Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to amend and insert provisions dealing with protected information in the law relating to migration and Australian citizenship, and for related purposes
Administered by: Home Affairs
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 11 Dec 2020
Introduced HR 10 Dec 2020
Table of contents.

2019‑2020

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020

 

No.      , 2020

 

(Home Affairs)

 

 

 

A Bill for an Act to amend and insert provisions dealing with protected information in the law relating to migration and Australian citizenship, and for related purposes

  

  


Contents

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

3............ Schedules............................................................................................ 3

Schedule 1—Strengthening information provisions for character and conduct 4

Part 1—Main amendments                                                                                         4

Australian Citizenship Act 2007                                                                              4

Migration Act 1958                                                                                                   12

Part 2—Consequential amendments                                                                    23

Freedom of Information Act 1982                                                                          23

Inspector of Transport Security Act 2006                                                             23

Part 3—Amendments contingent on the Federal Circuit and Family Court of Australia Act 2020         24

Australian Citizenship Act 2007                                                                            24

Migration Act 1958                                                                                                   24

Schedule 2—Non‑disclosure certificates                                                                 25

Australian Citizenship Act 2007                                                                            25

 

 


A Bill for an Act to amend and insert provisions dealing with protected information in the law relating to migration and Australian citizenship, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act is the Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Act 2020.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Schedule 1, Parts 1 and 2

A single day to be fixed by Proclamation.

However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

 

3.  Schedule 1, Part 3

The later of:

(a) immediately after the commencement of the provisions covered by table item 2; and

(b) the commencement of the Federal Circuit and Family Court of Australia Act 2020.

However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.

 

4.  Schedule 2

A single day to be fixed by Proclamation.

However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

                   Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Strengthening information provisions for character and conduct

Part 1Main amendments

Australian Citizenship Act 2007

1  Section 3

Insert:

authorised Commonwealth officer means a Commonwealth officer whose duties consist of, or include, the performance of functions, or the exercise of powers, under or for the purposes of this Act or the Migration Act 1958.

Commonwealth officer (except in subsection 51A(2)) has the meaning given by section 121.1 of the Criminal Code.

Note:          A Minister is not a Commonwealth officer.

gazetted agency has the meaning given by subsection 503A(9) of the Migration Act 1958.

2  Paragraph 43(2)(f)

Omit “a proceeding”, substitute “proceedings”.

3  After section 52

Insert:

52A  Protecting information supplied by law enforcement or intelligence agencies etc.

             (1)  This section applies in relation to information that:

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

                     (b)  is relevant to the exercise of a power under or in relation to:

                              (i)  subsection 17(1A), (3), (4) or (4A) (Minister’s refusals of citizenship by descent); or

                             (ii)  subsection 19D(2), (4), (5) or (6) (Minister’s refusals of citizenship—adoption); or

                            (iii)  subsection 24(1A), (3), (4), (4A) or (6) (Minister’s refusals of citizenship by conferral); or

                            (iv)  subsection 25(1) in relation to a cancellation referred to in subparagraph 25(2)(b)(iii) (person not of good character); or

                             (v)  subsection 26(3) (delayed making of pledge); or

                            (vi)  subsection 30(1A), (3), (4) or (5) (Minister’s refusals of resumption of citizenship); or

                           (vii)  section 34 (revocation of citizenship because of offences or fraud); or

                          (viii)  section 36B (citizenship cessation for certain conduct); or

                            (ix)  section 36D (citizenship cessation for certain convictions).

Note:          Authorised Commonwealth officer and gazetted agency are defined by section 3.

Confidential gazetted agency information not generally to be disclosed to other persons

             (2)  An officer to whom information is communicated as referred to in paragraph (1)(a) or any officer to whom information is disclosed under this subsection must not (subject to subsections 52B(1) and 52C(1)) disclose the information to another person, except if:

                     (a)  both of the following apply:

                              (i)  the person is the Minister or an authorised Commonwealth officer;

                             (ii)  the information is disclosed for the purposes of the exercise of a power referred to in paragraph (1)(b); or

                     (b)  both of the following apply:

                              (i)  the person is the Minister or an authorised Commonwealth officer;

                             (ii)  the information is disclosed for the purposes of the exercise of a power referred to in paragraph 503A(1)(b) of the Migration Act 1958.

