Migration Amendment (Validation of Decisions) Bill 2017 [2017] AUSStaCSBSD 241 (9 August 2017)

• Migration Amendment (Validation of Decisions) Bill 2017
• Retrospective validation 16

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Migration Amendment (Validation of Decisions)
Bill 2017

Purpose	This bill seeks to amend the Migration Act 1958 to preserve existing section 501 character decisions made relying on information provided by gazetted law enforcement and intelligence agencies which is protected from disclosure
Portfolio	Immigration and Border Protection
Introduced	House of Representatives on 21 June 2017
Scrutiny principle	Standing Order 24(1)(a)(i)

Retrospective validation ^[16]

1.21 The purpose of this bill is to validate certain decisions to cancel a visa or refuse a visa application on character grounds, particularly on the basis that a

non-citizen has committed a crime in Australia and poses a risk to the Australian community.^[17]

1.22 Section 503A of the Migration Act 1958 provides that information supplied to an authorised Commonwealth migration officer by identified law enforcement or intelligence agencies for the purposes of making a decision to refuse or cancel a visa on character grounds is protected from disclosure to any person. This includes disclosure to a court reviewing any decision to cancel or refuse to grant a visa. The consequences of existing section 503A is that information which is relevant and significant to the exercise of the power to cancel or refuse a visa, and which would otherwise need to be disclosed to afford an affected non-citizen a fair hearing, need not be disclosed.

1.23 The committee notes that at the time of tabling the High Court of Australia had reserved its judgment in relation to two cases that have challenged the constitutional validity of section 503A.^[18] If the provisions of this bill are not enacted, and the High Court were to hold that section 503A is constitutionally invalid, an exercise of power in reliance on this provision would itself have no legal foundation and would therefore also be invalid.

1.24 The effect of proposed section 503E would be to deem decisions which have been made in reliance on, or having regard to, information purportedly covered by section 503A, or where the Minister failed to disclose such information, to have been validly made, even if that provision is held to be constitutionally invalid. The committee notes that proposed subsection 503E(2) provides that the validation provisions would not apply in relation to the current High Court proceedings.

1.25 In the event that section 503A is held to be constitutionally invalid, the effect of the bill would be to retrospectively validate invalid decisions with significant consequences for affected persons. The committee has a long-standing scrutiny concern about provisions that apply retrospectively, as it challenges a basic value of the rule of law that, in general, laws should only operate prospectively (not retrospectively). The committee has a particular concern if the legislation will, or might, have a detrimental effect on individuals. Generally, where proposed legislation will have a retrospective effect the committee expects the explanatory materials should set out the reasons why retrospectivity is sought, and whether any persons are likely to be adversely affected and the extent to which their interests are likely to be affected. In this instance, the explanatory memorandum does not address the appropriateness or fairness of the retrospective effect of this bill.

1.26 The committee considers there may be cases where a judicial declaration that an administrative decision is invalid would result in such significant consequences that it may justify legislation seeking to validate other decisions infected by the same error. For instance, where the invalidity resulted from an administrative oversight that does not affect the substance of the power exercised,^[19] the value of legal certainty of administrative decisions may override the principle that invalid decisions are of no force and effect. However, much would depend on the nature of the error and whether that error affected the fairness of any individual decision. Other relevant matters would include the number of decisions affected and alternative ways of addressing the administrative problems and uncertainty created.

1.27 In this instance, the issue before the High Court 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.

1.28 Underlying the basic rule of law principle that all government action must be legally authorised, is the importance of protecting those affected by government decisions from arbitrary decision-making and enabling affected persons to rely on the law as it currently exists. Retrospective legislation threatens these values (even accepting that in limited cases it may be justified). In addition, legislation which deems invalid administrative decisions to be valid, where the reason for the invalidity rests on reliance on an unconstitutional statutory provision, has significant implications for the rule of law. The practical effect of such legislation would be to reverse a judicial finding of constitutional invalidity (even if there is a specific exemption in relation to the existing cases before the High Court). There are also questions as to whether such deeming legislation is itself constitutionally valid.^[20]

1.29 In light of the discussion above, the committee requests the Minister’s detailed justification for seeking to retrospectively validate decisions made in circumstances which may have denied an applicant the right to a fair hearing, and where the practical effect of the legislation would be to reverse any High Court declaration of constitutional invalidity.

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[16] Proposed subsection 503E. The committee draws Senators’ attention to this provision pursuant to principle 1(a)(i) of the committee’s terms of reference.

[17] Decisions made under sections 501, 501A, 501B, 501BA, 501C or 501CA of the Migration Act 1958.

[18] See Graham v Minister for Immigration and Border Protection, M97/2016, and Te Puia v Minister for Immigration and Border Protection, P58/2016.

[19] For example, an administrative oversight relating to the appointment of the officer who made the decision.

[20] Considerable uncertainty attends this question, see Will Bateman, Legislating Against Constitutional Invalidity: Constitutional Deeming Legislation’ (2012) 34 Sydney Law Review 712.