Australian Immigration Daily News

Purpose of the bill

The bill was introduced into the House of Representatives on 10 December 2020 by the Minister for Home Affairs, the Hon Peter Dutton MP. In his Second Reading Speech, the minister explained the purpose of the bill and its provisions to amend the Migration Act 1958 (Migration Act):

Criminal intelligence and related information is vital to assessing the criminal background and associations of non-citizen visa applicants and visa holders. The measures in this bill will ensure that sensitive information – disclosed in confidence by law enforcement and intelligence agencies – is appropriately protected.

As the minister explained, the bill is designed to protect the identities of criminal informants and undercover police which, if disclosed, may otherwise disrupt active police or intelligence agency investigations. The minister also explained that the purpose of the amendments to the Citizenship Act 2007 (Citizenship Act) would replicate 'a similar power that already exists in the Migration Act'.

In addition, the bill would also make unauthorised disclosures of confidential information by Commonwealth officers an offence, if it was provided by an intelligence agency and has been used in a character-related visa or citizenship decision. Minister Dutton stated that:

The creation of this offence highlights the seriousness with which the government regards the unauthorised disclosure of such information, due to the potential for severe damage to the public interest.

The bill would also facilitate information sharing with foreign law enforcement agencies by giving those agencies greater confidence that the sharing of confidential information with the Australian government would be less likely, subject to the discretion exercised by the Australian courts, to compromise active investigations which would result in sharing confidential information with organised crime groups.

The bill would also address the High Court's decision in Graham v Minister for Immigration by introducing a Protected Information framework. This framework would provide for the categorisation of information as 'confidential Gazetted Agency Information'. It would enable the High Court, Federal Court or the Federal Circuit Court of Australia to order the production, hear submissions on and make a determination on the disclosure of protected information relevant to the refusal, revocation or cancellation of the visa or citizenship the subject of the proceedings.

The minister outlined the purpose of this new framework:

While the type of confidential information used in character related decisions may not necessarily meet the threshold for nondisclosure under the national security framework, it nonetheless warrants protection. This is because of the potential consequences if the information is divulged— including the risk of compromising Australia's national security and the operations, capabilities and sources of law enforcement and intelligence agencies.

Source:  Migration-and-Citizenship-Legislation---Amendment---Strengthening-Information-provisions.pdf