Title Legal and Constitutional Affairs Legislation Committee
Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020
Database Senate Committees
Date 02-03-2021
Source Senate
Parl No. 46
Committee Name Legal and Constitutional Affairs Legislation Committee
Page 9
Questioner CHAIR
Carr, Sen Kim
Responder Dr Bibby
Ms Catallo
Mr Bibby
System Id committees/commsen/1daddb7c-0889-494d-ac53-0a3670548849/0002

Legal and Constitutional Affairs Legislation Committee - 02/03/2021 - Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020

BIBBY, Dr Martin, Convenor, Asylum Seeker Action Group, NSW Council for Civil Liberties [by video link]

CATALLO, Ms Angela, Committee Member, NSW Council for Civil Liberties [by video link]


CHAIR: I would now like to welcome representatives from the NSW Council for Civil Liberties. Thank you for taking time to give evidence today. Information on parliamentary privilege has been provided to you and is available from the secretariat. The committee has received your submission as submission 12. Do you wish to make any corrections to it?

Dr Bibby : [inaudible] have been raised by the Parliamentary Joint Committee on Human Rights, the Law Society and the Human Rights Commission. It infringes the right of persons to—

CHAIR: I'm sorry, Dr Bibby, before you go on, I was just asking whether you wished to make any corrections to your submission, submission 12. If not, do you have any comments to make on the capacity in which you appear?

Ms Catallo : I am the co-convenor of the Asylum Seeker Action Group.

CHAIR: Thank you. Could I ask you to make a brief opening statement before we go to questions.

Dr Bibby : Thank you. Objections to this bill have been raised by the Parliamentary Joint Committee on Human Rights, by the scrutiny committee, by the Law Society and by the Human Rights Commission, and they're very strong. The bill infringes the right of persons to know what is alleged against them. It infringes the principle of equality before the court. It infringes the principle that the state should not rely on secret evidence where a person's liberty is at stake. It infringes on the principle that governs our political system, the supremacy of parliament. Under the bill, once information is made protected, the people who are affected—applicants to the courts—cannot be told what that information is unless they know it legally. Nor can their counsel know. So they cannot demonstrate that it is mistaken or that there are factors that ought to have been taken into consideration so that the minister's decision was unreasonable. They cannot properly instruct their counsel. The court system cannot function fairly. It cannot function properly.

On the other hand, the minister and his representatives can use the information. It's true that the federal courts can reveal the information, but there are restrictions on what a court can take into account. The courts must consider not only national security but potential damage to the public interest and Australia's relations with other countries, and these are factual matters which would be determined by the minister. Other matters to be specified are the regulations. But, unless the regulations say otherwise, the courts are prevented from taking into account the impact upon the applicants or upon the administration of justice.

It's not as though these consequences are trivial. People whose visas are cancelled on character grounds get sent to their countries of citizenship irrespective of whether they have any means of support or even speak the language. Families can be broken up. If they are recognised refugees or their countries won't accept them, they lose their freedom and can be kept in detention for many years. Ten years of lost freedom is a huge penalty to pay in addition to any prison time served for an offence. While not taking a position on the matter, the High Court quoted that the plaintiff [inaudible] Te Puia was prevented from arguing that he was not a part of the Rebel bikie gang, that he had no knowledge of its criminal activities, that he did not participate in them, nor could he question how a cancellation of the plaintiff's visa would disrupt, disable and dismantle the criminal activities of outlaw motorcycle gangs.

As the Human Rights Committee notes:

Without being able to properly test the evidence and to receive submissions from the person to whom the information relates, it would appear very difficult for the court to effectively perform its judicial review task, including determining the appropriate weight to be given to the information in substantive proceedings … the court is prevented from disclosing even part of the confidential information, such as a summary of the information or a discrete element of the information, even in circumstances where partial disclosure could assist the court without creating a real risk of damage to the public interest. . As such, an applicant could be left in the situation of trying to challenge a decision without having any understanding of the reasons for which the decision was made.

The bill prevents disclosure to the ombudsman, Inspector-General of Intelligence and Security and the Commission for Law Enforcement Integrity. There's no provision for whistleblowers. State courts cannot use the information.

The Human Rights Commission says:

Effectively, the court is being asked to assess only one side of the test that would ordinarily be considered in a public interest immunity application. It may assess the strength of the Executive's claim that the information is confidential, but it may not assess whether disclosure of the information is necessary to achieve justice in the proceeding.

