Law Council Issues Warning on Migration and Citizenship Bill

An inquiry is continuing in parliament into the Federal Government’s proposed Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020. The Law Council of Australia, the Australian Human Rights Commission and refugee advocates including the Kaldor Centre have all entered submissions against the bill.

The government’s proposed law would amend the Citizenship Act and the Migration Act to restrict the possibilities for a migrant or citizen to respond to their visa or citizenship being stripped from them by the ‘Home Affairs’ Minister (currently Peter Dutton). As the Law Council points out, the information upon which basis citizenship or visa is being stripped may be inaccurate, or a person may have a legitimate reason for the action imputed to them. Nonetheless, the Law Council argues, the person targeted “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 represents bar associations and law societies from all the states and territories of Australia.

According to UNSW’s Kaldor Centre, “The Bill proposes a model where in a large number of cases people who face visa and citizenship cancellation will have absolutely no opportunity to know or respond to the case against them.” The bill rejects targeted persons enjoying partial disclosure of the evidence against them, or the appointment of an advocate to whom the information could be disclosed, and “no explanation has been offered so far for why these or other alternatives have been excluded.”

A person is able to seek judicial review of the minister’s decision, but the scope of review is limited. A judge must make the decision as to whether to inform the person of the basis of the minister’s decision at a preliminary hearing with only the minister’s representatives present. According to the Human Rights Commission, “In making the decision, the court is only permitted to take into account factors that weigh against disclosure of the information to the applicant.”

In light of these submissions from well-informed parties, it seems reasonable to conclude the proposed bill constitutes a power grab by the Home Affairs Minister and derogation of proper judicial due process.

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