Note 1:       The Minister may allow the disclosure of the information under section 52B. The High Court, the Federal Court of Australia or the Federal Circuit Court may order the production or giving of the information under section 52C.

Note 2:       An authorised Commonwealth officer who contravenes this subsection may commit an offence under subsection (6).

Confidential gazetted agency information not to be produced to court or parliament etc.

             (3)  An officer to whom information is communicated as referred to in paragraph (1)(a), or the Minister or an authorised Commonwealth officer to whom information is disclosed under subsection (2), must not (subject to subsections 52B(1) and 52C(1)) be required to:

                     (a)  produce the information to a court, a tribunal, a parliament or parliamentary committee or any other body or person; or

                     (b)  give the information in evidence before a court, a tribunal, a parliament or parliamentary committee or any other body or person.

Evidential rules

             (4)  The hearsay rule does not apply to evidence that is given for the purpose of establishing that information is covered by subsection (1).

             (5)  A certificate, signed by an authorised Commonwealth officer, that states that information was communicated to that officer by a gazetted agency (without disclosing the name of the agency) is prima facie evidence of the matters stated in the certificate.

Offence

             (6)  A person commits an offence if:

                     (a)  the person is an authorised Commonwealth officer; and

                     (b)  information is communicated to the officer as referred to in paragraph (1)(a) or is disclosed to the officer under subsection (2); and

                     (c)  the officer discloses the information to another person; and

                     (d)  the disclosure of the information is not in accordance with:

                              (i)  subsection (2); or

                             (ii)  a declaration made under subsection 52B(1); or

                            (iii)  an order made under subsection 52C(1).

Penalty:  Imprisonment for 2 years.

Relationship between this section and other laws

             (7)  This section has effect despite anything in:

                     (a)  any other provision of this Act or the regulations; or

                     (b)  any other law of the Commonwealth; or

                     (c)  any law (whether written or unwritten) of a State or a Territory;

whether the provision or law commences before or after this section.

Note:          This section (as affected by section 52D) is specified in Schedule 3 to the Freedom of Information Act 1982 with the effect that documents containing information protected from disclosure by this section are exempt documents under that Act.

             (8)  To avoid doubt, if information is disclosed in accordance with subsection (2), the disclosure is taken, for the purposes of the Australian Privacy Principles, to be authorised by this Act.

52B  Minister may allow disclosure of information supplied by law enforcement or intelligence agencies

             (1)  The Minister may, by writing, declare that specified information covered by subsection 52A(1) may be disclosed, in specified circumstances, to:

                     (a)  a specified Minister; or

                     (b)  a specified Commonwealth officer, subject to any specified conditions (including in relation to further disclosure of the information); or

                     (c)  a specified court; or

                     (d)  a specified tribunal.

However, before making the declaration, the Minister must consult the gazetted agency from which the information originated.

Note 1:       In addition, the High Court, the Federal Court of Australia or the Federal Circuit Court may order specified information covered by subsection 52A(1) to be produced or given under section 52C.

Note 2:       Commonwealth officer is defined by section 3.

Obligations on Commonwealth officers and tribunal members to whom information is disclosed

             (2)  A Commonwealth officer to whom information is disclosed in accordance with a declaration under subsection (1) must comply with any conditions that are specified in the declaration.

Note:          A Commonwealth officer who contravenes a condition may commit an offence under subsection (7).

             (3)  A member of a tribunal to whom information is disclosed in accordance with a declaration under subsection (1) must not disclose the information to any person (other than the Minister, or a Commonwealth officer to whom the information has been disclosed in accordance with a declaration under subsection (1)).

             (4)  A Minister, a Commonwealth officer, or a member of a tribunal, to whom information is disclosed in accordance with a declaration under subsection (1) must not be required to produce the information to, or give the information in evidence before, any court (subject to subsection 52C(1)).

             (5)  A Minister, a Commonwealth officer, or a member of a tribunal, to whom information is disclosed in accordance with a declaration under subsection (1) must not voluntarily produce the information to, or voluntarily give the information in evidence before, any court unless so producing or giving the information is permitted by the declaration.

