MIGRATION LITIGATION REFORM BILL 2005

i Migration Litigation Reform Bill 2005 No. , 2005

Contents

Short title.......................................................................................1

Commencement .............................................................................1

Schedule(s)....................................................................................2

Schedule 1--Amendments in relation to litigation

Part 1--Amendments

Administrative Decisions (Judicial Review) Act 1977

Federal Court of Australia Act 1976

Federal Magistrates Act 1999

Judiciary Act 1903

Migration Act 1958

Part 2--Application of amendments

Schedule 2--Amendments relating to the management of the

Federal Magistrates Court

Federal Magistrates Act 1999

Migration Litigation Reform Bill 2005 No. , 2005 1

A Bill for an Act to amend legislation in relation to

courts and litigation, particularly in migration

matters, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Migration Litigation Reform Act

2005.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Migration Litigation Reform Bill 2005 No. , 2005

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day on which this Act receives the

Royal Assent.

2. Schedule 1

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not

commence within the period of 6 months

beginning on the day on which this Act

receives the Royal Assent, they commence

on the first day after the end of that period.

3. Schedule 2

The day on which this Act receives the

Royal Assent.

Note:

This table relates only to the provisions of this Act as originally

passed by the Parliament and assented to. It will not be expanded to

deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Amendments in relation to litigation Schedule 1

Amendments Part 1

Migration Litigation Reform Bill 2005 No. , 2005 3

Schedule 1--Amendments in relation to

litigation

Part 1--Amendments

Administrative Decisions (Judicial Review) Act 1977

1 After paragraph (da) of Schedule 1

Insert:

(db) a purported privative clause decision within the meaning of

section 5E of the Migration Act 1958;

Federal Court of Australia Act 1976

2 Subsection 25(1A)

After "judgment", insert ", other than a migration judgment,".

3 After subsection 25(1A)

Insert:

(1AA) The appellate jurisdiction of the Court in relation to an appeal from

a migration judgment of the Federal Magistrates Court is to be

exercised by:

(a) a single Judge; or

(b) if a Judge considers that it is appropriate for the appellate

jurisdiction of the Court in relation to the appeal to be

exercised by a Full Court--a Full Court.

4 Subsection 25(1B)

Omit "Subsection (1A) has", substitute "Subsections (1A) and (1AA)

have".

5 After paragraph 25(2B)(a)

Insert:

(aa) give summary judgment; or

6 At the end of section 25

Schedule 1 Amendments in relation to litigation

Part 1 Amendments

4 Migration Litigation Reform Bill 2005 No. , 2005

Add:

(7) In this section:

migration judgment means a judgment involving the exercise of

the jurisdiction of the Federal Magistrates Court under section 476

of the Migration Act 1958.

7 After section 31

Insert:

31A Summary judgment

(1) The Court may give judgment for one party against another in

relation to the whole or any part of a proceeding if:

(a) the first party is prosecuting the proceeding or that part of the

proceeding; and

(b) the Court is satisfied that the other party has no reasonable

prospect of successfully defending the proceeding or that part

of the proceeding.

(2) The Court may give judgment for one party against another in

relation to the whole or any part of a proceeding if:

(a) the first party is defending the proceeding or that part of the

proceeding; and

(b) the Court is satisfied that the other party has no reasonable

prospect of successfully prosecuting the proceeding or that

part of the proceeding.

(3) For the purposes of this section, a defence or a proceeding or part

of a proceeding need not be:

(a) hopeless; or

(b) bound to fail;

for it to have no reasonable prospect of success.

(4) This section does not limit any powers that the Court has apart

from this section.

Federal Magistrates Act 1999

8 After section 17

Amendments in relation to litigation Schedule 1

Amendments Part 1

Migration Litigation Reform Bill 2005 No. , 2005 5

Insert:

17A Summary judgment

(1) The Federal Magistrates Court may give judgment for one party

against another in relation to the whole or any part of a proceeding

if:

(a) the first party is prosecuting the proceeding or that part of the

proceeding; and

(b) the Court is satisfied that the other party has no reasonable

prospect of successfully defending the proceeding or that part

of the proceeding.

