Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020 [2021] AUPJCHR 4 (3 February 2021)

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Purpose	This bill seeks to amend various Acts relating to migration and Australian citizenship to: • provide a framework to protect disclosure of confidential information provided by gazetted law enforcement and intelligence agencies for consideration in visa decisions or citizenship decisions made on character grounds; • enable the minister to disclose confidential information to a court for the purposes of proceedings before the court; • allow the minister to issue a non-disclosure certificate on public interest grounds in relation to information relating to a decision made under the Australian Citizenship Act 2007 where that decision is reviewable by the Administrative Appeals Tribunal; and • make it an offence for Commonwealth officers to disclose unauthorised confidential information relating to visa and citizenship decisions
Portfolio	Home Affairs
Introduced	House of Representatives, 10 December 2020
Rights	Fair hearing; prohibition against expulsion of aliens without due process

Protected information framework

1.15 The bill seeks to amend the Migration Act 1958 (Migration Act) and the Australian Citizenship Act 2007 (Citizenship Act), and make consequential amendments to other laws, for the purposes of introducing a ‘protected information framework’. The framework would protect disclosure of confidential information^[18] provided by 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; or decisions made to refuse, cancel, revoke or cease citizenship.^[19] The bill would prohibit an officer to whom confidential information is communicated to disclose that information to another person, except in very limited circumstances, or to be required to produce or give the information to a court, tribunal, parliament or parliamentary committee.^[20] The bill would make unauthorised disclosure of confidential information an offence, carrying a penalty of 2 years' imprisonment.^[21]

1.16 The bill would allow the minister, in specified circumstances, to declare that confidential information be disclosed to a specified minister, Commonwealth officer, court or tribunal.^[22] Where information is disclosed in these circumstances, the receiving officer or member of a tribunal must not onwards disclose the information to any other person. In consideration or exercise of this power by the minister, the bill states that the rules of natural justice would not apply.^[23]

1.17 Additionally, the bill would allow the High Court, Federal Court of Australia or Federal Circuit Court to order that confidential information be produced to the court if the information was supplied by law enforcement or intelligence agencies and the information is for the purpose of the substantive proceedings.^[24] If information is ordered to be produced, any party to proceedings may make submissions concerning how the court should use the information, including any weight to be given to the information and the impact of disclosing the information on the public interest.^[25] However, a party can only make submissions or tender evidence with respect to the information if they are lawfully aware of the content of the information.^[26] The bill would require the court to order that any party which does not qualify to make submissions relating to the information must be excluded from the hearing of those submissions, including the applicant and their legal representative.^[27] After considering the information and any submissions, the court would be required to make a determination as to whether disclosing the information would create a real risk of damage to the public interest and, if so, the court must not disclose the information to any person, including the applicant and their legal representative.^[28] In deciding whether such a risk exists, the court would be required to have regard to the list of matters set out in the bill (and only those matters), which includes the protection and safety of informants; Australia’s relations with other countries; Australia’s national security; and any other matters specified in regulations.^[29] The bill would permit the court to give such weight to the information as it considers appropriate in the circumstances, having regard to any submission made regarding the use of the information.^[30]

1.18 Schedule 2 of the bill would also establish a new framework for the management of disclosure of certain sensitive and confidential information to, and by, the Administrative Appeals Tribunal (AAT). The secretary of the Department would be prohibited from giving a document or protected information to the AAT in relation to the AAT’s review of a decision if the minister certifies that disclosing the document or information 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.^[31] Where a document or information has been given to the AAT and the minister has certified that disclosing that information would be contrary to the public interest, or the information was given to the minister in confidence, the AAT may disclose the information, including to the applicant, if it thinks it appropriate to do so having regard to any advice given to it by the secretary. If the information is disclosed, the AAT would be required to give a direction prohibiting or restricting the publication or other disclosure of that information if it is in the public interest to prohibit or restrict disclosure.^[32]

Preliminary international human rights legal advice

Right to a fair hearing and prohibition against expulsion of aliens without due process