             (6)  Information produced or given voluntarily to a court in accordance with subsection (5) is taken, for the purposes of this Act, to have been produced to the court as a result of an order made under subsection 52C(1).

Offence

             (7)  A person commits an offence if:

                     (a)  the person is a Commonwealth officer; and

                     (b)  information is disclosed to the officer in accordance with a declaration under subsection (1); and

                     (c)  the declaration specifies one or more conditions; and

                     (d)  the officer engages in conduct, or omits to engage in conduct; and

                     (e)  the officer’s conduct or omission contravenes the condition or conditions.

Penalty:  Imprisonment for 2 years.

Provisions relating to declarations under subsection (1)

             (8)  The Minister does not have a duty to consider whether to exercise the Minister’s power under subsection (1).

             (9)  The rules of natural justice do not apply to the consideration or exercise of the power under subsection (1).

           (10)  A declaration under subsection (1) is not a legislative instrument.

           (11)  To avoid doubt, if information is disclosed in accordance with a declaration under subsection (1), the disclosure is taken, for the purposes of the Australian Privacy Principles, to be authorised by this Act.

52C  Courts may order disclosure of information supplied by law enforcement agencies or intelligence agencies

             (1)  Despite subsections 52A(3) and 52B(4), the High Court, the Federal Court of Australia or the Federal Circuit Court may order the Minister to cause specified information to be produced to, or given in evidence before, the Court if:

                     (a)  the Court is satisfied that the information is covered by subsection 52A(1) (information supplied by law enforcement agencies or intelligence agencies etc.); and

                     (b)  the production or giving of the information is for the purposes of proceedings (the substantive proceedings) relating to the exercise of a power under a provision referred to in paragraph 52A(1)(b).

Making submissions relating to use of information

             (2)  If information is produced to, or given in evidence before, the Court in accordance with an order under subsection (1), any party to the substantive proceedings may, subject to subsection (3) and the control of the Court:

                     (a)  make submissions concerning the use that the Court should make of the information for the purpose of the substantive proceedings, including any weight to be given to that information; and

                     (b)  make submissions, and if appropriate tender evidence, concerning the impact that disclosing the information may have on the public interest.

             (3)  A party to the substantive proceedings may make submissions and tender evidence under subsection (2) only if:

                     (a)  the party is aware of the content of the information; and

                     (b)  the content of the information was not acquired unlawfully or in circumstances that would found an action for breach of confidence (whether or not the party was the person who acquired the content unlawfully or in those circumstances).

Court orders to prevent disclosure of information

             (4)  For the purposes of hearing submissions under subsection (2), the Court must order that:

                     (a)  any person who the Court is satisfied, under subsection (3), may not make submissions or tender evidence be excluded from the hearing, including:

                              (i)  the applicant in relation to the substantive proceedings; or

                             (ii)  any other party to the substantive proceedings; or

                            (iii)  the legal representative of a person mentioned in subparagraph (i) or (ii); and

                     (b)  no report of the part of the proceedings that relates to the information is to be published; and

                     (c)  no person, without the consent of the Court, has access to a file or a record of the Court that contains the information.

Prohibition on disclosing information that has a real risk of damaging the public interest

             (5)  After considering the information and any submissions made under subsection (2), the Court must determine whether disclosing the information would create a real risk of damage to the public interest, having regard to any of the following matters that it considers relevant (and only those matters):

                     (a)  the fact that the information was communicated, or originally communicated, to an authorised Commonwealth officer by a gazetted agency on condition that it be treated as confidential information;

                     (b)  the risk that the disclosure of information may discourage gazetted agencies and informants from giving information in the future;

                     (c)  Australia’s relations with other countries;

                     (d)  the need to avoid disruption to national and international efforts relating to law enforcement, criminal intelligence, criminal investigation and security intelligence;

                     (e)  in a case where the information was derived from an informant—the protection and safety of informants and of persons associated with informants;

                      (f)  the protection of the technologies and methods used (whether in or out of Australia) to collect, analyse, secure or otherwise deal with, criminal intelligence or security intelligence;

                     (g)  Australia’s national security;

                     (h)  such other matters (if any) as are specified in the regulations.