(2) The Federal Magistrates Court may give judgment for one party

against another in relation to the whole or any part of a proceeding

if:

(a) the first party is defending the proceeding or that part of the

proceeding; and

(b) the Court is satisfied that the other party has no reasonable

prospect of successfully prosecuting the proceeding or that

part of the proceeding.

(3) For the purposes of this section, a defence or a proceeding or part

of a proceeding need not be:

(a) hopeless; or

(b) bound to fail;

for it to have no reasonable prospect of success.

(4) This section does not limit any powers that the Federal Magistrates

Court has apart from this section.

Judiciary Act 1903

9 After Division 4 of Part III

Insert:

Schedule 1 Amendments in relation to litigation

Part 1 Amendments

6 Migration Litigation Reform Bill 2005 No. , 2005

Division 4A--Summary judgment

25A Summary judgment

(1) The High Court may give judgment for one party against another

in relation to the whole or any part of a proceeding if:

(a) the first party is prosecuting the proceeding or that part of the

proceeding; and

(b) the Court is satisfied that the other party has no reasonable

prospect of successfully defending the proceeding or that part

of the proceeding.

(2) The High Court may give judgment for one party against another

in relation to the whole or any part of a proceeding if:

(a) the first party is defending the proceeding or that part of the

proceeding; and

(b) the Court is satisfied that the other party has no reasonable

prospect of successfully prosecuting the proceeding or that

part of the proceeding.

(3) For the purposes of this section, a defence or a proceeding or part

of a proceeding need not be:

(a) hopeless; or

(b) bound to fail;

for it to have no reasonable prospect of success.

(4) This section does not limit any powers that the High Court has

apart from this section.

10 At the end of section 44

Add:

(4) The High Court may remit a matter, or any part of a matter, under

this section without an oral hearing.

Migration Act 1958

11 Subsection 5(1)

Insert:

migration decision means:

Amendments in relation to litigation Schedule 1

Amendments Part 1

Migration Litigation Reform Bill 2005 No. , 2005 7

(a) a privative clause decision; or

(b) a purported privative clause decision; or

12 Subsection 5(1)

Insert:

non-privative clause decision has the meaning given by subsection

474(6).

13 Subsection 5(1)

Insert:

purported privative clause decision has the meaning given by

section 5E.

14 After section 5D

Insert:

5E Meaning of purported privative clause decision

(1) In this Act, purported privative clause decision means a decision

purportedly made, proposed to be made, or required to be made,

under this Act or under a regulation or other instrument made

under this Act (whether in purported exercise of a discretion or

not), that would be a privative clause decision if there were not:

(a) a failure to exercise jurisdiction; or

(b) an excess of jurisdiction;

in the making of the decision.

(2) In this section, decision includes anything listed in subsection

474(3).

15 At the end of section 474

Add:

(6) A decision mentioned in subsection 474(4), or specified (whether

by reference to a particular decision or a class of decisions) in

regulations made under subsection 474(5), is a non-privative

clause decision.

Schedule 1 Amendments in relation to litigation

Part 1 Amendments

8 Migration Litigation Reform Bill 2005 No. , 2005

(7) To avoid doubt, the following decisions are privative clause

decisions within the meaning of subsection 474(2):

(a) a decision of the Minister not to exercise, or not to consider

the exercise, of the Minister's power under subsection

37A(2) or (3), section 48B, paragraph 72(1)(c), section 91F,

91L, 91Q, 351, 391, 417 or 454 or subsection 503A(3);

(b) a decision of the Principal Member of the Migration Review

Tribunal or of the Principal Member of the Refugee Review

Tribunal to refer a matter to the Administrative Appeals

Tribunal;

Tribunal to accept, or not to accept, the referral of a decision

under section 382 or 444;

(d) a decision of the Minister under Division 13A of Part 2 to

order that a thing is not to be condemned as forfeited.

