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2002
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION
LEGISLATION AMENDMENT (PROTECTED INFORMATION) BILL
2002
EXPLANATORY MEMORANDUM
(Circulated by authority of
the Minister for Immigration and Multicultural and
Indigenous Affairs, the
Hon. Philip Ruddock MP)
MIGRATION LEGISLATION AMENDMENT (PROTECTED INFORMATION) BILL
2002
OUTLINE
1. The Migration Legislation Amendment
(Protected Information) Bill 2002 (the Bill) amends the Migration Act
1958 (the Act) to provide more effective protection to confidential
information given to the Minister for the purposes of making decisions to refuse
a visa application or to cancel an existing visa on the basis of the character
or conduct of a non-citizen. This information is provided by gazetted agencies
on the condition that it is treated by the Minister as confidential.
2. The
Bill builds on section 503A of the Act, inserted by the Migration Legislation
Amendment (Strengthening of Provisions relating to Character and Conduct) Act
1998. Section 503A provides, in broad terms, that confidential information
cannot be disclosed unless the Minister makes a declaration in writing after
having consulted the gazetted agency from which the information originated (see
subsection 503A(3)).
3. The existing statutory scheme of protection in
section 503A does not extend to protect confidential information from disclosure
where the information is before the courts. This means public interest immunity
must be relied upon to protect the information from disclosure.
4. This Bill
replaces public interest immunity as the mechanism for protecting confidential
information by extending the scheme of statutory protection to the Federal Court
of Australia and the Federal Magistrates Court.
5. Accordingly, the proposed
amendments to the Act:
• limit the disclosure of section 503A
protected information to the Federal Court and the Federal Magistrates Court to
specified circumstances;
• enable the courts to use interim and
permanent non-disclosure orders to protect information that is disclosed to
them;
• set out specific criteria to which the courts must have regard
when considering the making of a permanent non-disclosure
order;
• allow the courts to revoke or vary non-disclosure orders with
the consent of both parties to the substantive proceedings;
• make it
an offence for a person to engage in conduct that contravenes a non-disclosure
order;
• clarify that the Minister does not have a duty to consider
whether to make a declaration authorising the disclosure of confidential
information under subsection 503A(3) of the Act; and
• prevent the
possibility of collateral review of certain decisions of the Minister under
section 503A of the Act by limiting the scope of the powers of the courts in
relation to those decisions.
•
FINANCIAL IMPACT STATEMENT
1. Moderate increases to litigation costs will be incurred by the
Immigration and Multicultural and Indigenous Affairs portfolio as a result of
the passage of the Bill. These costs will need to be absorbed through existing
budget allocations.
MIGRATION LEGISLATION AMENDMENT (PROTECTED
INFORMATION) BILL 2002
NOTES ON INDIVIDUAL
CLAUSES
Clause 1 Short
title
1. The short title by which this Act will be known is the
Migration Legislation Amendment (Protected Information) Act 2002.
Clause 2 Commencement
2. This clause provides that this Act
commences on the day after it receives the Royal Assent.
Clause
3 Schedule(s)
3. This clause provides that each Act specified in a
Schedule to this Act is amended or repealed as set out in the applicable items
in the Schedule concerned. In addition, any other item in a Schedule to this Act
has effect according to its terms.
SCHEDULE 1 Amendment of the
Migration Act 1958
Item 1 At the end of
subsection 476(2)
4. This item makes a minor amendment to subsection
476(2) of the Act to exclude from the jurisdiction of the Federal Court and the
Federal Magistrates Court a decision of the Minister not to exercise, or not to
consider the exercise of, the Ministers power under subsection 503A(3). This
exclusion has effect despite any other law (including, for example, sections 39B
and 44 of the Judiciary Act 1903, section 32AB of the Federal Court of
Australia Act 1976 and section 39 of the Federal Magistrates Act
1999).
5. Subsection 503A(3) provides that the Minister may declare, in
writing, that specified information, which has been provided by a gazetted
agency on the understanding that it be treated as confidential, may be disclosed
to a specified person or body in specified circumstances. This power is similar
in nature to the powers already listed in subsection 476(2) in that it is a
specified personal public interest power.
