House of Representatives

Revised Explanatory Memorandum

(Circulated by authority of the Minister for Immigration and Multicultural and Indigenous Affairs, the Hon. Philip Ruddock MP)

Schedule 1 - Amendment of the Migration Act 1958

Item 1 At the end of subsection 476(2)

8. 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 Minister's 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 ).

9. 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)

10. This item inserts new subsection 503A(3A) after subsection 503A(3) of the Act.

11. 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)

12. 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.

13. 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).

14. 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)

15. 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.

16. 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)

17. 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.

18. 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 5A At the end of subsection 503A(8)

19. This item inserts a note at the end of subsection 503A(8) of the Act, which is consequential to the amendment of the FOI Act by Schedule 2 to the Bill.

20. The effect of this note is to point out that documents containing information protected under section 503A are documents that are exempt from disclosure under the FOI Act. This is because section 503A is to be specified in Schedule 3 to the FOI Act.

21. Under subsection 38(1) of the FOI Act, a document is an exempt document where disclosure of the document, or information contained in the document, is prohibited under a provision, such as section 503A, and that provision is specified in Schedule 3.

Item 5B Subsection 503A(9)

Item 5C Subsection 503A(9)

22. These items insert two new definitions in subsection 503A(9) for the purposes of section 503A of the Act.

23. "Australian law enforcement or intelligence body" is defined to mean a body, agency or organisation that is responsible for, or deals with, law enforcement, criminal intelligence, criminal investigation, fraud or security intelligence in, or in a part of, Australia.

24. "Foreign law enforcement body" is defined to mean a body, agency or organisation that is responsible for, or deals with, law enforcement, criminal intelligence, criminal investigation, fraud or security intelligence in a foreign country or a part of a foreign country.

25. These amendments are consequential to the insertion of a new definition of "gazetted agency" in subsection 503A(9) by item 5D of this Schedule.

Item 5D Subsection 503A(9) (definition of gazetted agency )

26. This item repeals the existing definition of "gazetted agency" in subsection 503A(9) of the Act and substitutes a new definition.

27. The new definition of "gazetted agency" is necessary to overcome the inadequacies of the existing definition, in particular the manner in which relevant agencies are currently specified in the Gazette notice, as highlighted in Evans v Minister for Immigration and Multicultural and Indigenous Affairs
[2002] FCA 945 (30 July 2002).

28. It is vital to clearly define "gazetted agency" for the purposes of section 503A because the meaning of "gazetted agency" is crucial in determining what information is protected from disclosure under section 503A. Under subsection 503A(1), information is only protected if it is:

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communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information; and

•

relevant to the exercise of a power under section 501, 501A, 501B or 501C.

29. This amendment provides that "gazetted agency" means:

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in the case of an Australian law enforcement or intelligence body - a body that is specified in a notice published by the Minister in the Gazette;

•

in the case of a foreign law enforcement body - a body in a foreign country, or a part of a foreign country, that is a foreign country, or a part of a foreign country, specified in a notice published by the Minister in the Gazette;

•

a war crimes tribunal established by or under international arrangements or international law.

30. Under this new definition, Australian law enforcement or intelligence bodies, such as the Australian Federal Police and the Australian Security Intelligence Organisation, will be specified in the Gazette notice. This means that any information provided by such a body to an authorised migration officer on the condition that it be treated as confidential will be protected under section 503A provided the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C.

31. This approach of specifying each law enforcement or intelligence body is unworkable, if not impossible, in relation to foreign law enforcement bodies due to the extensive numbers of such bodies - over 38,000 in the United States of America alone.

32. The definition therefore provides that in the case of foreign law enforcement bodies, the foreign country or part of a foreign country that the foreign law enforcement body is in must be a foreign country or a part of a foreign country specified in the Gazette notice. That is, any information provided by a foreign law enforcement body that is in a foreign country or a part of a foreign country specified in the Gazette notice will be protected under section 503A in certain circumstances. These circumstances are where the information is provided to an authorised migration officer on the 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.

33. The definition of "gazetted agency" also specifically includes international war crimes tribunals. This is to ensure that these bodies are covered whether or not they are taken to be located in a foreign country.

34. This three-limbed definition provides flexibility in terms of what is specified in the Gazette notice while ensuring that the meaning of "gazetted agency" is as transparent as possible on a practical level.

Item 6 After section 503A

35. 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.

36. 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.

37. 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

38. 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

39. 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:

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has been communicated to the Minister or an authorised migration officer (defined in new subsection 503B(15));

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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.

40. 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 court's discretion is retained and, importantly, there is no interference with the exercise of judicial power.

41. 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.

42. 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.

43. New subsection 503B(2) provides that the orders under new subsection 503B(1) may:

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exclude some or all members of the public during the whole or a part of the hearing of the substantive proceedings;

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no report of the whole of, or a specified part of, the substantive proceedings is to be published; or

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no person, without the consent of the court, have access to a file or a record of the court that contains the confidential information.