16 Division 2 of Part 8 (heading)

Repeal the heading, substitute:

Division 2--Jurisdiction and procedure of courts

17 Sections 475A and 476

Repeal the sections, substitute:

476 Jurisdiction of the Federal Magistrates Court

(1) Subject to this section, the Federal Magistrates Court has the same

original jurisdiction in relation to migration decisions as the High

Court has under paragraph 75(v) of the Constitution.

(2) The Federal Magistrates Court has no jurisdiction in relation to the

following decisions:

(a) a primary decision;

(b) a privative clause decision, or purported privative clause

decision, of the Administrative Appeals Tribunal on review

under section 500;

decision, made personally by the Minister under section 501,

501A, 501B or 501C;

Amendments in relation to litigation Schedule 1

Amendments Part 1

Migration Litigation Reform Bill 2005 No. , 2005 9

(d) a privative clause decision or purported privative clause

decision mentioned in subsection 474(7).

(3) Nothing in this section affects any jurisdiction the Federal

Magistrates Court may have in relation to non-privative clause

decisions under section 8 of the Administrative Decisions (Judicial

Review) Act 1977 or section 44AA of the Administrative Appeals

Tribunal Act 1975.

(4) In this section:

primary decision means a privative clause decision or purported

privative clause decision:

(a) that is reviewable under Part 5 or 7 or section 500 (whether

or not it has been reviewed); or

(b) that would have been so reviewable if an application for such

review had been made within a specified period.

476A Limited jurisdiction of the Federal Court

(1) Despite any other law, including section 39B of the Judiciary Act

1903 and section 8 of the Administrative Decisions (Judicial

Review) Act 1977, the Federal Court has original jurisdiction in

relation to a migration decision if, and only if:

(a) the Federal Magistrates Court transfers a proceeding pending

in that court in relation to the decision to the Federal Court

under section 39 of the Federal Magistrates Act 1999; or

(b) the decision is a privative clause decision, or a purported

privative clause decision, of the Administrative Appeals

Tribunal on review under section 500; or

privative clause decision, made personally by the Minister

under section 501, 501A, 501B or 501C; or

(d) the Federal Court has jurisdiction in relation to the decision

under subsection 44(3) or 45(2) of the Administrative

Appeals Tribunal Act 1975.

Note:

Only non-privative clause decisions can be taken to the Federal Court

under subsection 44(3) of the Administrative Appeals Tribunal Act

1975 (see section 483).

(2) Where the Federal Court has jurisdiction in relation to a migration

decision under paragraph (1)(a), (b) or (c), that jurisdiction is the

Schedule 1 Amendments in relation to litigation

Part 1 Amendments

10 Migration Litigation Reform Bill 2005 No. , 2005

same as the jurisdiction of the High Court under paragraph 75(v) of

the Constitution.

476B Remittal by the High Court

(1) Subject to subsection (3), the High Court must not remit a matter,

or any part of a matter, that relates to a migration decision to any

court other than the Federal Magistrates Court.

(2) The High Court must not remit a matter, or any part of a matter,

that relates to a migration decision to the Federal Magistrates Court

unless that court has jurisdiction in relation to the matter, or that

part of the matter, under section 476.

(3) The High Court may remit a matter, or part of a matter, that relates

to a migration decision in relation to which the Federal Court has

jurisdiction under paragraph 476A(b) or (c) to that court.

(4) Subsection (1) has effect despite section 44 of the Judiciary Act

1903.

18 Section 477

Repeal the section, substitute:

477 Time limits on applications to the Federal Magistrates Court

(1) An application to the Federal Magistrates Court for a remedy to be

granted in exercise of the court's original jurisdiction under

section 476 in relation to a migration decision must be made to the

court within 28 days of the actual (as opposed to deemed)

notification of the decision.

