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Migration Amendment (Validation of Decisions) Bill 2017



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BILLS DIGEST NO. 24, 2017-18 4 SEPTEMBER 2017

Migration Amendment (Validation of Decisions) Bill 2017 Claire Petrie Law and Bills Digest Section

Contents

Purpose of the Bill ............................................................... 2

Background ......................................................................... 2

Section 503A ............................................................................ 2

History of the provision ......................................................... 2

Who is a ‘gazetted agency’? .................................................. 3

High Court challenge ............................................................... 3

Background to cases .............................................................. 3

Arguments regarding validity ................................................ 4

Infringement on separation of powers ............................... 4

Original jurisdiction of the High Court ................................ 4

Counter-arguments ............................................................. 5

Committee consideration .................................................... 5

Senate Standing Committee on Legal and Constitutional Affairs ...................................................................................... 5

Senate Standing Committee for the Scrutiny of Bills .............. 5

Policy position of non-government parties/independents ..... 5

Position of major interest groups ......................................... 6

Financial implications .......................................................... 6

Statement of Compatibility with Human Rights .................... 6

Parliamentary Joint Committee on Human Rights .................. 6

Key issues and provisions..................................................... 7

Retrospective validation ........................................................ 7

Date introduced: 21 June 2017

House: House of Representatives

Portfolio: Immigration and Border Protection

Commencement: On the day after the Act receives Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at

September 2017.

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Purpose of the Bill The purpose of the Migration Amendment (Validation of Decisions) Bill 2017 (the Bill) is to amend the Migration Act 1958 (Cth) (the Act) to safeguard the validity of character decisions made by the Department, in the case of a successful High Court challenge to the validity of section 503A of the Act.

Background Section 503A Section 503A applies to a range of decisions made under the Migration Act to cancel or refuse to grant a visa on the basis that a person does not pass the character test.1 It prohibits an authorised migration officer2 from communicating or divulging certain information where:

• a gazetted agency communicates the information to the officer on the condition that it be treated as confidential information and

• the information is relevant to the exercise of a power under one of the character provisions.

Information falling into this category cannot be divulged to any person or body except the Minister or another authorised migration officer—it cannot be provided to the visa holder or applicant, a court, tribunal, parliament or parliamentary committee.3 The Minister has the power to authorise the disclosure of information to a specified Minister, Commonwealth officer, court or tribunal, but is required to consult with the relevant gazetted agency before doing so.4 The Minister’s discretion to consider whether to authorise disclosure is not compellable, meaning that a failure to do so cannot be subject to review.5

The effect of the provision is that where the Minister or a delegate decides to refuse or cancel a visa on character grounds based on information captured by this section, this information cannot be provided to the visa holder or visa applicant. The Federal Court has noted that the purpose of section 503A:

… is to remove what would otherwise be an entitlement to natural justice, or procedural fairness, for a person who is subject to the application of the character test in relation to an application for a visa or the consideration of the cancellation of an existing visa. There is little doubt that, on the application of the ordinary principles of natural justice, an applicant for a visa, or a person whose visa the Minister is considering cancelling, and whose character is in issue, would be entitled to adequate notice of, and an opportunity to respond to `adverse information that is credible, relevant and significant to the decision to be made'.

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Similarly, the information cannot be provided to a tribunal or court as part of the appeals process for a cancellation/refusal decision, unless the Minister decides to authorise the disclosure to such a body.

History of the provision Section 503A was first inserted into the Act in 1998, as part of a suite of amendments which largely established the character test in its current form.7 At the time of its introduction, then-Minister for Immigration and Multicultural Affairs, Phillip Ruddock explained that section 503A would better facilitate the sharing of criminal intelligence and related information, as:

… at present, it is difficult for my department to use such information in making character decisions because its disclosure might be threatened. Australian and international law enforcement agencies are reluctant to provide sensitive information unless they are sure that both the information and its sources can be protected. Greater

1. That is, decisions made under sections 501, 501A, 501B, 501BA, 501C or 501CA of the Migration Act. 2. An authorised migration officer is defined as a Commonwealth officer whose duties consist of, or include, the performance of functions, or the exercise of powers, under the Migration Act, subsection 503A(9). 3. Migration Act, subsections 503A(1) and (2). Non-disclosure extends to the identity of the gazetted agency and the conditions on which the

information was disclosed: section 503D. 4. Ibid., subsection 503A(3). 5. Ibid., subsection 503A(3A). 6. Evans v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 306, [2003] FCAFC 276 at paragraph 13. 7. Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998.

