Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020
The submission to the Parliamentary Joint Committee on Intelligence and Security (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) to insert into each a scheme to protect the disclosure of confidential information provided by gazetted agencies, including intelligence and law enforcement agencies (broadly defined), foreign law enforcement bodies or war crimes tribunals. Specifically, the scheme operates when an agency discloses the information to a Commonwealth officer relevant to a character-based visa decision or certain citizenship decisions, on the condition the information be treated as confidential (Protected Information Framework).
The scheme inserted by the Bill amends a pre-existing scheme in the Migration Act and inserts an identical scheme into the Citizenship Act for the first time. The Law Council accepts that protecting information the disclosure of which would result in genuine risks to criminal and/or national security is a legitimate objective. It is also necessary to protect the use of such information in administrative decisionmaking contexts, to ensure relevant agencies are comfortable to disclose it.
However, such a scheme must properly balance those objectives against principles fundamental to a democratic legal system including the right to a fair hearing, effective judicial review, the proper administration of justice and parliamentary and independent scrutiny of executive power.
The Law Council considers this Bill does not strike the appropriate balance. It conflicts with a number of principles underpinning the rule of law, and Australia’s international human rights obligations such as Article 14 of the International Covenant on Civil and Political Rights (ICCPR).1
You can read the full submission below.
1 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UTS 171 (entered into force 23 March 1976).