1.19 As regards decisions relating to Australian citizens, the measure appears to engage and limit the right to a fair hearing to the extent that it would restrict such persons from accessing confidential information on which the decision was based and exclude such persons from making submissions relating to the use of that information in proceedings.^[33] Article 14(1) of the International Covenant on Civil and Political Rights requires that in the determination of a person's 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.^[34] The concept of 'suit at law' encompasses judicial procedures aimed at determining rights and obligations, equivalent notions in the area of administrative law and also extends to other procedures assessed on a case-by-case basis in light of the nature of the right in question.^[35] A decision involving the removal of an existing right, such as revocation of citizenship or an existing visa, would create a suit at law for the purposes of article 14.^[36]

1.20 In order to constitute a fair hearing, the hearing must be conducted by an independent and impartial court or tribunal, before which all parties are equal, and have a reasonable opportunity to present their case.^[37] The UK courts and the European Court of Human Rights have held that the right to a fair hearing is violated where a person is not provided with sufficient information about the allegations against them so that they are able to give effective instructions in relation to those allegations, and have an opportunity to challenge the allegations, even in circumstances where full disclosure of information is not possible for reasons of national security.^[38] There can be no fair hearing if a case against a person is based solely or to a decisive degree on closed materials or where open material consists only of general assertions.^[39] As regards this bill, a person’s right to a fair hearing may be limited by the measure insofar as it would restrict the disclosure of information to the person, including information that was used in character-related decision-making, such as criminal allegations against a person, as well as excluding the person from making submissions about the use of the information in proceedings. The measure appears to have the effect of withholding sufficient information from the person to the extent that they are unable to effectively provide instructions in relation to, and challenge, the information, including possible criminal allegations against them.

1.21 As regards decisions relating to the expulsion or deportation of non-citizens or foreign nationals who are lawfully in Australia, the measure also appears to engage and limit the prohibition against expulsion of aliens without due process. This right is protected by article 13 of the International Covenant on Civil and Political Rights, which provides that:

1.22 Article 13 incorporates notions of due process also reflected in article 14 of the International Covenant on Civil and Political Rights and should be interpreted in light of that right.^[40] In particular, the United Nations (UN) Human Rights Committee has stated that article 13 encompasses ‘the guarantee of equality of all persons before the courts and tribunals as enshrined in [article 14(1)] and the principles of impartiality, fairness and equality of arms implicit in this guarantee are applicable’.^[41] The UN Committee has further stated that article 13 requires that 'an alien...be given full facilities for pursuing [their] remedy against expulsion so that this right will in all circumstances of [their] case be an effective one'.^[42]

1.23 The measure limits the due process requirements in article 13 to the extent that it restricts a person’s access to information that informed the decision leading to their expulsion or deportation, as well as their ability to make submissions on the use of that information or the weight to be attributed to the information by the court. Such restrictions would appear to have the effect of preventing a person in Australia whose visa is refused or cancelled from effectively contesting or correcting potentially erroneous information, thereby hindering their ability to effectively challenge the decision and pursue a remedy against expulsion.^[43]

1.24 The due process guarantees in article 13 may be departed from, but only when ‘compelling reasons of national security’ so require.^[44]It is unclear whether this exception would apply to this measure. The bill seeks to depart from due process requirements where there is a real risk of damage to the 'public interest'. While Australia’s national security is a factor to be considered by the court in determining whether disclosing the information would create a real risk of damage to the public interest, it is not the only factor. There are other factors to be considered by the court which are broader than national security reasons, such as Australia’s relations with other countries and the risk of discouraging informants. Furthermore, the UN Human Rights Committee appears to have interpreted the exception of ‘compelling reasons of national security’ to be a reasonably high threshold which States parties must meet before departing from their due process obligations.^[45] As such, it would appear that article 13 is engaged and limited, yet the statement of compatibility did not identify it as being engaged by the bill, and accordingly no assessment was provided as to whether the limitation was permissible.

1.25 The right to a fair hearing and the prohibition against expulsion of aliens without due process may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.

1.26 As regards the objective being pursued by the bill, the statement of compatibility states that it aims to uphold the good order of the Australian community and protect the public interest by protecting confidential information as well as the methodologies, priorities and capabilities of law enforcement agencies in obtaining that information.^[46] It notes that disclosure of confidential information has the potential to expose and jeopardise intelligence and law enforcement capabilities and activities.^[47] The statement of compatibility explains that the existing threshold for public interest immunity does not adequately protect the type of confidential information used in character-related decisions, such as a person’s criminal background and associations, thereby creating a real risk of onwards disclosure by the AAT or courts of confidential information and its source to other persons, including non-citizens.^[48] Additionally, the statement of compatibility notes that the bill responds to the High Court of Australia decisions of Graham and Te Puia.^[49] The objective of protecting national security and associated law enforcement and intelligence capabilities would likely constitute a legitimate objective for the purposes of international human rights law. Insofar as the measure seeks to establish a framework to prevent the disclosure of confidential information in circumstances where disclosure may damage the public interest, including national security, the measure would appear to be rationally connected to the stated objective.

