers relevant. New subsection 503C(6) provides that, if the Court determines under new subsection 503C(5) that disclosing the information would create a real risk of damage to the public interest, the Court must not disclose the information to any person, including to the applicant in the substantive proceedings, any other party to those proceedings, their legal representatives or any person who seeks access to a file or record of the Court that contains the information.

 

116.      The purpose of new subsections 503C(5) and (6) is to ensure that the High Court, Federal Court and the Federal Circuit Court do not disclose sensitive and confidential information to any person, if to do so would create a real risk of damage to the public interest, having regarding to the matters (and only those matters) listed in new subsection 503C(5). These matters are:

 

·          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; and

·          such other matters (if any) as are specified in the regulations, which in this context are the Migration Regulations.

 

117.      New subsection 503C(7) provides that the Court may give such weight in the substantive proceedings to the information as the Court considers appropriate in the circumstances, taking into account any submissions made to the Court under new subsection 503C(2). This ensures that the Court may perform its functions in attributing weight to information before it in the substantive proceedings, after taking into account submissions made.

 

Section 503D       Details of gazetted agency to be treated as confidential information

 

118.      New section 503D provides that new sections 503A to 503C apply to information relating to a gazetted agency in the same way as those sections apply to information that is communicated by the gazetted agency. A note accompanies this new section to provide an example of the practical effect of the provision. The agency’s name would be information relating to the agency and so would be able to be disclosed only in accordance with those sections. This is to ensure that information relating to a gazetted agency is treated and managed in the same way as information covered by new subsection 503A(1). Information that relates to a gazetted agency needs to be treated and managed appropriately in order to protect the Department’s relationships with its intelligence and law enforcement partners, both domestically and internationally.

 

Item 10           Subparagraph 503E(1)(c)(iii)

 

119.       This item omits “or (2)” from subparagraph 503E(1)(c)(iii). This is a consequential amendment. This subparagraph is intended to refer, on commencement of the amendments in item 9 of this Schedule, to information covered by amended subsection 503A(1), so the reference to current subsection 503A(2) must be omitted to ensure subparagraph 503E(1)(c)(iii) does not include an incorrect reference. 

 

Item 11           Application and transitional provisions

 

Application Provisions

 

120.      Subitem 11(1) provides that the amendments of the definition of non-disclosable information in section 5 of the Migration Act made by Part 1 of this Schedule apply in relation to particulars, reasons or documents given after the commencement of this item.

 

121.      Subitem 11(2) provides that new subsection 503A(6) of the Migration Act (as inserted by Part 1 of this Schedule) applies in relation to any contravention by a person that occurs after the commencement of this Part (including in relation to information divulged or communicated to the person before that commencement). The creation of an offence in new subsection 503A(6) highlights the seriousness with which the Government regards unauthorised disclosures of such information by a person who is an authorised Commonwealth officer. W here such information has been divulged or communicated in accordance with current paragraph 503A(1)(a) or (b) of the Migration Act before the commencement of this Part, it is appropriate that any disclosure of that information by a person after commencement of this Part should constitute an offence pursuant to new subsection 503A(6). Disclosure by an authorised Commonwealth officer to another person that occurs before commencement of Part 1 of this Schedule would not constitute an offence.

 

122.      Subitem 11(3) provides that new subsection 503B(7) of the Migration Act (as inserted by item 9 of this Schedule) applies in relation to any contravention by a person that occurs after the commencement of this Part. This includes in relation to a declaration made before that commencement that is taken under subitem 11(6) to have been made under new subsection 503B(1) of the Migration Act.

 

123.      Subitem 11(4) provides that the other amendments of the Migration Act made by Part 1 of this Schedule apply after the commencement of this Part in relation to any information covered by new subsection 503A(1) of the Migration Act (as inserted by item 9 of this Schedule), whether the information is communicated or originated, and any proceedings of a court, tribunal, parliament, parliamentary committee, body or other person are commenced, before or after that commencement. This subitem is necessary to ensure the protections afforded by this Part upon its commencement extend to any such information irrespective of when it was communicated in accordance with new subsection 503A(1).

 

Transitional Provisions

 

124.      Subitem 11(5) provides that information divulged or communicated in accordance with current paragraph 503A(1)(a) or (b) of the Migration Act before the commencement of this Part is taken for the purposes of that Act, after that commencement, to be information disclosed in accordance with new subsection 503A(1) or under new subsection 503A(2) of the Migration Act as the case requires (as inserted by this Part).