             (6)  If the Court determines under subsection (5) that disclosing the information would create a real risk of damage to the public interest, the Court must not disclose the information to any person, including:

                     (a)  the applicant in relation to the substantive proceedings; and

                     (b)  any other party to the substantive proceedings; and

                     (c)  the legal representative of a person mentioned in paragraph (a) or (b); and

                     (d)  any person who seeks access to a file or record of the Court that contains the information.

Conduct of proceedings

             (7)  The Court may give such weight in the substantive proceedings to the information as the Court considers appropriate in the circumstances, taking into account any submissions made to the Court under subsection (2).

52D  Details of gazetted agency to be treated as confidential information

                   Sections 52A to 52C apply to information relating to a gazetted agency in the same way as those sections apply to information that is communicated by the gazetted agency.

Note:          For example, the agency’s name would be information relating to the agency and so would be able to be disclosed only in accordance with those sections.

4  Application and transitional provisions

The amendments of the Australian Citizenship Act 2007 made by this Part apply after the commencement of this Part in relation to any information covered by subsection 52A(1) of that Act (as inserted by this Part), whether the information is communicated or originated, and any proceedings of a court, tribunal, parliament, parliamentary committee, body or other person are commenced, before or after that commencement.

Migration Act 1958

5  Subsection 5(1)

Insert:

Australian law enforcement or intelligence body has the meaning given by subsection 503A(9).

authorised Commonwealth officer has the meaning given by subsection 503A(9).

Commonwealth officer (except in subsection 488AA(2)) has the same meaning as in section 121.1 of the Criminal Code.

Note:          A Minister is not a Commonwealth officer.

foreign law enforcement body has the meaning given by subsection 503A(9).

gazetted agency has the meaning given by subsection 503A(9).

6  Subsection 5(1) (after paragraph (a) of the definition of non‑disclosable information)

Insert:

                    (aa)  in relation to which both of the following apply:

                              (i)  the information or matter was disclosed by a gazetted agency and the information or matter is relevant to the exercise of a power under, or in relation to, section 501, 501A, 501B, 501BA, 501C or 501CA;

                             (ii)  the further disclosure of the information or matter would, in the Minister’s opinion (after consulting the gazetted agency), be contrary to the national interest; or

7  Paragraph 474(7)(a)

Omit “503A(3)”, substitute “503B(1)”.

8  Paragraph 500(6F)(c)

After “the Minister must”, insert “(subject to section 503A)”.

9  Sections 503A to 503D

Repeal the sections, substitute:

503A  Protecting information supplied by law enforcement or intelligence agencies etc.

             (1)  This section applies in relation to information that:

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

                     (b)  is relevant to the exercise of a power under or in relation to section 501, 501A, 501B, 501BA, 501C or 501CA.

Note:          Authorised Commonwealth officer and gazetted agency are defined by subsection (9).

Confidential gazetted agency information not generally to be disclosed to other persons

             (2)  An officer to whom information is communicated as referred to in paragraph (1)(a) or any officer to whom information is disclosed under this subsection must not (subject to subsections 503B(1) and 503C(1)) disclose the information to another person, except if:

                     (a)  both of the following apply:

                              (i)  the person is the Minister or an authorised Commonwealth officer;

                             (ii)  the information is disclosed for the purposes of the exercise of a power referred to in paragraph (1)(b); or

                     (b)  both of the following apply:

                              (i)  the person is the Minister or an authorised Commonwealth officer;

                             (ii)  the information is disclosed for the purposes of the exercise of a power referred to in paragraph 52A(1)(b) of the Australian Citizenship Act 2007.

Note 1:       The Minister may allow the disclosure of the information under section 503B. The High Court, the Federal Court or the Federal Circuit Court may order the production or giving of the information under section 503C.

Note 2:       An authorised Commonwealth officer who contravenes this subsection may commit an offence under subsection (6).

Confidential gazetted agency information not to be produced to court or parliament etc.

             (3)  An officer to whom information is communicated as referred to in paragraph (1)(a), or the Minister or an authorised Commonwealth officer to whom information is disclosed under subsection (2), must not (subject to subsections 503B(1) and 503C(1)) be required to:

                     (a)  produce the information to a court, a tribunal, a parliament or parliamentary committee or any other body or person; or

                     (b)  give the information in evidence before a court, a tribunal, a parliament or parliamentary committee or any other body or person.