This is more than just placing a 'thumb on the scales' in an attempt to influence a particular outcome.

We think there is a more apt image: it is Justice, with her scales discarded, with one ear blocked and with a minister whispering secretly into the other.

CHAIR: Thank you very much. for that. Like what I addressed with the Visa Cancellations Working Group, has your organisation, the New South Wales Council for Civil Liberties, ever advocated for a measure which would expand or facilitate visa cancellation powers?

Mr Bibby : No. In fact our policy for a long time had been that the whole of section 501 of the Migration Act and the associated sections should be repealed.

CHAIR: In fact, it is the case, in reference to your policy, which I believe was passed at your 2020 annual general meeting, you passed a policy advocating for the removal of powers to cancel visas belonging to criminals and your organisation's official policy is that it is unjust to protect the Australian community from recidivist, non-citizen offenders by deporting them. Is that the case?

Mr Bibby : Yes.

CHAIR: Does your organisation have a policy on whether it is just for Australian citizens to be victimised again and again by recidivist non-citizen offenders?

Mr Bibby : I don't think we have needed such a policy. It's quite straightforward that they should not.

CHAIR: So do you believe that it is just to expose the Australian community to that level of harm without taking any appropriate action, such as cancelling a visa?

Ms Catallo : Our policy isn't saying that the Australian public should be exposed to recidivism. Our policy is that these people have been longstanding members of the Australian community. They actually came to Australia long before they were criminals. Their criminal activity came about as part of their living in the Australian community. Then it is part of the Australian community's responsibility to work with these people after they have left the criminal system. It's not right by international rules for Australia to say: 'This person lived and became a criminal here. However, now we are going to send them back to a country that they have no experience of, where they often have no language and which they have hardly ever lived in.'

CHAIR: Can I just go back to understanding the nature of your submission to our inquiry today. Did your organisation consult with victims of crime before making your submission to this inquiry? As we all know, including those who are listening today, this is a balancing act—the Australian government's response to those who are not Australian citizens or who have some sort of visa whereby a visa may be cancelled and that person, because of their criminal activity and the harm that they've committed towards other Australians, may be subject to deportation. So, in balancing these issues, did you consult with any victims-of-crime groups?

Dr Bibby : The direct answer is there was no time to do anything of the sort. The time for submissions was very short indeed, and I had some extra restrictions placed upon me for medical reasons. However, the question of how we protect members of our society who are at risk from repeat offenders is not one to be answered by saying, 'We will kick those people over to another country and then that country can look after them instead.' That's quite straightforwardly an immoral proposal and an immoral set of actions.

CHAIR: Even though, just to be clear, they would be a citizen of that other country to which they are facing deportation?

Dr Bibby : We could take our lead from the New Zealand legislation, which says that if a person has been within the country for 10 years then they're not to be exported to another country. If a person has become a criminal within Australia, it's Australia's responsibility to look after them and to handle them. After all, we deal with people who aren't our citizens and we don't consider it exceptionally difficult to do so.

CHAIR: Even though the criminal concerned may in fact not be an Australian citizen and may be here on some other form of visa?

Dr Bibby : I think you're missing the point—

CHAIR: You're saying their rights are as important as perhaps those of Australian citizens that they may have harmed in the execution of their criminal activities?

Dr Bibby : Their citizenship is less relevant than the question of where they became criminals.

CHAIR: Are you saying if they become a criminal in Australia that then gives them some sort of right to stay here?

Dr Bibby : No, it means we have a duty to look after them.

CHAIR: Right. I see. You reference the fact that you hadn't had much time to consult with groups, such as victims-of-crime groups, before making your submission, but this is an issue that you've long considered, as you referenced before, in relation to the policy decision of the New South Wales Council for Civil Liberties. Have you ever consulted with victims-of-crime groups in relation to your policy whereby—and this is your official policy—that it is unjust to protect the Australian community from non-citizen offenders by deporting them?

Have you ever consulted with any victims-of-crime groups?

Dr Bibby : I don't know. I'd have to take that question on notice. I will leave that there.

CHAIR: Thanks, Dr Bibby. I have just a couple more questions. Your submission to this inquiry asserts it is 'manifestly a bad argument' for the government to put Australia's interests first. If the government shouldn't put Australia's interests first, whose interests should it prioritise? Are you saying noncitizens who are serious criminal offenders should be prioritised over the interests of Australians?

Dr Bibby : No, that doesn't follow.

CHAIR: Can you explain your position, then?

