Thursday, 10 December 2020
Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020; Second Reading
That this bill be now read a second time.
The Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020 enhances the government's ability to uphold the safety and good order of the Australian community.
Criminal intelligence and related information is vital to assessing the criminal background or associations of non-citizen visa applicants and visa holders. The measures in this bill will ensure that sensitive information—disclosed in confidence by law enforcement and intelligence agencies—is appropriately protected.
This bill will amend the Migration Act 1958 (the Migration Act) to provide a framework to protect confidential information against unauthorised disclosure where that information has been provided by a law enforcement or intelligence agency to an authorised Commonwealth officer for consideration in a character test based visa decision.
The framework will enable the Minister for Home Affairs to disclose confidential information to a court for the purposes of proceedings before that court. It will also provide that the court must not disclose this information further where the court determines that to do so would create a real risk of damage to the public interest.
The bill will also amend the Australian Citizenship Act 2007 (the Citizenship Act) to create a framework, substantially similar to the amendments to the Migration Act, for the disclosure of confidential information provided by gazetted law enforcement and intelligence agencies for consideration in character related citizenship decisions.
The bill will also amend the Citizenship Act to create a power for the minister to issue a non-disclosure certificate on public interest grounds in relation to information relating to a decision made under the Citizenship Act where that decision is reviewable by the Administrative Appeals Tribunal. This includes for reasons relating to national security or law enforcement. This change replicates a similar power that already exists in the Migration Act for migration related decisions.
Additionally, the bill will make it an offence for Commonwealth officers to make unauthorised disclosures of confidential information provided by gazetted law enforcement and intelligence agencies and used in character related visa and citizenship decisions.
The creation of this offence highlights the seriousness with which the government regards the unauthorised disclosure of such information, due to the potential for severe damage to the public interest.
These changes also address a High Court decision in 2017, where the court held that the minister cannot be prevented by current section 503A of the Migration Act from being required to divulge certain confidential information to the High Court or to the Federal Court in order to review character test based visa decisions.
It is important that these measures are passed. While the type of confidential information used in character related decisions may not necessarily meet the threshold for nondisclosure under the national security framework, it nonetheless warrants protection. This is because of the potential consequences if the information is divulged—including the risk of compromising Australia's national security and the operations, capabilities and sources of law enforcement and intelligence agencies.
Additionally, public interest immunity does not provide full protection for the type of confidential information that may be provided by law enforcement or intelligence agencies or their sources to support character decisions.
The measures in this bill do not alter existing rights to seek merits review or judicial review of character related decisions. The bill ensures fairness to review applicants by allowing courts to admit the confidential information into evidence and to decide how much weight to give to that evidence.
This allows the courts to weigh a number of factors, including potential prejudice to an applicant by not having access to the confidential information, as well as the public interest.
The balance reflected in the bill will enable law enforcement agencies to continue to provide confidential information to the department to make fully informed visa and citizenship decisions on character grounds, while providing fairness to applicants seeking merits or judicial review of a departmental decision.
This is essential to the government's core business of regulating, in the national interest, who should enter and remain in Australia.
I commend the bill to the House.