Evidential rules

             (4)  The hearsay rule does not apply to evidence that is given for the purpose of establishing that information is covered by subsection (1).

             (5)  A certificate, signed by an authorised Commonwealth officer, that states that information was communicated to that officer by a gazetted agency (without disclosing the name of the agency) is prima facie evidence of the matters stated in the certificate.

Offence

             (6)  A person commits an offence if:

                     (a)  the person is an authorised Commonwealth officer; and

                     (b)  information is communicated to the officer as referred to in paragraph (1)(a) or is disclosed to the officer under subsection (2); and

                     (c)  the officer discloses the information to another person; and

                     (d)  the disclosure of the information is not in accordance with:

                              (i)  subsection (2); or

                             (ii)  a declaration made under subsection 503B(1); or

                            (iii)  an order made under subsection 503C(1).

Penalty:  Imprisonment for 2 years.

Relationship between this section and other laws

             (7)  This section has effect despite anything in:

                     (a)  any other provision of this Act or the regulations; or

                     (b)  any other law of the Commonwealth; or

                     (c)  any law (whether written or unwritten) of a State or a Territory;

whether the provision or law commences before or after this section.

Note:          This section (as affected by section 503D) is specified in Schedule 3 to the Freedom of Information Act 1982 with the effect that documents containing information protected from disclosure by this section are exempt documents under that Act.

             (8)  To avoid doubt, if information is disclosed in accordance with subsection (2), the disclosure is taken, for the purposes of the Australian Privacy Principles, to be authorised by this Act.

Definitions

             (9)  In this Act:

Australian law enforcement or intelligence body means 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.

authorised Commonwealth officer means a Commonwealth officer whose duties consist of, or include, the performance of functions, or the exercise of powers, under or for the purposes of this Act or the Australian Citizenship Act 2007.

foreign law enforcement body means 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.

gazetted agency means:

                     (a)  in the case of an Australian law enforcement or intelligence body—a body specified in a notice published by the Minister in the Gazette; or

                     (b)  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 part of a foreign country, specified in a notice published by the Minister in the Gazette; or

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

503B  Minister may allow disclosure of information supplied by law enforcement or intelligence agencies

             (1)  The Minister may, by writing, declare that specified information covered by subsection 503A(1) may be disclosed, in specified circumstances, to:

                     (a)  a specified Minister; or

                     (b)  a specified Commonwealth officer, subject to any specified conditions (including in relation to further disclosure of the information); or

                     (c)  a specified court; or

                     (d)  a specified tribunal.

However, before making the declaration, the Minister must consult the gazetted agency from which the information originated.

Note 1:       In addition, the High Court, the Federal Court or the Federal Circuit Court may order specified information covered by subsection 503A(1) to be produced or given under section 503C.

Note 2:       Commonwealth officer is defined by section 5.

Obligations on Commonwealth officers and tribunal members to whom information is disclosed

             (2)  A Commonwealth officer to whom information is disclosed in accordance with a declaration under subsection (1) must comply with any conditions that are specified in the declaration.

Note:          A Commonwealth officer who contravenes a condition may commit an offence under subsection (7).

             (3)  A member of a tribunal to whom information is disclosed in accordance with a declaration under subsection (1) must not disclose the information to any person (other than the Minister, or a Commonwealth officer to whom the information has been disclosed in accordance with a declaration under subsection (1)).

             (4)  A Minister, a Commonwealth officer, or a member of a tribunal, to whom information is disclosed in accordance with a declaration under subsection (1) must not be required to produce the information to, or give the information in evidence before, any court (subject to subsection 503C(1)).

             (5)  A Minister, a Commonwealth officer, or a member of a tribunal, to whom information is disclosed in accordance with a declaration under subsection (1) must not voluntarily produce the information to, or voluntarily give the information in evidence before, any court unless so producing or giving the information is permitted by the declaration.

             (6)  Information produced or given voluntarily to a court in accordance with subsection (5) is taken, for the purposes of this Act, to have been produced to the court as a result of an order made under subsection 503C(1).