Dr Bibby : The position is: arguing that you should be able to send people over to another country because it's in Australia's interests to do so is a piece of immorality. It's as straightforward as that. If you look at the argument in itself: if a state government were to say, 'We're going to put the interests of our state ahead of the interests of Australia or ahead of the interests of other states', they would probably be criticised for doing that, particularly if the consequences for the citizens for the other states were severe. It's just a straight immoral argument.

CHAIR: Thank you, very much, Dr Bibby. I have no further questions at this stage.

Senator KIM CARR: This bill is being presented in very short order. You haven't been consulted about the bill, have you? Has the government sought to engage your views on the bill?

Dr Bibby : No.

Senator KIM CARR: Are you aware of any civil society organisation that has been consulted on this bill?

Dr Bibby : We haven't had time to consult with them.

Senator KIM CARR: So you wouldn't know; fair enough! To your specific submission: in the view of the Council for Civil Liberties, how much of the bill do you think is about amending the act to deal with the invalid sections identified by the High Court in the 2017 case and how much is about expansion of the powers of the executive?

Dr Bibby : I would need to take that on notice.

Senator KIM CARR: Alright. Have you had an opportunity to look at any of the other submissions that have been presented to this committee?

Dr Bibby : Since I wrote the submission, yes.

Senator KIM CARR: Have you looked at the Law Council's submission, for instance?

Dr Bibby : Yes. I've looked at the Law Council's submission, the Human Rights Commission's submission and the comments of both parliamentary committees.

Senator KIM CARR: The Law Council, in their submission, has queried the definition of 'confidential information' and suggested it poses a risk which is currently not covered by current legislation—that is, the National Security Information (Criminal and Civil Proceedings) Act 2004, the NSI Act—which provides a quite specific definition of 'national security information'. There is a working group that has looked at these. What do you think of those provisions of the NSI Act? Do you think they are adequate to cover national security matters?

Dr Bibby : I think I would need to take that on notice too.

Senator KIM CARR: Let me deal with the question of so-called confidential information. Paragraph 34 of the Law Council's submission says:

'Confidential information' may further include information which is ultimately erroneous, ranging from gazetted agency records regarding a person's unpaid debt under the Centrelink online compliance scheme ('Robodebt') which is later disproved, to an Interpol red notice issued which relates to a wrongful conviction which was made in absentia—

We have seen cases of that, I will say as an aside—

The Law Council is unaware of what kind of guidance is given to gazetted agencies to determine what should be considered 'confidential information'. However, it considers that guidance should not be considered a substitute for appropriately tight legislative definitions.

Can you provide us with your views on relying on secret information such as that outlined under these registered agencies?

I understand the secretariat's provided you with a list of the agencies that the government's now going to rely upon or has relied upon to date. It includes a series of security agencies and government departments, including Centrelink, through the Department of Social Services, various state government agencies and a number of foreign government agencies. Are you aware of that list?

Dr Bibby : No.

Ms Catallo : I've seen the list and can comment on it.

Senator KIM CARR: What do you say to the proposition that this so-called confidential information that the government's relying upon is upon bodies such as this? Have they ever got anything wrong?

Ms Catallo : I'm very concerned that a number of government departments are put on a list which—in the STEM it talks about legal [inaudible] areas, and in the list there are a whole lot of government departments listed. To have those government departments on such a list also concerns me. The doping agency's also there, and the doping agency has the right to get information from children as young as under 12, so that concerns me as well. The range there is just far in excess of what would be needed, even under the legislation.

Senator KIM CARR: It has been presented that these represent an incremental creep, in terms of the attempts to broaden ministerial powers to cancel visas. The character test framework imposes very low thresholds for failure on character grounds. It captures a range of individuals who would not normally be considered, in criminal law definitions, to have serious criminal offences.

Ms Catallo : I would agree. The example I would cite is point 34. In South Australia, the department of education and child development is the same department, so not only would that collect any information to do with child protection issues but it could also, potentially, involve decisions that were internal investigation matters, including employer investigations. I would find it concerning that that could be used as the basis of a character determination.

Senator KIM CARR: There has been evidence presented to the committee that this advice is provided by a series of agencies determined by the minister and that the list is, in itself, not subject to parliamentary scrutiny—that is, it's not a disallowable instrument. Some of these government agencies—for instance, the North Koreans, the Iranians, the Chinese—don't have a judicial system that we would acknowledge as being equivalent, in terms of the rule of law as we understood it. What do you say to that proposition?

