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1998 – 1999 – 2000
- 2001
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
MIGRATION LEGISLATION
AMENDMENT (PROCEDURAL FAIRNESS) BILL 2001
EXPLANATORY
MEMORANDUM
(Circulated by
authority of the
Minister for Immigration and Multicultural Affairs,
The
Hon. Philip Ruddock MP)
MIGRATION LEGISLATION AMENDMENT (PROCEDURAL FAIRNESS) BILL
2001
OUTLINE
1. The purpose of the Migration
Legislation Amendment (Procedural Fairness) Bill 2001 (“the Bill”)
is to restore one of the main intentions behind having exhaustive codes of
procedure in the Migration Act 1958 (“the Act”) for making
decisions about visas.
2. The original intention of the amendments
enacted by the Migration Reform Act 1992, which introduced codes of
procedure for making decisions about visas, was to eliminate the legal
uncertainties that flow from the uncodified common law principles of natural
justice or procedural fairness, while retaining fair, efficient and legally
certain decision-making procedures.
3. The intention was that compliance
with the codes of procedure was all that was legally required by decision-makers
in relation to the decision-making process, and that the common law natural
justice hearing rule was excluded.
4. The High Court in the case of Re
MIMA; Ex parte Miah [2001] HCA 22 found, by a narrow majority, that the code
of procedure for dealing fairly, efficiently and quickly with visa applications
in Subdivision AB, Division 3, Part 2 of the Act, did not exclude common law
natural justice or procedural fairness requirements. The majority considered
that such exclusion would require a clear legislative intention and there was no
such clear intention in the Act.
5. The purpose of this Bill is to
provide the clear legislative intention that the codes the Bill specifies are
taken to be an exhaustive statement of the common law requirements of the
natural justice ‘hearing rule’.
6. The amendments affect the
codes of procedure contained in the Act for handling:
• visa
applications;
• visa cancellations under sections 109 and 116 of the
Act;
• revocations of visa cancellations without notice under section
128 of the Act; and
• the conduct of reviews by the relevant merits
review tribunals.
7. The intention of the amendments is to make it clear
that the Act exhaustively states the common law requirements of the natural
justice ‘hearing rule’ for these matters.
FINANCIAL IMPACT STATEMENT
These amendments will have minimal
direct financial impact.
MIGRATION LEGISLATION AMENDMENT (PROCEDURAL
FAIRNESS) BILL 2001
NOTES ON INDIVIDUAL
CLAUSES
Clause 1 Short title
1. The short title by
which this Act may be cited is the Migration Legislation Amendment
(Procedural Fairness) Act 2001.
Clause
2 Commencement
2. Subclause (1) provides that sections 1 to 3 and
items 1 to 4 and 9 of Schedule 1 commence on the day after the day on which it
receives the Royal Assent.
3. Subclause (2) provides that items 5 to 8
and 10 to 12 of Schedule 1 commence as follows:
• if Parts 4 to 10
of the Administrative Review Tribunal Act 2001 have not commenced before
the day after the day on which this Act receives the Royal Assent:
- items 5,
8 and 10 commence on the day after the day on which this Act receives the Royal
Assent;
- items 6 and 11 do not commence at all;
- items 7 and 12 commence
immediately after the commencement of Parts 4 to 10 of the Administrative
Review Tribunal Act 2001.
• otherwise:
- items 6 and 11 commence
on the day after the day on which this Act receives the Royal Assent;
- items
5, 7, 8, 10 and 12 do not commence at all.
Clause
3 Schedule(s)
4. This clause provides 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.
Migration Act 1958
Item 1 Before section
52
5. This item inserts new section 51A at the beginning of
Subdivision AB of Division 3 of Part 2 of the Act.
6. New section 51A provides that Subdivision AB and sections 494A to 494D
are taken to be an exhaustive statement of the requirements of the natural
justice ‘hearing rule’ in relation to the matters dealt with in
Subdivision AB.
7. Subdivision AB sets out the code of procedure for
dealing fairly, efficiently and quickly with visa applications. It was
originally intended to exhaustively replace the common law natural justice or
procedural fairness requirements, other than the rule against bias, that had
previously applied to visa decision-makers.
8. Sections 494A to 494D set
out how the Minister is to provide documents to a person, and provide for deemed
receipt of documents sent by the Minister in certain circumstances.
11. New section 51A is intended to make clear that Subdivision AB and
sections 494A to 494D are an exhaustive statement of the common law requirements
of the natural justice or procedural fairness ‘hearing rule’ for
considering and deciding visa applications at the primary decision making stage.
Item 2 After section 97
12. This item inserts new
section 97A into Subdivision C of Division 3 of Part 2 of the Act.