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protection for such material would complement broader national and international strategies to counter transnational crime and the activities of those associated with it. 8

Prior to 2003, information disclosed to a court under subsection 503A(3) could be prevented from further disclosure if the court upheld a claim of public interest immunity under common law.9 Amendments made by the Migration Legislation Amendment (Protected Information) Act 2003 codified procedures by which the courts may issue a non-disclosure order over confidential information.10 On application by the Minister, the Federal Court or Federal Circuit Court may make a non-disclosure order which prevents access by an applicant in the relevant substantive proceedings, a legal representative of the applicant, or any other member of the public.11

In considering whether to make such an order the Court must consider an exhaustive list of matters set out in subsection 503B(5), including: the fact of the information having been originally communicated on the condition of confidence, and the possibility of disclosure discouraging future disclosures; Australia’s national security and international relations; the need to avoid disruption to national and international law enforcement, intelligence and criminal investigation efforts; the protection and safety of informants (where applicable); and the interests of the administration of justice.12

Who is a ‘gazetted agency’? A gazetted agency is defined as:

• an Australian law enforcement or intelligence body specified by the Minister in a notice in the Gazette

• a foreign law enforcement body for a country which is specified by the Minister in a notice in the Gazette or

• a war crimes tribunal.13

The most recent Gazette notice, which commenced on 1 April 2016, specifies 42 Australian agencies or bodies as well as 285 foreign law enforcement countries (or parts of foreign law enforcement countries) for the purposes of section 503A.14 Specified Australian agencies include Commonwealth intelligence agencies, the AFP and state and territory police, as well as government departments such as the Australian Taxation Office, Department of Human Services, Department of Social Services and state and territory departments of community services and correctional services.15

High Court challenge The Bill is aimed at safeguarding decisions which have been made on the basis of information protected by section 503A, in light of a challenge to the validity of the provision in two related matters before the High Court of Australia—Graham v Minister for Immigration and Border Protection (Graham) and Te Puia v Minister for Immigration and Border Protection (Te Puia).16 A hearing for both matters took place on 30 March 2017, with the Court reserving its decision. The decision remains pending at the time of writing.17

Background to cases In the matter of Graham, the plaintiff is a New Zealand citizen who has been resident in Australia since 1976. In 2009 he was sentenced to 15 months’ imprisonment for assault offences. He has also been a member of the Rebels Motor Cycle Club.18 His visa (a Special Category (Temporary) visa available only to New Zealand citizens)

8. P Ruddock (Minister for Immigration and Multicultural Affairs), ‘Second reading speech: Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1997’, House of Representatives, Debates, 30 October 1997, p. 10364. 9. For further discussion, see: S Sen, Migration Legislation Amendment (Protected Information) Bill 2002, Bills digest, 135, 2002-03, Department of the Parliamentary Library, Canberra, 2003. 10. Migration Legislation Amendment (Protected Information) Act 2003, proposed sections 503B (permanent non-disclosure orders) and 503C

(interim non-disclosure orders). 11. Migration Act, subsection 503B(1). 12. Ibid., subsection 503B(5). 13. Migration Act, subsection 503A(9). 14. ‘Notice under section 503A of the Migration Act 1958—16/001’. 15. Ibid., Schedule 1. 16. High Court of Australia (HCA), ‘Case M97/2016: Graham v Minister for Immigration and Border Protection’, HCA website;

HCA, ‘Case P58/2016: Te Puia v Minister for Immigration and Border Protection’, HCA website. 17. Ibid.

