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2002-2003-2004
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
MIGRATION AMENDMENT (JUDICIAL
REVIEW) BILL 2004
EXPLANATORY
MEMORANDUM
(Circulated by authority
of the
Minister for Immigration and Multicultural and Indigenous
Affairs,
Senator the Hon Amanda Vanstone)
MIGRATION AMENDMENT (JUDICIAL REVIEW) BILL
2004
OUTLINE
1. This Bill restores the original
intention of the following procedural requirements:
• time limits
are imposed on judicial review applications (sections 477 and
486A);
• the High Court, the Federal Court and the Federal Magistrates
Court have exclusive jurisdiction for migration applications (section 484); and
• judicial review of a decision is not available where merits review
of that decision is available (section 476).
2. These requirements are
achieved by defining a privative clause decision for purposes other than the
grounds of judicial review.
3. In Plaintiff S157/2002 v Commonwealth
of Australia (2003) 72 ALD 1 ('S157'), which was handed down on 4
February 2003, the High Court considered the constitutionality of the privative
clause. The effect of S157 was that time limits did not apply to all decisions.
The time limits will only apply to lawful decisions where there is no excess of
jurisdiction
4. The practical effect of S157 is that, until a Court
determines the lawfulness of a decision, these provisions are
inoperative.
5. These amendments do not change the basis of the
lawfulness of a decision as the amendments do not apply to section
474.
6. These amendments re-establish time limits on applications for
judicial review with a discretion to extend those limits by 56 days where that
is in the interests of the administration of justice.
7. The Bill amends
the definition of ‘privative clause decision’ in subsection 5(1) so
that ‘privative clause decision’ includes a purported decision as
well as a privative clause decision within the meaning of the current subsection
474(2). A ‘purported decision’ is a decision that would be a
privative clause decision, had it not been affected by jurisdictional
error.
8. It is intended that by redefining ‘privative clause
decision’ in this way, those provisions in Part 8 that relate to time
limits on judicial review applications, and the courts’ jurisdiction in
migration matters, will apply to all migration decisions, even those that are
arguably affected by jurisdictional error.
Financial impact
statement
9. The reforms in the Bill are expected to reduce the
number of applications currently being made outside 84 days. This may lead to
some savings. The savings would not be achieved until the applications currently
before the courts have been heard.
MIGRATION AMENDMENT (JUDICIAL
REVIEW) BILL 2004
NOTES ON INDIVIDUAL
CLAUSES
Clause 1 Short title
1. Clause 1 is a
formal provision specifying the short title of this Act.
Clause
2 Commencement
2. Subclause 2(1) contains a table setting out
the commencement information for the Act. The subclause also provides that each
provision of the Act specified in column 1 of the table commences, or is taken
to have commenced, on the day or at the time specified in column 2 of the
table.
3. The effect of item 1 of the table is that sections 1, 2 and 3
of the Act commence on the day on which this Act receives the Royal
Assent.
4. The effect of item 2 of the table is that Schedule 1 to the
Act commences on a single day to be fixed by Proclamation. Item 2 further
provides that if a provision covered by item 2 of the table does not commence
within the period of 6 months beginning on the day on which this Act receives
the Royal Assent, it commences on the first day after the end of that
period.
Clause 3 Schedule(s)
5. This is a formal provision
stating that each Act specified in a Schedule to this Act is amended or repealed
as set out in the applicable items in the Schedule concerned. In addition, any
other item in a Schedule to this Act has effect according to its terms.
Part 1 - Amendments
6. This item contains a consequential amendment to reflect the
redefinition of ‘privative clause decision’ in item 2. The effect
of this item is to ensure that the redefinition of ‘privative
clause’ decision is included in those classes of decisions that are not
decisions to which the Administrative Decisions (Judicial Review) Act 1977
applies.
7. This item amends the definition of ‘privative clause decision’
in subsection 5(1) to give the term two meanings:
• first, for the
purposes of section 474 of the Act, ‘privative clause decision’ has
the meaning given to it by the current subsection 474(2);
• second, for
all other purposes under the Act, ‘privative clause decision’ also
includes
(a) a privative clause decision within the meaning of
subsection 474(2), or
(b) a ‘purported decision’ that would
be a privative clause decision within the meaning of subsection 474(2), were it
not affected by a failure to exercise jurisdiction or an excess of jurisdiction
(jurisdictional error).
8. The use of the term ‘purported
decision’ in paragraph (b) reflects the terminology used by the High Court
in S157. The Court held that ‘decision[s] ... made under this
Act’ do not include decisions which involve a failure to exercise
jurisdiction or an excess of jurisdiction. The Court referred to decisions
infected by jurisdictional error as ‘decisions purportedly made under the
Act’. As these ‘purported decisions’ cannot be decisions
‘made under this Act’ as defined in subsections 474(2) and (3) of
the Act, they are consequently excluded from the privative clause provisions in
Part 8.
9. However, new paragraph 5(1)(b) clarifies that a
‘purported decision’ means a decision that is affected by a failure
to exercise jurisdiction or an excess of jurisdiction. It is not intended that
the reference to ‘purported decision’ in paragraph 5(1)(b) affects
in any way the interpretation of ‘purported’, where that word
appears in other sections of the Act.
