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2002
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
MIGRATION LEGISLATION AMENDMENT
(PROCEDURAL FAIRNESS) BILL 2002
EXPLANATORY
MEMORANDUM
(Circulated by authority of the
Minister for
Immigration and Multicultural and Indigenous Affairs,
The Hon. Philip Ruddock
MP)
MIGRATION LEGISLATION AMENDMENT (PROCEDURAL FAIRNESS) BILL
2002
1. The Migration Legislation Amendment (Procedural Fairness) Bill 2002
(“the Bill”) amends the Migration Act 1958 (“the
Act”) to provide a clear legislative statement that specified “codes
of procedure” in the Act are an exhaustive statement of the requirements
of the natural justice hearing rule.
2. The “codes of
procedure”, introduced by the Migration Reform Act 1992, were intended to
enable decision-makers and tribunals to deal with visa applications, visa
cancellations and applications for merits review fairly, efficiently and
quickly. It was also intended that these codes would eliminate the legal
uncertainties that flow from the non-codified common law principles of natural
justice while retaining fair, efficient and legally certain decision-making
procedures.
3. In Re MIMA; Ex parte Miah [2001] HCA 22 the High
Court held, by a narrow majority, that the “code of procedure” for
dealing fairly, efficiently and quickly with visa applications in Subdivision AB
of Division 3 of Part 2 of the Act did not exclude common law natural justice
requirements. The majority considered that such exclusion would require a clear
legislative intention and that there was no such clear intention in the
Act.
4. The purpose of this Bill is to provide a clear legislative
statement that the “codes of procedure” identified in the Bill are
an exhaustive statement of the requirements of the natural justice hearing rule
in relation to the matters they deal with. The amendments in the Bill apply to
the “codes of procedure” in the Act relating to:
• visa
applications;
• visa cancellations under sections 109, 116 or 128 of
the Act;
• the revocation of certain visa cancellations;
and
• the review of decisions by the Migration Review Tribunal
(“the MRT”) and the Refugee Review Tribunal (“the
RRT”).
5. The Bill also clarifies the relationship between the
amendments relating to the “codes of procedure” and section 474 of
the Act. Section 474 contains the “privative clause” which has the
practical effect of expanding the legal validity of the acts done and decisions
made by decision-makers. It is intended that section 474 will be interpreted in
accordance with R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598,
such that the only reviewable legal errors are those that are set out in that
case.
6. It is also intended that the privative clause should protect
from invalidity anything done or omitted to be done in relation to any matter
dealt with in any provision taken to be an exhaustive statement of the natural
justice hearing rule. That is, there is nothing within this Bill that expands
in any way the grounds of review under the privative clause. Any error must
still fall within the Hickman grounds in order for it to lead to
invalidity.
7. This Bill provides a clear legislative statement that the
amendments relating to the “codes of procedure” do not limit the
scope or operation of the privative clause in relation to anything done, or
omitted to be done, in relation to any matter dealt with in any provision that
is taken to be an exhaustive statement of the requirements of the natural
justice hearing rule by a section that is inserted into the Act by this Bill.
8. These amendments will have minimal direct financial
impact.
MIGRATION LEGISLATION AMENDMENT (PROCEDURAL FAIRNESS) BILL
2002
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
2002.
Clause 2 Commencement
2. This clause provides
that this Act commences on the day after it receives the Royal Assent.
Clause 3 Schedule(s)
3. 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
4. This item inserts new section 51A into Subdivision AB of
Division 3 of Part 2 of the Act.
5. New subsection 51A(1) makes it clear that Subdivision AB of Division 3
of Part 2 of the Act is an exhaustive statement of the requirements of the
natural justice hearing rule in relation to the matters it deals
with.
6. Subdivision AB sets out the “code of procedure” for
dealing fairly, efficiently and quickly with visa applications at the primary
decision-making stage. It was originally intended to exhaustively replace
common law natural justice requirements, other than the rule against bias, which
had previously applied to visa decision-makers.
7. New subsection 51A(2)
makes it clear that sections 494A to 494D of the Act are an exhaustive statement
of the requirements of the natural justice hearing rule in relation to the
matters they deal with. This is to be taken to be the case only in so far as
sections 494A to 494D relate to Subdivision AB.
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.
9. In Re MIMA; Ex parte Miah [2001] HCA 22 the High
Court held, by a narrow majority, that the “code of procedure” for
dealing fairly, efficiently and quickly with visa applications in Subdivision AB
of Division 3 of Part 2 of the Act, did not exclude common law natural justice
requirements. The majority considered that such exclusion would require a clear
legislative intention and that there was no such clear intention in the
Act.
10. The purpose of this amendment, and the amendments in items 2 to
6, is to provide a clear legislative statement that certain “codes of
procedure” in the Act are an exhaustive statement of the requirements of
the natural justice hearing rule in relation to the matters they deal
with.
Item 2 After section 97
11. This item inserts new
section 97A into Subdivision C of Division 3 of Part 2 of the Act.
12. New subsection 97A(1) makes it clear that Subdivision C of Division 3
of Part 2 of the Act is an exhaustive statement of the common law requirements
of the natural justice hearing rule in relation to the matters it deals
with.
13. 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.
14. New subsection 97A(2) makes it
clear that sections 494A to 494D of the Act are an exhaustive statement of the
requirements of the natural justice hearing rule in relation to the matters they
deal with. This is to be taken to be the case only in so far as sections 494A
to 494D relate to Subdivision C.
15. 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.
16. This item inserts new section 118A at the beginning of Subdivision E
of Division 3 of Part 2 of the Act.
17. New subsection 118A(1) makes it clear that Subdivision E of Division
3 of Part 2 of the Act is an exhaustive statement of the requirements of the
natural justice hearing rule in relation to the matters it deals
with.