18. Graham v Minister for Immigration and Border Protection (2016) 246 FCR 439, [2016] FCA 682, at paragraphs 2-3.

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was initially cancelled by the Minister in June 2015, but the cancellation was held to be invalid by the Federal Court in June 2016.19 Immediately following the Federal Court’s decision, the Minister again cancelled the plaintiff’s visa under subsection 501(3) of the Migration Act, which allows the Minister to cancel or refuse to grant a visa on character grounds where satisfied that doing so is in the national interest, without a requirement to afford natural justice. The Minister provided a statement of reasons which referred to certain information protected from disclosure under section 503A.20

In the matter of Te Puia, the plaintiff is also a New Zealand citizen, and has been resident in Australia since May 2005, holding a Special Category (Temporary) visa. The Minister cancelled the visa in October 2015 on character grounds, on the basis of the plaintiff’s membership ‘of a group or organisation … [which] has been or is involved in criminal conduct’.21 Prior to the decision being made, the Department had provided the Minister with a submission inviting him to consider whether to cancel the visa, with an attachment protected from disclosure under section 503A.22

Both plaintiffs have sought a writ of prohibition preventing the Minister from acting upon his decision to cancel the visas, and a writ of certiorari quashing the Minister’s decision, on the basis that subsections 501(3) and/or 503A(2) of the Migration Act are invalid. In November 2016 the cases were removed from the Federal Court in order to be considered by the High Court.23

Arguments regarding validity The plaintiffs have challenged the validity of the legislative scheme (namely, section 503A and subsection 501(3)) on two key grounds.

Infringement on separation of powers Firstly, they have claimed that the scheme infringes the separation of powers, by authorising an impermissible level of Executive interference with the exercise of judicial power. According to the plaintiffs’ submissions, in reviewing a decision based on information protected by section 503A, the Court is confined to determining whether a number of objective facts exist, that is:

• whether the information was communicated by a gazetted agency to an authorised migration officer

• whether it was communicated on the condition that it be treated as confidential information and

• whether the information was relevant to the exercise of the Minister’s powers under sections 501, 501A, 501B, 501BA, 501C or 501CA.24

The Court does not have the scope to consider whether confidentiality is required in the particular circumstances of the case, or to weigh up competing public interest considerations.25 Furthermore, there is no requirement that information relevant to the exercise of power being reviewed be produced to the court.26 The plaintiffs have argued that this undermines the Court’s ability to exercise its judicial function, requiring it to depart ‘from the methods and standards which have historically characterised the exercise of judicial power’.27

Original jurisdiction of the High Court Secondly, the plaintiffs have argued that the legislative scheme is inconsistent with subsection 75(v) of the Constitution, which provides the High Court with an entrenched jurisdiction to conduct judicial review of administrative actions for jurisdictional error. They claim that the practical effect of the scheme is to impair the

19. Graham v Minister for Immigration and Border Protection [2016] FCA 682; HCA, ‘Short particulars: Graham v Minister for Immigration and Border Protection’, HCA website. 20. HCA, ‘Short particulars: Graham v Minister for Immigration and Border Protection’, op. cit. 21. ‘P58/2016: Applicant’s annotated submissions’, HCA website, 12 December 2016, pp. 1-2; HCA, ‘Short particulars: Te Puia v Minister for

Immigration and Border Protection’, HCA website. 22. HCA, ‘Short particulars: Te Puia v Minister for Immigration and Border Protection’, op. cit. 23. Ibid.

24. ‘M97/2016: Plaintiff’s annotated submissions’, HCA website, 12 December 2016, p. 3. 25. Ibid., pp. 13-14. 26. Ibid., p. 14. 27. Ibid., p. 6, citing Thomas v Mowbray (2007) 233 CLR 307, [2007] HCA 33.

