Peter Dutton's push to use 'secret evidence' to revoke citizenship condemned.
Rights groups tell Senate inquiry of alarm at bill allowing government to block release of information used in visa decisions.
No doubt a precursor to privatising the visa system.
Human rights agencies have blasted Peter Dutton’s bid to keep the information used to cancel visas and Australian citizenship secret, warning it could result in more people being held in indefinite detention.
The UN High Commissioner for Refugees, Australian Human Rights Commission (AHRC) and Law Council have all raised the alarm about the strengthening information provisions bill, introduced by the home affairs minister in December.
The bill allows the government to prevent disclosure of confidential information provided by some intelligence and law enforcement agencies to make visa decisions, such as cancellation on the grounds of bad character.
In 2017 the high court ruled that the current regime purporting to prevent the immigration minister from divulging confidential information to courts reviewing tribunal decisions on visa cancellation was unconstitutional.
The bill responds by allowing courts to order release of relevant material but requires a preliminary hearing first at which only the minister’s legal representatives are present, and only the factors against disclosure of information to the applicant are considered by the court. The regime applies to both visa and citizenship decisions.
The AHRC submitted to a Senate inquiry that if applicants were not given adverse information, it would result in a substantive hearing at which “the minister [is] able to rely on secret evidence”.
That would run contrary to a “strong tradition at both common law and in commonwealth legislation, that the state should not be permitted to rely on secret evidence in cases where a person’s liberty is at stake”.
“This has very serious implications, particularly in visa cancellation proceedings, which may result in the detention of the applicant for a number of years.”
The AHRC submitted the bill is not necessary because the government can already rely on the regime to protect national security information and apply on public interest immunity grounds to keep information confidential.
The AHRC submitted that the bill should not be passed and, if it is, safeguards should be added. Those include that the applicant should be represented at the preliminary hearing and the court must consider factors in favour of disclosure, such as the likelihood of injustice if the information is denied and “whether the liberty of the applicant is at stake”.
The UNHCR said it was concerned the bill “will operate to prevent asylum-seekers, refugees and stateless persons from effectively challenging a negative migration or citizenship decision based on such information”.
The UNHCR noted that visa cancellation results in people remaining in detention until they are removed from Australia and some cannot be removed because they are owed international protection. There were 550 people in immigration detention in mid-2020, some who had been held for up to 14 years, it said.
The UNHCR submitted that , without more safeguards , the bill is a “further weakening” of Australia’s ability to protect asylum seekers, refugees and stateless persons “in accordance with relevant international instruments to which Australia is party”.
The Law Council submitted case studies including one based on the home affairs minister’s power to determine a person has lost their Australian citizenship.
It warned of the procedural unfairness if this were done based on confidential information, such as intelligence that the person financed a terrorist organisation while overseas.
“The information might be incorrect, or the Australian citizen might be subject to a statutory exception, such as that their actions were unintentional,” it said.
“If the proposed legislation passes, however, the Australian citizen could be denied the opportunity to know the information on which the minister’s decision was made and correct the record.
“They could cease to be an Australian citizen, without ever being informed of the case against them or being able to put forward their version of events to an Australian court.”
The Law Council called for an extension of the Senate legal and constitutional affairs committee inquiry, which is due to report by 10 March, and a separate independent inquiry on the treatment of confidential information.
In his second reading speech in December, Dutton said the bill’s measures were “important” because they protected confidential information which “may not necessarily meet the threshold for nondisclosure under the national security framework”.
Such information could warrant protection due to “potential consequences if the information is divulged – including the risk of compromising … the operations, capabilities and sources of law enforcement and intelligence agencies”, he said.
“The bill ensures fairness to review applicants by allowing courts to admit the confidential information into evidence and to decide how much weight to give to that evidence.
“This allows the courts to weigh a number of factors, including potential prejudice to an applicant by not having access to the confidential information, as well as the public interest.”