Item 2 After subsection
503A(3)
6. This item inserts new subsection 503A(3A) after subsection
503A(3) of the Act.
7. New subsection 503A(3A) expressly provides that the
Minister cannot be compelled to consider whether to exercise his or her
discretion to make a declaration under subsection 503A(3) to disclose
confidential information.
Item 3 After subsection 503A(4)
8. This item inserts new subsection 503A(4A) after subsection 503A(4) of the
Act to limit the circumstances in which confidential information, that has been
communicated to a Commonwealth officer, may be disclosed to the Federal Court or
the Federal Magistrates Court.
9. New subsection 503A(4A) provides that,
where information has been divulged or communicated to a Commonwealth officer
under subsection 503A(3), the officer must not be required to disclose that
information to the courts (by way of evidence or otherwise). The information may
only be disclosed to the Federal Court or the Federal Magistrates Court if a
fresh disclosure of the information is made in accordance with a declaration
under subsection 503A(3) or under new subsection 503B(6) (as contained in item 6
of this Schedule).
10. Proposed new subsection 503B(6) provides that
confidential information, which is relevant to a permanent non-disclosure order
application made by the Minister, may be disclosed to Federal Court or the
Federal Magistrates Court for the purpose of enabling them to decide whether to
make a permanent non-disclosure order.
Item 4 After subsection
503A(5)
11. This item inserts new subsection 503A(5A) after subsection
503A(5) of the Act to limit the circumstances in which confidential information,
that has been communicated to a tribunal, may be disclosed to the Federal Court
or the Federal Magistrates Court.
12. New subsection 503A(5A) provides that,
where information has been divulged or communicated to a tribunal under
subsection 503A(3), the member or members of the tribunal must not be required
to disclose that information to the courts (by way of evidence or otherwise).
The information may only be disclosed to the Federal Court or the Federal
Magistrates Court if a fresh disclosure of the information is made in accordance
with a declaration under subsection 503A(3) or under new subsection 503B(6).
Item 5 Paragraph 503A(6)(a)
13. This item amends
paragraph 503A(6)(a) to clarify that section 503A has effect despite any other
provision of the Act other than sections 503B and 503C.
14. Sections 503B
and 503C enable the Federal Court and the Federal Magistrates Court to make
permanent and interim non-disclosure orders to protect confidential information
that comes before the courts. It is necessary to ensure that these permanent and
interim non-disclosure orders by the Federal Court or the Federal Magistrates
Court take precedence over section 503A of the Act.
Item 6 After
section 503A
15. This item inserts new sections 503B and 503C after
section 503A of the Act to limit the circumstances in which confidential
information may be disclosed to the courts and extend the scheme of statutory
protection to confidential information before the courts.
16. Section 503A
currently provides a general framework for the protection of confidential
information. These new provisions supplement that framework by ensuring that the
procedures of the Federal Court or the Federal Magistrates Court effectively
protect such information, which may be disclosed to the courts in certain
circumstances.
17. The provisions operate as follows:
• new
section 503B authorises the Federal Court or the Federal Magistrates Court to
make permanent non-disclosure orders to allow the Minister to disclose
(without the risk of unintended disclosure by the court) section 503A
information for the purposes of the substantive proceedings (ie challenging the
decision to cancel or refuse a visa on character-related grounds); and
• new section 503C authorises the Federal Court or the Federal
Magistrates Court to make interim non-disclosure orders to protect
the use of section 503A information that comes before the courts while they are
considering whether to make permanent non-disclosure orders under section
503B.
•
Section 503B Protection of confidential
information disclosed to the Federal Court or the Federal Magistrates Court
permanent non-disclosure orders
1. New section 503B provides for the
making of permanent non-disclosure orders by the Federal Court or the Federal
Magistrates Court. The purpose of these orders is to ensure that confidential
information is not divulged or communicated in the substantive proceedings to
the applicant, his or her legal representative, or any other member of the
public.