1.27 In assessing proportionality, it is necessary to consider whether the proposed limitation is sufficiently circumscribed. The matters specified in proposed subsections 52C(5) and 503C(5) that are to be considered by the court in determining whether disclosing the information would create a real risk of damage to the public interest, would appear, in some ways, to be quite broad. Indeed, the statement of compatibility notes that the bill would require the courts to consider the potential damage to the wider concept of public interest, not only national security, in determining whether to order onwards disclosure.^[50] The use of the broader concept of public interest rather than the narrower concept of national security would appear to create a lower threshold which must be met in order to prohibit the disclosure of information to any person, including the person to whom the information pertains. Additionally, some matters specified in proposed subsections 52C(5) and 503C(5) are drafted in vague terms, such as 'Australia’s relations with other countries' or 'other matters specified in regulations', making it difficult to ascertain the precise circumstances in which rights may be limited. It is also not clear that all of the listed matters are relevant to achieving the stated objective of protecting law enforcement and intelligence capabilities. This raises questions as to whether the measure is sufficiently circumscribed.

1.28 Other relevant factors in assessing the proportionality of the measure include whether it is accompanied by sufficient safeguards; whether it provides sufficient flexibility to treat different cases differently; and whether any less rights restrictive alternatives could achieve the same stated objective. The statement of compatibility states that any limits to human rights are reasonable, necessary and proportionate but does not identify any safeguards which assist with the proportionality of the measure.^[51] While the role of the court could operate as a safeguard or oversight mechanism, its role is severely restricted by the practical operation of the measure. The court is only permitted to hear submissions regarding the use of the information and any weight to be given to the information from parties who are lawfully aware of the content of that information. Given the confidential nature of the information and its source, as well as the intent of the measure to prevent disclosure of the information to other parties, particularly non-citizens, it appears unlikely that any other party except the minister would be aware of the content of the information. In effect, the person to whom the information pertains, and their legal representative, would be excluded from proceedings.

1.29 The jurisprudence of the European Court of Human Rights offers some guidance in considering possible safeguards in the context of domestic laws that restrict disclosure of information to parties for reasons of national security. The European Court of Human Rights has identified special advocates as an important safeguard to ‘counterbalance procedural unfairness’ through ‘questioning the State’s witnesses on the need for secrecy and through making submissions to the judge regarding the case for additional disclosure’.^[52] The European Court of Human Rights has stated:

the special advocate could perform an important role in counterbalancing the lack of full disclosure and the lack of a full, open, adversarial hearing by testing the evidence and putting arguments on behalf of the detainee during the closed hearings. However, the special advocate could not perform this function in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate.^[53]

1.30 It is noted that in other Commonwealth legislation where information is withheld from the affected person on national security grounds, there is a process by which the affected person is provided with a summary of the information and a special advocate is appointed to represent the person's interests in closed hearings.^[54]

1.31 Additionally, by prescribing an exhaustive list of matters to which the court must have regard, the court has minimal flexibility to treat individual cases differently and consider matters and information that it considers appropriate and necessary, having regard to the merits of each individual case. The court is prevented from considering procedural fairness and the rights of the affected person in determining whether to disclose the information, notwithstanding that the human rights implications for the affected person may be profound, such as detention and deportation.

1.32 The proportionality of the measure would likely be assisted if the court was able to undertake some form of balancing exercise, whereby it may weigh the risk of damage to the public interest against the right to a fair hearing or other matters that it considers appropriate and necessary.^[55] 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.^[56] The court also has no flexibility to treat individual cases differently as regards disclosure of information. Where it has been determined that disclosure would create a real risk of damage to the public interest, 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.

