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Migration Legislation Amendment (Protected Information) Bill 2002
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2002

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Migration Legislation Amendment (Protected Information) Bill 2002

No. , 2002

(Immigration and Multicultural and Indigenous Affairs)

A Bill for an Act to amend the Migration Act 1958, and for other purposes

Contents

A Bill for an Act to amend the Migration Act 1958, and for other purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Migration Legislation Amendment (Protected Information) Act 2002.

2 Commencement

This Act commences on the day after it receives the Royal Assent.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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 1Amendment of the Migration Act 1958

1 At the end of subsection 476(2)

Add or subsection 503A(3).

2 After subsection 503A(3)

Insert:

(3A) The Minister does not have a duty to consider whether to exercise the Ministers power under subsection (3).

3 After subsection 503A(4)

Insert:

(4A) If a person divulges or communicates particular information to a Commonwealth officer in accordance with a declaration under subsection (3):

(a) the officer must not be required to divulge or communicate the information to the Federal Court or the Federal Magistrates Court; and

(b) the officer must not give the information in evidence before the Federal Court or the Federal Magistrates Court.

The information may only be considered by the Federal Court or the Federal Magistrates Court if a fresh disclosure of the information is made in accordance with:

(c) a declaration under subsection (3); or

(d) subsection 503B(6).

4 After subsection 503A(5)

Insert:

(5A) If a person divulges or communicates particular information to a tribunal in accordance with a declaration under subsection (3):

(a) the member or members of the tribunal must not be required to divulge or communicate the information to the Federal Court or the Federal Magistrates Court; and

(b) the member or members of the tribunal must not give the information in evidence before the Federal Court or the Federal Magistrates Court.

The information may only be considered by the Federal Court or the Federal Magistrates Court if a fresh disclosure of the information is made in accordance with:

(c) a declaration under subsection (3); or

(d) subsection 503B(6).

5 Paragraph 503A(6)(a)

After this Act, insert (other than sections 503B and 503C).

6 After section 503A

Insert:

503B Protection of confidential information disclosed to the Federal Court or the Federal Magistrates Courtpermanent non-disclosure orders

Court may make non-disclosure orders

(1) If:

(a) either:

(i) information is communicated to an authorised migration officer by a gazetted agency on 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; or

(ii) information is communicated to the Minister or an authorised migration officer in accordance with paragraph 503A(1)(a) or (b); and

(b) the information is relevant to proceedings (the substantive proceedings) before the Federal Court or the Federal Magistrates Court that relate to section 501, 501A, 501B or 501C; and

(c) no declaration is in force under subsection 503A(3) authorising the disclosure of the information to the Federal Court or the Federal Magistrates Court for the purposes of the substantive proceedings;

the Federal Court or the Federal Magistrates Court may, on application by the Minister, make such orders as the Federal Court or the Federal Magistrates Court considers appropriate for the purpose of ensuring that, in the event that such a declaration comes into force and the information is disclosed to the Federal Court or the Federal Magistrates Court, the information is not divulged or communicated to:

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

(e) the legal representative of the applicant in relation to the substantive proceedings; or

(f) any other member of the public.

(2) The Federal Courts or Federal Magistrates Courts orders under subsection (1) include:

(a) an order that some or all of the members of the public are to be excluded during the whole or a part of the hearing of the substantive proceedings; or

(b) an order that no report of the whole of, or a specified part of, or relating to, the substantive proceedings is to be published; or

(c) an order for ensuring that no person, without the consent of the Federal Court or the Federal Magistrates Court, has access to a file or a record of the Federal Court or the Federal Magistrates Court that contains the information.

(3) Subsection (2) does not limit subsection (1).

(4) The powers of the Federal Court under this section are to be exercised by a single Judge, and the powers of the Federal Magistrates Court under this section are to be exercised by a single Federal Magistrate.

Criteria for making non-disclosure order

(5) In exercising its powers under subsection (1), the Federal Court or the Federal Magistrates Court must have regard to all of the following matters:

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

(b) Australias relations with other countries;

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

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

(e) 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;

(f) Australias national security;

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

(h) the effectiveness of the investigations of official inquiries and Royal Commissions;

(i) the interests of the administration of justice;

(j) such other matters (if any) as are specified in the regulations;

and must not have regard to any other matters.

Disclosure of information for the purposes of deciding whether or not to make a non-disclosure order

(6) If an application is made under subsection (1) in relation to particular information, subsections 503A(1) and (2) do not prevent the disclosure of the information to the Federal Court or the Federal Magistrates Court for the purposes of enabling the Federal Court or the Federal Magistrates Court to make a decision on the application.

(7) If information is disclosed to the Federal Court or the Federal Magistrates Court under subsection (6):

(a) the information is not to be treated as having been disclosed to the Federal Court or the Federal Magistrates Court for the purposes of the substantive proceedings; and

(b) the information may only be considered by the Federal Court or the Federal Magistrates Court for the purposes of the substantive proceedings 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

(8) The Federal Court or the Federal Magistrates Court may, by order, vary or revoke an order made by it under subsection (1) if both:

(a) the Minister; and

(b) the applicant in relation to the substantive proceedings;

consent to the variation or revocation.

Withdrawal of application for non-disclosure order

(9) The Minister may withdraw an application under subsection (1) at any time.

Declarations under subsection 503A(3)

(10) This section does not prevent the Minister from making a declaration at any time under subsection 503A(3) authorising the disclosure of the information to the Federal Court or the Federal Magistrates Court for the purposes of the substantive proceedings, even if that time occurs while the Federal Court or the Federal Magistrates Court is considering whether to make an order under subsection (1).

