Migration Amendment (Validation of Decisions) Bill 2017 (Cth)

Amidst the current High Court challenge to section 503A of the Migration Act 1958, the Federal Government has introduced the Migration Amendment (Validation of Decisions) Bill 2017 into Parliament with the intended effect of preserving existing section 501 character decisions, made relying on information provided by gazetted law enforcement and intelligence agencies. As it currently stands, information of this nature is protected from disclosure to Courts and Tribunals under section 503A.

Background

In 2014, the Government strengthened the character provisions of the Act making it mandatory for a non-citizens’ visa to be cancelled in the event that they fail a character test. Further to this, section 503A of the act protects information from disclosure when it is provided to the Department of Immigration and Border Protection by gazetted law enforcement or intelligence agencies to support a section 501 character visa application refusal or cancellation decision. However, the validity of this section is currently being challenged in the High Court.

As the Minister for Small Business, Michael McCormack, highlighted in his second reading speech, “law enforcement and intelligence agencies will only provide information to the department because it can be protected from disclosure.” He went on to discuss that the only way to maintain successful counter crime strategies necessitates that law enforcement agencies are able to share information on the activities of non-citizen criminals with the Department of Immigration while their intelligence and sources remained protected and undisclosed.

The Bill

As Mr McCormack pointed out, the purpose of this bill is to uphold the visa cancellations, and application refusals, on character grounds of certain non-citizens who have committed crimes in Australia and who pose a risk to the Australian community.

Specifically speaking, the Bill will protect visa cancellation decisions that have relied on protected information under section 503A even in the event that section 503A is ultimately ruled as unconstitutional by the High Court. Mr McCormack explained:

Essentially, the Bill serves as a proactive measure to address any potential risk that might eventuate as a result of the High Court decision. 

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Migration Amendment (Validation of Decisions) Bill 2017, Bill, Second Reading Speech and Explanatory Memorandum as published on LawOne