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judicial review of administrative action by withholding information from the court that is relevant to the exercise of power the court is attempting to review.28

Counter-arguments In their submission to the High Court, the Minister for Immigration and Border Protection (as the defendant) and the Attorney-General (as an intervening party) rejected the argument that the provision infringed on the Constitutional separation of powers, stating that section 503A can be seen to be a:

… conventional exercise of Parliament’s well-established power to strike a balance of competing public interests for and against the disclosure of particular kinds of information.

… The balance reflected in s 503A encourages law enforcement agencies to provide information to the Minister so as to facilitate fully informed decisions as to the grant or refusal of visas on character grounds, thereby advancing the objects in s 4 of the [Migration Act]. 29

The Commonwealth argued that the court remains the ‘final arbiter’ of whether the statutory criteria on which the section 503A immunity is enlivened are satisfied—although these criteria do not require the court to make its own assessment as to how competing public interest considerations should be balanced, the Constitution does not mandate that the court perform this role.30

The Commonwealth’s submission acknowledged that the provision creates a ‘forensic impediment to success’ for an applicant who seeks review of a matter before the courts, but argued that section 503A does not exclude judicial review or strike at any essential characteristic of a court.31 It drew the distinction between a law that would deprive a court of its supervisory jurisdiction and a law that ‘regulates, structures, guides or informs’ the court’s exercise of its jurisdiction.32 It further argued that the Constitution does not require that a court must have access to all material relevant to an issue to be litigated before it.33

Committee consideration Senate Standing Committee on Legal and Constitutional Affairs The Bill has been referred to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry and report by 4 September 2017. Details can be found at the inquiry homepage.

Senate Standing Committee for the Scrutiny of Bills The Scrutiny of Bills Committee reported on the Bill on 9 August 2017, and raised concerns about the retrospective validation of decisions.34 These concerns are discussed in more detail below.

Policy position of non-government parties/independents The Australian Labor Party supported the passage of the Bill through the House of Representatives. In a second reading speech, Shadow Minister for Immigration and Border Protection, Shayne Neumann stated:

Labor has consistently demonstrated our bipartisan commitment to keeping Australia and Australians safe. It’s absolutely crucial to protect the ability of our law enforcement agencies and intelligence bodies to freely provide information to immigration ministers to make decisions. Labor wants to uphold the integrity of the Migration Act and ensure this Bill is absolutely watertight. That’s why this Bill has been referred to a short Senate inquiry with the timetable agreed with the government …

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28. ‘M97/2016: Plaintiff’s annotated submissions’, op. cit., p. 16. 29. ‘M97/2016 Annotated submissions of the defendant and the Commonwealth Attorney-General (intervening)’, HCA website, 25 January 2017, pp. 8-9. 30. Ibid., p. 1. 31. Ibid., p. 9. 32. Ibid., p. 15. 33. Ibid., p. 2. 34. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 8, 2017, The Senate, 9 August 2017, pp. 15-17. 35. S Neumann (Shadow Minister for Immigration and Border Protection), ‘Second reading speech: Migration Amendment (Validation of

Decisions) Bill 2017’, House of Representatives, Debates, (proof), 16 August 2017, p. 35.

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The Australian Greens did not support the Bill in the House of Representatives. Independents Cathy McGowan and Andrew Wilkie also voted against the Bill.36

Position of major interest groups The Law Council of Australia and Refugee Legal have raised concerns with the Bill in submissions to the Senate Inquiry. The Law Council recommended that the Bill should not be passed until the High Court issues its decision in the matters of Graham and Te Puia, in order to ‘fully determine and understand the consequences of the Bill and the subsections of the existing Act and their impact’.37 It expressed particular concern about the Bill’s retrospective application, and suggested that depending on the High Court’s decision, this may deny individuals the opportunity to have their cases reconsidered lawfully.38

Refugee Legal recommended that the Bill not be passed, arguing that it ‘amounts to an entirely inappropriate and profoundly concerning encroachment on the jurisdiction of the courts and is fundamentally inconsistent with the separation of powers’.39 It claimed that by purporting to pre-emptively negate the legal implications of a High Court ruling, the proposed amendment offends the principle of separation of powers, noting that the judiciary’s independence is:

