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Explanatory Memorandum
Migration Legislation Amendment (Restoration of Rights and Procedural
Fairness) Bill 2007
Senator Andrew Bartlett
Schedule 1 - Amendment of the Administrative Decisions (Judicial Review)
Act 1977
Schedule 2 - Amendment providing for the restoration of fair process under
the Migration Act 1958
Schedules 1 and 2 seek to repeal the introduction of a privative clause
mechanism which restricts access to Federal and High Court judicial review
of administrative decisions made under the Migration Act. It does so by
repealing certain provisions of the Administrative Decisions (Judicial
Review) Act 1977 and the Migration Act 1958.
Schedule 3 - Amendments providing for the duration of detention under the
Migration Act 1958
Schedule 3 seeks to repeal the provisions introduced by the Migration
Amendment (Duration of Detention) Act 2003 which prevents and limits courts
from ordering the release of somebody from immigration detention whilst an
appeal seeking their release is before the courts.
Schedule 4 - Amendments providing for the return to procedural fairness
under the Migration Act 1958
Schedule 4 seeks to repeal provisions of the Migration Act 1958 inserted by
the Migration Legislation Amendment (Procedural Fairness) Act 2002, which
excluded the common law rule of procedural fairness and attempted to make
it explicit that the procedures set down in the statute are all that
decision makers must comply with.
Schedule 5 - Amendments providing for the provisions relating to character
and conduct under the Migration Act 1958
Schedule 5 seeks to repeal the Migration Legislation Amendment
(Strengthening of Provisions Relating to Character and Conduct) Act 1998
which increased the Minister's power to refuse or cancel visas on character
grounds. Experience has borne out concerns expressed at the time the
amending bill of 1998 was passed that there are insufficient protections in
place to prevent unjust or unfair outcomes
Schedule 6 - Amendments providing for the end of mandatory detention under
the Migration Act 1958
Schedule 6 seeks to eliminate the system of mandatory migration detention
which was introduced by the Migration Reform Act 1992 and replace it with
an alternative system which is more humane, less expensive, meets
Australia's obligations under international law and provides a more
effective mechanism for prompt and efficient administration of Australian
migration laws.