LCA appearance before the PJCIS regarding its Review of the Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020
3 September 2021
On 27 August 2021, the Law Council of Australia appeared before the Parliamentary Joint Committee on Intelligence and Security (PJCIS) to give evidence relating to that Committee’s Review of the Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020.
Evidence was given on behalf of the Law Council by Dr Jacoba Brasch QC (President), Dr David Neal SC (Co-Chair, National Criminal Law Committee), Ms Georgina Costello QC (Member, Migration Law Committee, Federal Litigation and Dispute Resolution Section), and Ms Leonie Campbell (Deputy Director, Policy Division). In its questioning, the PJCIS drew considerably from the lengthy submission made to that Committee by the Law Council, which is available on the Law Council’s website.
The Bill would insert a Protected Information Framework into the Migration Act 1958 (Cth) and Australian Citizenship Act 2007 (Cth) under which ‘confidential information’ provided by a wide range of gazetted agencies may be used to cancel a visa or revoke a person’s citizenship without the affected person having an opportunity to challenge the information, including in any related judicial process.
Relevantly, during judicial review, an applicant or their lawyer would be prevented from making submissions (unless they already knew the information in a lawful way) and excluded from any hearing as to whether the information would be disclosed or the weight to be given to the information. This undermines the right to a fair hearing and procedural fairness. Further, in deciding whether to order disclosure, the Court may only consider security and law enforcement interests and may not consider the interests of the parties nor the administration of justice. These measures are significant encroachments on the integrity of the court and its processes. The Law Council suggested that this puts the provisions at risk of being struck down by the High Court.
In February 2021, the Law Council previously made a submission on the Bill to Senate Legal and Constitutional Affairs Committee which raised these issues and was widely cited by that Committee in its hearing and its report. On the basis of the strong concerns raised in this inquiry, the Bill was then referred to the PJCIS for additional scrutiny.
The Senate Standing Committee for the Scrutiny of Bills and Parliamentary Joint Committee on Human Rights have also raised substantial concerns about the Bill.