(2) The Federal Magistrates Court may, by order, extend that 28 day

period by up to 56 days if:

(a) an application for that order is made within 84 days of the

actual (as opposed to deemed) notification of the decision;

and

(b) the Federal Magistrates Court is satisfied that it is in the

interests of the administration of justice to do so.

(3) Except as provided by subsection (2), the Federal Magistrates

Court must not make an order allowing, or which has the effect of

Amendments in relation to litigation Schedule 1

Amendments Part 1

Migration Litigation Reform Bill 2005 No. , 2005 11

allowing, an applicant to make an application mentioned in

subsection (1) outside that 28 day period.

(4) The regulations may prescribe the way of notifying a person of a

decision for the purposes of this section.

477A Time limits on applications to the Federal Court

(1) An application to the Federal Court for a remedy to be granted in

exercise of the court's original jurisdiction under paragraph

476A(b) or (c) in relation to a migration decision must be made to

the court within 28 days of the actual (as opposed to deemed)

notification of the decision.

(2) The Federal Court may, by order, extend that 28 day period by up

to 56 days if:

(a) an application for that order is made within 84 days of the

actual (as opposed to deemed) notification of the decision;

and

(b) the Federal Court is satisfied that it is in the interests of the

administration of justice to do so.

(3) Except as provided by subsection (2), the Federal Court must not

make an order allowing, or which has the effect of allowing, an

applicant to make an application mentioned in subsection (1)

outside that 28 day period.

(4) The regulations may prescribe the way of notifying a person of a

decision for the purposes of this section.

19 Section 478

Omit "section 477 may only be made by the Minister and", substitute

"section 477 or 477A may only be made by the Minister, or where

appropriate the Secretary, and".

20 Paragraph 478(a)

Repeal the paragraph, substitute:

(a) if the migration decision concerned is made on review under

Part 5 or 7 or section 500--the applicant in the review by the

relevant Tribunal; or

21 Section 479

Schedule 1 Amendments in relation to litigation

Part 1 Amendments

12 Migration Litigation Reform Bill 2005 No. , 2005

Omit "The parties to a review of a privative clause decision resulting

from an application referred to in section 477 are the Minister",

substitute "The parties to a review of a migration decision resulting

from an application referred to in section 477 or 477A are the Minister,

or where appropriate the Secretary,".

22 Paragraphs 479(a) and (b)

Repeal the paragraphs, substitute:

(a) if the migration decision concerned is made on review under

Part 5 or 7 or section 500--the applicant in the review by the

relevant Tribunal; or

(b) in any other case--the person who is the subject of the

migration decision; or

23 Subsection 480(1)

After "section 477", insert "or 477A".

24 Subsection 480(2)

Omit "Federal Court or Federal Magistrates Court", substitute "Federal

Magistrates Court or Federal Court".

25 Section 481

After "section 477", insert "or 477A".

26 Paragraph 482(a)

Omit "privative clause decision", substitute "migration decision".

27 Section 483

Repeal the section, substitute:

483 Section 44 of the Administrative Appeals Tribunal Act 1975

Section 44 of the Administrative Appeals Tribunal Act 1975 does

not apply to privative clause decisions or purported privative

clause decisions.

28 Section 483A

Repeal the section.

29 Section 484

Amendments in relation to litigation Schedule 1

Amendments Part 1

Migration Litigation Reform Bill 2005 No. , 2005 13

Repeal the section, substitute:

484 Exclusive jurisdiction of High Court, Federal Court and Federal

Magistrates Court

(1) Only the High Court, the Federal Court and the Federal

Magistrates Court have jurisdiction in relation to migration

decisions.

(2) To avoid doubt, subsection (1) is not intended to confer jurisdiction

on the High Court, the Federal Court or the Federal Magistrates

Court, but to exclude other courts from jurisdiction in relation to

migration decisions.