(11) To avoid doubt, the Minister may refuse to make a declaration under subsection 503A(3) even if the Federal Court or the Federal Magistrates Court has made an order under subsection (1) of this section in relation to the information concerned.

Offence

(12) A person is guilty of an offence if:

(a) an order is in force under subsection (1); and

(b) the person engages in conduct; and

(c) the persons conduct contravenes the order.

Penalty: Imprisonment for 2 years.

Relationship to other laws

(13) This section has effect despite anything in:

(a) any other provision of this Act; or

(b) any other law of the Commonwealth.

Applicant

(14) For the purposes of this section, the table has effect:

Applicant
Item | In the case of these proceedings... | the applicant is...

1

(a) proceedings by way of an application for judicial review;
(b) proceedings by way of an appeal to the Federal Court in relation to proceedings mentioned in paragraph (a);

the applicant for judicial review.

2

(a) proceedings under subsection 39B(1) of the Judiciary Act 1903;
(b) proceedings under section 483A of this Act that correspond to proceedings under subsection 39B(1) of the Judiciary Act 1903;
(c) proceedings by way of an appeal in relation to proceedings mentioned in paragraph (a) or (b);

the person who is seeking the writ or injunction concerned.

3

(a) proceedings under subsection 39B(1A) or section 44 of the Judiciary Act 1903;
(b) proceedings under section 483A of this Act that correspond to proceedings under subsection 39B(1A) or section 44 of the Judiciary Act 1903;
(c) proceedings by way of an appeal in relation to proceedings mentioned in paragraph (a) or (b);

the person who is seeking to take the action concerned (whether the action is for declaratory relief, injunctive relief, damages or anything else).

4

(a) proceedings by way of a referral of a question of law arising before the Administrative Appeals Tribunal;
(b) proceedings by way of an appeal in relation to proceedings mentioned in paragraph (a);

the person who applied to the Administrative Appeals Tribunal for a review of the decision concerned.

5

(a) proceedings by way of an appeal, on a question of law, from a decision of the Administrative Appeals Tribunal;
(b) proceedings by way of an appeal in relation to proceedings mentioned in paragraph (a);

the person who applied to the Administrative Appeals Tribunal for a review of the decision concerned.

Definitions

(15) In this section:

authorised migration officer has the same meaning as in section 503A.

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

gazetted agency has the same meaning as in section 503A.

proceeding means 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.

Royal Commission means a Royal Commission (however described) under a law of the Commonwealth, a State or a Territory.

503C Protection of confidential information disclosed to the Federal Court or the Federal Magistrates Courtinterim non-disclosure orders

Notice of intention to apply for a permanent non-disclosure order

(1) At least 7 days before making an application for an order under subsection 503B(1) in relation to particular information, the Minister must give the Federal Court or the Federal Magistrates Court written notice of the Ministers intention to make the application.

(2) A notice under subsection (1) need not identify any of the attributes of the information.

Interim non-disclosure order

(3) If:

(a) a notice is given under subsection (1); and

(b) the notice relates to the Ministers intention to make an application for an order under subsection 503B(1) in relation to particular information;

the Federal Court or the Federal Magistrates Court may, on application by the Minister, make such orders as the Federal Court or the Federal Magistrates Court considers appropriate for the purpose of ensuring that, in the event that the subsection 503B(1) application is made and the information is disclosed to the Federal Court or the Federal Magistrates Court in accordance with subsection 503B(6), the information is not divulged or communicated in circumstances that might, to any extent, undermine, prejudice or pre-empt:

(c) the Federal Courts or the Federal Magistrates Courts consideration of the subsection 503B(1) application; or

(d) the Ministers consideration of whether to make a declaration under subsection 503A(3) authorising the disclosure of the information to the Federal Court or the Federal Magistrates Court.

(4) The Federal Courts or the Federal Magistrates Courts orders under subsection (3) include:

(a) an order that some or all of the members of the public are to be excluded during the whole or a part of the hearing of the subsection 503B(1) application; or

(b) an order that no report of the whole of, or a specified part of, or relating to, the subsection 503B(1) application is to be published; or

(c) an order for ensuring that no person, without the consent of the Federal Court or the Federal Magistrates Court, has access to a file or a record of the Federal Court or the Federal Magistrates Court that contains the information.

(5) Subsection (4) does not limit subsection (3).

(6) The powers of the Federal Court under this section are to be exercised by a single Judge, and the powers of the Federal Magistrates Court under this section are to be exercised by a single Federal Magistrate.

Variation or revocation of non-disclosure order

(7) The Federal Court or the Federal Magistrates Court may, by order, vary or revoke an order made by it under subsection (3) if both:

(a) the Minister; and

(b) the applicant in relation to the substantive proceedings concerned;

consent to the variation or revocation.

Offence

(8) A person is guilty of an offence if:

(a) an order is in force under subsection (3); and

(b) the person engages in conduct; and

(c) the persons conduct contravenes the order.

Penalty: Imprisonment for 2 years.

Relationship to other laws

(9) This section has effect despite anything in:

(a) any other provision of this Act; or

(b) any other law of the Commonwealth.

Definition

(10) In this section:

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

7 Applicationpre-commencement proceedings

Sections 503B and 503C of the Migration Act 1958 apply in relation to proceedings before the Federal Court or the Federal Magistrates Court, whether those proceedings were instituted before, on or after the commencement of this item.

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