House of Representatives

Revised Explanatory Memorandum

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

Outline and financial impact statement

Outline

1. The Migration Legislation Amendment (Protected Information) Bill 2003 ("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. The Bill also ensures that section 503A operates as originally intended.

6. The proposed amendments to the Act:

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limit the disclosure of section 503A protected information to the Federal Court and the Federal Magistrates Court to specified circumstances;

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enable the courts to use interim and permanent non-disclosure orders to protect information that is disclosed to them;

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set out specific criteria to which the courts must have regard when considering the making of a permanent non-disclosure order;

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allow the courts to revoke or vary non-disclosure orders with the consent of both parties to the substantive proceedings;

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make it an offence for a person to engage in conduct that contravenes a non-disclosure order;

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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;

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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;

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protect the details of a gazetted agency (including its name and the conditions on which it communicated confidential information to the Department) from disclosure; and

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define "gazetted agency" in a way that ensures that such providers of confidential information are appropriately specified in the Gazette notice for the purposes of enlivening the protection afforded by section 503A.

7. The proposed amendments to the Freedom of Information Act 1982 ("the FOI Act") place beyond doubt that a document, or information contained in a document, which is protected from disclosure under section 503A of the Act is also exempt from disclosure under the FOI Act.

Financial impact statement

8. 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.