Courts may make non-disclosure orders
2. New subsection
503B(1) provides that the Federal Court or the Federal Magistrates Court may, on
application by the Minister, make permanent non-disclosure orders in relation to
section 503A information where that information:
• has been
communicated to the Minister or an authorised migration officer (defined in new
subsection 503B(15));
• is relevant to the substantive proceedings
before the court (ie. the hearings on the decision to refuse or cancel a visa on
character grounds); and
• is not the subject of a subsection 503A(3)
declaration, authorising the disclosure of the information to the court for the
purposes of the substantive proceedings.
1. New subsection 503B(1) does not
impose a duty on the Federal Court or the Federal Magistrates Court to make a
permanent non-disclosure order. As such, the courts discretion is retained and,
importantly, there is no interference with the exercise of judicial power.
2. In effect, a permanent non-disclosure order made by the Federal Court or
the Federal Magistrates Court will operate to protect confidential information
if the Minister makes a declaration under subsection 503A(3) that the
information can be disclosed to the court for the purposes of the substantive
proceedings.
3. Under new subsection 503C(1), the Minister must give the
court at least 7 days notice, in writing, of his or her intention to seek a
permanent non-disclosure order.
4. New subsection 503B(2) provides that the
orders under new subsection 503B(1) may:
• exclude some or all members
of the public during the whole or a part of the hearing of the substantive
proceedings;
• no report of the whole of, or a specified part of, the
substantive proceedings is to be published; or
• no person, without
the consent of the court, have access to a file or a record of the court that
contains the confidential information.
1. The orders must be appropriate to
ensuring that the confidential information is not divulged or communicated to:
• the applicant;
• the applicants legal representative; or
• any other member of the public.
1. New subsection 503B(3)
clarifies that the Federal Court or the Federal Magistrates Court, in making an
order under subsection 503B(1), is not limited to the types of orders listed in
subsection 503B(2).
2. New subsection 503C(4) specifies that the power of
the Federal Court or the Federal Magistrates Court to make a permanent
non-disclosure order must be exercised by a single Judge or a single Federal
Magistrate.
Criteria for making non-disclosure order
3. New
subsection 503B(5) sets out an exhaustive list of matters to which the Federal
Court or the Federal Magistrates Court must have regard when deciding whether to
exercise the power in new subsection 503B(1).
4. This list is intended to
provide a clear guide to the exercise of those powers in order to ensure that
consistent and fair results are achieved. It is also intended to ensure that the
court has sufficient powers to effectively protect both the source of
confidential character information and the information itself.
5. New
paragraph 503B(5)(j) provides that matters additional to those set out in new
subsection 503B(5) can be prescribed in the Regulations. This flexibility is
intended to ensure that the efficacy of the Bill is not weakened by future
unforeseen circumstances.
Disclosure of information for the purposes
of deciding whether or not to make a non-disclosure order
6. New
subsection 503B(6) provides that, in certain circumstances, subsections 503A(1)
and (2) of the Act do not prevent the disclosure of confidential information to
the courts for the purposes of enabling the courts to determine whether or not
to make a permanent non-disclosure order. These circumstances are where the
Minister has made an application to the Federal Court or the Federal Magistrates
Court for a permanent non-disclosure order under subsection 503B(1).
7. This
provision obviates the need for a declaration to be made by the Minister under
subsection 503A(3) that specified information may be disclosed to a specified
court in specified circumstances.
8. New subsection 503B(7) makes it clear
that information disclosed under subsection 503B(6) is disclosed for the sole
purpose of enabling the Federal Court or the Federal Magistrates Court to
determine whether to make a permanent non-disclosure order. The information must
not be treated as having been disclosed to the courts for the purposes of the
substantive proceedings and may only be considered for such purposes 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
9. New subsection 503B(8) allows the Federal Court or Federal
Magistrates Court to vary or revoke a permanent non-disclosure order made
under new subsection 503B(1) in certain circumstances. These circumstances are
where both the Minister and the applicant in relation to the substantive
proceedings consent to the variation or revocation.
