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1998 – 1999
– 2000 – 2001
THE PARLIAMENT OF THE COMMONWEALTH
OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
MIGRATION LEGISLATION AMENDMENT
(JUDICIAL REVIEW) BILL 2001
REVISED EXPLANATORY
MEMORANDUM
(Circulated by
authority of the
Minister for Immigration and Multicultural Affairs,
the
Hon. Philip Ruddock MP)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE SENATE TO THE BILL AS INTRODUCED
MIGRATION LEGISLATION AMENDMENT (JUDICIAL REVIEW) BILL
2001
OUTLINE
Overview
1
The Migration Legislation Amendment (Judicial Review) Bill 2001 ("the Bill")
implements a number of Government initiatives in the Immigration and
Multicultural Affairs portfolio.
2 The Bill
amends the Migration Act 1958 and the Administrative Decisions
(Judicial Review) Act 1977.
3 The
amendments to the Migration Act 1958 and the Administrative Decisions
(Judicial Review) Act 1977, in relation to judicial review of
immigration decision-making:
• introduce a new judicial review
scheme, in particular a privative clause, to cover decisions made under the
Migration Act 1958 relating to the ability of non-citizens to enter and
remain in Australia;
• apply the new judicial review scheme to both
the Federal Court and the High Court; and
• allow specified
decisions to be reviewable under the Administrative Decisions (Judicial
Review) Act 1977.
FINANCIAL IMPACT
STATEMENT
4 The amendments to the
Migration Act 1958 in relation to judicial review of immigration
decision-making will, if they operate as predicted by reducing the issues to be
addressed and allowing cases to be resolved more quickly, deliver substantial
savings. It will take some time before the scheme is fully effective given a
backlog of cases to which it will not apply and for any initial court challenges
to it to be resolved.
MIGRATION LEGISLATION AMENDMENT (JUDICIAL REVIEW) BILL
2001
NOTES ON INDIVIDUAL CLAUSES
Clause
1 Short title
1 The short title
by which this Act will be known is the Migration Legislation Amendment
(Judicial Review) Act 2001.
Clause
2 Commencement
2 Subclause 2(1)
provides that, subject to this section, this Act commences on day on which it
receives the Royal Assent.
3 Subclause 2(2)
provides that, subject to subsection 2(3), Schedule 1 commences on a day to be
fixed by Proclamation.
4 Subclause 2(3)
provides that Schedule 1 will commence 6 months after the Royal Assent unless
Proclamation occurs first.
Clause
3 Schedule(s)
5 Clause 3 provides that,
subject to section 2, the provisions of the various Acts that are set out in the
items of Schedule 1 are amended or repealed as
indicated.
SCHEDULE 1 - Judicial review
Part 1 -
Amendments
Administrative Decisions (Judicial Review) Act
1977
Item 1 Paragraph (da) of Schedule
1
6 This paragraph excludes from the
jurisdiction of the Federal Court under the Administrative Decisions
(Judicial Review) Act 1977 ("the ADJR Act") privative clause decisions under
the Migration Act 1958 (“the Migration Act”) (and regulations
and other instruments made under the latter Act). This amendment confines the
Federal Court's jurisdiction under the ADJR Act in respect of migration matters
to those decisions listed at the new subsection 474(4) of the Migration Act and
any prescribed under new subsection 474(5).
Migration Act
1958
Item 2 Subsection 5(1) (definition of
judicially-reviewable decision)
7
This definition is repealed consequential to the changes to judicial review
under the Migration Act.
Item 3 Subsection
5(1)
8 A new definition - "privative
clause decision" - is inserted in relation to the new judicial review provisions
for those decisions covered by new subsection 474(1) and made under the
Migration Act (or regulations or other instruments made under that Act).
9 The definition has the meaning set out at
new subsection 474(2). Note however that subsection 474(2) needs to be
interpreted having regard to subsections 474(3).
Item 4 Subsection
32(2)
10 Section 32 deals with the
creation of, and criteria for the grant of special category visas. This
amendment makes clear that the Minister's satisfaction is required in relation
to whether a person satisfies the legal pre-conditions for a visa to which
section 32 of the Migration Act refers. Section 65 of the Migration Act
requires the Minister to be "satisfied" that specified legal pre-conditions are
satisfied in order for the visa to be granted. This amendment is intended to
put it beyond any doubt that the Minister's satisfaction applies to the grant of
a visa to which section 32 of the Migration Act refers.