Offence

             (7)  A person commits an offence if:

                     (a)  the person is a Commonwealth officer; and

                     (b)  information is disclosed to the officer in accordance with a declaration under subsection (1); and

                     (c)  the declaration specifies one or more conditions; and

                     (d)  the officer engages in conduct, or omits to engage in conduct; and

                     (e)  the officer’s conduct or omission contravenes the condition or conditions.

Penalty:  Imprisonment for 2 years.

Provisions relating to declarations under subsection (1)

             (8)  The Minister does not have a duty to consider whether to exercise the Minister’s power under subsection (1).

             (9)  The rules of natural justice do not apply to the consideration or exercise of the power under subsection (1).

           (10)  A declaration under subsection (1) is not a legislative instrument.

           (11)  To avoid doubt, if information is disclosed in accordance with a declaration under subsection (1), the disclosure is taken, for the purposes of the Australian Privacy Principles, to be authorised by this Act.

503C  Courts may order disclosure of information supplied by law enforcement agencies or intelligence agencies

             (1)  Despite subsections 503A(3) and 503B(4), the High Court, the Federal Court or the Federal Circuit Court may order the Minister to cause specified information to be produced to, or given in evidence before, the Court if:

                     (a)  the Court is satisfied that the information is covered by subsection 503A(1) (information supplied by law enforcement agencies or intelligence agencies etc.); and

                     (b)  the production or giving of the information is for the purposes of proceedings (the substantive proceedings) relating to the exercise of a power under a provision referred to in paragraph 503A(1)(b).

Making submissions relating to use of information

             (2)  If information is produced to, or given in evidence before, the Court in accordance with an order under subsection (1), any party to the substantive proceedings may, subject to subsection (3) and the control of the Court:

                     (a)  make submissions concerning the use that the Court should make of the information for the purpose of the substantive proceedings, including any weight to be given to that information; and

                     (b)  make submissions, and if appropriate tender evidence, concerning the impact that disclosing the information may have on the public interest.

             (3)  A party to the substantive proceedings may make submissions and tender evidence under subsection (2) only if:

                     (a)  the party is aware of the content of the information; and

                     (b)  the content of the information was not acquired unlawfully or in circumstances that would found an action for breach of confidence (whether or not the party was the person who acquired the content unlawfully or in those circumstances).

Court orders to prevent disclosure of information

             (4)  For the purposes of hearing submissions under subsection (2), the Court must order that:

                     (a)  any person who the Court is satisfied, under subsection (3), may not make submissions or tender evidence be excluded from the hearing, including:

                              (i)  the applicant in relation to the substantive proceedings; or

                             (ii)  any other party to the substantive proceedings; or

                            (iii)  the legal representative of a person mentioned in subparagraph (i) or (ii); and

                     (b)  no report of the part of the proceedings that relates to the information is to be published; and

                     (c)  no person, without the consent of the Court, has access to a file or a record of the Court that contains the information.

Prohibition on disclosing information that has a real risk of damaging the public interest

             (5)  After considering the information and any submissions made under subsection (2), the Court must determine whether disclosing the information would create a real risk of damage to the public interest, having regard to any of the following matters that it considers relevant (and only those matters):

                     (a)  the fact that the information was communicated, or originally communicated, to an authorised Commonwealth officer by a gazetted agency on condition that it be treated as confidential information;

                     (b)  the risk that the disclosure of information may discourage gazetted agencies and informants from giving information in the future;

                     (c)  Australia’s relations with other countries;

                     (d)  the need to avoid disruption to national and international efforts relating to law enforcement, criminal intelligence, criminal investigation and security intelligence;

                     (e)  in a case where the information was derived from an informant—the protection and safety of informants and of persons associated with informants;

                      (f)  the protection of the technologies and methods used (whether in or out of Australia) to collect, analyse, secure or otherwise deal with, criminal intelligence or security intelligence;

                     (g)  Australia’s national security;

                     (h)  such other matters (if any) as are specified in the regulations.

