Tuesday, August 21, 2007

Immigration Bill: truth through secrecy

One of the most egregious features of the government's new Immigration Bill is that it would massively increase the scope for the use of classified information, allowing it to be used in any immigration decision and essentially making its use routine. This is bad enough - the use of secret "evidence" kept hidden from an applicant violates the right to natural justice and is a recipe for official abuse - but reading through the bill last night, I discovered that its worse. The decisions classified information can be used in include those on warrants of commitment allowing potential migrants and deportees to be detained. When classified information is used, the decision is automatically escalated to the High Court. However, the section (s289) on how the High Court must handle such decisions includes the following rather Orwellian clause:

(2) In determinining the application [for a warrant of commitment]...

(b) it is not the role of the nominated Judge to determine the matters described in section 217 (1); and

(c) the classified information must be treated as accurate

(Emphasis added; s217(1) states that in proceedings involving classified information, the new Immigration and Protection Tribunal must decide whether the classified information is relevant and credible, and whether it actually needs to be secret. Clause 289 (2) (c) obviously overrides this).

So, according to the bill, if it is secret, it is true, at least when it comes to decisions on whether to keep people in prison. And it is easy to see how this clause will be abused. An important consideration in deciding whether to issue a warrant of commitment under the new bill is whether the subject is likely to make themselves available for deportation in the future - those deemed likely to may instead be released on conditions rather than being imprisoned. If Immigration alleges that someone is a flight risk, then that allegation will be decided by the judge. But if it is alleged secretly, not only must the allegation be kept secret from the subject, but it must also be regarded as true. At this stage, it is worth pointing out that "classified information" can come from any government agency, including Immigration, so Immigration officials have a perfect power to have people locked up indefinitely on secret "evidence", the accuracy of which is forbidden from being assessed. This makes an absolute mockery of the right to natural justice, and indeed of any notion of independent judicial oversight; we might as well just remove the judiciary from the process entirely and put it directly in the hands of immigration officials.

As for people who think Immigration can be trusted not to abuse this power, it's worth remembering that they are the deparment which lies in unison, and misleads the Ombudsman. I don't think they'll have any compunction about classifying ordinary allegations and evidence for which there is no need for secrecy in order to achieve a desired outcome and bypass judicial oversight.