(3) To avoid doubt, despite section 67C of the Judiciary Act 1903, the

Supreme Court of the Northern Territory does not have jurisdiction

in relation to migration decisions.

(4) To avoid doubt, jurisdiction in relation to migration decisions is

not conferred on any court under the Jurisdiction of Courts

(Cross-vesting) Act 1987.

30 Subsection 486A(1)

Repeal the subsection, substitute:

(1) An application to the High Court for a remedy to be granted in

exercise of the court's original jurisdiction in relation to a

migration decision must be made to the court within 28 days of the

actual (as opposed to deemed) notification of the decision.

31 After subsection 486A(1)

Insert:

(1A) The High Court may, by order, extend that 28 day period by up to

56 days if:

(a) an application for that order is made within 84 days of the

actual (as opposed to deemed) notification of the decision;

and

(b) the High Court is satisfied that it is in the interests of the

administration of justice to do so.

32 Subsection 486A(2)

Schedule 1 Amendments in relation to litigation

Part 1 Amendments

14 Migration Litigation Reform Bill 2005 No. , 2005

Omit "The High Court", substitute "Except as provided by

subsection (1A), the High Court".

33 Subsection 486A(2)

Omit "35 day", substitute "28 day".

34 Subsection 486C(1)

Omit "Federal Court or the Federal Magistrates Court", substitute

"Federal Magistrates Court or the Federal Court.

Note:

The heading to section 486C is replaced by the heading "Persons who may commence

or continue proceedings in the Federal Magistrates Court or the Federal Court".

35 Subsections 486C(3) and (3A)

Repeal the subsections, substitute:

(3) This section applies to proceedings within the Federal Magistrate

Court's jurisdiction under section 476 of this Act, section 44 of the

Judiciary Act 1903, section 32AB of the Federal Court of

Australia Act 1976 or any other law.

(3A) This section applies to proceedings transferred to the Federal Court

under section 39 of the Federal Magistrates Act 1999 and

proceedings in which the Federal Court has jurisdiction under

paragraph 476A(b) or (c).

36 Subsection 486C(7)

Repeal the subsection.

37 After section 486C

Insert:

486D Disclosing other judicial review proceedings

(1) A person must not commence a proceeding in the Federal

Magistrates Court in relation to a tribunal decision unless the

person, when commencing the proceeding, discloses to the court

any judicial review proceeding already brought by the person in

that or any other court in relation to that decision.

(2) A person must not commence a proceeding in the Federal Court

seeking the exercise of the court's original jurisdiction in relation

Amendments in relation to litigation Schedule 1

Amendments Part 1

Migration Litigation Reform Bill 2005 No. , 2005 15

to a tribunal decision unless the person, when commencing the

proceeding, discloses to the court any judicial review proceeding

already brought by the person in that or any other court in relation

to that decision.

(3) A person must not commence a proceeding in the High Court

seeking the exercise of the court's original jurisdiction in relation

to a tribunal decision unless the person, when commencing the

proceeding, discloses to the court any judicial review proceeding

already brought by the person in that or any other court in relation

to that decision.

(4) Proceedings required to be disclosed under subsection (1), (2) or

(3) include proceedings brought before the commencement of this

section.

(5) In this section:

judicial review proceeding, in relation to a tribunal decision,

means:

(a) a proceeding in the Federal Magistrates Court in relation to

the tribunal decision; or

(b) a proceeding in the Federal Court seeking the exercise of the

court's original jurisdiction in relation to the tribunal

decision; or

court's original jurisdiction in relation to the tribunal

decision.

tribunal decision means a privative clause decision, or purported

privative clause decision, made on review by a Tribunal under

Part 5 or 7 or section 500.