 

125.      This subitem is necessary because, where information has been divulged or communicated in accordance with current paragraph 503A(1)(a) or (b) of the Migration Act before the commencement of this Part, it is important to extend the protections afforded by this Part to such information. This will ensure that authorised Commonwealth officers will not be taken to have committed offences under new subsections 503A(6) or 503B(7) for disclosing such information, where that information was disclosed prior to the commencement of this Part and in accordance with current paragraph 503A(1)(a) or (b).

 

126.      Subitem 11(6) provides that a declaration under current subsection 503A(3) of the Migration Act that is in force under that subsection immediately before the commencement of this Part is taken for the purposes of the Migration Act, after that commencement, to be in force under new subsection 503B(1) of that Act (as inserted by this Part).

 

127.      This subitem is necessary because, where the Minister has made a declaration under current subsection 503A(3) of the Migration Act before the commencement of this Part to declare that the disclosure of specified information in specified circumstances is not prevented, it is appropriate for that declaration to be taken to be in force under new subsection 503B(1). This will ensure that such declarations will continue to have effect, and that authorised Commonwealth officers will not be taken to have committed offences under new subsections 503A(6) or 503B(7) for disclosing such information, where that information was disclosed prior to the commencement of this Part and in accordance with the conditions specified in a declaration under current subsection 503A(3).

 

128.      Subitem 11(7) provides that t he repeal of subsection 503A(9) of the Migration Act by this Part does not affect the continuity of any notice published in the Gazette for the purposes of paragraph (a) or (b) of the definition of gazetted agency that is in force under that subsection immediately before the commencement of this Part.

 

129.      This subitem is necessary to ensure that a body, agency or organisation that has been specified in a notice published in the Gazette prior to the commencement of this Part will continue to be a gazetted agency for the purposes of new sections 503A - 503D. This is appropriate to ensure that information communicated by a gazetted agency to an authorised Commonwealth officer prior to the commencement of this Part will be dealt with under new sections 503A - 503D after this Part commences.

 

Part 2 - Consequential amendments

 

Freedom of Information Act 1982

 

Item 12           Paragraph 38(3)(b)

 

130.      This item amends subsection 38(3) of the FOI Act by repealing paragraph 38(3)(b) and replacing it with a new paragraph that provides that disclosure of the document, or information contained in the document, is prohibited under:

·          section 503A of the Migration Act, as affected by section 503D of that Act; or

·          section 52A of the Citizenship Act, as affected by section 52D of that Act.

 

131.      Subsection 38(1) of the FOI Act provides that a document is an exempt document, and therefore not required to be given in response to a freedom of information request, if:

(a)     disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment; and

 

(b)    either: (i) that provision is specified in Schedule 3; or (ii) section 38 of the FOI Act is expressly applied to the document, or information, by that provision, or by another provision of that or any other enactment.

 

132.      Current subsection 38(3) provides that section 38 of the FOI Act applies to a document so far as it contains personal information about a person if the person requests access to the document, and disclosure of the document, or information contained in the document, is prohibited under section 503A of the Migration Act as affected by section 503D of that Act.

 

133.      The amendments to paragraph 38(3)(b) are being made to extend the application of section 38 of the FOI Act to information covered by new section 52A (as affected by new section 52D) of the Citizenship Act, as inserted into that Act by item 3 of Part 1 of this Schedule. The amendments to paragraph 38(3)(b) ensure that sensitive and confidential information covered by new subsection 52A(1) of the Citizenship Act cannot be disclosed to a person making a freedom of information request because it would be in an exempt document.

 

Item 13           Schedule 3

 

134.      This item amends Schedule 3 to the FOI Act to include section 52A of the Citizenship Act, as affected by section 52D of that Act.

 

135.      In accordance with subparagraph 38(1)(b)(i) of the FOI Act (as described above), this amendment ensures that sensitive and confidential information covered by new subsection 52A(1) of the Citizenship Act cannot be disclosed to a person making a freedom of information request because it would be in an exempt document.

 

Inspector of Transport Security Act 2006

 

Item 14           Section 90

 

136.      This item repeals section 90 of the Inspector of Transport Security Act 2006 (the ITSA Act) and replaces it with a new section 90. New section 90 provides that nothing in the ITSA Act affects the operation of section 503A, 503B or 503C of the Migration Actor section 52A, 52B or 52C of the Citizenship Act.