10. The effect of item 2 is that
the second meaning of ‘privative clause decision’ in new paragraph 5
(1)(b) will apply for all purposes under the Act, other that section 474,
including those provisions in Part 8 that relate to:
• time limits
on making applications to the Federal Court and the Federal Magistrate’s
Court for judicial review of a privative clause decision (section
477);
• time limits on making applications to the High Court for
judicial review of a privative clause decision (section 486A);
• the
exclusive jurisdiction of the Federal Court and the Federal Magistrate’s
Court in reviewing a privative clause decision (section 484);
and
• judicial review of a decision is not available where merits
review of that decision is available (section 476).
8. It should be noted
that for the purposes of this second meaning of ‘privative clause
decision’, ‘decision’, when used in the expression
‘purported decision’, includes anything listed in subsection 474(3).
This means that for the purposes of this second meaning of ‘purported
decision’, all those things defined in subsection 474(3)
apply.
9. In other words, the insertion of the new definition relating to
‘purported decision’ restores the original policy intention behind
those provisions in Part 8 relating to judicial review, including those outlined
in paragraph 10 above.
Item 3 After subsection
477(1)
10. This item adds new subsection 477(1AA) that provides for
an extension of the time limit for applying for judicial review from 28 days up
to an additional 56 days, in the Federal Court.
14. New subsection
477(1AA) provides that the Federal Court may order an extension of the period in
which a person can apply for judicial review, if the person applies to the court
for this order within 84 days of being notified of the decision
15. The
intention of this provision is that the Federal Court may not grant an extension
of time after 84 days from the date the applicant was notified of the decision.
It is not intended that the Federal Court may grant extensions of time beyond
that.
Item 4 After subsection 477(1A)
16. This item adds
new subsection 477(1B) which mirrors the extension of time provision in new
subsection 477(1AA), in relation to the Federal Magistrates
Court.
17. The intention of this provision is that the Federal
Magistrates Court may not grant an extension of time after 84 days from the date
the applicant was notified of the decision. It is not intended that the Federal
Magistrates Court may grant extensions of time beyond that.
Item 5
Subsection 477(2)
18. This item is consequential to the amendments in
items 3 and 4.
19. The effect of this item is to allow the Federal Court
and the Federal Magistrates Court to apply the new time limits in items 3 and 4
to judicial review applications, where the 28 day time limit has passed, and a
person has applied to the court for an order to extend the time
limit.
Item 6 Section 478
20. This item is consequential to
the amendments in items 3 and 4.
21. The effect of this item is to
clarify the types of applications to which section 478 applies, that is, to
applications for a writ of mandamus, prohibition or certiorari, or for an
injunction or declaration, but not to applications for an order to extend the
time limit.
Item 7 Section 479
22. This item is
consequential to the amendments in items 3 and 4.
23. The effect of this
item is to clarify the types of applications to which section 479 applies, that
is, to applications for a writ of mandamus, prohibition or certiorari, or for an
injunction or declaration, but not to applications for an order to extend the
time limit.
Item 8 Subsection 480(1)
24. This item is
consequential to the amendments in items 3 and 4.
25. The effect of this
item is to clarify the types of applications to which subsection 480(1) applies,
that is, to applications for a writ of mandamus, prohibition or certiorari, or
for an injunction or declaration, but not to applications for an order to extend
the time limit.
Item 9 Section 481
26. This item is
consequential to the amendments in items 3 and 4.
27. The effect of this
item is to clarify the types of applications to which section 481 applies, that
is, to applications for a writ of mandamus, prohibition or certiorari, or for an
injunction or declaration, but not to applications for an order to extend the
time limit.
Item 10 Subsection 486A(1)
28. This item amends
the time limits for judicial review applications to the High Court so that they
align with those in the Federal Court and Federal Magistrates Court. It reduces
the time limit from 35 to 28 days of the date of notification (as set out in
sections 379C and 441C of the Act), instead of the date of the actual
notification of the decision. This means that the issue of whether or not a
person was actually notified of a decision would no longer be relevant in
deciding whether or not the High Court could hear the application for judicial
review.
29. There is no adverse affect on a person applying for judicial
review. Under new subsection 486A(1A) a person has the option of applying to the
High Court for an order for an extension of time to apply for judicial review,
if it is made within 84 days of the deemed notification of the
decision
Item 11 After subsection 486A(1)
30. This item
adds new subsection 486A(1A) that provides for an extension of the time limit
for judicial review applications to the High Court, from 28 days of the
notification of the decision, up to an additional 56 days, if the person applies
to the court for this order within 84 days of the notification of the
decision.
31. The effect of item 11 is to make the extension of the time
limit for judicial review applications in the High Court consistent with the
extension of the time limit for judicial review applications in the Federal
Court and the Federal Magistrates Court, as contained in items 3 and
4.
32. The intention of this provision is that the High Court may not
grant an extension of time after 84 days from the date the applicant was
notified of the decision. It is not intended that the High Court may grant
extensions of time beyond that.
Item 12 Subsection
486A(2)
33. This item is consequential to the amendment in item
11.
34. The effect of this item is to allow the High Court to apply the
new time limit in item 11 to judicial review applications, where the 28 day time
limit has passed, and a person has applied to the court for an order to extend
the time limit.
Item 13 Subsection 486A(2)
35. This item is
consequential to the amendment in item 11.
36. The effect of this item is
to make this subsection consistent with item 11 and the new 28 day time
limit.
Part 2 – Application of amendments
Item 14
– Application of amendments
37. The effect of item 14 is that
the amendments made by Schedule 1 will apply to all privative clause decisions
(within the meaning of the amended section 5 definition) made after the
commencement of the Act. The amendments will not affect privative clause
decisions within the subsection 474(2) meaning, or decisions that would be
privative clause decisions had they not been affected by jurisdictional error,
made before commencement.