18. Subdivision E sets out a “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.
19. New subsection
118A(2) makes it clear that sections 494A to 494D of the Act are an exhaustive
statement of the requirements of the natural justice hearing rule in relation to
the matters they deal with. This is to be taken to be the case only in so far
as sections 494A to 494D relate to Subdivision E.
20. 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.
Item 4 Before section 128
21. This item
inserts new section 127A at the beginning of Subdivision F of Division 3 of Part
2 of the Act.
22. New subsection 127A(1) makes it clear that Subdivision F of Division
3 of Part 2 of the Act is an exhaustive statement of the requirements of the
natural justice hearing rule in relation to the matters it deals
with.
23. 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 a
visa cancellation.
24. New subsection 127A(2) makes it clear that
sections 494A to 494D of the Act are an exhaustive statement of the requirements
of the natural justice hearing rule in relation to the matters they deal with.
This is to be taken to be the case only in so far as sections 494A to 494D
relate to Subdivision F.
25. 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.
Item
5 Before section 358
26. This item inserts new section 357A at the
beginning of Division 5 of Part 5 of the Act.
27. New subsection 357A(1) makes it clear that Division 5 of Part 5 of
the Act is an exhaustive statement of the requirements of the natural justice
hearing rule in relation to the matters it deals with.
28. Part 5 of the
Act provides for the review of certain migration decisions by the MRT. Division
5 sets out how the MRT should conduct its review of certain migration decisions.
29. New subsection 357A(2) makes it clear that sections 375, 375A and
376 and Division 8A of the Act are an exhaustive statement of the requirements
of the natural justice hearing rule in relation to the matters they deal with.
This is to be taken to be the case only in so far as sections 494A to 494D
relate to Division 5.
30. Sections 375, 375A and 376 deal with the
disclosure of confidential information to the MRT. Division 8A sets out how the
MRT is to provide documents to persons and provides for deemed receipt of
documents in certain circumstances.
Item 6 Before section
423
31. This item inserts new section 422B at the beginning of
Division 4 of Part 7 of the Act.
32. New subsection 422B(1) provides that Division 4 of Part 7 of the Act
is an exhaustive statement of the requirements of the natural justice hearing
rule in relation to the matters it deals with.
33. Part 7 of the Act
provides for the review of protection visa decisions by the RRT. Division 4
sets out how the RRT should conduct its review of protection visa decisions.
34. New subsection 422B(2) makes it clear that sections 416, 437 and 438
and Division 7A of the Act are an exhaustive statement of the requirements of
the natural justice hearing rule in relation to the matters they deal with.
This is to be taken to be the case only in so far as sections 494A to 494D
relate to Division 4.
35. Section 416 provides that the RRT only needs to
consider new information if a further application for review is made. Sections
437 and 438 deal with the disclosure of confidential information to the RRT.
Division 7A sets out how the RRT is to provide documents to persons and provides
for deemed receipt of documents in certain circumstances.
Item
7 Application
36. Sub-item 7(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.
37. Item 1 inserts new section 51A into the
Act to provide a clear legislative statement that the “codes of
procedure” identified in the section are an exhaustive statement of the
requirements of the natural justice hearing rule in relation to the matters they
deal with.
38. Sub-item 7(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 the Act on or after that
commencement.
39. Item 2 inserts new section 97A into the Act to provide
a clear legislative statement that the “codes of procedure”
identified in the section are an exhaustive statement of the requirements of the
natural justice hearing rule in relation to the matters they deal
with.
40. Sub-item 7(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 the Act on or after that
commencement.
41. Item 3 inserts new section 118A into the Act to provide
a clear legislative statement that the “codes of procedure”
identified in the section are an exhaustive statement of the requirements of the
natural justice hearing rule in relation to the matters they deal
with.
42. Sub-item 7(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.
43. Item 4 inserts new section
127A into the Act to provide a clear legislative statement that the “codes
of procedure” identified in the section are an exhaustive statement of the
requirements of the natural justice hearing rule in relation to the matters they
deal with.
44. Sub-item 7(5) provides that the amendments made by items 5
and 6 apply in relation to any application for review made on or after the
commencement of those items.
45. Item 5 inserts new section 357A into the
Act to provide a clear legislative statement that the “codes of
procedure” identified in the section are an exhaustive statement of the
requirements of the natural justice hearing rule in relation to the matters they
deal with.
46. Item 6 inserts new section 422B into the Act to provide a
clear legislative statement that the “codes of procedure” identified
in the section are an exhaustive statement of the requirements of the natural
justice hearing rule in relation to the matters they deal with.
Item
8 Relationship with section 474 of the Migration Act
1958
47. The purpose of this item is to clarify the relationship
between the amendments made by items 1 to 6 of this Schedule and section 474 in
Part 8 of the Act.
48. Section 474 contains the “privative
clause” which has the practical effect of expanding the legal validity of
acts done and decisions made by decision-makers. As a result, decision-makers
are given wider lawful operation for their decisions and the grounds on which
those decisions can be challenged in the courts is narrower than was previously
the case.
49. It is intended that the privative clause should protect
from invalidity anything done or omitted to be done in relation to any matter
dealt with in any provision taken to be an exhaustive statement of the natural
justice hearing rule. That is, if there is a breach of a “code of
procedure”, it must still fall within the Hickman grounds of review
in order for a court to find the breach rendered the decision
invalid.
50. Therefore, this item provides a clear legislative statement
that the amendments made by items 1 to 6 of this Schedule do not limit the scope
or operation of section 474 in relation to anything done, or omitted to be done,
in relation to any matter dealt with in any provision taken to be an exhaustive
statement of the requirements of the natural justice hearing rule by a section
that is inserted into the Act by one of those items.