 

137.      This amendment includes references in section 90 of the ITSA Act to new sections 503A to 503C of the Migration Act and new sections 52A to 52C of the Citizenship Act as inserted by Part 1 of this Schedule. This replaces the references in current section 90 of the ITSA Act to section 503A of the Migration Act only. This ensures the primacy of new sections 503A to 503C of the Migration Act and new sections 52A to 52C of the Citizenship Act in order to protect sensitive and confidential information.

 

 

 

Part 3 - Amendments contingent on the Federal Circuit and Family Court of Australia Act 2020

 

Australian Citizenship Act 2007

 

Item 15           Subsection 52A(2) (note 1)

 

138.      This item omits “Federal Circuit Court”, and substitutes “Federal Circuit and Family Court of Australia”.

 

Item 16           Subsection 52B(1) (note 1)

 

139.      This item omits “Federal Circuit Court”, and substitutes “Federal Circuit and Family Court of Australia”.

 

Item 17           Subsection 52C(1)

 

140.      This item omits “Federal Circuit Court”, and substitutes “Federal Circuit and Family Court of Australia”.

 

Migration Act 1958

 

Item 18           Subsection 503A(2) (note 1)

 

141.      This item omits “Federal Circuit Court”, and substitutes “Federal Circuit and Family Court of Australia”.

 

Item 19           Subsection 503B(1) (note 1)

 

142.      This item omits “Federal Circuit Court”, and substitutes “Federal Circuit and Family Court of Australia”.

 

Item 20           Subsection 503C(1)

 

143.      This item omits references to “Federal Circuit Court” where the term appears in the Migration Act and the Citizenship Act, and substitutes the term “Federal Circuit and Family Court of Australia”.

 

144.      The reason for the contingent amendments in this Part is because the Federal Circuit and Family Court of Australia Act 2020 , if it commences, would change the name of the Federal Circuit Court to the Federal Circuit and Family Court of Australia. It is appropriate that the Citizenship Act and Migration Act (as amended by Part 1 of this Schedule) should reflect this change. The amendments in this Part are contingent upon the commencement of the Federal Circuit and Family Court of Australia Act 2020. If that Act does not commence, the amendments in this Part will not commence.

 

Schedule 2 - Non-disclosure certificates

Australian Citizenship Act 2007

Item 1             Before section 46

 

145.      This item inserts the heading “Subdivision A - Provisions relating to making decisions”.

146.      The purpose of this item, together with related amendments made by items 2-5 of this Schedule, is to effect an amendment in the structure of current Division 2 of Part 3 of the Citizenship Act. The amendments made by items 1-5 of this Schedule operate to divide Division 2 into five discrete Subdivisions (A-E), grouping related provisions.

Item 2             Before section 50

 

147.      This item inserts the heading “Subdivision B - Provisions relating to offences and search warrants”.

148.      The purpose of this item, together with related amendments made by items 1, 3, 4 and 5 of this Schedule, is to effect an amendment in the structure of current Division 2 of Part 3 of the Citizenship Act. The amendments made by items 1-5 of this Schedule operate to divide Division 2 into five discrete Subdivisions (A-E), grouping related provisions.

Item 3             Before section 51B

 

149.      This item inserts the heading “Subdivision C - Provisions relating to Parliament”.

150.      The purpose of this item, together with related amendments made by items 1, 2, 4 and 5 of this Schedule, is to effect an amendment in the structure of current Division 2 of Part 3 of the Citizenship Act. The amendments made by items 1-5 of this Schedule operate to divide Division 2 into five discrete Subdivisions (A-E), grouping related provisions.

Item 4             After section 51C

 

151.      This item inserts the heading “Subdivision D - Provisions relating to review of decisions and disclosure of information”.

152.      The purpose of this item, together with related amendments made by items 1, 2, 3 and 5 of this Schedule, is to effect an amendment in the structure of current Division 2 of Part 3 of the Citizenship Act. The amendments made by items 1-5 of this Schedule operate to divide Division 2 into five discrete Subdivisions (A-E), grouping related provisions.

Item 5             Before section 53

 

153.      This item inserts new sections 52G, 52H and 52J into the Citizenship Act. Collectively, these new sections establish a framework for the management of disclosure of certain sensitive and confidential information to, and by, the AAT.

 

154.      This item also inserts the heading “Subdivision E - Delegation and regulation-making power” following new section 52J. This new heading precedes current section 53. Together with the amendments made by items 1-4 of this Schedule, the insertion of this new heading effects an  amendment in the structure of current Division 2 of Part 3 of the Citizenship Act. The amendments made by items 1-5 of this Schedule operate to divide Division 2 into five Subdivisions (A-E), grouping related provisions.

