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Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020 [2021] AUSStaCSBSD 5 (29 January 2021)

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

Adequacy of judicial review

Significant matters in delegated legislation^[29]

1.50 In Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1 (Graham), the High Court held that the minister cannot be prevented from being required to divulge certain information to the High Court or to the Federal Court of Australia in order to review a purported exercise of power by the Minister to refuse or cancel a visa on character grounds, or revoke or set aside such a decision under sections 501, 501A, 501B and 501C of the Migration Act 1958 (the Migration Act). The High Court held that the practical effect of the relevant secrecy provisions was to deny the Court the ability to fulfil its judicial review function under paragraph 75(v) of the Constitution of making a determination about whether or not legislatively imposed conditions of, and constraints on, a lawful exercise of power had been observed. The constitutional issue identified by the Court was that the provision imposed a ‘blanket and inflexible limit’ on the Court’s capacity to even look at material which was, by definition, relevant to its review task — irrespective of the importance of the undisclosed material in a particular case. As the minister could base a decision in whole or in part on the protected information, the secrecy provision could operate ‘to shield the purported exercise of power from judicial scrutiny’.^[31] The fact that the Court could not require the ‘undisclosed information’ to be adduced in evidence left it in the dark as to whether the preconditions for the exercise of power were based on decisions which were reasonably reached on the material that was considered.

1.51 The amendments to the Migration Act and the Australian Citizenship Act 2007 (the Citizenship Act) relating to the use of secret information seek to overcome this ruling by the High Court. 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.^[32] If information is ordered to be produced 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.^[33] The bill would require the court to order that any party that 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.^[34] 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.^[35] In deciding whether such a risk exists, the court would be required to only have regard to the list of matters set out in the bill, 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.^[36] 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.^[37]

1.52 As was emphasised by the High Court in Graham, a provision will be held inconsistent with section 75(v) of the Constitution to the extent it has the legal or practical operation of denying the court the ability to enforce the limits which Parliament has set on decision-making powers granted by the Parliament and this will be a question of substance and degree. The proposed scheme for allowing decisions to be based on secret information is more flexible than the one invalidated in Graham insofar as the Court is entitled to require the information be produced to it and to give that information such weight as it considers appropriate.

1.53 Nevertheless, the committee notes that the court has no flexibility to seek any feedback from the applicant to assist in performing its judicial review task. The exhaustive list of matters which are relevant to a judicial determination of whether or not there is a real risk to the public interest do not allow the court to balance that risk against the possibility that the applicant may be able to assist the court in the proper exercise of its judicial review function by responding to the secret information or aspects of that information. Nor does it appear that the court is able to disclose part of the secret information (such as the gist of the information or a discrete element of the information) even in circumstances where a partial disclosure could assist the court without creating a real risk of damage to the public interest. The committee is concerned that the provisions in the bill may continue to operate to undermine the practical efficacy of judicial review in many cases.

1.54 In light of the committee’s scrutiny concerns outlined above, the committee requests the minister's advice as to:

• whether the bill can be amended to allow the court to disclose part of the secret information in circumstances where partial disclosure could be achieved without creating a real risk of damage to the public interest;

• whether the gazetted intelligence and law enforcement agencies which may make use of the proposed scheme should be outlined in primary legislation or at least in delegated legislation subject to parliamentary disallowance, given the importance of balancing the constitutional right of an individual to meaningful judicial review with the interest of keeping certain information connected with law enforcement secret;

• whether proposed subsection 52C(5) of the Australian Citizenship Act 2007 and proposed subsection 503C(5) of the Migration Act 1958 could be amended to provide that the list of matters relevant to assessing the risk to the public interest is non-exhaustive;

• the appropriateness of allowing 'other matters' relevant to assessing the risk to the public interest to be specified in regulations; and

• whether, given the effect the secrecy provisions may have on the practical ability of the court to ensure power is exercised subject to jurisdictional limitations, proposed subsection 52B(8) of the Australian Citizenship Act 2007 and proposed subsection 503B(8) of the Migration Act 1958 can be amended to provide that the minister has an obligation to consider the exercise of the power to allow disclosure of information supplied by law enforcement or intelligence agencies, including to specified tribunals undertaking merits review of relevant decisions.