Item
5 Subsection 36(2)
11 Section 36 deals
with the creation of, and criteria for the grant of protection visas. This
amendment makes it clear that the Minister's satisfaction is required in
relation to whether a person satisfies the legal pre-conditions for a visa to
which section 36 of the Migration Act refers. Section 65 of the Migration Act
requires the Minister to be "satisfied" that specified legal pre-conditions are
satisfied in order for the visa to be granted. This amendment is intended to
put it beyond any doubt that the Minister's satisfaction is necessary to the
grant of a visa to which section 36 of the Migration Act refers.
Item
6 Section 73
12 Section 73 deals with
the criteria for the grant of bridging visas. This amendment makes it clear
that the Minister's satisfaction is required in relation to whether a person
satisfies the legal pre-conditions for a visa to which section 73 (and section
37) of the Migration Act refer. Section 65 of the Migration Act requires the
Minister to be "satisfied" that specified legal pre-conditions are satisfied in
order for the visa to be granted. This amendment is intended to put it beyond
any doubt that the Minister's satisfaction is necessary to the grant of a visa
to which section 73 (and section 37) of the Migration Act refers.
Item
7 Part 8
13 Part 8 of the Migration Act,
which dealt with the review of decisions by the Federal Court, is repealed and
replaced by the new judicial review provisions.
PART 8 - Judicial
review
Division 1 - Privative clause
474 Decisions
under Act are final
14 New subsection
474(1) introduces a privative clause for decisions made under the Migration Act,
regulations made under that Act or other instruments under that Act except for
decisions made under the provisions set out in new subsection 474(4) or as
prescribed under new subsection 474(5). A privative clause affects the extent
of judicial review by both the Federal Court and the High Court of decisions
covered by the clause.
15 A privative clause
is a provision which, although on its face purports to oust all judicial review,
in operation, by altering the substantive law, limits review by the courts to
certain grounds. Such a clause has been interpreted by the High Court, in a
line of authority stemming from the judgment of Dixon J in R v Hickman; ex
parte Fox and Clinton (1945)
70 CLR 598, to mean that a court can still
review matters but the available grounds are confined to exceeding
constitutional limits, narrow jurisdictional error or mala fides.
16 The intention of the provision is to
provide decision-makers with wider lawful operation for their decisions such
that, provided the decision-maker is acting in good faith, has been given the
authority to make the decision concerned (for example, by delegation of the
power from the Minister or by virtue of holding a particular office) and does
not exceed constitutional limits, the decision will be
lawful.
17 New subsection 474(2) defines a
"privative clause decision" as a decision made under the Migration Act, or
regulations or other instruments made under that Act, except for the decisions
specified at new subsection 474(4), or prescribed under new subsection
474(5):
- the specified decisions, and any prescribed decisions, are
reviewable under the ADJR Act - see this Bill's proposed amendment to paragraph
(da) of Schedule 1 to that Act.
18
New subsections 474(2) and (3) make it clear that "decision" is to be given a
wide meaning. New subsections 474(2) and (3) are substantially in the same form
as the definition of "decision" for the purposes of the ADJR Act, with the
addition of "conduct preparatory to the making of a decision", and actions
specific to the Migration Act such as the "cancelling" of visas.
19 New subsection 474(4) specifies the
decisions which are not subject to the operation of the privative clause in new
subsection 474(1).
20 New subsection 474(5)
allows for flexibility for exempting additional decisions from the operation of
the privative clause by way of regulations made under the Migration
Act.
Division 2 - Provisions relating to privative clause
decisions
21 As set out above in
relation to new subsection 474(1), a privative clause has been interpreted by
the High Court to permit judicial review of decisions covered by such a clause
on restricted grounds. Division 2 of this Bill makes provision for these
matters to be litigated subject to the limitations contained in that Division,
to the Federal Court under sections 39B and 44 of the Judiciary Act 1903
and to the High Court under section 75 of the Commonwealth Constitution.
Division 2 of this Bill also ensures that application for judicial review of
privative clause decisions cannot be made to the Federal Court unless applicants
have exhausted their merits review rights.
Section 475 This
Division not to limit section 474
22 This new section makes it clear
that new Division 2, by implication or otherwise, in no way limits the scope or
operation of new section 474.
Section 475A Section 476 not to affect
the jurisdiction of the Federal Court in certain cases
23 This new
section makes it clear that the Federal Court has jurisdiction to review
decisions of the Migration Review Tribunal, the Refugee Review Tribunal and the
Administrative Appeals Tribunal, and any other decision not excluded by proposed
section 476 (for example, certain visa decisions which attract no merits review
rights under Part 5 or Part 7 or section 500 of the Migration
Act).