… undermined if the legislature purports to prevent the judiciary from examining the legality of the conduct of those who are bound by those rules of law. 40

Financial implications The Explanatory Memorandum states that the Bill will have a low financial impact.41

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.42

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights (PJCHR) reported on the Bill in its eighth Scrutiny Report of 2017. It raised questions about the Bill’s compatibility with a number of human rights, including the right to due process prior to expulsion; right to liberty; right to protection of the family; right to non-refoulement; right to freedom of movement and the right to an effective remedy.43 While acknowledging that the rationales provided in the Statement of Compatibility—to ensure the safety of the Australian community and the integrity of the migration programme—were capable of constituting legitimate objectives for the purposes of international human rights law, the Committee stated:

… the measure seeks to validate administrative decisions made with regard to information which was not disclosed to the affected person, and could not be effectively tested in a court for reliability, relevance or accuracy. The effectiveness of the measure to ensure the safety of Australians and the integrity of the immigration system is therefore questionable.

44

The Committee requested further information from the Minister on a number of these matters. Further concerns are discussed below.

36. Australia, House of Representatives, ‘Migration Amendment (Validation of Decisions) Bill 2017’, Votes and proceedings, HVP 70, 16 August 2017; also see P Billings, ‘Greens alarm over security laws push’, The Mercury, 15 August 2017, p. 8. 37. Law Council of Australia, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Migration Amendment (Validation of Decisions) Bill 2017 [Provisions], The Senate, 25 August 2017, pp. 4-5. 38. Ibid., p. 7. 39. Refugee Legal, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Migration Amendment

(Validation of Decisions) Bill 2017 [Provisions], The Senate, 25 August 2017, 24 August 2017, p. 1. 40. Ibid., p. 3. 41. Explanatory Memorandum, Migration Amendment (Validation of Decisions) Bill 2017, p. 1. 42. The Statement of Compatibility with Human Rights can be found at pp. 5-8 of the Explanatory Memorandum to the Bill. 43. Parliamentary Joint Committee on Human Rights (PJCHR), Scrutiny report, 8, 2017, 15 August 2017, pp. 32-43. 44. Ibid., p. 37.

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Key issues and provisions The Bill has one provision: item 1 inserts proposed section 503E into the Act. This provides that if:

• section 503A is not a valid law of the Commonwealth (either in part or in whole) and

• the Minister made a decision under section 501, 501A, 501B, 501BA, 501C or 501CA before the commencement of the proposed section

then the decision is not invalid, and is taken to have never been invalid, solely because the Minister:

• relied on, had regard to or failed to disclose information covered (or purportedly covered) by section 503A or

• made the decision on the basis of an erroneous understanding of section 503A or the protection the section provided against an obligation to disclose information.45

Proposed subsection 503E(2) states that this amendment does not affect the rights and liabilities of parties to proceedings in which judgment is reserved by a court at the date of commencement, or where a court has delivered a judgment prior to commencement, which set aside or declared invalid a decision of the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA.

The proposed amendment is aimed at safeguarding decisions previously made on the basis of information protected by section 503A, from being found invalid if the High Court invalidates section 503A. In his second reading speech introducing the Bill, Michael McCormack stated:

Should the High Court find any part of section 503A invalid, there is a real risk that such an outcome could result in several non-citizens of serious character concern being released from immigration detention into the Australian community, or being allowed to return to Australia where they are currently offshore.

These would present an unacceptable risk to the Australian community and would understandably undermine public confidence in the integrity of Australia's migration framework. 46

The proposed amendment applies only to decisions made before the commencement of proposed section 503E—it does not work to validate future decisions made in reliance on section 503A information.

This means that a decision by the Minister based on section 503A information, made after the commencement of the provision but before the High Court issues its decision (if the latter event does not occur first), will not be protected in the event that the Court invalidates all or part of section 503A.