13. The purpose of this amendment is to provide that Subdivision C of
Division 3 of Part 2 and sections 494A to 494D of the Act are taken to be an
exhaustive statement of the requirements of the natural justice or procedural
fairness ‘hearing rule’ in relation to the matters dealt with in
Subdivision C.
14. Subdivision C provides a power, in section 109, to
cancel a visa on the basis of incorrect information. It also contains the
procedure to be followed in exercising that power.
15. This item inserts new section 118A at the beginning of Subdivision E
of Division 3 of Part 2 of the Act.
16. The purpose of this amendment is to provide that Subdivision E of
Division 3 of Part 2 and sections 494A to 494D of the Act are taken to be an
exhaustive statement of the requirements of the natural justice or procedural
fairness ‘hearing rule’ in relation to the matters dealt with in
Subdivision E.
17. Subdivision E sets out the code of procedure for
cancelling visas under section 116 of the Act. Section 116 provides that the
Minister may cancel a visa if certain grounds exist.
18. New section 118A
is intended to make clear that Subdivision E and sections 494A to 494D
exhaustively state the ‘hearing rule’ of natural justice or
procedural fairness, for considering and deciding whether to cancel a visa under
section 116.
Item 4 Before section 128
19. This item
inserts new section 127A at the beginning of Subdivision F of Division 3 of Part
2 of the Act.
20. New section 127A provides that Subdivision F of Division 3 of Part 2
and sections 494A to 494D of the Act are taken to be an exhaustive statement of
the requirements of the natural justice ‘hearing rule’ in relation
to the matters dealt with in Subdivision F.
21. Subdivision F allows for
visas to be cancelled without notice in certain circumstances, and provides for
the revocation of such a cancellation. It also sets out the procedure for
considering and deciding whether to revoke the cancellation.
22. New
section 127A is intended to make clear that Subdivision F and sections 494A to
494D exhaustively state the ‘hearing rule’ of natural justice or
procedural fairness, for considering and deciding whether to revoke a visa
cancellation under Subdivision F.
Item 5 Before section
358
23. This item inserts new section 357A at the beginning of
Division 5 of Part 5 of the Act.
24. The purpose of this amendment is to provide clear legislative
intention that Divisions 5 and 8A of Part 5, and sections 375 to 376 of the Act
are taken to be an exhaustive statement of the requirements of the natural
justice or procedural fairness ‘hearing rule’ in relation to the
matters dealt with in Part 5.
25. Division 5 sets out how the Migration
Review Tribunal goes about conducting its reviews. Division 8A sets out how the
Tribunal is to provide documents to persons, and provides for deemed receipt of
documents in certain circumstances. Sections 375 to 376 deal with the
disclosure of confidential information.
26. New section 357A is intended
to make clear that Divisions 5 and 8A, and sections 375 to 376 are taken to be
an exhaustive statement of the requirements of the natural justice or procedural
fairness ‘hearing rule’ in relation to a review conducted by the
Migration Review Tribunal.
Item 6 Before section
359
27. This item inserts new section 358 in Division 5 of Part 5.
The item commences only if Parts 4 to 10 of the Administrative Review
Tribunal Act 2001 (“the ART Act”) commence before the day after
the day on which this Bill receives the Royal Assent.
Section
358 Exhaustive statement of natural justice hearing rule
28. Current
section 358 would be repealed by the ART Act.
29. New section 358
provides that Divisions 5 and 9 of Part 5, and sections 375, 375A and 376 of the
Act are taken to be an exhaustive statement of the requirements of the natural
justice or procedural fairness ‘hearing rule’ in relation to the
matters dealt with in Part 5 in respect of the review by the Tribunal of
reviewable general visa decisions or reviewable protection visa
decisions.
30. If Parts 4 to 10 of the ART Act commence before the day
after the day on which this Bill receives the Royal Assent, Division 5 will set
out how the Administrative Review Tribunal goes about conducting its reviews.
31. Division 5 is intended to exhaustively define the common law natural
justice or procedural fairness requirements in respect of the ‘hearing
rule’ that would otherwise apply to the Tribunal. Division 9 sets out how
the Tribunal is to provide documents to persons, and provides for deemed receipt
of documents in certain circumstances. Sections 375, 375A and 376 deal with the
disclosure of confidential information.
32. New section 358 is intended
to make clear that Divisions 5 and 9, and sections 375, 375A and 376 are taken
to be an exhaustive statement of the requirements of the natural justice or
procedural fairness ‘hearing rule’ for conducting a review by the
Tribunal.
Item 7 Section 357A
33. This item repeals
section 357A and substitutes a new section 357A into the Act.
Section
357A Exhaustive statement of natural justice hearing rule
34. New
section 357A provides that Divisions 5 and 9 of Part 5, and sections 375, 375A
and 376 are taken to be an exhaustive statement of the requirements of the
natural justice ‘hearing rule’ in relation to the matters dealt with
in Part 5 in respect of the review by the Tribunal of reviewable general visa
decisions or reviewable protection visa decisions.
