Federal government tightens the net on information in migration cases … Applicants deprived of access to information held by the government … Federal courts have to jump through hoops to examine “protected information” … Another special from the Dutton-Pezzullo bunker … Janek Drevikovsky reports 

Introduced late last year in the Dutton era at Home Affairs, the new Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill faces widespread criticism. 

The Australian Human Rights Commission and Refugee Council are urging parliamentarians to reject the amendments, saying they will undermine procedural fairness and restrict courts’ discretion.

Even the Parliamentary Joint Committee on Human Rights found that, if passed, the amendments would “limit the right to a fair hearing and the prohibition against the expulsion of aliens without due process”.

The reforms are designed to circumvent the 2017 High Court decision in Graham and Te Puia, which struck down a blanket ban, contained in s.503A Migration Act, on airing sensitive information during migration cases.

A majority of judges found that a blanket ban would prevent federal courts from properly reviewing ministerial decisions. This, the Court held, was unconstitutional. 

Instead of a blanket ban, the new amendments will insert a “Protected Information” scheme into both the Migration Act 1958 and the Citizenship Act 2007. 

The point of the amendments, Dutton said, is to “appropriately protect” information disclosed by law enforcement.

“Criminal intelligence and related information is vital to assessing the criminal background or associations of non-citizen visa applicants and visa holders.

This is essential to the government’s core business of regulating, in the national interest, who should enter and remain in Australia.”

The scheme applies to “confidential information” provided by law enforcement agencies to the Home Affairs Minister. 

That information is protected if it relates to a person’s bad character and is used as the basis for refusing or cancelling their visa, refusing their citizenship application or cancelling their citizenship altogether.

The amendments say that, when reviewing a migration decision, a federal court can compel the minister to produce “protected information”. 

However, the minister may argue that the information should not be disclosed, including to the person applying for review. The court must then decide whether disclosure would harm the public interest, with reference to an exhaustive list of factors. 

The factors include Australia’s national security, Australia’s relationship with other countries, the secrecy of Australia’s spying technologies, the efficiency of law enforcement operations and the safety of any informants. Procedural fairness is not on the list. 

Applicants can only argue in favour of disclosure if they already know the contents of the “protected information”. 

There is nothing that requires the minister to tell the applicant what the information is. Nor is the court allowed to do so, unless and until it has rejected the minister’s arguments against disclosure. 

In other words, most applicants will have no chance to make submissions against non-disclosure.

If the court grants an order, then it is illegal for anyone to disclose the protected information, including to the applicant. If the court rejects the minister’s arguments, then the information can be compelled in open court as normal.  

The scheme applies only to federal courts – these Chapter III courts were the focus of the decision in Graham and Te Puia.  

That decision had nothing to say about the Administrative Appeals Tribunal, which is not a court. The new amendments therefore take a less rigorous approach to disclosure in the AAT.

There, the minister can withhold protected information if he certifies disclosure would be against the public interest. If he does so, the AAT is not to be shown the information in question. 

The bill has passed through three parliamentary committees and is currently before the Parliamentary Joint Committee on Intelligence and Security. 

In reports released earlier this year, both the Parliamentary Joint Committee on Human Rights and the Senate Standing Committee for the Scrutiny of Bills urged extensive changes to the Bill.

Maintaining procedural fairness was a particular concern. The human rights committee complained that applicants would not be able to know the contents of the “protected information”, even in summary form. 

The committee also criticised the limits the bill will place on court discretion.  

“The bill sets out an exhaustive list to which the court must have regard in considering whether to disclose information to the applicant and as such the court is prohibited from considering procedural fairness in making this decision. The court thus has minimal flexibility to treat different cases differently.” 

Another problem is what counts as a “gazetted” law enforcement agency. As the scrutiny committee noted, the Home Affairs minister has full discretion to decide, and that decision is not subject to parliamentary approval. 

Currently, the list of gazetted agencies is extensive. 

“It includes foreign law enforcement bodies in all countries,” the scrutiny committee said, “and a significant number of federal and state or territory government departments that would not ordinarily be considered to be law enforcement or intelligence agencies.”

In a submission to the human rights committee, the Refugee Council was scathing about the amendments’ approach to disclosure in the AAT.

“The Minister can determine, without any oversight, that certain information be withheld from a member of the AAT. 

This broad power would essentially remove a person’s right to seek merits review before the AAT where a primary decision involved protected information (in the Minister’s own determination).”

The ALP does not support the amendments in their current form, penning a critical minority report during the Senate Legal and Constitutional Affairs Legislation Committee’s consideration of the Bill.