Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020
The submission to the Senate Legal and Constitutional Affairs Legislation Committee (the Committee) regarding its inquiry into the Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020 (the Bill) was prepared by the Law Council of Australia.
The Bill seeks to amend the Migration Act 1958 (Cth) (Migration Act) and the Australian Citizenship Act 2007 (Cth) (Citizenship Act), primarily for the purpose of maintaining a ‘Protected Information Framework’. The Law Council acknowledges the Government’s intention to provide certainty and clarity regarding the protection of sensitive information. Careful consideration is required regarding existing mechanisms that are in place to protect this information.
It appears to the Law Council that the Bill would permit the following types of scenarios:
- The Minister determines that an Australian citizen ceases to be an Australian citizen, because confidential information was received from a gazetted agency that the person engaged in conduct specified in section 36B of the Citizenship Act, such as financing a terrorist while overseas. The information might be incorrect, or the Australian citizen might be subject to a statutory exception, such as that their actions were unintentional.1 If the proposed legislation passes, however, the Australian citizen could be denied the opportunity to know the information on which the Minister’s decision was made and correct the record. They could cease to be an Australian citizen, without ever being informed of the case against them or being able to put forward their version of events to an Australian court.
- The Minister decides to cancel the visa of a non-citizen on the basis of confidential information from a gazetted agency, such as an overseas law enforcement agency, that the person does not pass the character test under section 501 of the Migration Act. If the Bill is passed, the person could be wholly denied access to the potentially adverse information on which the Minister’s decision was made, and never be given the opportunity to put their side of the story or correct the record. This can and does have serious consequences for visa applicants. For example, members of the Law Council’s constituent bodies have clients who have been detained for over 10 years, because their visas have been refused or cancelled based on undisclosed information.
This is a significant piece of legislation which warrants additional scrutiny and public debate than that which is currently permitted under the inquiry’s short timeframes.
You can read the full submission below.
1 Migration Act 1958 (Cth) s 36B (‘Migration Act’). See, eg, David Povey, ‘Are you accidentally funding terrorism?’ (International Compliance Association, Insight, 1 July 2019); Amy Bainbridge and Erin Handley, ‘Australian loses appeal in Vietnam against ‘terrorism’ charges’ (ABC News, 2 March 2020)