Section 52G     Restrictions on disclosure of certain information etc.

 

155.      New section 52G provides that, despite anything else in the Citizenship Act (except new section 52B), the Secretary of the Department must not give a document or information to the AAT in relation to the AAT’s review of a decision if the Minister certifies, in writing, that disclosing any matter contained in the document, or disclosing the information, would be contrary to the public interest because:

 

·          it would prejudice the security, defence or international relations of Australia; or

·          it would involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet.

 

A note accompanies new section 52G, referring the reader to new section 52J (addressed below), which contains general provisions relating to new sections 52G and 52H.

 

156.      The purpose of new section 52G is to require the Secretary of the Department not to disclose documents or information to the AAT in relation to the AAT’s review of a decision if the Minister certifies that to do so would be contrary to the public interest because it would prejudice the security, defence or international relations of Australia, or involve the disclosure of Cabinet deliberations or decisions. New section 52G is, however, subject to new section 52B (as inserted by Part 1 to Schedule 1), which is addressed above. In summary, new section 52B allows the Minister to authorise disclosure of certain sensitive and confidential information communicated from gazetted agencies to certain persons or bodies, including a tribunal.

 

Section 52H         Administrative Appeals Tribunal’s discretion in relation to disclosure of certain information etc.

 

157.      New subsection 52H(1) provides that new section 52H applies to a document or information if:

 

·          the Minister has certified, in writing, that disclosing any matter contained in the document, or disclosing the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 52G(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

 

·          the document, the matter contained in the document, or the information, was given to the Minister, or to an authorised Commonwealth officer, in confidence.

 

158.      A note accompanies new subsection 52H(1), referring the reader to new section 52J (addressed below), which contains general provisions relating to new sections 52G and 52H.

 

159.      New subsection 52H(2) provides that, if the Secretary of the Department gives the document or information to the AAT in accordance with a requirement of or under the Citizenship Act in relation to the AAT’s review of a decision, the Secretary must notify the AAT in writing that new section 52H applies to the document or information, and may give the AAT any written advice that the Secretary thinks relevant about the significance of the document or information.

 

160.      New subsection 52H(3) provides that, after the AAT has been notified in accordance with new subsection 52H(2), the AAT may have regard to any matter contained in the document, or to the information, for the purpose of exercising its powers in relation to the decision, and may, if the AAT thinks it appropriate to do so having regard to any advice given by the Secretary under new subsection 52H(2), disclose any matter contained in the document, or the information, to the applicant or to any other person who has given oral or written evidence to the AAT.

 

161.      New subsection 52H(4) provides that the AAT must give a direction under subsection 35(4) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) in relation to information about a matter if the Tribunal discloses the matter under new subsection 52H(3) of this section, and the AAT is satisfied that it is in the public interest that disclosure of the matter be prohibited or restricted.

 

162.      New subsection 52H(5) provides that subsection 35(5) of the AAT Act does not apply in considering whether to give a direction under subsection 35(4) of that Act in relation to a matter disclosed under new subsection 52H(3).

 

163.      The broad purpose of new section 52H is to create a framework for the management of sensitive and/or confidential documents and information in relation to the AAT’s review of a decision under the Citizenship Act where:

 

·          the Minister has certified that disclosing any matter contained in such a document, or disclosing such information, would be contrary to the public interest for any reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

·          the document, the matter contained in the document, or the information, was given to the Minister, or to an authorised Commonwealth officer, in confidence.

 

164.      The purpose of new subsection 52H(2) is to ensure that the AAT is aware that:

 

·          new section 52H applies to a document or information given to it in accordance with this new section; and

·          read together with new subsection 52H(1):

                                                              i.       the Minister regards the disclosure of any matter in the document or information as being contrary to the public interest for the reason set out in the certificate; or

                                                            ii.       the information was disclosed in confidence to the Minister or an authorised Commonwealth officer.

 

165.      The purpose of new subsection 52H(3) is to give the AAT a discretion, once notified by the Secretary, to:

 

·          have regard to any matter contained in the document, or to the information, for the purpose of exercising its powers in relation to the decision; and

·          disclose any matter contained in the document, or the information, to the applicant or to any other person who has given oral or written evidence to the AAT in relation to the decision, where the AAT considers it appropriate to do so (having regard to any advice given by the Secretary under new subsection 52H(2)).