             (6)  If the Court determines under subsection (5) that disclosing the information would create a real risk of damage to the public interest, the Court must not disclose the information to any person, including:

                     (a)  the applicant in relation to the substantive proceedings; and

                     (b)  any other party to the substantive proceedings; and

                     (c)  the legal representative of a person mentioned in paragraph (a) or (b); and

                     (d)  any person who seeks access to a file or record of the Court that contains the information.

Conduct of proceedings

             (7)  The Court may give such weight in the substantive proceedings to the information as the Court considers appropriate in the circumstances, taking into account any submissions made to the Court under subsection (2).

503D  Details of gazetted agency to be treated as confidential information

                   Sections 503A to 503C apply to information relating to a gazetted agency in the same way as those sections apply to information that is communicated by the gazetted agency.

Note:          For example, the agency’s name would be information relating to the agency and so would be able to be disclosed only in accordance with those sections.

10  Subparagraph 503E(1)(c)(iii)

Omit “or (2)”.

11  Application and transitional provisions

Application provisions

(1)       The amendments of the definition of non‑disclosable information in section 5 of the Migration Act 1958 made by this Part apply in relation to particulars, reasons or documents given after the commencement of this item.

(2)       Subsection 503A(6) of the Migration Act 1958 (as inserted by this Part) applies in relation to any contravention by a person that occurs after the commencement of this Part (including in relation to information divulged or communicated to the person before that commencement).

(3)       Subsection 503B(7) of the Migration Act 1958 (as inserted by this Part) applies in relation to any contravention by a person that occurs after the commencement of this Part (including in relation to a declaration made before that commencement that is taken under subitem (6) to have been made under subsection 503B(1) of that Act).

(4)       The other amendments of the Migration Act 1958 made by this Part apply after the commencement of this Part in relation to any information covered by subsection 503A(1) of that Act (as inserted by this Part), whether the information is communicated or originated, and any proceedings of a court, tribunal, parliament, parliamentary committee, body or other person are commenced, before or after that commencement.

Transitional provisions

(5)       Information divulged or communicated in accordance with paragraph 503A(1)(a) or (b) of the Migration Act 1958 before the commencement of this Part is taken for the purposes of that Act, after that commencement, to be information disclosed in accordance with subsection 503A(1) or under subsection 503A(2) of that Act (as the case requires and as inserted by this Part).

(6)       A declaration under subsection 503A(3) of the Migration Act 1958 that is in force under that subsection immediately before the commencement of this Part is taken for the purposes of that Act, after that commencement, to be in force under subsection 503B(1) of that Act (as inserted by this Part).

(7)       The repeal of subsection 503A(9) of the Migration Act 1958 by this Part does not affect the continuity of any notice published in the Gazette for the purposes of paragraph (a) or (b) of the definition of gazetted agency that is in force under that subsection immediately before the commencement of this Part.

Part 2Consequential amendments

Freedom of Information Act 1982

12  Paragraph 38(3)(b)

Repeal the paragraph, substitute:

                     (b)  disclosure of the document, or information contained in the document, is prohibited under:

                              (i)  section 503A of the Migration Act 1958 as affected by section 503D of that Act; or

                             (ii)  section 52A of the Australian Citizenship Act 2007 as affected by section 52D of that Act.

13  Schedule 3

After:

Aged Care Quality and Safety Commission Act 2018, subsection 60(1) and section 62

insert:

Australian Citizenship Act 2007, section 52A as affected by section 52D of that Act

Inspector of Transport Security Act 2006

14  Section 90

Repeal the section, substitute:

90  Operation of certain provisions of the Migration Act 1958 and the Australian Citizenship Act 2007 not affected

                   Nothing in this Act affects the operation of:

                     (a)  section 503A, 503B or 503C of the Migration Act 1958; or

                     (b)  section 52A, 52B or 52C of the Australian Citizenship Act 2007.

Part 3Amendments contingent on the Federal Circuit and Family Court of Australia Act 2020

Australian Citizenship Act 2007

15  Subsection 52A(2) (note 1)

Omit “Federal Circuit Court”, substitute “Federal Circuit and Family Court of Australia”.

16  Subsection 52B(1) (note 1)

Omit “Federal Circuit Court”, substitute “Federal Circuit and Family Court of Australia”.

