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This is a Bill, not an Act. For current law, see the Acts databases.
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Migration Legislation Amendment (Protected
Information) Bill 2002
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2002
The Parliament of
the
Commonwealth of Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Migration Legislation Amendment
(Protected Information) Bill 2002
No. ,
2002
(Immigration and Multicultural and Indigenous
Affairs)
A Bill for an Act to amend the Migration Act 1958,
and for other purposes
Contents
A Bill for an Act to amend
the Migration Act 1958, and for other purposes
The Parliament
of Australia enacts:
1 Short title
This Act may be cited as
the Migration Legislation Amendment (Protected Information) Act
2002.
2 Commencement
This Act commences on the day
after it receives the Royal Assent.
3 Schedule(s)
Each Act
that is specified in a Schedule to this Act is amended or repealed as set out in
the applicable items in the Schedule concerned, and any other item in a Schedule
to this Act has effect according to its terms.
Schedule 1Amendment
of the Migration Act 1958
1 At the end of subsection
476(2)
Add or subsection 503A(3).
2 After subsection
503A(3)
Insert:
(3A) The Minister does not have a duty to
consider whether to exercise the Ministers power under
subsection (3).
3 After subsection
503A(4)
Insert:
(4A) If a person divulges or communicates
particular information to a Commonwealth officer in accordance with a
declaration under subsection (3):
(a) the officer must not be
required to divulge or communicate the information to the Federal Court or the
Federal Magistrates Court; and
(b) the officer must not give the
information in evidence before the Federal Court or the Federal Magistrates
Court.
The information may only be considered by the Federal Court or the
Federal Magistrates Court if a fresh disclosure of the information is made in
accordance with:
(c) a declaration under subsection (3);
or
(d) subsection 503B(6).
4 After subsection
503A(5)
Insert:
(5A) If a person divulges or communicates
particular information to a tribunal in accordance with a declaration under
subsection (3):
(a) the member or members of the tribunal must
not be required to divulge or communicate the information to the Federal Court
or the Federal Magistrates Court; and
(b) the member or members of
the tribunal must not give the information in evidence before the Federal Court
or the Federal Magistrates Court.
The information may only be considered
by the Federal Court or the Federal Magistrates Court if a fresh disclosure of
the information is made in accordance with:
(c) a declaration under
subsection (3); or
(d) subsection 503B(6).
5
Paragraph 503A(6)(a)
After this Act, insert (other than
sections 503B and 503C).
6 After
section 503A
Insert:
503B Protection of confidential
information disclosed to the Federal Court or the Federal Magistrates
Courtpermanent non-disclosure orders
Court may make non-disclosure
orders
(1) If:
(a) either:
(i) information
is communicated to an authorised migration officer by a gazetted agency on
condition that it be treated as confidential information and the information is
relevant to the exercise of a power under section 501, 501A, 501B or 501C;
or
(ii) information is communicated to the Minister or an authorised
migration officer in accordance with paragraph 503A(1)(a) or (b);
and
(b) the information is relevant to proceedings (the
substantive proceedings) before the Federal Court or the Federal
Magistrates Court that relate to section 501, 501A, 501B or 501C;
and
(c) no declaration is in force under subsection 503A(3)
authorising the disclosure of the information to the Federal Court or the
Federal Magistrates Court for the purposes of the substantive
proceedings;
the Federal Court or the Federal Magistrates Court may, on
application by the Minister, make such orders as the Federal Court or the
Federal Magistrates Court considers appropriate for the purpose of ensuring
that, in the event that such a declaration comes into force and the information
is disclosed to the Federal Court or the Federal Magistrates Court, the
information is not divulged or communicated to:
(d) the applicant in
relation to the substantive proceedings; or
(e) the legal
representative of the applicant in relation to the substantive proceedings;
or
(f) any other member of the public.
(2) The Federal
Courts or Federal Magistrates Courts orders under subsection (1)
include:
(a) an order that some or all of the members of the public
are to be excluded during the whole or a part of the hearing of the substantive
proceedings; or
(b) an order that no report of the whole of, or a
specified part of, or relating to, the substantive proceedings is to be
published; or
(c) an order for ensuring that no person, without the
consent of the Federal Court or the Federal Magistrates Court, has access to a
file or a record of the Federal Court or the Federal Magistrates Court that
contains the information.