 

 

166.      If the AAT does disclose the information under new subsection 52H(3), it must give a direction under subsection 35(4) of the AAT Act in relation to the information if it is the public interest to do so. Subsection 35(4) of the AAT Act gives the AAT the power to give directions prohibiting or restricting the publication or other disclosure of information that:

 

·          relates to a proceeding; and

 

·          is information that comprises evidence or information about evidence and/or is information lodged with or given to the AAT.

 

167.      The purpose of new subsection 52H(4) is to require the AAT to give a direction to restrict or prohibit the publication or further disclosure of the information, if the AAT is satisfied that it is in the public interest that disclosure of the matter should be prohibited or restricted. The purpose of new subsection (5) is to ensure that the test the AAT applies when giving a direction is to consider whether it is the public interest, rather than the test set out in subsection 35(5) of the AAT Act .

 

Section 52J          General provisions relating to sections 52G and 52H

 

168.      New subsection 52J(1) provides that, for the purposes of the review of a decision by the AAT, new sections 52G and 52H are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the information or documents to which those sections apply. The purpose of this subsection is to clarify that the natural justice requirements are codified in new sections 52G and 52H.

 

169.      New subsection 52J(2) provides that new sections 52G and 52H apply despite any provision of the AAT Act . This is to ensure that new sections 52G and 52H take primacy over any provisions of the AAT Act.

 

Item 6             Before subsection 53(1)

 

170.      This item inserts the new subheading ‘Delegation by the Minister’ before current subsection 53(1). This is a technical amendment, consequential to the amendment made to section 53 by item 7 of this Schedule.

 

171.      Current subsection 53(1) establishes a power for the Minister to delegate (by writing) to any person all or any of the Minister’s functions or powers under the Citizenship Act or the Citizenship Regulation. New subsection 53(3) establishes a corresponding power for the Secretary of the Department to delegate (by writing) to any person all or any of the Secretary’s functions or powers under the Citizenship Act or the Citizenship Regulation.

 

172.      The insertion of the new heading ‘Delegation by the Minister’ operates to differentiate current subsections 53(1) and (2) that relate to the Minister’s power from the new subsections 53(3) and (4) inserted by item 7 of this Schedule as they relate to the Secretary’s power.

 

Item 7             At the end of section 53

 

173.      This item inserts new subsection 53(3) to establish a power for the Secretary of the Department to delegate (by writing) any of the Secretary’s functions or powers under the Citizenship Act or the Citizenship Regulation. This would apply to the Secretary’s powers and functions under the new non-disclosure certificate provisions being inserted by this Bill. The only other powers or functions in the Act provided to the Secretary are also conferred on relevant employees of the Department so the power to delegate would not be relevant to those powers and functions. The ability for the Secretary’s powers in relation to non-disclosure certificates to be delegated will align with similar provisions in the Migration Act regarding processes for non-disclosure certificates. The number of cases seeking merits review on the basis of a refusal of citizenship application is envisioned to be on a scale where delegation would be appropriate for the foreseeable future. The delegation of the Secretary’s obligations in new sections 52G and 52H is also appropriate given that the obligations include obligations of an administrative nature, for example, giving documents to the AAT which the Minister has relevantly certified and notifying the AAT of the application of section 52H. For this reason, it is not considered necessary to limit the delegation of the Secretary’s powers to SES staff within the Department. Relevant training and guidance will also be provided to delegates to ensure the integrity of this process.

 

174.      This item also inserts new subsection 53(4). New subsection 53(4) expressly provides that section 53 of the Australian Border Force Act 2015 (the ABF Act) does not apply in relation to a function or power under the Citizenship Act. Although section 53 of the ABF Act establishes a power for the Secretary to delegate any of his or her functions or powers under a law of the Commonwealth, the purpose of this amendment is to give primacy to the delegation powers in amended section 53 of the Citizenship Act, for the purposes of that Act.

 

Item 8             Application provision

 

175.      This item provides that new sections 52G to 52J of the Citizenship Act, as inserted by item 5 in this Schedule, apply in relation to applications to the AAT made after commencement of this item, for review of decisions, whether the decisions were made before or after the commencement of this item.

 

 

 

ATTACHMENT A

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the

Human Rights (Parliamentary Scrutiny) Act 2011

 

Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

                                

Overview of the Bill

 

The Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020 (the Bill) amends both the Migration Act 1958 (the Migration Act) and the Australian Citizenship Act 2007 (the Citizenship Act).