Section 476 Federal Court does not have any other jurisdiction
in relation to certain privative clause decisions
24 New subsection
476(1), in combination with the proposed new definition of “primary
decision” in new subsection 476(6) makes it clear that the Federal Court
does not have any jurisdiction in relation to a primary decision,
where:
• the decision has been the subject of a merits review
decision by a Tribunal under Part 5 or 7 or section 500 of the Migration Act;
or
• the decision is still subject to the merits review processes under
Part 5 or 7 or section 500 whether because it is still going through those
processes or an application for merits review has not yet been made and the time
specified for such an application has not expired; or
• the decision
would have been merits reviewable had a merits review application been made
within the time specified for such an application.
25 Judicial review by
the Federal Court of matters which involve merits review rights is restricted to
the decision made by the review body. Accordingly, if a person has a merits
review right under Part 5, Part 7 or section 500 of the Migration Act and fails
to exercise it or cannot exercise it because the time in which a merits review
application can be made has passed, the Federal Court does not have jurisdiction
in relation to that matter. If a person has begun to exercise that person's
merits review right(s), the Federal Court does not have jurisdiction unless and
until that person has exercised the right(s) to the fullest extent possible and
the merits review processes have been finalised. The jurisdiction of the High
Court is unaffected.
226 New subsection
476(2) excludes from the jurisdiction of the Federal Court decisions of the
Minister not to exercise, or not to consider the exercise of, the specified
personal public interest powers of the Minister. The jurisdiction of the High
Court is unaffected.
27 New subsection 476(2A) provides that the
Federal Court does not have any jurisdiction in respect of:
• 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; and
• a decision of the President of
the Administrative Appeals Tribunal to accept, or not to accept, the referral of
a decision under section 382 and 444 of the Migration Act.
28 This is the
case despite any other law, including sections 39B and 44 of the Judiciary
Act 1903.
29 These decisions are not judicially-reviewable decisions
under existing Part 8 of the Migration Act. New subsection 476(2A) ensures that
this continues to be the case under new Part 8 which is inserted into the
Migration Act by this item.
30 New subsection 476(2B) provides that the
Federal Court does not have any jurisdiction in respect of a decision of the
Minister under Division 13A of Part 2 of the Migration Act to order that a thing
is not to be condemned as forfeited. This is the case despite any other law
including section 39B or 44 of the Judiciary Act 1903.
31 Decisions made under Division 13A of Part 2 of the Migration Act are
not judicially-reviewable decisions under existing Part 8 of the Act. New
subsection 476(2B) ensures that this continues to be the case under new Part 8
which is inserted into the Migration Act by this item.
32 New
subsection 476(4) limits the remittal of matters from the High Court to the
Federal Court where the restrictions in new section 476 apply in order that a
person cannot seek to bypass the restrictions by making a review application in
the High Court and seeking to have the High Court remit the matter to the
Federal Court.
33 The purpose of this limitation in relation to new
subsection 476(1) is to encourage persons to utilise the less formal and less
expensive merits review processes before resort is made to the Courts. The
limitations in relation to the powers referred to in new subsection 476(2)
reflect the special nature of these powers and scrutiny is provided by
Parliament through the tabling of statements of reasons by the Minister where
such powers are exercised.
34 New subsection 476(5) provides that the
reference in new subsection 476(2) to section 345 is a reference to section 345
of the Migration Act before the commencement of Schedule 1 to the Migration
Legislation Amendment Act (No. 1) 1998.
35 This latter Act omitted
section 345 from the Migration Act and new subsection 476(5) makes it clear
which version of section 345 is referred to in new subsection 476(2).
36 New subsection 476(6) provides a definition of “primary
decision” for the purposes of new section 476. A “primary
decision” is defined to mean a privative clause decision:
• that has been the subject of a merits review decision by a
Tribunal under Part 5 or 7 of section 500 of the Migration Act;
or
• that is still subject to merits review processes under Part 5 or
Part 7 or section 500 of the Migration Act whether because it is still going
through those processes or an application for merits review has not yet been
made and the time specified for such an application has not expired;
or
• that would have been merits reviewable had a merits review
application been made within the time specified for such an application.
Section 477 Time limits on applications for judicial
review
37 New section 477 ensures that judicial review is sought in a
timely manner and it provides certainty in relation to actions of the
Commonwealth that may flow from decisions, such as the detention and removal of
unlawful non-citizens.