(3) Subsection (2) does not limit
subsection (1).
(4) The powers of the Federal Court under this
section are to be exercised by a single Judge, and the powers of the Federal
Magistrates Court under this section are to be exercised by a single Federal
Magistrate.
Criteria for making non-disclosure
order
(5) In exercising its powers under subsection (1),
the Federal Court or the Federal Magistrates Court must have regard to all of
the following matters:
(a) the fact that the information was
communicated, or originally communicated, to an authorised migration officer by
a gazetted agency on condition that it be treated as confidential
information;
(b) Australias relations with other
countries;
(c) the need to avoid disruption to national and
international efforts relating to law enforcement, criminal intelligence,
criminal investigation and security intelligence;
(d) in a case
where the information was derived from an informantthe protection and safety of
informants and of persons associated with informants;
(e) the
protection of the technologies and methods used (whether in or out of Australia)
to collect, analyse, secure or otherwise deal with, criminal intelligence or
security intelligence;
(f) Australias national
security;
(g) the fact that the disclosure of information may
discourage gazetted agencies and informants from giving information in the
future;
(h) the effectiveness of the investigations of official
inquiries and Royal Commissions;
(i) the interests of the
administration of justice;
(j) such other matters (if any) as are
specified in the regulations;
and must not have regard to any other
matters.
Disclosure of information for the purposes of deciding
whether or not to make a non-disclosure order
(6) If an
application is made under subsection (1) in relation to particular
information, subsections 503A(1) and (2) do not prevent the disclosure of the
information to the Federal Court or the Federal Magistrates Court for the
purposes of enabling the Federal Court or the Federal Magistrates Court to make
a decision on the application.
(7) If information is disclosed to
the Federal Court or the Federal Magistrates Court under
subsection (6):
(a) the information is not to be treated as
having been disclosed to the Federal Court or the Federal Magistrates Court for
the purposes of the substantive proceedings; and
(b) the information
may only be considered by the Federal Court or the Federal Magistrates Court for
the purposes of the substantive proceedings if a fresh disclosure of the
information is made in accordance with a declaration under subsection
503A(3).
Variation or revocation of non-disclosure
order
(8) The Federal Court or the Federal Magistrates Court
may, by order, vary or revoke an order made by it under subsection (1) if
both:
(a) the Minister; and
(b) the applicant in
relation to the substantive proceedings;
consent to the variation or
revocation.
Withdrawal of application for non-disclosure
order
(9) The Minister may withdraw an application under
subsection (1) at any time.
Declarations under subsection
503A(3)
(10) This section does not prevent the Minister from
making a declaration at any time under subsection 503A(3) authorising the
disclosure of the information to the Federal Court or the Federal Magistrates
Court for the purposes of the substantive proceedings, even if that time occurs
while the Federal Court or the Federal Magistrates Court is considering whether
to make an order under subsection (1).
(11) To avoid doubt, the
Minister may refuse to make a declaration under subsection 503A(3) even if the
Federal Court or the Federal Magistrates Court has made an order under
subsection (1) of this section in relation to the information
concerned.
Offence
(12) A person is guilty of an
offence if:
(a) an order is in force under subsection (1);
and
(b) the person engages in conduct; and
(c) the
persons conduct contravenes the order.
Penalty: Imprisonment for 2
years.
Relationship to other laws
(13) This section
has effect despite anything in:
(a) any other provision of this Act;
or
(b) any other law of the
Commonwealth.