Retrospective validation The Scrutiny of Bills Committee has raised concerns about the retrospective operation of proposed section 503E in light of the significant consequences of decisions made in connection with information protected by section 503A.47 One such consequence is that the Migration Act expressly prohibits a person whose visa is cancelled, or whose visa application is rejected, on character grounds, from applying for another visa.48 A person who receives an adverse visa decision on character grounds based on information protection by section 503A, after exhausting any avenues for review will in most circumstances be unable to make a further visa application.

In its comments on the Bill, the Scrutiny of Bills Committee acknowledged that there may be cases in which legislation retrospectively validating administrative decisions is justified. It provided the example of where the invalidity has resulted from an administrative oversight that does not affect the substance of the power being exercised, such as an oversight relating to the appointment of the officer who made the decision.49 However, the Committee questioned whether such a provision was appropriate in relation to section 503A, noting that the issue under consideration by the High Court:

45. Proposed subsection 503E(1). 46. M McCormack (Minister for Small Business), ‘Second reading speech: Migration Amendment (Validation of Decisions) Bill 2017’, House of Representatives, Debates, 21 June 2017, p. 7191. 47. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, op. cit., p. 16. 48. Migration Act, section 501E. There is an exception for protection visas and any other visa type specified in the Migration Regulations 1994:

subsection 501E(2). However, section 48A of the Act prevents a person whose protection visa application is refused, or protection visa is cancelled, from making a subsequent protection visa application. 49. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, op. cit., p. 16.

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… is whether the non-disclosure provided for by current section 503A affects the proper administration of justice and strikes at the role of the court in granting a fair hearing. Deeming decisions reached in these circumstances to be valid, even though the decision applied or relied on a potentially unconstitutional provision, cannot, therefore, be characterised as curing a mere technical or administrative failing.

50

The Committee requested the Minister provide ‘detailed justification’ for seeking to retrospectively validate decisions made in these circumstances.51

In relation to the Bill’s impact, the Statement of Compatibility states that ‘this Bill will not prevent the affected non-citizens from individually challenging their decisions in a court’.52 In its submission to the Senate Inquiry, the Department further provided:

Persons who have had their visa cancelled, or visa application refused, on the basis of section 503A protected information will remain able to seek judicial review of their visa decision following the commencement of these amendments. The amendments will not affect any review rights afforded to non-citizens under law. 53

However, the PJCHR has noted that it is unclear on what basis an affected non-citizen would be able to challenge their visa cancellation or refusal in a court:

… indeed, the intent of the measure appears to be to preclude affected persons from successfully challenging visa cancellations or refusals made in reliance on information that was not disclosed pursuant to section 503A, in the event that section 503A is held to be invalid. 54

In the case of a High Court finding that section 503A was invalid, proposed section 503E would be likely to operate to protect any decisions made in reliance on section 503A prior to the commencement date, from being overturned by the courts on the basis of that invalidity. Additionally, as noted by the PJCHR, it is unclear whether the Bill would allow affected persons to access the information previously protected by section 503A, should the High Court invalidate or read down the provision.55

In its submission to the Senate Inquiry, Refugee Legal argued that allowing affected persons to access a fair hearing of their claims in the absence of section 503A would not necessarily mean that the relevant sensitive information previously protected by that section would be disclosed to the individual.56 It noted that common law public immunity protections require a careful balancing of national security, law enforcement and foreign policy considerations against the principle of a right to a fair hearing.57

50. Ibid.

51. Ibid., p. 17. 52. Explanatory Memorandum, Migration Amendment (Validation of Decisions) Bill 2017, op. cit., p. 6. 53. Department of Immigration and Border Protection, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Migration Amendment (Validation of Decisions) Bill 2017 [Provisions], The Senate, August 2017, p. 4.

54. PJCHR, Scrutiny report, op. cit., p. 37. 55. Ibid., pp. 42-43. 56. Refugee Legal, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Migration Amendment (Validation of Decisions) Bill 2017 [Provisions], op. cit., pp. 4-5.

57. Ibid.

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