10. There is no power
for the court to vary or revoke an order in any other circumstances.
Withdrawal of application for non-disclosure order
11. New
subsection 503B(9) allows the Minister to withdraw, at any time, his or her
application to the court to make a permanent non-disclosure order under new
subsection 503B(1).
Declarations under subsection 503A(3)
12. New subsection 503B(10) explains the interaction between new section
503B and subsection 503A(3) of the Act. It clarifies that proposed new section
503B does not prevent the Minister from making a declaration at any time under
subsection 503A(3). This means that the Minister may authorise the disclosure of
confidential information to the court regardless of the fact that this may occur
at a time when the court is considering whether to make a permanent
non-disclosure order under subsection 503B(1).
13. New subsection 503B(11)
makes it clear that the Minister is under no obligation to make a declaration
under new subsection 503A(3) authorising the disclosure of confidential
information. This provision is intended to remove any doubt that the Ministers
discretion to refuse to disclose confidential information is not limited by the
court having made non-disclosure orders, or not making non-disclosure orders.
Offence
14. New subsection 503B(12) is a penalty provision.
It stipulates that a person is guilty of an offence, and liable to two years
imprisonment, if a permanent non-disclosure order is in force under subsection
503B(1) and the person engages in conduct that contravenes that order.
15. New subsection 503B(15) defines engage in conduct to mean do an act or
omit to perform an act.
16. This provision is intended to ensure compliance
with the courts order to protect confidential information.
Relationship to other laws
17. New subsection 503B(13)
provides that this section prevails over any other provision of the Act, and any
other law of the Commonwealth.
18. This protection is consistent with
similar provisions protecting section 503A information which new section 503B
augments: see existing subsections 503A(6) (as amended by item 5) and subsection
503A(8) of the Act, and new subsection 503C(9).
Applicant
19. New subsection 503B(14) inserts a table for the purposes of section
503B, which sets out who is an applicant in relation to certain proceedings.
20. This table is intended to be comprehensive, and includes applicants for
judicial review directly, as well as those who have first sought merits review
at the Administrative Appeals Tribunal. It also covers applicants seeking review
by the Full Court.
21. Any person seeking a writ of certiorari, mandamus or
prohibition, or a declaration, injunction, damages or anything else pursuant to
the courts jurisdiction under section 39B or section 44 of the Judiciary Act
1903, or section 483A of the Act, will also be an applicant for the purposes
of section 503B.
Definitions
22. New subsection 503B(15)
provides a definitions provision for the purposes of section 503B, which defines
authorised migration officer, engage in conduct, gazetted agency, proceeding and
Royal Commission.
23. Under new subsection 503B(15), authorised migration
officer and gazetted agency are defined to have the same meaning as in section
503A of the Act. Subsection 503A(9) sets out the definition of authorised
migration officer and gazetted agency for the purposes of section 503A.
24. Under subsection 503A(9), an authorised migration officer is defined to
mean a Commonwealth officer whose duties consist of, or include, the performance
of functions, or the exercise of powers, under this Act. A gazetted agency is
defined to mean a body, agency or organisation that is:
• responsible
for law enforcement, criminal intelligence, criminal investigation or security
intelligence in, or in a part of, Australia or a foreign country; and
• specified in a notice published by the Minister in the
Gazette.
1. Engage in conduct is defined in new subsection 503B(15)
to mean doing an act or omitting to perform an act.
2. Proceeding is defined
in new subsection 503B(15) to mean 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. This definition is
identical to the definition of proceeding under section 4 of the Federal
Court of Australia Act 1976 and section 5 of the Federal Magistrates Act
1999.
3. Royal Commission is defined in subsection 503B(15) to mean a
Royal Commission (however described) under a law of the Commonwealth, a State or
a Territory.
Section 503C Protection of confidential
information disclosed to the Federal Court or the Federal Magistrates Court
interim non-disclosure orders
4. New section 503C enables the Federal
Court or the Federal Magistrates Court to make interim non-disclosure orders to
ensure that confidential information which is communicated or divulged to the
courts for deciding whether to make a permanent non-disclosure order is
protected from unintended disclosure pending that decision.
