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2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION AMENDMENT (CLARIFICATION OF JURISDICTION) BILL 2018
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Home Affairs and
Minister for Immigration and Border Protection, the Hon. Peter Dutton MP)
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Migration Amendment (Clarification of Jurisdiction) Bill 2018
OUTLINE
The Migration Amendment (Clarification of Jurisdiction) Bill 2018 (the Bill) amends the
Migration Act 1958 (the Migration Act) to clarify the allocation of jurisdiction between the
Federal Circuit Court and the Federal Court in relation to a migration decision (as defined in
the Migration Act).
Specifically, the Bill amends the Migration Act to clarify the allocation of jurisdiction
between the Federal Circuit Court and the Federal Court to:
make clear that a migration decision includes a purported non-privative clause
decision and a purported AAT Act migration decision in the same way that it currently
includes a purported privative clause decision;
provide that a decision for the purposes of an AAT Act migration decision and a
purported AAT Act migration decision includes a reference to a range of
administrative actions.
The Bill also amends the Administrative Appeals Tribunal Act 1975 (the AAT Act) to:
make clear that the jurisdiction of the Federal Circuit Court and the Federal Court in
relation to a purported AAT Act migration decision is determined by the
Migration Act in a manner consistent with the treatment of an AAT Act migration
decision.
FINANCIAL IMPACT STATEMENT
There is no financial impact on Government revenue from this Bill.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A statement of compatibility with human rights has been prepared in accordance with Part 3
of the Human Rights (Parliamentary Scrutiny) Act 2011 and is at Attachment A.
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MIGRATION AMENDMENT (CLARIFICATION OF JURISDICTION) BILL 2018
NOTES ON INDIVIDUAL CLAUSES
Clause 1 Short title
1. Clause 1 provides that the short title by which the Act may be cited is the Migration
Amendment (Clarification of Jurisdiction) Act 2018.
Clause 2 Commencement
2. Clause 2 of the Bill sets out the times at which the various provisions of the Act
commence.
3. Subclause 2(1) of the Bill provides that each provision of the 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.
4. Table item 1 provides that sections 1 to 3 of the Act and anything in the Act not
elsewhere covered by the table will commence on the day on which the Act receives the
Royal Assent.
5. Table item 2 provides that Schedule 1 to the Act will commence on a single day to be
fixed by Proclamation. However, if the provisions do not commence within the period
of 6 months beginning on the day the Act receives the Royal Assent, they commence
on the day after the end of that period.
6. The note in subclause 2(1) makes it clear that the table relates only to the provisions of
the Act as originally enacted. The table will not be amended to deal with any later
amendments to the Act.
7. Subclause 2(2) of the Bill provides that any information in column 3 of the table is not
part of the Act. Information may be inserted in column 3, or information in it may be
edited, in any published version of the Act. There is currently no information in
column 3 of the table.
Clause 3 Schedules
8. Clause 3 of the Bill provides that legislation that is specified in a Schedule to the Act is
amended or repealed as set out in the applicable items in the Schedule concerned, and
any other item in a Schedule to the Act has effect according to its terms.
9. The purpose of this clause is to clarify that Schedule 1 to the Bill sets out the
amendments to the Act, and that the particular provisions mentioned in that Schedule
are amended in accordance with the particular items in that Schedule.
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Schedule 1-Amendments
Part 1-Main amendments
Migration Act 1958
Item 1 Subsection 5(1) (definition of migration decision)
10. Part 8 of the Migration Act establishes a judicial review scheme for migration
decisions and limits the application of other legislation, including the Administrative
Decisions (Judicial Review) Act 1977 and the Judiciary Act 1903. A key feature of this
judicial review scheme is that a challenge to a migration decision must (subject to
limited exceptions) be instituted in the Federal Circuit Court at first instance, rather
than in the Federal Court.
11. This item repeals the current definition of migration decision and substitutes a new
definition. The definition will include a specific reference to two more types of
decisions as a migration decision. Paragraph (b) of the new definition provides that a
purported non-privative clause decision is a migration decision, and paragraph (c)
provides that a purported AAT Act migration decision is a migration decision. These
terms are defined in the Bill (see Items 2 and 3).
12. This amendment is in response to the Full Court of the Federal Court's judgment in
Minister for Immigration and Border Protection v ARJ17 [2017] FCAFC 125 (ARJ17).