38 After Part 8A

Insert:

Schedule 1 Amendments in relation to litigation

Part 1 Amendments

16 Migration Litigation Reform Bill 2005 No. , 2005

Part 8B--Costs orders where proceedings have no

reasonable prospect of success

486E Obligation where there is no reasonable prospect of success

(1) A person must not encourage another person (the litigant) to

commence or continue migration litigation in a court if:

(a) the migration litigation has no reasonable prospect of

success; and

(b) either:

(i) the person does not give proper consideration to the

prospects of success of the migration litigation; or

(ii) a purpose in commencing or continuing the migration

litigation is unrelated to the objectives which the court

process is designed to achieve.

(2) For the purposes of this section, migration litigation need not be:

(a) hopeless; or

(b) bound to fail;

for it to have no reasonable prospect of success.

(3) This section applies despite any obligation that the person may

have to act in accordance with the instructions or wishes of the

litigant.

486F Cost orders

(1) If a person acts in contravention of section 486E, the court in

which the migration litigation is commenced or continued may

make one or more of the following orders:

(a) an order that the person pay a party to the migration litigation

(other than the litigant), the costs incurred by that party

because of the commencement or continuation of the

migration litigation;

(b) an order that the person repay to the litigant any costs already

paid by the litigant to another party to the migration

litigation, because of the commencement or continuation of

the migration litigation;

Amendments in relation to litigation Schedule 1

Amendments Part 1

Migration Litigation Reform Bill 2005 No. , 2005 17

the migration litigation:

(i) an order that costs incurred by the litigant in the

commencement or continuation of the migration

litigation, are not payable to the lawyer;

(ii) an order that the lawyer repay the litigant costs already

paid by the litigant to the lawyer in relation to the

commencement or continuation of the migration

litigation.

(2) If the court, at the time of giving judgment on the substantive

issues in the migration litigation, finds that the migration litigation

had no reasonable prospect of success, the court must consider

whether an order under this section should be made.

(3) An order under this section may be made:

(a) on the motion of the court; or

(b) on the application of a party to the migration litigation.

(4) The motion or application must be considered at the time the

question of costs in the migration litigation is decided.

(5) A person is not entitled to demand or recover from the litigant any

part of an amount which the person is directed to pay under an

order made under this section.

486G Person must be given reasonable opportunity to argue against

costs order

The court must not make an order under section 486F unless the

person has been given a reasonable opportunity to argue why the

order should not be made.

486H Limited waiver of legal professional privilege

(1) If, in proceedings to determine whether an order under

section 486F should be made:

(a) a person wishes to produce a document, record or

information for the purpose of arguing why an order under

section 486F should not be made; and

(b) to do so would, but for this section, deny legal professional

privilege to any person entitled to claim it;

Schedule 1 Amendments in relation to litigation

Part 1 Amendments

18 Migration Litigation Reform Bill 2005 No. , 2005

the person may produce the document, record or information for

that purpose.

(2) However:

(a) the document, record or information does not cease to be

subject to legal professional privilege for any other purpose,

or in any other circumstances; and

(b) the court must make any orders necessary to ensure that legal

professional privilege is protected for other purposes and in

other circumstances.

(3) Nothing in this section prevents a person who is entitled to claim

legal professional privilege in relation to the document, record or

information, from waiving that privilege.

(4) In this section:

legal professional privilege includes privilege (however described)

under any provision of Division 1 of Part 3.10 of the Evidence Act

1995.

486I Lawyer's certification

(1) A lawyer must not file a document commencing migration

litigation, unless the lawyer certifies in writing that there are

reasonable grounds for believing that the migration litigation has a

reasonable prospect of success.

(2) A court must refuse to accept a document commencing migration

litigation if it is a document that, under subsection (1), must be

certified and it has not been.

486J Part does not limit other powers to order costs against third

parties

This Part does not limit any power a court may otherwise have to

make costs orders against a person who is not a party to

proceedings.