17  Subsection 52C(1)

Omit “Federal Circuit Court”, substitute “Federal Circuit and Family Court of Australia”.

Migration Act 1958

18  Subsection 503A(2) (note 1)

Omit “Federal Circuit Court”, substitute “Federal Circuit and Family Court of Australia”.

19  Subsection 503B(1) (note 1)

Omit “Federal Circuit Court”, substitute “Federal Circuit and Family Court of Australia”.

20  Subsection 503C(1)

Omit “Federal Circuit Court”, substitute “Federal Circuit and Family Court of Australia”.

Schedule 2Non‑disclosure certificates

  

Australian Citizenship Act 2007

1  Before section 46

Insert:

Subdivision AProvisions relating to making decisions

2  Before section 50

Insert:

Subdivision BProvisions relating to offences and search warrants

3  Before section 51B

Insert:

Subdivision CProvisions relating to Parliament

4  After section 51C

Insert:

Subdivision DProvisions relating to review of decisions and disclosure of information

5  Before section 53

Insert:

52G  Restrictions on disclosure of certain information etc.

                   Despite anything else in this Act (except section 52B), the Secretary of the Department must not give a document or information to the Administrative Appeals Tribunal in relation to the Tribunal’s review of a decision if the Minister certifies, in writing, that disclosing any matter contained in the document, or disclosing the information, would be contrary to the public interest:

                     (a)  because it would prejudice the security, defence or international relations of Australia; or

                     (b)  because it would involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet.

Note:          See also section 52J (general provisions relating to sections 52G and 52H).

52H  Administrative Appeals Tribunal’s discretion in relation to disclosure of certain information etc.

             (1)  This section applies to a document or information if:

                     (a)  the Minister has certified, in writing, that disclosing any matter contained in the document, or disclosing the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 52G(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

                     (b)  the document, the matter contained in the document, or the information, was given to the Minister, or to an authorised Commonwealth officer, in confidence.

Note:          See also section 52J (general provisions relating to sections 52G and 52H).

             (2)  If the Secretary of the Department gives the document or information to the Administrative Appeals Tribunal in accordance with a requirement of or under this Act in relation to the Tribunal’s review of a decision, the Secretary:

                     (a)  must notify the Tribunal in writing that this section applies to the document or information; and

                     (b)  may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.

             (3)  After being notified under subsection (2), the Administrative Appeals Tribunal:

                     (a)  may have regard to any matter contained in the document, or to the information, for the purpose of exercising its powers in relation to the decision; and

                     (b)  may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant or to any other person who has given oral or written evidence to the Tribunal in relation to the decision.

             (4)  The Administrative Appeals Tribunal must give a direction under subsection 35(4) of the Administrative Appeals Tribunal Act 1975 in relation to information about a matter if:

                     (a)  the Tribunal discloses the matter under subsection (3) of this section; and

                     (b)  the Tribunal is satisfied that it is in the public interest that disclosure of the matter be prohibited or restricted.

             (5)  Subsection 35(5) of the Administrative Appeals Tribunal Act 1975 does not apply in considering whether to give a direction under subsection 35(4) of that Act in relation to a matter disclosed under subsection (3) of this section.

52J  General provisions relating to sections 52G and 52H

Requirements of natural justice hearing rule

             (1)  For the purposes of the review of a decision by the Administrative Appeals Tribunal, sections 52G and 52H are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the information or documents to which those sections apply.

Relationship with the Administrative Appeals Tribunal Act 1975

             (2)  Sections 52G and 52H apply despite any provision of the Administrative Appeals Tribunal Act 1975.

Subdivision EDelegation and regulation‑making power

6  Before subsection 53(1)

Insert:

Delegation by the Minister

7  At the end of section 53

Add:

Delegation by the Secretary

             (3)  The Secretary may, by writing, delegate to any person all or any of the Secretary’s functions or powers under this Act or the regulations.

             (4)  Section 53 of the Australian Border Force Act 2015 does not apply in relation to a function or power under this Act.

8  Application provision

Sections 52G to 52J of the Australian Citizenship Act 2007, as inserted by this Schedule, apply in relation to applications made after the commencement of this item to the Administrative Appeals Tribunal for review of decisions (whether the decisions were made before or after that commencement).