The Court held that a reference to a non-privative clause decision is limited to a valid
non-privative clause decision, and does not include a decision that is found to be
affected by jurisdictional error. As a result of this decision, a non-privative clause
decision that is found to be affected by jurisdictional error would not fall into the
current definition of a migration decision. This means that any challenge to a non-
privative clause decision on grounds of jurisdictional error may be instituted in the
Federal Court or the Federal Circuit Court as it cannot be determined at the outset if the
proceeding is in relation to a valid non-privative clause decision and is subject to the
judicial review scheme in Part 8. If such proceedings were commenced in the Federal
Court, a substantial hearing would be required in order to determine whether the
relevant decision is affected by jurisdictional error in order to determine whether the
Court has jurisdiction to hear the matter. This is an inefficient use of the Federal
Court's time, and does not reflect the original policy intention of Part 8 of the
Migration Act.
13. To address the judgment in ARJ17, and ensure that Part 8 of the Migration Act operates
as originally intended, this amendment puts it beyond doubt that a purported non-
privative clause decision is a migration decision, and is therefore captured by Part 8 of
the Migration Act. The amended definition of migration decision also includes
purported AAT Act migration decision to avoid an interpretation of the term AAT Act
migration decision that is similar to the interpretation applied in ARJ17.
14. In addition to a purported non-privative clause decision and a purported AAT Act
migration decision, the new definition retains the terms contained in the current
definition of migration decision: privative clause decision, purported privative clause
decision, non-privative clause decision and AAT Act migration decision. All of these
terms are defined in the Migration Act.
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Item 2 Subsection 5(1)
15. This item inserts definitions for new terms purported AAT Act migration decision and
purported non-privative clause decision in new sections 5EB and 5EA respectively, as
inserted by the Bill.
Item 3 After section 5E
16. This item inserts new section 5EA, to provide for the meaning of purported non-
privative clause decision.
17. New subsection 5EA(1) provides a definition for purported non-privative clause
decision. The intention is to provide that a purported non-privative clause decision is a
decision that would be a non-privative clause decision, were there not a failure to
exercise jurisdiction or an excess of jurisdiction in the making of that decision. The
effect of this amendment is to ensure that the jurisdictional arrangements made by the
Migration Act for a non-privative clause decision apply in the same way to a decision
that would be a non-privative clause decision were that decision not affected by
jurisdictional error.
18. New subsection 5EA(2) provides that, for the purposes of new section 5EA, a decision
includes any of the actions listed in subsection 474(3) of the Migration Act. The effect
of this is that a purported non-privative clause decision includes any of the
administrative actions listed in subsection 474(3). Accordingly, a purported non-
privative clause decision could be, for example, conduct preparatory to the making of a
decision, including the taking of evidence or the holding of an inquiry or investigation.
The list of actions in subsection 474(3) relates only to identifying a non-exhaustive list
of the range of administrative actions subject to the jurisdiction and the procedure of
courts pursuant to Part 8 of the Migration Act, and does not affect any exercise of
power under the AAT Act.
19. New section 5EA is intended to operate as an equivalent to, and has been drafted
consistently with, current section 5E of the Migration Act, which defines purported
privative clause decision.
20. New subsection 5EB(1) provides a definition for purported AAT Act migration
decision. The intention is to provide that a purported AAT Act migration decision is a
decision that would be an AAT Act migration decision were there not a failure to
exercise jurisdiction or an excess of jurisdiction in the making of that decision. The
effect of this amendment is to ensure that the jurisdictional arrangements made by the
Migration Act for an AAT Act Migration decision apply in the same way to a decision
that would be an AAT Act migration decision were that decision not affected by
jurisdictional error.
21. New subsection 5EB(2) provides that, for the purposes of new section 5EB, a decision
includes any of the actions listed in new subsection 474A(2), as inserted by Item 5 of
the Bill. New subsection 474A(2) makes clear that the definition of decision for the
purposes of defining AAT Act migration decision and purported AAT Act migration
decision is to be given a wide meaning. The definition of decision in new
subsection 474A(2) identifies a non-exhaustive list of administrative actions and
substantially mirrors the definition of decision in subsection 474(3). The effect of this
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is that a purported AAT Act migration decision includes any of the actions listed in new
subsection 474A(2). Accordingly, a purported AAT Act migration decision could be,
for example, conduct preparatory to the making of a decision, including the taking of
evidence or the holding of an inquiry or investigation. New subsection 474A(2) relates
only to establishing jurisdiction and the procedure of courts pursuant to Part 8 of the
Migration Act, and does not affect any exercise of power under the AAT Act.
22. New section 5EB is intended to operate as an equivalent to, and has been drafted
consistently with, current section 5E, which defines purported privative clause
decision.
