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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
1.100 On 20 November 2024, the House of Representatives agreed to two government amendments. The Minister for Home Affairs (the Hon Mr Tony Burke MP) also tabled a supplementary explanatory memorandum.
1.101 Item 2 of the amendments inserts a new Schedule 7 into the bill. It would have the effect of providing that if a certain type of bridging visa is granted to an unlawful non-citizen under the minister’s personal powers under section 195A of the Migration Act 1958, those visa holders would be subject to the same visa conditions, including electronic monitoring and curfews, as those applicable to non-citizens released from detention following a High Court decision in 2023.[104]
1.102 The expansion of curfew and electronic monitoring conditions to a wider range of visa holders raises the same significant scrutiny concerns as are raised by the visa condition scheme as a whole.
1.103 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of proposed Schedule 7 in light of its comments regarding the Migration Amendment Bill 2024 in Chapter 2 of this Digest.
1.104 On 19 November 2024, the bill was referred to the Federation Chamber where the Assistant Minister for Citizenship and Multicultural Affairs (Mr the Hon Julian Hill MP) presented a supplementary explanatory memorandum to the bill detailing six government amendments to the bill.
1.105 The government amendments were agreed to on 20 November 2024 by the House of Representatives and the bill read a third time.
1.106 Currently, section 38 of the Australian Security Intelligence Organisation Act 1979 (ASIO Act) provides that when the Australian Security Intelligence Organisation (ASIO) gives an adverse or qualified assessment about a person to a government department, that department should notify the person about the assessment and tell them they can apply to the Administrative Review Tribunal. However, section 38 provides that the minister can override this and not provide the person with any notice if they consider that withholding the notice is essential to the security of the nation or the disclosure of a statement of grounds (or part of it) would be prejudicial to the interests of security.
1.107 However, this provision does not apply if section 38A applies.[105] Section 38A currently provides that if the ASIO assessment is in relation to certain decisions under the Telecommunications Act 1997 or the Security of Critical Infrastructure Act 2018, the assessment must be given to the person. The minister is able to exclude any matter in the assessment if the disclosure of it would be prejudicial to the interests of security. However, the person would still be notified that an adverse assessment was made and of their right to seek review of that decision by the ART (and be able to bring a judicial review claim if applicable).
1.108 The above amendments seek to repeal section 38A and ensure the general approach in section 38 applies. This means that the minister could decide to not provide any notification to an affected person.
1.109 The committee considers that, generally, administrative decisions that will, or are likely to, affect the interests of a person should be subject to independent merits review unless a sound justification is provided by reference to the Administrative Review Council's guidance document, What decisions should be subject to merits review?[106] In this case the committee acknowledges that the measure does not specifically exclude review, however, if an affected person is not notified of an adverse assessment made against them, in practice they would be unable to seek merits or judicial review of this as they would be unaware that such an assessment had been made.
1.110 The statement of compatibility acknowledges that this limits right to fair hearing but states that this is:
to ensure that where there are pressing and substantial national security concerns about the affected person, sensitive information is not disclosed and able to be used by persons identified as a national security risk, such as foreign intelligence actors seeking to exploit sensitive information regarding Australia’s security assessments process.[107]
1.111 However, it is not clear to the committee why this amendment has now become necessary (noting that section 38A has existed since 2004) or why the existing power under section 38A, which already empowers the minister not to provide certain information if it would be prejudicial to security, is insufficient.
1.112 The committee therefore seeks the minister’s advice as to:
• the necessity of removing section 38A from the ASIO Act, in particular why the amendment has become necessary now (noting section 38A was introduced as a safeguard 20 years ago);
• why the power of the minister to exclude matter if it would be prejudicial to the interests of security from the information given to an affected person is insufficient to protect national security risks; and
• how will the right to seek review of administrative decisions be afforded to a person if they are never notified that an adverse ASIO assessment was made against them.
[103] This section can be cited as: Senate Standing Committee for the Scrutiny of Bills, Commentary on amendments and explanatory materials, Scrutiny Digest 15 of 2024; [2024] AUSStaCSBSD 240.
[104] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37.
[105] See Australian Security Intelligence Organisation Act 1979, subsection 38(1A).
[106] Administrative Review Council, What decisions should be subject to merit review? (1999).
[107] Supplementary explanatory memorandum, statement of compatibility p. 8.
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URL: http://www.austlii.edu.au/au/other/AUSStaCSBSD/2024/240.html