Applicant
(14) For the purposes of this
section, the table has effect:
|
Item |
In the case of these proceedings... |
the applicant is... |
|
1 |
(a) proceedings by way of an application for judicial review; |
the applicant for judicial review. |
|
2 |
(a) proceedings under subsection 39B(1) of the Judiciary Act
1903; |
the person who is seeking the writ or injunction concerned. |
|
3 |
(a) proceedings under subsection 39B(1A) or section 44 of the
Judiciary Act 1903; |
the person who is seeking to take the action concerned (whether the action
is for declaratory relief, injunctive relief, damages or anything
else). |
|
4 |
(a) proceedings by way of a referral of a question of law arising before
the Administrative Appeals Tribunal; |
the person who applied to the Administrative Appeals Tribunal for a review
of the decision concerned. |
|
5 |
(a) proceedings by way of an appeal, on a question of law, from a decision
of the Administrative Appeals Tribunal; |
the person who applied to the Administrative Appeals Tribunal for a review
of the decision concerned. |
Definitions
(15) In this
section:
authorised migration officer has the same meaning
as in section 503A.
engage in conduct
means:
(a) do an act; or
(b) omit to perform an
act.
gazetted agency has the same meaning as in
section 503A.
proceeding means a proceeding in a
court, whether between parties or not, and includes an incidental proceeding in
the course of, or in connection with, a proceeding, and also includes an
appeal.
Royal Commission means a Royal Commission (however
described) under a law of the Commonwealth, a State or a
Territory.
503C Protection of confidential information disclosed to
the Federal Court or the Federal Magistrates Courtinterim non-disclosure
orders
Notice of intention to apply for a permanent non-disclosure
order
(1) At least 7 days before making an application for an
order under subsection 503B(1) in relation to particular information, the
Minister must give the Federal Court or the Federal Magistrates Court written
notice of the Ministers intention to make the application.
(2) A
notice under subsection (1) need not identify any of the attributes of the
information.
Interim non-disclosure
order
(3) If:
(a) a notice is given under
subsection (1); and
(b) the notice relates to the Ministers
intention to make an application for an order under subsection 503B(1) in
relation to particular information;
the Federal Court or the Federal
Magistrates Court may, on application by the Minister, make such orders as the
Federal Court or the Federal Magistrates Court considers appropriate for the
purpose of ensuring that, in the event that the subsection 503B(1) application
is made and the information is disclosed to the Federal Court or the Federal
Magistrates Court in accordance with subsection 503B(6), the information is not
divulged or communicated in circumstances that might, to any extent, undermine,
prejudice or pre-empt:
(c) the Federal Courts or the Federal
Magistrates Courts consideration of the subsection 503B(1) application;
or
(d) the Ministers consideration of whether to make a declaration
under subsection 503A(3) authorising the disclosure of the information to the
Federal Court or the Federal Magistrates Court.
(4) The Federal
Courts or the Federal Magistrates Courts orders under subsection (3)
include:
(a) an order that some or all of the members of the public
are to be excluded during the whole or a part of the hearing of the subsection
503B(1) application; or
(b) an order that no report of the whole of,
or a specified part of, or relating to, the subsection 503B(1) application is to
be published; or
(c) an order for ensuring that no person, without
the consent of the Federal Court or the Federal Magistrates Court, has access to
a file or a record of the Federal Court or the Federal Magistrates Court that
contains the information.
(5) Subsection (4) does not limit
subsection (3).
(6) The powers of the Federal Court under this
section are to be exercised by a single Judge, and the powers of the Federal
Magistrates Court under this section are to be exercised by a single Federal
Magistrate.
Variation or revocation of non-disclosure
order
(7) The Federal Court or the Federal Magistrates Court
may, by order, vary or revoke an order made by it under subsection (3) if
both:
(a) the Minister; and
(b) the applicant in
relation to the substantive proceedings concerned;
consent to the
variation or revocation.
Offence
(8) A person is
guilty of an offence if:
(a) an order is in force under
subsection (3); and
(b) the person engages in conduct;
and
(c) the persons conduct contravenes the
order.
Penalty: Imprisonment for 2 years.
Relationship to
other laws
(9) This section has effect despite anything
in:
(a) any other provision of this Act; or
(b) any
other law of the Commonwealth.
Definition
(10) In this
section:
engage in conduct means:
(a) do an
act; or
(b) omit to perform an act.
7
Applicationpre-commencement proceedings
Sections 503B and 503C
of the Migration Act 1958 apply in relation to proceedings before the
Federal Court or the Federal Magistrates Court, whether those proceedings were
instituted before, on or after the commencement of this
item.
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