5. In addition,
these orders are intended to save the courts time during this interim period by
preventing procedural motions that are designed to reveal the confidential
information to the applicant or his or her counsel. This is particularly
important because some applicants (particularly persons with suspected contacts
with organised crime) are expected to be more interested in learning the source
of the information than in pursuing the substantive matter (that is, in
challenging a decision to refuse a visa application or to cancel a visa).
Notice of intention to apply for a permanent non-disclosure order
6. New subsection 503C(1) provides that the Minister must give the Federal
Court or the Federal Magistrates Court at least 7 days written notice before
making an application for a permanent non-disclosure order under subsection
503B(1).
7. New subsection 503C(2) provides that a notice under new
subsection 503C(1) need not identify any of the attributes of the information
for which protection is being sought.
Interim non-disclosure
order
8. New subsection 503C(3) provides that the Federal Court or the
Federal Magistrates Court may, on application by the Minister, make interim
non-disclosure orders relating to section 503A information where the Minister
has given notice in accordance with subsection 503C(1). There is no duty on the
courts to make such an order. As such, the courts discretion is retained and
there is no interference with judicial power.
9. Interim non-disclosure
orders that are made by the Federal Court or Federal Magistrates Court will
operate if the Minister makes an application for a permanent non-disclosure
order under subsection 503B(1), and the confidential information is disclosed to
the courts in accordance with subsection 503B(6).
10. The purpose of interim
orders is to ensure that the information disclosed under subsection 503B(6) is
not divulged or communicated in circumstances which might undermine, prejudice
or pre-empt:
• the courts consideration of the permanent
non-disclosure order application; or
• the Ministers consideration of
whether to authorise a fresh disclosure of the information to the court under
subsection 503A(3) (for the purposes of the substantive visa refusal /
cancellation hearing).
1. New subsection 503C(4) lists the types of interim
orders that the Federal Court or the Federal Magistrates Court can make under
new subsection 503C(3). These include orders 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 permanent non-disclosure application; or
• no report of
the whole of, or a specified part of, the permanent non-disclosure application
is to be published; or
• no person, without the consent of the court,
has access to a file or record of the court that contains the information.
1. New subsection 503C(5) clarifies that the Federal Court or the Federal
Magistrates Court is not limited to the types of orders listed in subsection
503C(4).
2. New subsection 503C(6) specifies that the powers of the Federal
Court or the Federal Magistrates Court to make an interim non-disclosure order
must be exercised by a single Judge or a single Federal Magistrate.
Variation or revocation of non-disclosure order
3. New
subsection 503C(7) allows the Federal Court or the Federal Magistrates Court to
vary or revoke an order made under new subsection 503C(3) if both the Minister
and the applicant in the substantive proceedings consent to the variation or
revocation.
4. This is directly comparable to the process by which permanent
non-disclosure orders can be varied or revoked under new subsection 503B(8).
Offence
5. New subsection 503C(8) is a penalty provision. It
stipulates that a person is guilty of an offence, and liable to two years
imprisonment, if an interim non-disclosure order is in force under subsection
503C(3) and the person engages in conduct that contravenes that order.
6. New subsection 503C(10) defines engage in conduct for the purposes of
section 503C to mean do an act or omit to perform an act.
7. This provision
is intended to ensure compliance with the courts interim non-disclosure order.
Relationship to other laws
8. New subsection 503C(9) provides
that this section prevails over any other provision of the Act, and any other
law of the Commonwealth.
9. This protection is consistent with similar
provisions protecting section 503A information which new section 503C augments:
see subsections 503A(6) (as amended by item 5) and subsection 503A(8) of the
Act, and new subsection 503B(13).
Item 7 Application
pre-commencement proceedings
10. This item inserts an application
provision for new sections 503B and 503C. It provides that new sections 503B and
503C (relating to permanent and interim non-disclosure orders respectively)
apply to all Federal Court and Federal Magistrates Court proceedings, whether
those proceedings were instituted before, on or after the commencement of this
item.