38 New subsection 477(1) requires any application
to the Federal Court under section 39B of the Judiciary Act, in relation to a
privative clause decision in respect of which the Federal Court has
jurisdiction, to be made within 28 days of the notification of that
decision.
39 Express reference to mandamus, prohibition, certiorari,
injunction and declaration has been made to ensure that the time limit applies
to them.
40 New subsection 477(2) prohibits the Federal Court from
making an order allowing, or which has the effect of allowing, an applicant to
lodge an application referred to in proposed subsection 477(1) outside the 28
day time limit.
41 New subsection 477(3) provides that the regulations
may prescribe the way of notifying a person of a decision for the purposes of
new section 477. Note that there are currently extensive notification
provisions in the Migration Act. This new subsection expressly allows for
additional notification provisions to be made by way of regulation if necessary.
Section 478 Persons who may make application
42 New
section 478 delimits who may make an application to the Federal Court under
section 39B of the Judiciary Act in relation to a privative clause decision (by
reference to new subsection 477(1)) to:
• the Minister; and
• if there are merits review rights under Part 5 or Part 7 or
section 500 and a decision on such a review has been made, the applicant in the
review before the Tribunal; or
• in any other case, the person who
is the subject of the decision; or
• in any case, a person
prescribed by the regulations. For example, it would be possible to prescribe
in the regulations that the “next friend” of a minor or mentally
disabled person can make an application to the Federal Court for judicial review
under new subsection 477(1) on behalf of the persons mentioned in new paragraphs
478(a) and 478(b), as appropriate.
43 The jurisdiction of the High
Court is unaffected.
Section 479 Parties to review
44 New
section 479 delimits the parties to any judicial review by the Federal Court
under section 39B of the Judiciary Act in relation to a privative clause
decision (by reference to new subsection 477(1)) to:
• the
Minister; and
• if there are merits review rights under Part 5 or
Part 7 or section 500 and a decision on such a review has been made, the
applicant in the review before the Tribunal; or
• in any other
case, the person who is the subject of the decision; or
• in any
case, a person prescribed by the regulations.
45 The jurisdiction of
the High Court is unaffected.
46 Note that new section 480 allows for the
Attorney-General to be a party if the Attorney-General
intervenes.
Section 480 Intervention by
Attorney-General
47 This new section enables the Attorney-General to
intervene on behalf of the Commonwealth in proceedings resulting from an
application under new subsection 477(1). New subsection 480(2) enables the
Federal Court to make an order for costs against the Commonwealth resulting from
the Attorney-General's intervention. New subsection 480(3) provides that if the
Attorney-General intervenes, he or she is taken to be a party to the
proceeding.
Section 481 Operation etc. of decision
48 This
new section makes it clear that the mere making of an application for judicial
review of the kind referred to in new subsection 477(1) does not of itself
prevent the decision for which review has been sought from continuing to have a
legal effect pending the outcome of the judicial review.
49 For
example, if the decision for which review has been sought results in a person
becoming or remaining an unlawful non-citizen, any action to detain or remove
that person is lawful, subject to the provisions of the Migration Act. However,
a court is not prevented by this section from making whatever interim orders it
is otherwise empowered to make.
Section 482 Changing person holding,
or performing the duties of, an office
50 This new section ensures
that, where a person has made a decision to which the privative clause applies
and the person no longer holds nor is performing the duties of the office then
held, or the office no longer exists, this Part has effect as if the decision
was made by the person performing the duties of the office at the relevant time
or as specified by the Minister.
Section 483 Section 44 of the
Administrative Appeals Tribunal Act 1975
51 Section 44 of the
Administrative Appeals Tribunal Act 1975 allows for appeals from the
Administrative Appeals Tribunal to the Federal Court on a point of law. New
section 483 prevents section 44 from applying to a privative clause decision.
Therefore, an application to the Federal Court in respect of such a decision
needs to be made under section 39B of the Judiciary Act.
Section
484 Exclusive jurisdiction of Federal Court
52 This new section
establishes that the jurisdiction of the Federal Court in relation to a
privative clause decision is exclusive of the jurisdiction of all other courts,
other than the jurisdiction of the High Court under section 75 of the
Commonwealth Constitution. No other Courts may consider review applications in
relation to privative clause decisions.
53 New subsections 484(2) and
(3) put the exclusive jurisdiction of the Federal Court beyond doubt by ousting
the jurisdiction of the Northern Territory Supreme Court under the Judiciary Act
and the operation of the Jurisdiction of Courts (Cross-vesting) Act
1987.