Item 4 Section 474A
23. This item renumbers current section 474A to create subsection 474A(1) and to move
the contents of current section 474A into that subsection. This is consequential to
Item 5.
Item 5 At the end of section 474A
24. This item inserts new subsection 474A(2). New subsection 474A(2) provides that a
decision under a provision of the AAT Act for the purposes of an AAT Act migration
decision (and a purported AAT Act migration decision--see Item 3) includes a
reference to the administrative actions listed in paragraphs (a) to (j) of the new
subsection. New subsection 474A(2) makes clear that a decision for the purpose of
AAT Act migration decision and purported AAT Act migration decision is to be given a
wide meaning.
25. The definition of decision in new subsection 474A(2) identifies a non-exhaustive list of
administrative actions and substantially mirrors the list in subsection 474(3).
Subsection 474(3) provides a list of the types of administrative actions for a privative
clause decision, a purported privative clause decision, a non-privative clause decision
and a purported non-privative clause decision. New subsection 474A(2) relates only to
establishing jurisdiction and the procedure of courts pursuant to Part 8 of the Migration
Act, and does not affect any exercise of power under the AAT Act.
26. New subsection 474A(2) reflects the original policy intention of section 474A. Prior to
the commencement of the Tribunals Amalgamation Act 2015, the decisions set out in
current section 474A were made under the Migration Act, and captured by
administrative actions listed in subsection 474(3) of the Migration Act. The intention
of section 474A was to ensure that the judicial review provisions set out in Part 8 of the
Migration Act continued to apply to these decisions following the amendments made
by the Tribunals Amalgamation Act 2015.
Item 6 Subsection 476(3)
27. This item inserts a reference to purported non-privative clause decisions in current
subsection 476(3). Current section 476 of the Migration Act makes provision for the
jurisdiction of the Federal Circuit Court in relation to migration decisions, with
subsection 476(3) providing that nothing in section 476 affects any jurisdiction the
Federal Circuit Court may have in relation to non-privative clause decisions under
section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA
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of the Administrative Appeals Tribunal Act 1975. The effect of this amendment is to
treat a purported non-privative clause decision in the same way as a non-privative
clause decision.
Item 7 Subsection 476A(1) (note)
28. This item repeals the note at the end of subsection 476A(1) and substitutes a new note
to include a reference to a purported AAT Act migration decision. The effect of this
amendment is to make clear that an AAT Act migration decision and a purported
AAT Act migration decision are treated in the same way in relation to the limited
jurisdiction of the Federal Court to review those decisions.
Part 2 - Consequential amendments
Administrative Appeals Tribunal Act 1975
Item 8 At the end of section 43C
29. This item inserts new paragraph 43C(d) to include a reference to purported AAT Act
migration decision. This amendment is consequential to Item 1, which amends the
definition of migration decision to include a purported AAT Act migration decision.
30. The effect of this amendment is that Part IVA of the AAT Act (Appeals and
References of Questions of Law to the Federal Court of Australia) does not apply to a
purported AAT Act migration decision, as defined by new section 5EB of the Migration
Act. This ensures that the jurisdiction of the Federal Circuit Court and the Federal
Court in relation to a purported AAT Act migration decision is determined by
sections 476 and 476A of the Migration Act respectively, consistent with the original
policy intention of Part 8 of the Migration Act.
Part 3 - Application of amendments
Item 9 Application of amendments
31. This item provides that the amendments made by the Bill apply in relation to a
purported non-privative clause decision or a purported AAT Act migration decision
made on or after the commencement of this item. The amendments will not affect the
jurisdiction of the Federal Circuit Court or the Federal Court in relation to such
decisions made before the commencement of this item. The date of the relevant
decision may be determined by reference to current subsections 477(3) and 477A(3) of
the Migration Act.
32. The amendments do not alter the jurisdiction of the Federal Circuit Court or the Federal
Court in relation to a privative clause decision, a purported privative clause decision, a
non-privative clause decision or an AAT Act migration decision under current
sections 476 and 476A of the Migration Act.
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Attachment A
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Clarification of Jurisdiction) Bill 2018
The Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Bill clarifies that relevant migration decisions are subject to the judicial review scheme
prescribed in the Migration Act 1958 (Migration Act), and ensure that those migration
decisions are subject to uniform judicial review requirements. The Bill amends the following
Acts:
• the Migration Act;
• the Administrative Appeals Tribunal Act 1975.