The Bill amends the Migration Act to protect disclosure of confidential information provided by gazetted intelligence and law enforcement agencies where the information is used for decisions made to refuse or cancel a visa on character grounds, or revoke or set aside such decisions (Protected Information).

This part of the Bill responds to the High Court decision in Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection [2017] HCA 33 ( Graham and Te Puia ). In that decision, the High Court held that the Minister cannot be prevented from being required to divulge certain information to the High Court (when exercising its jurisdiction under paragraph 75(v) of the Constitution) or to the Federal Court (when exercising its jurisdiction under paragraph 476A(1)(c) and subsection 476A(2) of the Migration Act) in order to review a purported exercise of power by the Minister to refuse or cancel a visa on character grounds, or revoke or set aside such a decision, under sections 501, 501A, 501B and 501C of the Migration Act.

In response to the specific issues raised in Graham and Te Puia , the Bill amends the Migration Act to introduce a Protected Information framework, which will:

• provide that the High Court, the Federal Court or the Federal Circuit Court may order the Minister to produce or give in evidence Protected Information where the Court is satisfied that it is Protected Information and the production of it is for the purposes of substantive proceedings related to a decision to refuse or cancel a visa on character grounds, or revoke or set aside such a decision;

• if such an order is made, permit any person who is aware of the content of the Protected Information to make submissions to the Court concerning the use that the Court may make of the Protected Information, and any impact disclosing it would have on the public interest unless the content of the Protected Information was acquired unlawfully or in circumstances that would found an action for breach of confidence (whether or not the party was the person who acquired the content unlawfully or in those circumstances) ;
• for the purposes of hearing submissions about the use and impact of the Protected Information, provide that the Court must order that the applicant, or any other party to the proceedings, or their legal representatives, must not attend that hearing unless the applicant or the party is permitted to make submissions on the Protected Information to the Court . The Court may also order that no report of the part of the proceedings that relates to the Protected Information is to be published, and no person, without the consent of the Court, has access to a file or a record of the Court that contains the Protected Information;
• require the High Court, the Federal Court or the Federal Circuit Court to determine whether disclosing Protected Information would create a real risk of damage to the public interest, having regard to any of an exhaustive list of factors that the court considers relevant;
• if the High Court, the Federal Court or the Federal Circuit Court determines that disclosing the Protected Information would create a real risk of damage to the public interest, prevent the Court from disclosing the Protected Information to any person, including the applicant, any other party to the proceedings, their legal representatives and any other person who seeks access to a file or record of the Court that contains the Protected Information; and
• allow the High Court, the Federal Court or the Federal Circuit Court to give such weight to the Protected Information as the Court considers appropriate in the circumstances, taking into account any submissions made to the Court.

The Bill also amends the Migration Act to introduce new provisions to:

·          amend the definition of non-disclosable information to include Protected Information where the disclosure of such information would, in the Minister’s opinion, be contrary to Australia’s national interests;

·          provide that an officer performing functions under the Migration Act or Citizenship Act commits an offence if Protected Information is communicated to them and they disclose it to another person, other than in certain circumstances provided for by the provisions to be inserted by the Bill;

·          provide that a Commonwealth officer commits an offence if Protected Information is disclosed to them pursuant to a declaration by the Minister subject to conditions, and they engage in conduct, or omit to engage in conduct, and that conduct or omission contravenes a condition attached to the declaration; and

·           ensure that the Protected Information framework has effect despite any provisions of the Migration Act or Migration Regulations 1994, any law of the Commonwealth and any law of a State or Territory.

The Bill also amends the Citizenship Act to introduce provisions (which are substantially similar to the provisions in the Migration Act described above) in order to protect Protected Information where the information is used for:

·          decisions to:

o    refuse to approve an application for citizenship;

o    cancel an approval of citizenship;

o    delay the making of the pledge by a conferral applicant who has had their application approved;

o    revoke a person’s citizenship;

o    make a determination by the Minister to cease a person’s Australian citizenship if the person has engaged in specified conduct;

o    make a determination by the Minister to cease a person’s Australian citizenship if the person has been convicted of a specified offence (and sentenced to at least 3 years’ imprisonment);

·          renunciations of citizenship by conduct;

·          cessation of citizenship for service outside Australia in armed forces of an enemy country or a declared terrorist organisation.

The Bill further amends the Citizenship Act to create a framework for the management of the disclosure to, and by, the Administrative Appeals Tribunal of information that has been certified by the Minister to be contrary to the public interest for specified reasons, or that was provided in confidence. The Bill also creates a power for the Secretary of the Department of Home Affairs to delegate any of his functions or powers under the Citizenship Act and the Australian Citizenship Regulation 2016 (the Citizenship Regulation) in writing to any person.