1.33 Noting the lack of safeguards to protect the rights of affected persons and the inability of the court to consider procedural fairness in determining whether to disclose the information, it is not apparent that the measure would be the least rights restrictive means of achieving the stated objective. Insofar as information is sought to be protected from disclosure to the public or the affected person for reasons of public interest, the statement of compatibility does not address alternative means that may be available that would protect such information only to the extent required for the public interest, or alternative processes that would still allow such information to be tested in some way before a court. It seems that a less rights restrictive means of achieving the stated objective would be to allow the court to order the disclosure of as much information as possible without compromising the public interest so as to ensure the applicant has the possibility to challenge the information and any allegations against them.

1.34 The availability of review is also relevant in assessing proportionality, as well as being a key component of States parties’ procedural fairness obligations under international human rights law. Importantly, as discussed above, the right to review under article 13 must be in all the circumstances an effective one.^[57] The statement of compatibility states that the bill does not amend the relevant procedures and review mechanisms under the Migration Act and Citizenship Act. It states that review of decisions made under these Acts is available, including merits review by the AAT and/or judicial review for decisions made by a delegate, and judicial review of decisions made by the minister.^[58] However, while review is theoretically available, the measure would appear to render the practical efficacy of review meaningless in many cases. Without access to all relevant information, notably critical information on which the decision was based, it is unclear on what basis an affected person would be able to effectively challenge the decision. Furthermore, as discussed above, the court’s ability to properly perform its judicial review task is severely hampered by the measure. This raises serious concerns that there may not be effective access to review.

1.35 In conclusion, the measure seeks to achieve the legitimate objective of protecting national security and associated law enforcement and intelligence capabilities. However, there are concerns as to whether the proposed limitation on the right to a fair hearing and the prohibition against expulsion of aliens without due process is proportionate. The use of the broader concept of public interest as opposed to national security raises questions as to whether the measure is sufficiently circumscribed. The statement of compatibility does not identify any safeguards or address whether there are less rights restrictive means of achieving the stated objective, making it difficult to assess the proportionality of the measure. While review is available, its effectiveness is significantly weakened by the measure insofar as it prevents the applicant’s access to potentially all relevant information and places restrictions on the court’s ability to consider all matters appropriate and necessary to perform its judicial review task, such as being able to consider procedural fairness obligations or receive submissions from the applicant to test the reliability, relevance and accuracy of the information.

1.36 In order to assess the compatibility of this measure with human rights, particularly the proportionality of the measure, further information is required as to:

Committee view

1.37 The committee notes that the bill seeks to amend the Migration Act 1958 and the Australian Citizenship Act 2007 for the purposes of introducing a ‘protected information framework’. The framework would protect disclosure of confidential information provided by intelligence and law enforcement agencies where the information is used for certain migration or citizenship decisions. The bill would allow the courts to order the production of confidential information in certain circumstances, however, it would be prohibited from onward disclosing the information to any person, including the applicant and their legal representative, where it is determined that disclosure would create a real risk of damage to the public interest.

1.38 The committee notes that the bill engages and limits the right to a fair hearing and the prohibition against expulsion of aliens without due process, to the extent that it restricts a person’s access to information that is relevant to the decision which affects them, and excludes the person from hearings where they are not lawfully aware of the contents of the information. The committee notes that these rights may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.

1.39 The committee 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 this objective. The committee considers further information is required to assess the proportionality of the measure.

1.40 The committee has not yet formed a concluded view in relation to this matter. It considers further information is required to assess the human rights implications of this bill, and accordingly seeks the minister’s advice as to the matters set out at paragraph [1.36].

[17] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill, Report 1 of 2021; [2021] AUPJCHR 4.

[18] Confidential information means information communicated to an authorised Commonwealth officer by a gazetted agency on the condition that it be treated as confidential information and is relevant to the exercise of a specified power, including refusing, cancelling or revoking citizenship or citizenship cessation: Schedule 1, item 3, proposed section 52A. See also Schedule 1, item 9, proposed substituted section 503A (in relation to migration matters).

[19] Schedule 1, item 3, proposed section 52A and item 9, proposed section 503A.

[20] Schedule 1, item 3, proposed subsections 52A(2) and (3) and item 9, proposed subsections 503A(2) and (3).

[21] Schedule 1, item 3, proposed subsection 52A(6) and item 9, proposed subsection 503A(6).

[22] Schedule 1, item 3, proposed section 52B and item 9, proposed section 503B.

[23] Schedule 1, item 3, proposed subsection 52B(9) and item 9, proposed subsection 50BA(9).