Item 7A Subsection 486A(1)
54 This item makes a
technical amendment to subsection 486A(1), which is to be inserted into the
Migration Act by item 4 of Part 1 of Schedule 1 of the Migration Legislation
Amendment Bill (No. 1) 2001.
55 The purpose of the amendment is to
ensure that proposed subsection 486A will operate as intended after the
commencement of this Act.
56 The effect of the amendment is that an
application to the High Court in its original jurisdiction under the
Commonwealth Constitution in respect of a privative clause decision must
be made within 35 days of the actual notification of the decision.
57 This item inserts new sections 486AA and 486AB after section 486A
which is to be inserted into the Migration Act by item 4 of Part 1 of Schedule 1
of the Migration Legislation Amendment Bill (No. 1) 2001. These new sections
mirror new sections 480 and 481.
Section 486AA Intervention
by Attorney-General
58 New subsection 486AA(1) allows the
Commonwealth Attorney-General to intervene in a proceeding resulting from an
application to the High Court for judicial review of a privative clause decision
under subsection 486A(1).
59 New subsection 486AA(2) allows the High
Court to make cost orders against the Commonwealth if the Attorney-General
intervenes in a proceeding.
60 New subsection 486AA(3) provides that if
the Attorney-General intervenes in a proceeding, he or she is taken to be a
party to the proceeding.
Section 486AB Operation etc. of
decision
61 This new section makes it clear that the mere making of
an application for judicial review of the kind referred to in new subsection
486A(1) does not of itself prevent the decision for which review has been sought
from continuing to have a legal effect pending the outcome of the judicial
review.
62 For example, if the decision for which review has been
sought results in a person becoming or remaining an unlawful non-citizen, any
action to detain or remove that person is lawful, subject to the provisions of
the Migration Act. However, a court is not prevented by this section from
making whatever interim orders it is otherwise empowered to make.
Item
7C Subsection 486C(1)
63 This item makes a technical amendment to
subsection 486C(1) which is to be inserted into the Migration Act by item 6 of
Part 2 of Schedule 1 of the Migration Legislation Amendment Bill (No. 1) 2001.
The amendment is consequential to the amendment made by item 7D.
Item
7D Subsection 486C(2)
64 This item repeals subsection 486C(2), which
is to be inserted into the Migration Act by item 6 of Part 2 of Schedule 1 of
the Migration Legislation Amendment Bill (No. 1) 2001, and substitutes a new
subsection 486C(2).
65 Section 486C imposes standing requirements in
relation to the persons who may commence or continue a proceeding in the Federal
Court that raises an issue specified in subsection 486C(1). It is primarily
directed at collateral challenges to the migration legislation. It ensures that
such a challenge, for example, could not be made by a person who did not have a
relevant visa decision made about him or her.
66 It does not detract from
the standing requirements in new Part 8 of the Migration Act in relation to the
review of a privative clause decision by the Federal Court.
67 Under
new subsection 486C(2), the persons who have standing to commence or continue a
proceeding that raises an issue specified in subsection 486C(1)
are:
• a party to a review mentioned in new section 479 which is to
be inserted into the Migration Act by item 7 of this Schedule; or
• the
Attorney-General of the Commonwealth or a State or Territory; or
• a
person who commences or continues the proceeding in performing the
person’s statutory functions; or
• any other person prescribed in
the regulations.
Part 2 - Application provisions
Item
8 Application
68 These provisions make it clear to which decisions
the new judicial review provisions apply. Unless an application for judicial
review has been made before the commencement of Schedule 1, the new judicial
review provisions apply. If an application for judicial review has been made
before that commencement date, then the previous judicial review schemes apply.
69 Express reference has been made to mandamus, prohibition,
certiorari, injunction and declaration to ensure that the provisions also apply
to them.
70 Subitem 8(4) deals with the application of the amendments
made by items 7A and 7B in relation to section 486A which is to be inserted into
the Migration Act by item 4 of Part 1 of Schedule 1 to the Migration Legislation
Amendment Bill (No. 1) 2001. It provides that these amendments apply to
decisions made after the commencement of those items.
71 Subitem 8(5)
deals with the application of the amendments made by items 7C and 7D to section
486C which is to be inserted into the Migration Act by item 6 of Part 2 of
Schedule 1 to the Migration Legislation Amendment Bill (No. 1) 2001. It
provides that these amendments apply to proceedings that are commenced after the
commencement of those items.