The Migration Act sets out a discrete judicial review scheme for certain decisions made under
or in relation to the Migration Act known as a migration decisions. These decisions are
subject to the judicial review scheme set out in Part 8 of the Migration Act. The purpose of
the scheme is to ensure that migration litigation is managed as efficiently as possible, and to
impose uniform judicial review parameters in relation to migration decisions, including the
time limits for applying for review. One of the features of the scheme is that proceedings in
relation to migration decisions must, subject to limited exceptions, be instituted in the Federal
Circuit Court at first instance.
The key purpose of the Bill is to clarify the types of decisions that are migration decisions
and therefore subject to the judicial review scheme in accordance with the Migration Act, and
to ensure that the relevant legislation achieves the Government's policy intention. It will do
so by:
- introducing the terms purported non-privative clause decision and purported AAT Act
migration decision, to capture relevant decisions, that would have been classified as a
migration decision, but for a failure to exercise jurisdiction or an excess of jurisdiction in the
making of the decision, so that these decisions will be subject to Part 8 and Part 8A of the
Migration Act.
- clarifying the definition of decision for the purpose of determining the jurisdiction of a court
to ensure that all relevant types of decisions, and aspects of the decision making process are
included, and therefore subject to the judicial review scheme under the Migration Act.
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The Bill is intended to provide certainty regarding the nature, scope and types of decisions
that are intended to be subject to the judicial review scheme under the Migration Act. This
will ensure uniformity and efficiency in managing migration litigation matters.
Human rights implications
Right to effective remedy
Judicial review of migration decisions is relevant to a number of rights, including those in the
International Covenant on Civil and Political Rights (ICCPR).
The migration decisions affected by this amendment are not those relating to visa decisions,
but include a range of matters relating to:
directions and orders relating to a non-citizen's property;
searches of persons detained;
search, detention and disposal of vessels;
the taking of securities for specified purposes;
arrangements for migrant centres and detention centres;
the migration agents registration scheme;
administrative arrangements of the Administrative Appeals Tribunal (the Tribunal), including
the terms of appointments of members, delegations, arrangements of business, President's
directions and the process for resolving disagreements, to the extent that such decisions relate
to a Tribunal member in the Migration and Refugee Division of the Tribunal, or a review of,
or a function of the Tribunal in relation to the exercise of its jurisdiction to review a visa
decision;
Article 2(3) of the ICCPR provides:
Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated
shall have an effective remedy, notwithstanding that the violation has been committed by
persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined
by competent judicial, administrative or legislative authorities, or by any other competent
authority provided for by the legal system of the State, and to develop the possibilities of
judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
Article 14(1) of the ICCPR, provides, in part:
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All persons shall be equal before the courts and tribunals. In the determination of any criminal
charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a
fair and public hearing by a competent, independent and impartial tribunal established by law.
Some migration decisions may involve matters engaging human rights under the ICCPR and
other human rights treaties. For example, the powers to search a detained person (which
were considered by the Court in the case that raised these issues of jurisdiction) may involve
the right to liberty and security of the person (Article 9) and treating persons in detention with
humanity and with respect for their inherent dignity (Article 10). To the extent that a
particular matter may involve human rights issues, and that challenges to migration decisions
may also otherwise constitute a 'suit at law', judicial review constitutes an effective remedy
by a competent, independent and impartial tribunal.
Part 8 of the Migration Act prescribes a discrete judicial review scheme for migration
decisions, as defined under subsection 5(1) of the Migration Act.
Due to recent case law, the judicial review scheme under the Migration Act only applies to
certain migration decisions, if those decisions are free from a failure to exercise jurisdiction
or an excess of jurisdiction in the making of the decision. This leads to an unwieldy situation
where the same decision is reviewable under different judicial review frameworks, depending
on whether that decision is affected by error or not. Moreover, the correct framework and
forum can only be determined by determining the existence of an error.
This undermines the original policy intention of the legislation. The Bill will ensure that all
migration decisions, regardless of whether the decision is affected by error or not, will be
reviewable in accordance with the judicial review scheme set out in the Migration Act. The
clarification of jurisdiction will result in greater efficiency in managing migration litigation.
The amendment ensures that it is clear under what framework and in which forum judicial
review is available. This reflects the original policy intention.
The Bill does not, and is not intended to limit the availability of or access to judicial review,
and access to judicial review will continue to be available for all relevant decisions; the Bill
simply aims to clarify the relevant framework and forum in which a judicial challenge to a
migration decision should be instituted.
Conclusion
The proposed amendments are compatible with human rights because they do not seek to
limit the human rights that they may engage.
The Hon. Peter Dutton MP, Minister for Home Affairs and
Minister for Immigration and Border Protection
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