[24] Schedule 1, item 3, proposed subsection 52C(1) and item 9, proposed subsection 503C(1).

[25] Schedule 1, item 3, proposed subsection 52C(2) and item 9, proposed subsection 503C(2).

[26] Schedule 1, item 3, proposed subsection 52C(3) and item 9, proposed subsection 503C(3). A person must not become aware of the content of the information unlawfully or by way of an action for breach of confidence.

[27] Schedule 1, item 3, proposed subsection 52C(4) and item 9, proposed subsection 503C(4).

[28] Schedule 1, item 3, proposed subsections 52C(5)–(6) and item 9, proposed subsections 503C(5)–(6).

[29] Schedule 1, item 3, proposed subsection 52C(5) and item 9, proposed subsection 503C(5).

[30] Schedule 1, item 3, proposed subsection 52C(7) and item 9, proposed subsection 503C(7).

[33] To the extent that the effect of this bill would be to limit a person’s ability to challenge a migration or citizenship decision, the consequence of that decision being the person’s detention and deportation from Australia or prevention of return to Australia for citizens overseas, the measure may also engage and limit a number of other rights. In particular, the right to liberty (as immigration detention may be a consequence of a decision); right to protection of the family (as family members may be separated); right to non-refoulement (if the consequence of a decision is deportation and removal from Australia); freedom of movement (if cancellation of a visa or cessation of citizenship prevents a person from

re-entering and remaining in Australia as their own country); and rights of the child (if the decision relates to a child’s nationality). The rights implications of citizenship cessation are discussed in Parliamentary Joint Committee on Human Rights, Report 8 of 2017 (15 August 2017) pp. 2–31; and Report 6 of 2019 (5 December 2019), pp. 2–19.

[35] UN Human Rights Committee, General Comment 32: Article 14, Right to Equality before Courts and Tribunals and to Fair Trial (2007) [16]. At [17], the UN Human Rights Committee has indicated that the guarantees in article 14 do not generally apply to expulsion or deportation proceedings, although the procedural guarantees of article 13 are applicable to such proceedings. See, for example, PK v Canada, UN Human Rights Committee Communication No.1234/03 (2007), especially at [7.5] where the Committee rejected the applicability of article 14 to a claim relating to the complainant's right to receive protection in the state party's territory. See also, Zündel v Canada, UN Human Rights Committee Communication No.1341/2005, (2007) at [6.7] which held that ‘proceedings relating to the determination of whether a person constitutes a threat to national security, and his or her resulting deportation’ do not fall within the scope of article 14.

[36] For previous commentary on the right to a fair hearing in the context of revocation of citizenship see Parliamentary Joint Committee on Human Rights, Report 8 of 2017 (15 August 2017) pp. 2–31; Report 6 of 2019 (5 December 2019), pp. 2–19.

[37] See UN Human Rights Committee, General Comment 32: Article 14, Right to Equality before Courts and Tribunals and to Fair Trial (2007) [18].

[38] See, Secretary of State for the Home Department v AF (No. 3) [2009] UKHL 28, especially at [59] where the court ruled that ‘the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations’. See also, A v United Kingdom, European Court of Human Rights (Grand Chamber), Application no. 3455/05 (2009), especially [218] where the Court stated that ‘it was essential that as much information about the allegations and evidence against each applicant was disclosed as was possible without compromising national security or the safety of others. Where full disclosure was not possible, Article 5(4) required that the difficulties this caused were counterbalanced in such a way that each applicant still had the possibility effectively to challenge the allegations against him’.

[39] Secretary of State for the Home Department v AF (No. 3) [2009] UKHL 28 [59]; A v United Kingdom, European Court of Human Rights (Grand Chamber), Application no. 3455/05 (2009) [220].

[40] UN Human Rights Committee, General Comment No. 32: The right to equality before courts and tribunals and to a fair trial (2007) [17], [63].

[41] UN Human Rights Committee, General Comment No. 32: The right to equality before courts and tribunals and to a fair trial (2007) [17], [63].

[42] UN Human Rights Committee, General Comment No. 15: The position of aliens under the Covenant (1986) [10]. The Committee has also stated that ‘Article 13 directly regulates only the procedure and not the substantive grounds for expulsion. However, by allowing only those carried out “in pursuance of a decision reached in accordance with law”, its purpose is clearly to prevent arbitrary expulsions’.