44. The orders must be appropriate to ensuring that the confidential information is not divulged or communicated to:

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the applicant;

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the applicant's legal representative; or

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any other member of the public.

45. 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).

46. 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

47. 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).

48. 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.

49. 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

50. 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).

51. 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.

52. 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

53. 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.

54. There is no power for the court to vary or revoke an order in any other circumstances.

Withdrawal of application for non-disclosure order

55. 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)

56. 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).

57. 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 Minister's 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

58. 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.

59. New subsection 503B(15) defines "engage in conduct" to mean "do an act or omit to perform an act."

60. This provision is intended to ensure compliance with the court's order to protect confidential information.

Relationship to other laws

61. New subsection 503B(13) provides that this section prevails over any other provision of the Act, and any other law of the Commonwealth.

62. 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

63. 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.

64. 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.

65. Any person seeking a writ of certiorari, mandamus or prohibition, or a declaration, injunction, damages or anything else pursuant to the court's 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

66. 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".

67. 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.

68. 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.

69. "Engage in conduct" is defined in new subsection 503B(15) to mean doing an act or omitting to perform an act.

70. "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.

71. "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

72. 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.

73. In addition, these orders are intended to save the court's 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

74. 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).

75. 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

76. 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 court's discretion is retained and there is no interference with judicial power.

77. 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).

78. 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 court's consideration of the permanent non-disclosure order application; or

•

the Minister's 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).

79. 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:

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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.

80. 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).

81. 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

82. 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.

83. This is directly comparable to the process by which permanent non-disclosure orders can be varied or revoked under new subsection 503B(8).

Offence

84. 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.

85. 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".

86. This provision is intended to ensure compliance with the court's interim non-disclosure order.

Relationship to other laws

87. New subsection 503C(9) provides that this section prevails over any other provision of the Act, and any other law of the Commonwealth.

88. 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 6A After section 503C

89. This item inserts new section 503D after proposed new section 503C of the Act.

Section 503D Details of gazetted agency to be treated as protected information

90. New section 503D provides for a gazetted agency's details to be treated as protected information.

91. New subsection 503D(1) makes it clear that sections 503A, 503B and 503C apply to protect an agency's details from being divulged or communicated where the gazetted agency communicates certain other information to an authorised migration officer. This information is that which section 503A or 503B applies to, namely, information that is relevant to the exercise of a power under section 501, 501A, 501B or 501C. Sections 501, 501A, 501B and 501C provide for visas to be cancelled or refused on character grounds.

92. In broad terms, this amendment means that where confidential character-related information is provided by a gazetted agency to an authorised migration officer, the agency's details will also be protected from disclosure under sections 503A, 503B and 503C.

93. From the time that section 503A was introduced into the Act by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998, it was intended that both the confidential information relevant to making character decisions and the source of this information would be protected. This was made clear by the explanatory memorandum to that Act.

94. However, in NAAO v Secretary, Department of Immigration and Multicultural Affairs
[2002] FCAFC 64 (20 March 2002), the Federal Court held that the identity of a gazetted agency that provided information protected by section 503A, and any condition(s) on which the information was provided, were not themselves information that was protected under section 503A. This amendment is therefore necessary to ensure that the original policy intention, to protect such information under section 503A, is restored.

95. New subsection 503D(2) explains what a reference to "agency's details" in new subsection 503D(1) includes. A reference to "agency's details" is a reference to any information in relation to the gazetted agency. This includes the agency's name and the conditions on which the communication of information by the agency occurred. Other information could include, for example, the location of the gazetted agency or the address or phone number of the gazetted agency.

96. This broad, inclusive meaning of agency's details is necessary to ensure that proper protection is afforded to gazetted agencies who provide sensitive intelligence information. This will, in turn, ensure that such sources continue to provide valuable information to the Department.

97. New subsection 503D(3) provides that "gazetted agency" has the same meaning in new section 503D as in section 503A of the Act (as amended by item 5D of Schedule 1 to the Bill).

Item 7 Application - pre-commencement proceedings

98. 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.

Item 8 Application - section 503D of the Migration Act 1958

99. This amendment inserts item 8 at the end of Schedule 1 to the Bill to provide an application provision for new section 503D, as contained in item 6A of Schedule 1 to the Bill.

100. This item provides that section 503D applies to protect agency details where protected information is given to an authorised migration officer:

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on or after the commencement of the item;

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before the commencement of the item if the details or information is the subject of:

-

a request for access under the FOI Act which is undecided before the commencement of the item; or

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a process for the production of documents that has not been completed or complied with before the commencement of the item; and

•

before the commencement of the item if, after the commencement of the item, the details or information becomes the subject of a request for access under the FOI Act or the subject of a process for the production of documents.

101. "Process for the production of documents" is defined to include discovery and a subpoena for production of documents.

102. "Protected information" is defined to mean information that is:

•

communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information; and

•

relevant to the exercise of a power under section 501, 501A, 501B or 501C.