Finally, the Bill makes consequential amendments to the Freedom of Information Act 1982 and the Inspector of Transport Security Act 2006.

Human rights implications

 

The amendments have been assessed against the seven core international human rights treaties.

This Bill engages the following rights:

·          The right to freedom of expression (to seek and receive information) in Article 19(2) of the International Covenant on Civil and Political Rights (ICCPR);

·          The right to liberty in Article 9 of the ICCPR; and

·          The right to equality before the courts and tribunals in Article 14(1) of the ICCPR.

 

Freedom of Expression

Article 19 of the ICCPR provides that:

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries

with it special duties and responsibilities. It may therefore be subject to certain

restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of

public health or morals.

The right to seek, receive and impart information under Article 19(2) may be engaged since the person who has had a visa or cancellation decision made, wholly or partially based upon Protected Information, may not be able to receive that information.

However, the classification of information as Protected Information for the purposes of judicial proceedings will be subject to judicial oversight, ensuring that the limitation of this right is only to the extent necessary to protect the public interest.

In practice, law enforcement and intelligence agencies provide information to the Department of Home Affairs (the Department) on the basis that it can be protected from disclosure to any other person or body. Confidential information has informed many decisions involving non-citizens of serious character concern, including, for example, outlaw motorcycle gang members, without which the Department would not have had sufficient information to underpin a cancellation or refusal decision.

The balance reflected in the Bill encourages law enforcement agencies to continue to provide confidential information to the Department and the Minister to make fully informed decisions in the refusal or cancellation of visas or citizenship on character grounds to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. It does so by protecting from disclosure, confidential information that is critical to assessing the criminal background or associations of non-citizens in character-related decision-making.

The Bill is a reasonable response, allowing fairness in decision-making while protecting the public interest. A Court may order the Minister to disclose confidential information to it if it is satisfied that the information has been supplied by gazetted law enforcement or intelligence agencies, and the production or giving of the information is for the purposes of proceedings before the Court relating to an exercise of power as specified in the Bill (see new paragraphs 52A(1)(b) and 503A(1)(b)). If the Minister is ordered to disclose confidential information to the Court in this way, the Court must determine whether disclosing the information further would create a real risk of damage to the public interest, having regard to a series of matters (and only those matters) prescribed in the Bill and any submissions made on the impact of disclosure. If the Courts determine there is such a risk to the public interest, it must not disclose the information any further to any person. This allows independent judicial oversight of decisions made by the Minister or delegate and ensures the limitation on the right to freedom of expression is only to the extent necessary to protect the public interest. This is particularly because the current framework which protects against the harmful disclosure of confidential information (which is designed to protect national security related 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 Bill upholds the protection of confidential information regarding individuals who pose an unacceptable risk to the Australian community and who consequently have their citizenship refused or revoked, or a visa refused or cancelled.

The Bill may also restrict the right to freedom of expression as it creates an offence for Commonwealth officers to make unauthorised disclosures of confidential information. This restriction is consistent with Article 19(3) as it is prescribed by law and is necessary for the protection of public order, by preserving robust information- and intelligence- sharing relationships between the Department and gazetted agencies.

 

Right to liberty

Article 9 of the ICCPR states:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

The Bill may also engage the right to liberty as it creates an offence for Commonwealth officers to make unauthorised disclosures of confidential information.

The offence is punishable by up to two years’ imprisonment. Any deprivation of liberty as a result of this offence would follow conviction and sentencing by a court and therefore be in accordance with the law and not arbitrary. Introducing this potential punishment for persons convicted of making unauthorised disclosures of confidential information is not arbitrary as it is a reasonable and proportionate response. This measure is designed to protect sensitive and confidential information communicated by gazetted agencies from being disclosed. It is important for the Department to maintain robust information- and intelligence-sharing relationships with gazetted agencies in order to uphold Government policy to maintain the integrity of Australia’s border protection framework, to protect the Australian community, and to uphold the integrity of Australia’s migration and citizenship framework. 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.

Right to equality before courts and tribunals

Article 14(1) of the ICCPR provides that:

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

The Bill engages the right to equality before courts and tribunals because a person’s entitlement to a fair and public hearing may be limited by their exclusion from hearings, if they are not already aware of the contents of the confidential information, and the restriction on non-disclosable information being shared with them, under sections in both the Migration Act and the Citizenship Act.