Dr Bibby : We're concerned about the organisations, particularly overseas organisations, on the list. You have to abide by the laws in these places, and they're often laws that we would not accept, like the Iranian laws on homosexual activity.

Senator KIM CARR: We've had cases, in recent memory, where soccer players have been subject to Interpol notices, for instance, which we wouldn't normally accept—accusations made that wouldn't meet the normal rules of evidence that we accept. Then it would be said it'll be subject to the judge making a determination on what is available. The truth of the matter, though, is a defence counsel wouldn't know about that. Is that your understanding, in terms of this provision, that there is a one-sided view in what information is available to the court?

Dr Bibby : That's correct.

Senator KIM CARR: I come back to this simple proposition. It has been put to you about the rights of people in this country. Is it also a right in this country, in terms of the balance between so-called national security objectives and fundamental objectives of democracy, including proper administration of justice, the right to a fair trial, procedural fairness, adequate oversight of executive actions and independent functions of parliament and the judiciary under the constitution—aren't they also rights that we would expect in a country like this?

Dr Bibby : Absolutely.

Senator KIM CARR: Isn't it the case that this legislation actually gives us a judicial system more resembling North Korea than a country such as we would expect for the rule of law in Australia? This wouldn't happen in Britain, for instance, would it? This legislation wouldn't happen in Britain, would it?

Dr Bibby : I'd have to take that on notice too, I think, to check the British legislation.

Senator KIM CARR: In terms of your international experience, would the European Court of Human Rights allow information of secret hearings of this type being used against people in judicial proceedings, where they weren't able to know about it, let alone challenge its validity? For instance, the Law Council provide two examples on page 14 of their submission. They talk about the House of Lords and the European Court of Human Rights that have dealt with similar issues. They say those principles would not apply in the United Kingdom or in Europe. Is that the case?

Dr Bibby : I would be reliant on the Law Council's own submission for that.

Senator KIM CARR: Would you take that on notice and give me your advice as to whether or not you can think of any cases where similar judicial systems to Australia's would allow this type of legislative framework to exist? Finally, you mention—

CHAIR: Senator Carr, I will need to ask you to wrap up.

Senator KIM CARR: Finally, you mentioned the capacity of people to make complaints to various bodies, including the ombudsman and the inspector-general of security, under the new sections of this bill. A person actually commits an offence if they provide information under clause 503B (1) and 503C (1) and the person who does that is not to provide information to any other body or person. Further, under subclause (7) of clause 503A this legislation overrides 'any other law of the Commonwealth'. How often do you see measures such as that in legislation, where we're overriding the laws of the Commonwealth in terms of restrictions on people's access to normal scrutiny measures such as the ombudsman and the inspector-general of security? These are propositions that you would normally see as the supervisors of our security agencies.

Dr Bibby : Never seen anything like it.

CHAIR: By way of clarification, Dr Bibby, you mentioned the parliamentary human rights committee, which had considered this bill, in your opening remarks. I was actually chair of that committee when the committee considered the bill. I want it to be made known and very clear that the committee has not reached a concluded view in relation to the bill. To share with everyone and anyone listening, or obviously reading the Hansard transcript, it's important that I make it clear that the committee did note 'that the bill engages and limits the right to a fair hearing and the prohibition against expulsion of aliens without due process'. It also noted that 'these rights may be subject to permissible limitations', as a matter of international human rights law, 'if they are shown to be reasonable, necessary and proportionate'. The committee went on to say that it:

… considers that the bill pursues the legitimate objective of upholding law enforcement and intelligence capabilities, and insofar as the measure protects disclosure of confidential information where disclosure may jeopardise law enforcement or intelligence activities, the bill is rationally connected to objective. The committee considers further information is required to assess the proportionality of the measure.

As I said before, the committee made it very clear in its report No. 1 of 2021 that it has not yet formed a concluded view and is seeking further information from the minister.

Senator KIM CARR: So we'll look forward to the concluded view and you trying to justify it.

CHAIR: Senator Carr, if you could just respect the fact that I want to accurately portray—

Senator KIM CARR: You're accurately trying to defend the indefensible.

CHAIR: Senator Carr, please do not interrupt. I want to accurately portray the outcome of that committee hearing and what's in report No. 1 of the Parliamentary Joint Committee on Human Rights. We are now at the end of our time. I thank you both very much for your time today. If there are any further comments or clarifications that you can provide, please forward those through to the secretariat. Thank you both very much for your time today.