Parliamentary scrutiny^[38]

1.55 Item 3 of Schedule 1 to the bill seeks to insert proposed section 52A into the Australian Citizenship Act 2007, to set out the information that is to be protected under the new protected information framework. Proposed subsection 52A(3) provides that an officer or minister who receives confidential gazetted agency information must not be required to produce or give the information to, or in evidence to, a parliament or parliamentary committee. Confidential gazetted agency information is information that is communicated to an authorised Commonwealth officer by a gazetted intelligence or law enforcement agency on condition that it be treated as confidential information.

1.56 Item 9 of Schedule 1 to the bill seeks to insert proposed section 503A into the Migration Act 1958, which mirrors proposed section 52A of the Australian Citizenship Act 2007.

1.57 The explanatory memorandum generally explains that it is important for the Department of Home Affairs to ‘maintain robust information and intelligence-sharing relationships with gazetted agencies both domestically and internationally’,^[39] but does not at all address why it is necessary for the bill to prevent confidential gazetted agency information from being provided to a parliament or a parliamentary committee which would constitute a significant curtailment of the power of parliament.

1.58 The committee is concerned that proposed subsections 52A(3) and 503A(3) would have the effect of limiting parliamentary scrutiny and the Parliament's ability to review or oversee executive decision making. The committee notes that the Senate already has well-established processes in which the executive may make claims for public interest immunity where ministers or officials consider that they have grounds for withholding information from the Senate or a Senate committee.^[40] Therefore, from a scrutiny perspective, the committee considers that it is inappropriate to prescribe a blanket prohibition on the disclosure of confidential gazetted agency information to a parliament or parliamentary committee, with such issues more appropriately being determined on a case-by-case basis by the Senate.

1.59 In light of the above, the committee requests that proposed subsection 52A(3) of the Australian Citizenship Act 2007 and proposed subsection 503A(3) of the Migration Act 1958 be amended to omit the prohibition on the production or giving of confidential gazetted agency information to ‘a parliament or parliamentary committee’.

Evidentiary certificates
Natural justice^[41]

1.60 Item 3 of Schedule 1 seeks to insert proposed section 52A into the Citizenship Act. Proposed subsection 52A(4) provides that the hearsay rule does not apply to evidence that is given for the purposes of establishing that information is covered by proposed subsection 52A(1).^[42] Item 9 of Schedule 1 seeks to insert mirroring proposed subsection 503A(4) into the Migration Act in relation to information covered under proposed subsection 503A(1).

1.61 Proposed subsection 52A(5) provides that a certificate signed by an authorised officer that states that information was communicated to that officer by an undisclosed gazetted agency is prima facie evidence of the matters stated in the certificate. Item 9 of schedule 1 seeks to insert mirroring proposed subsection 503A(5) into the Migration Act.

1.62 Item 3 of Schedule 1 seeks to insert proposed subsection 52B(9) into the Citizenship Act, to provide that the rules of natural justice do not apply to the consideration or exercise of the power under proposed subsection 52B(1) relating to a ministerial declaration to allow the disclosure of information. Item 9 of Schedule 1 seeks to insert a mirroring proposed subsection 503B(9) into the Migration Act.

1.63 Item 5 of Schedule 2 seeks to insert proposed section 52J into the Citizenship Act, to provide that proposed sections 52G and 52H are exhaustive statements of the natural justice hearing rule in relation to the information or documents to which those sections apply, for the purposes of the review of a decision by the Administrative Appeals Tribunal (AAT). Proposed section 52G provides that the Secretary must not give a document or information to the AAT in relation to the review of a decision if the minister certifies that such a disclosure would be contrary to the public interest. Proposed section 52H provides that the AAT may have regard to such a determination and any relevant written advice provided by the secretary but can make its own determination as to whether to disclose any matter contained in the document or information to the applicant or any other person who has given evidence to the AAT in relation to the decision.