[43] See Committee on the Elimination of Racial Discrimination, General Comment No. 30: discrimination against non-citizens (2004) at [25], where the Committee on the Elimination of Racial Discrimination stressed the importance of the right to challenge expulsion and access an effective remedy, noting that States should ensure that ‘non-citizens have equal access to effective remedies, including the right to challenge expulsion orders, and are allowed effectively to pursue such remedies’.

[44] International Covenant on Civil and Political Rights, article 13; UN Human Rights Committee, General Comment No. 15: The position of aliens under the Covenant (1986) [10]. Note that if there are compelling reasons of national security not to allow an alien to submit reasons against their expulsion, the right will not be limited. Where there are no such grounds, the right will be limited, and then it will be necessary to engage in an assessment of the limitation using the usual criteria (of necessity and proportionality).

[45] See, for example, Mansour Leghaei and others v Australia, United Nations Human Rights Committee Communication No. 1937/2010 (2015): the partially dissenting opinion of Committee members Sarah Cleveland and Víctor Manuel Rodríguez-Rescia (dissenting only because the Committee as a whole did not consider the article 13 arguments) is noteworthy with respect to the national security exception in article 13. The Committee concluded at [10.4] that ‘the author was never formally provided with the reasons for the refusal to grant him the requested visa which resulted in his duty to leave the country, except for the general explanation that he was a threat to national security based on security assessment of which he did not even receive a summary’. In light of this finding, Committee members Cleveland and Rodríguez-Rescia concluded at [5] that the ‘invocation of “compelling reasons of national security” to justify the expulsion of the author...did not exempt the State from the obligation under article 13 to provide the requisite procedural safeguards. The fact that the State failed to provide the author with these procedural safeguards constitutes a breach of the obligation under article 13 to allow the author to submit the reasons against his expulsion...This means that he should have been given the opportunity to comment on the information submitted to them, at least in summary form’. See also, Mansour Ahani v Canada, United Nations Human Rights Committee Communication No. 1051/2002 (2004) [10.8]: ‘Given that the domestic procedure allowed the author to provide (limited) reasons against his expulsion and to receive a degree of review of his case, it would be inappropriate for the Committee to accept that, in the proceedings before it, “compelling reasons of national security” existed to exempt the State party from its obligation under that article to provide the procedural protections in question’.

[49] Statement of compatibility, p. 42. See Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection [2017] HCA 33.

[52] A v United Kingdom, European Court of Human Rights (Grand Chamber), Application no. 3455/05 (2009) [209] and [219].

[53] A v United Kingdom, European Court of Human Rights (Grand Chamber), Application no. 3455/05 (2009) [220].

[54] See National Security Information (Criminal and Civil Proceedings) Act 2004. Although note the human rights concerns regarding the adequacy of these measures to safeguard the right to a fair hearing, see Parliamentary Joint Committee on Human Rights, Report 13 of 2020 (13 November 2020) pp. 54–61.

[55] See A v United Kingdom, European Court of Human Rights (Grand Chamber), Application no. 3455/05 (2009) at [206] where the Court stated that the right to a fair trial may not be violated in circumstances where, having full knowledge of the issues in the trial, the judge is able to carry out a balancing exercise and take steps to ensure that the defence (whose rights are limited) is kept informed and is permitted to make submissions and participate in the decision-making process so far as is possible without disclosing the confidential material.

[56] Schedule 1, item 3, proposed subsection 52C(7) and item 9, proposed subsection 503C(7).

[57] UN Human Rights Committee, General Comment No. 15: The position of aliens under the Covenant (1986) [10]. See also, UN Human Rights Council, Arbitrary deprivation of nationality: report of the Secretary-General, A/HRC/10/34 (2009) at [31], with respect to decisions relating to nationality, such as cessation or revocation of citizenship, the former UN Secretary-General emphasised States’ obligations under international law ‘to provide for an opportunity for meaningful review of nationality decisions, including on substantive issues’.

Australian Parliamentary Joint Committee on Human Rights

Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020 [2021] AUPJCHR 4 (3 February 2021)

Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020[17]

Protected information framework

Preliminary international human rights legal advice

Right to a fair hearing and prohibition against expulsion of aliens without due process

Committee view

Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020^[17]