35. Item 7 commences
only if the Parts 4 to 10 of the ART Act commence after the day on which this
Bill receives the Royal Assent. The item commences immediately after
commencement of the ART Act. The amendment is made because the matters dealt
with in Division 8A of Part 5 will be dealt with in Division 9 of that Part when
the ART Act commences.
Item 8 Before section 423
36. This
item inserts new section 422B at the beginning of Division 4 of Part 7 of the
Act.
37. New section 422B provides that Divisions 4 and 7A of Part 7, and
sections 416, 437 and 438 of the Act are taken to be an exhaustive statement of
the requirements of the natural justice hearing rule in relation to the matters
dealt with in that Division.
38. Division 4 sets out how the Refugee
Review Tribunal goes about conducting its reviews. Division 7A sets out how the
Tribunal is to provide documents to persons, and provides for deemed receipt of
documents in certain circumstances. Section 416 restricts the use of evidence
in protection visa review matters. Sections 437 and 438 deal with the
disclosure of confidential information.
39. New section 422B is intended
to make clear that Divisions 4 and 7A, and sections 416, 437 and 438 are taken
to be an exhaustive statement of the requirements of the natural justice or
procedural fairness ‘hearing rule’ in relation to the matters dealt
with in that Division.
Item 9 Application – items 1 to
4
40. Sub-item 9(1) provides that the amendment made by item 1
applies in relation to any application for a visa made on or after the
commencement of that item.
41. Item 1 provides that Subdivision AB of
Division 3 of Part 2 and sections 494A to 494D of the Act are an exhaustive
statement of the natural justice ‘hearing rule’ for the matters
dealt with in that Subdivision.
42. Sub-item 9(2) provides that the
amendment made by item 2 applies in relation to any cancellation of a visa under
section 109 of the Act on or after the commencement of that item, where a notice
of cancellation was given under section 107 of that Act on or after that
commencement.
43. Item 2 provides that Subdivision C of Division 3 of
Part 2 and sections 494A to 494D of the Act are an exhaustive statement of the
natural justice ‘hearing rule’ for the matters dealt with in that
Subdivision.
44. Sub-item 9(3) provides that the amendment made by item 3
applies in relation to any cancellation of a visa under section 116 of the Act
on or after the commencement of that item, where a notice of cancellation was
given under section 119 of that Act on or after that
commencement.
45. Item 3 provides that Subdivision E of Division 3 of
Part 2 and sections 494A to 494D of the Act are an exhaustive statement of the
natural justice ‘hearing rule’ for the matters dealt with in that
Subdivision.
46. Sub-item 9(4) provides that the amendment made by item 4
applies in relation to any cancellation of a visa under section 128 of the Act
on or after the commencement of that item.
47. Item 4 provides that
Subdivision F of Division 3 of Part 2 and sections 494A to 494D of the Act are
an exhaustive statement of the natural justice ‘hearing rule’ for
the matters dealt with in that Subdivision.
Item 10 Application
– items 5 and 8
48. Item 10 provides that the amendments made
by items 5 and 8 apply in relation to any application for review made on or
after the commencement of those items.
49. Item 5 provides that Divisions
5 and 8A of Part 5, and sections 375 to 376 of the Act are an exhaustive
statement of the natural justice ‘hearing rule’ for the matters
dealt with in Part 5 of the Act.
50. Item 8 provides that Divisions 4 and
7A of Part 7, and sections 416, 437 and 438 of the Act are an exhaustive
statement of the natural justice ‘hearing rule’ for the matters
dealt with in Part 7 of the Act.
Item 11 Application – item
6
51. Item 11 provides that the amendment made by item 6 applies in
relation to any application for review made on or after the commencement of that
item.
52. Item 6 only commences if Parts 4 to 10 of the ART Act commence
before this Bill.
53. Item 6 provides that Divisions 5 and 9 of Part
5, and sections 357 to 376 of the Act are an exhaustive statement of the natural
justice ‘hearing rule’ in relation to matters dealt with in Part 5
of the Act in respect of the review by the Administrative Review Tribunal of
reviewable general visa decisions and reviewable protection visa
decisions.
54. Item 12 provides that the amendment made by item 7 applies in
relation to any application for review made on or after the commencement of that
item.
55. Item 7 only commences on commencement of the ART Act, and only
if that Act commences after this Bill.
56. Item 7 provides that Divisions
5 and 9 of Part 5, and sections 375, 375A and 376 of the Act are taken to be an
exhaustive statement of the requirements of the natural justice ‘hearing
rule’ in relation to the matters dealt with in Part 5 in respect of the
review by the Administrative Review Tribunal of reviewable general visa
decisions or reviewable protection visa decisions.