Evidentiary certificates (proposed subsections 52A(5) and 503A(5))

1.64 The Guide to Framing Commonwealth Offences states, in relation to conclusive evidentiary certificates, that requiring courts to exclude evidence to the contrary in this way can destroy any reasonable chance to place the complete facts before the court.^[43] The Guide to Framing Commonwealth Offences further provides that evidentiary certificates 'may be appropriate in limited circumstances where they cover technical matters sufficiently removed from the main facts at issue'.^[44]

1.65 The fact that information was not provided by a gazetted intelligence or law enforcement agency may be one of the few substantive bases for review under the new protected information framework. As a result, the committee has significant scrutiny concerns regarding the use of such certificates in this instance. The committee notes that the explanatory memorandum provides little additional information to explain and justify the inclusion of these proposed subsections in the bill.

Natural justice (proposed subsections 52B(9) and 503B(9) and proposed section 52J)

1.66 In addition, the committee notes that the natural justice hearing rule, which requires that a person be given an opportunity to present their case, is a fundamental common law principle and if it is to be abrogated or limited this should be thoroughly justified in a bill's explanatory memorandum. The committee also notes that the courts have consistently interpreted procedural fairness obligations flexibly based on specific circumstances and the statutory context. If it could, in the circumstances of a particular case, be demonstrated that specified information may be disclosed, then the rules of natural justice may require no more than a consideration of the extent to which it is possible to give notice to the affected person and how much (if any) detail of the reasons for the proposed decision should be disclosed.^[45] The explanatory materials do not address why this level of flexibility would not adequately deal with situations where it would be impractical or inappropriate to grant a reasonable opportunity to be heard.

1.67 Specifically, the committee is concerned that proposed subsection 52B(9) and proposed subsection 503B(9) provide that the rules of natural justice do not apply to the consideration or exercise of the power for the minister to make a declaration to allow the disclosure of information. In this regard the committee notes that the explanatory memorandum does not justify why this is necessary or appropriate.

1.68 In addition, the committee is concerned that proposed section 52J seeks to limit the rules of natural justice in relation to review of decisions by the AAT. In this regard the explanatory memorandum fails to explain the operation and effect of proposed subsection 52J and does not justify why it is considered necessary and appropriate.

1.69 In light of the above, the committee requests the minister's advice as to:

• why it is considered necessary and appropriate for evidentiary certificates to be prima facie evidence of the fact that information was communicated to an officer by a gazetted intelligence or law enforcement agency;

• why it is considered necessary and appropriate to provide that the rules of natural justice do not apply to the consideration or exercise of the power for the minister to make a declaration to allow the disclosure of information; and

• why it is considered necessary and appropriate for proposed section 52J to provide that proposed sections 52G and 52H are exhaustive statements of the natural justice hearing rule in relation to review of a decision by the Administrative Appeals Tribunal.

Significant matters in delegated legislation^[46]

1.70 Item 3 of Schedule 1 seeks to insert proposed paragraph 52C(5)(h) into the Citizenship Act. This would provide that regulations made under the bill may specify additional matters that the court may have regard to when determining whether disclosing information would create a real risk of damage to the public interest. Item 9 of Schedule 1 seeks to insert mirroring proposed paragraph 503C(5)(h) into the Migration Act.

1.71 The committee's view is that significant matters, such as the matters that may be considered by the court in relation to information and evidence disclosed on review, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the explanatory memorandum contains no justification regarding why it is considered necessary to allow such significant matters to be set out in delegated legislation, for either provision.

1.72 The committee notes that a legislative instrument, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill.

1.73 In light of the above, the committee requests the minister's detailed advice as to why it is considered necessary and appropriate to leave matters relevant to the court's determination of whether to disclose information for judicial review to delegated legislation.

