David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Hansard source

I rise to speak on the Migration Amendment (Validation of Decisions) Bill 2017. This bill amends the Migration Act 1958 to shelter visa cancellations and refusals by the minister on grounds of character that were based upon information protected from disclosure under section 503A in the event that this section is successfully challenged. This is an extraordinary bill. What it means, in effect, is that the government is seeking to grant retrospective absolution for ministerial decisions on visas from adverse decisions by the courts. It seems completely at odds with the principles upon which a liberal democracy and just legal system should operate. The measures in this bill are in response to current proceedings in the High Court of Australia in which the validity of section 503A is being challenged in response to the ministerial cancellation of the visas of two New Zealand citizens who are apparently motorcycle gang members.

Sadly, the idea of exempting visa decisions from legal due process has a history. In 1998, the Migration Act was changed by the insertion of section 503 to protect intelligence which informed visa cancellation decisions. The current amendment inserts a new subsection in the act which will shelter past cancellations made by the minister on grounds of character which relied on section 503A protections from being ruled invalid by the courts except for cases where judgements have been made or are reserved. In his second reading speech to justify the further strengthening of section 503, the minister stated that:

… law enforcement and intelligence agencies will only provide information to the Department because it can be protected from disclosure.

However, it is precisely this issue to which the Liberal Democrats take exception. The suggestion that agencies won't disclose information to a department unless cloaked in secrecy is nonsense. In a democracy, government agencies should do as the law requires. The great legacy of the adversarial legal system which Britain bequeathed us is that all defendants have a right to know the specific basis of allegations so that they can challenge them. The whole concept of section 503A protections goes contrary to that principle, and the provisions of this bill—which would effectively sprinkle legal holy water on past dubious decisions—only compound this.

Let us not forget the legal and administrative fiasco of Dr Mohamed Haneef, who was damned by remote association with one of the Glasgow bombers and found himself arrested in 2007 at Brisbane Airport, charged with terrorist offences and stripped of his visa. When the farrago of allegations against him was subjected to the light of day, the case against him collapsed and his visa had to be returned. If secrecy had prevailed and the flimsy adverse determination of his character had not been scrutinised, a serious miscarriage of justice would have occurred.

Procedural fairness dictates that those who are accused of bad character have the right to know the basis of that charge. In its current form, the Migration Act denies this under section 501(3). The minister's discretion to cancel a visa merely needs to be in the national interest, and the act specifically states that natural justice does not apply. Under section 503A, intelligence that may form the basis of an adverse ministerial decision is concealed. If passed, this bill would simply sanctify that denial of natural justice in ministerial decision making, indemnifying past ministerial decisions against adverse findings by the High Court regarding section 503A. This is disturbing. Allowing legal or administrative decisions that affect the fate of individuals to be made based on secret information that is withheld from the individual is exactly the sort of tactic used by every police state in history. Secret courts, allegations for which evidence is never given and retrospective validation of unlawful decisions by members of the political executive are all hallmarks of the most oppressive governments. Stalin did it. Hitler did it. I'm sure Kim Jong-un does it all the time. Is this really the company that the Turnbull government wishes to keep?

The Liberal Democrats have absolutely no objection to ministerial cancellation of visas of noncitizen criminals and those of genuine bad character, but let this occur in the light of day in which those wrongly accused can defend themselves as our adversarial legal system intended. Maintaining a veil of secrecy over the basis for visa cancellations and indemnifying past ministerial decisions against future adverse court rulings is wrong and contrary to what we should stand for. Accordingly, I oppose this bill.