486K Definitions

In this Part:

Amendments in relation to litigation Schedule 1

Amendments Part 1

Migration Litigation Reform Bill 2005 No. , 2005 19

lawyer has the same meaning as in Part 3.

migration litigation means a court proceeding in relation to a

migration decision.

39 Subsection 503B(14) (table)

Repeal the table, substitute:

Applicant

Item

In the case of these proceedings...

the applicant is...

Proceedings within the Federal

Magistrate Court's jurisdiction

under section 476 of this Act,

including proceedings arising from:

(a) a remittal under section 44 of the

Judiciary Act 1903; or

(b) a transfer under section 32AB of

the Federal Court of Australia

Act 1976.

the person seeking the remedy to be

granted in exercise of that

jurisdiction.

Proceedings within the Federal

Court's jurisdiction under

section 476A of this Act, including

proceedings arising from a remittal

under section 44 of the Judiciary Act

1903.

the person seeking the remedy to be

granted in exercise of that

jurisdiction.

Proceedings within the Federal

Court's appellate jurisdiction arising

from proceedings (the original

proceedings) mentioned in item 1 or

the person who was the applicant for

the original proceedings.

(a) proceedings by way of a referral

of a question of law arising

before the Administrative

Appeals Tribunal;

(b) proceedings by way of an appeal

in relation to proceedings

mentioned in paragraph (a).

the person who applied to the

Administrative Appeals Tribunal for

a review of the decision concerned.

Schedule 1 Amendments in relation to litigation

Part 2 Application of amendments

20 Migration Litigation Reform Bill 2005 No. , 2005

Part 2--Application of amendments

40 Definitions

In this Part:

commencement day means the day on which this Schedule commences.

migration decision has the same meaning as in the Migration Act 1958,

as amended by Part 1 of this Schedule.

migration litigation has the same meaning as in Part 8B of the

Migration Act 1958, as amended by Part 1 of this Schedule.

substantive proceedings has the same meaning as in paragraph

503B(1)(b) of the Migration Act 1958.

41 Application of item 1 and items 11 to 36

The amendments made by item 1 and items 11 to 36 of this Schedule

apply to proceedings in relation to a migration decision that are

commenced on or after the commencement day.

42 Transitional provision--migration decision made before

commencement day

Where proceedings are commenced on or after the commencement day

in relation to a migration decision made before the commencement day,

and actual notification of the decision is given before the

commencement day:

(a) section 477 of the Migration Act 1958 applies as if the actual

notification of the decision took place on the commencement

day; and

(b) section 477A of that Act applies as if the actual notification

of the decision took place on the commencement day; and

of the decision took place on the commencement day.

43 Application of items 2, 3, 4 and 6

The amendments made by items 2, 3, 4 and 6 of this Schedule apply in

relation to migration judgments made on or after the commencement

day.

44 Application of items 5, 7, 8 and 9

Amendments in relation to litigation Schedule 1

Application of amendments Part 2

Migration Litigation Reform Bill 2005 No. , 2005 21

The amendments made by items 5, 7, 8 and 9 of this Schedule apply in

relation to proceedings commenced on or after the commencement day.

45 Application of item 10

The amendment made by item 10 of this Schedule applies in relation to

proceedings commenced in the High Court on or after the

commencement day.

46 Application of item 37

The amendment made by item 37 of this Schedule applies in relation to

the commencement of proceedings on or after the commencement day.

47 Application of item 38

The amendment made by item 38 of this Schedule applies to migration

litigation commenced on or after the commencement day.

48 Application of item 39

(1)

The amendment made by item 39 of this Schedule applies in relation to

substantive proceedings within the original jurisdiction of the Federal

Magistrates Court, or Federal Court, commenced on or after the

commencement day.

(2)

The amendment made by item 39 of this Schedule applies in relation to

substantive proceedings within the appellate jurisdiction of the Federal

Court if the proceedings from which the appeal arose were commenced

on or after the commencement day.