The limitation on this right is reasonable, proportionate and justified to protect not only the confidential information itself, but the methodologies, priorities and capabilities of law enforcement agencies in obtaining that information, for the legitimate aim of protecting the public interest. Disclosure of confidential information has the potential to expose broader intelligence and law enforcement capabilities and jeopardise ongoing law enforcement or intelligence activities—such as targeted operations that are not in the public domain.

The Bill is necessary to ensure the Department is able to uphold law enforcement capability by providing assurance that any confidential information provided, and its source, are appropriately protected. The current framework in the National Security Information (Criminal and Civil Proceedings) Act 2004 is designed to protect national security information. This Bill will ensure that, similarly, confidential law enforcement information that is critical to character-related visa and citizenship decisions, such as a person’s criminal background or associations, is also protected from disclosure, to ensure the protection of the Australian community from non-citizens of serious character concern.

The Minister retains the ability to claim public interest immunity, however, the threshold for public interest immunity does not adequately protect the type of confidential information used in character-related decisions. This means there is a real risk of the Administrative Appeals Tribunal or the Courts divulging the confidential information - and its source - to other parties, including the non-citizen.

The Bill restores confidence of law enforcement agencies and sources providing confidential information by preventing disclosure to the Administrative Appeals Tribunal, and/or requiring the Courts to consider the potential damage to the wider concept of public interest, not only national security, in determining whether to order onward-disclosure.

The Bill strikes a balance in preserving the right to a fair and public hearing in visa and citizenship decision-making, while protecting disclosure of confidential information as assessed independently by the Courts as posing a real risk to the public interest.

Even where information has not been disclosed to the Administrative Appeals Tribunal under the current non-disclosure provisions of the Migration Act, or under the provisions to be replicated in the Citizenship Act by this Bill, on appeal the Courts may order the Minister to disclose the confidential information to it. The Minister or any other party to the relevant litigation, who also has prior knowledge of the contents of the confidential information can provide submissions to the court about the use of the information and the impact that onward-disclosure would have, unless the content of the information was acquired unlawfully or in circumstances that would found an action for breach of confidence. Any person who the Court is satisfied may not make submissions or tender evidence (such as the applicant and their legal representative) would be excluded from these hearings.

The Courts must determine, after considering the information and any submissions made, whether onward-disclosure would create a real risk of damage to the public interest. If the court determines there is such a risk, it must not disclose the information any further to any person.

Decisions to refuse or cancel a visa or to refuse or revoke citizenship on character grounds are made in accordance with the Migration Act and the Citizenship Act. This Bill does not amend the relevant procedures and review mechanisms available in respect of those types of decisions in the Migration Act and the Citizenship Act. The processes are in accordance with the procedural requirements and review of the decisions is available - merits review by the Administrative Appeals Tribunal and/or judicial review for decisions made by a delegate, and judicial review of decisions made by the Minister personally.

This right is also engaged by the new offence for Commonwealth officers to make unauthorised disclosures of confidential information. The Bill provides that the Minister for Home Affairs (after consulting the gazetted agency) may disclose confidential information in specified circumstances, including to a court or tribuna l. This means that the confidential information may be lawfully disclosed during criminal proceedings, including for pursuing the new offence relating to Commonwealth officers making unauthorised disclosures of confidential information. The confidential information can only be used in criminal proceedings if the Minister (after consulting the gazetted agency) chooses to disclose it. This restriction on disclosure of confidential information for the purpose of criminal prosecution is necessary to protect the capability of law enforcement agencies and the public interest as described above. Should the Minister refuse to disclose the information, any limitation on the right to equality before the courts is mitigated by the fact that, in order to proceed, there must be sufficient evidence of the alleged offence as considered by the court or by the Commonwealth Director of Public Prosecutions for the prosecution to proceed fairly. If there is not sufficient evidence for prosecution to proceed fairly, courts may exercise their inherent powers to take appropriate action, such as discontinuing prosecution, to prevent injustice.

 

Conclusion

The Bill is for the legitimate purpose of protecting and upholding the good order of the Australian community and is compatible with human rights. The amendments made to the Migration Act and the Citizenship Act by the Bill will ensure that law enforcement and intelligence agencies will continue to share confidential information with the Department to inform character-related immigration and citizenship decisions, without the risk that such information will become public. To the extent that these amendments may limit human rights, the Government considers those limitations are reasonable, necessary and proportionate.

 

 

 

The Hon. Peter Dutton MP, Minister for Home Affairs