Broad delegation of administrative powers^[47]

1.74 Item 7 of Schedule 2 seeks to insert proposed subsection 53(3) into existing section 53 of the Citizenship Act. This would provide that the secretary may delegate in writing all or any of their powers or functions under the Act or the regulations.

1.75 The committee has consistently drawn attention to legislation that allows the delegation of administrative powers to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, the committee prefers to see a limit set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated. The committee's preference is that delegates be confined to the holders of nominated offices or to members of the Senior Executive Service. Where broad delegations are provided for, the committee considers that an explanation of why these are considered necessary should be included in the explanatory memorandum.

1.76 In this regard, the explanatory memorandum states:

This item inserts new subsection 53(3) to establish a power for the Secretary of the Department to delegate (by writing) any of the Secretary’s functions or powers under the Citizenship Act or the Citizenship Regulation. This would apply to the Secretary’s powers and functions under the new non-disclosure certificate provisions being inserted by this Bill. The only other powers or functions in the Act provided to the Secretary are also conferred on relevant employees of the Department so the power to delegate would not be relevant to those powers and functions. The ability for the Secretary’s powers in relation to non-disclosure certificates to be delegated will align with similar provisions in the Migration Act regarding processes for non-disclosure certificates. The number of cases seeking merits review on the basis of a refusal of citizenship application is envisioned to be on a scale where delegation would be appropriate for the foreseeable future. The delegation of the Secretary’s obligations in new sections 52G and 52H is also appropriate given that the obligations include obligations of an administrative nature, for example, giving documents to the AAT which the Minister has relevantly certified and notifying the AAT of the application of section 52H. For this reason, it is not considered necessary to limit the delegation of the Secretary’s powers to SES staff within the Department. Relevant training and guidance will also be provided to delegates to ensure the integrity of this process.
This item also inserts new subsection 53(4). New subsection 53(4) expressly provides that section 53 of the Australian Border Force Act 2015 (the ABF Act) does not apply in relation to a function or power under the Citizenship Act. Although section 53 of the ABF Act establishes a power for the Secretary to delegate any of his or her functions or powers under a law of the Commonwealth, the purpose of this amendment is to give primacy to the delegation powers in amended section 53 of the Citizenship Act, for the purposes of that Act.^[48]

1.77 In light of the detailed information provided in the explanatory memorandum in relation to training and guidance for delegates, the committee makes no further comment on this matter.

^[29]30 The committee draws senators’ attention to this matter pursuant to Senate Standing Order 24(1)(a)(iii) and (iv).

[31] Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1 [53].

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

[33] 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.

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

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

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

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

[38] Schedule 1, item 3, proposed subsection 52A(3) and item 9, proposed subsection 503A(3). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(v).

[39] Explanatory memorandum, p. 10, para 25.

[40] Rosemary Laing (ed), Odgers’ Australian Senate Practice, 14^th ed, 2016, pp. 643-670.

[41] Schedule 1, item 3, proposed subsections 52A(4), (5) and (7), and proposed subsection 52B(9), item 9, proposed subsection 503A(4), (5) and (7), and proposed subsection 503B(9), and Schedule 2, item 5, proposed section 52J. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iii).

^[42] Proposed subsection 54A(1) sets out the scope of information that is considered protected information under the new framework.

[43] Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers,

September 2011, p. 55.

[44] Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement

Notices and Enforcement Powers, September 2011, p. 55.

[45] For example, see Leghaei v Director General of Security [2005] FCA 1576; [2007] FCAFC 27.

[46] Schedule 1, item 3, proposed paragraph 52C(5)(h) and item 9, proposed paragraph 503C(4)(h). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).

[47] Schedule 2 item 7 proposed subsections 53(3) and (4). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii).

[48] Explanatory memorandum, p. 41, paras 173-174.