Schedule 2 Amendments relating to the management of the Federal Magistrates Court

22 Migration Litigation Reform Bill 2005 No. , 2005

Schedule 2--Amendments relating to the

management of the Federal

Magistrates Court

Federal Magistrates Act 1999

1 Section 4

Omit "Federal Magistrates Court is to administer its own affairs",

substitute "Chief Federal Magistrate is to manage the Federal

Magistrates Court's administrative affairs".

2 Section 4

Omit "Federal Magistrates Court in managing its", substitute "Chief

Federal Magistrate in managing the Federal Magistrates Court's".

3 Subsection 89(1)

Repeal the subsection, substitute:

(1) The Chief Federal Magistrate is responsible for managing the

administrative affairs of the Federal Magistrates Court.

4 Subsection 89(2)

Repeal the subsection.

5 Subsection 89(3)

Omit "The Federal Magistrates Court has power to do all things that are

necessary or convenient to be done for or in connection with the

administration of its affairs", substitute "For this purpose, the Chief

Federal Magistrate has power to do all things that are necessary or

convenient to be done".

6 After subsection 89(3)

Insert:

(3A) The Chief Federal Magistrate's powers under subsection (3) are in

addition to any powers given to the Chief Federal Magistrate by

this Act or any other Act.

Amendments relating to the management of the Federal Magistrates Court Schedule 2

Migration Litigation Reform Bill 2005 No. , 2005 23

7 Subsection 89(4)

Omit "The Federal Magistrates Court", substitute "Despite

subsection (3), the Chief Federal Magistrate".

8 Subsection 90(1)

Omit ", on behalf of the Federal Magistrates Court,".

9 Subsection 91(1)

Omit ", on behalf of the Federal Magistrates Court," (first occurring).

10 Section 92

Omit ", on behalf of the Federal Magistrates Court,".

11 Section 93

Before "The Federal", insert "(1)".

12 At the end of section 93

Add:

(2) The Chief Federal Magistrate may appoint committees consisting

of Federal Magistrates, or of Federal Magistrates and other

persons, for the purpose of advising the Chief Federal Magistrate

in relation to the management of the administrative affairs of the

Federal Magistrates Court.

13 Subsection 96(1)

Omit "the management of its administrative affairs, the Federal

Magistrates Court", substitute "managing the administrative affairs of

the Federal Magistrates Court, the Chief Federal Magistrate".

14 Subsection 96(2)

Omit "Federal Magistrates Court", substitute "Chief Federal

Magistrate".

15 Subsection 96(3)

Omit "Federal Magistrates Court" (first occurring), substitute "Chief

Federal Magistrate".

16 Subsection 96(4)

Schedule 2 Amendments relating to the management of the Federal Magistrates Court

24 Migration Litigation Reform Bill 2005 No. , 2005

Omit "Federal Magistrates Court", substitute "Chief Federal

Magistrate".

17 Subsection 96(4)

Omit "his or her", substitute "the Chief Executive Officer's".

18 Subsection 99(6)

Repeal the subsection, substitute:

(6) The officers of the Federal Magistrates Court, other than the Chief

Executive Officer, have such duties, powers and functions as are

given to them by:

(a) this Act; or

(b) the Rules of Court; or

(d) the Chief Federal Magistrate.

19 Section 100

Omit "Federal Magistrates Court" (first occurring), substitute "Chief

Federal Magistrate".

20 After section 117

Insert:

117A Delegation of the administrative powers of the Chief Federal

Magistrate

The Chief Federal Magistrate may, in writing, delegate all or any

of his or her powers under section 89 to any one or more of the

Federal Magistrates.

21 Transitional provision--things done before the

commencement of this Schedule

Anything done under the Federal Magistrates Act 1999 before the

commencement of this Schedule has the same effect, after that

commencement, as it would have had if this Schedule had not been

enacted.

Commonwealth of Australia Bills

MIGRATION LITIGATION REFORM BILL 2005