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1998 – 1999 – 2000 -
2001
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
SENATE
MIGRATION
LEGISLATION AMENDMENT (JUDICIAL REVIEW) BILL
1998
SUPPLEMENTARY EXPLANATORY
MEMORANDUM
(Government)
(Circulated
by authority of the Minister
for Immigration and Multicultural
Affairs,
the Hon. Philip Ruddock MP)
MIGRATION LEGISLATION AMENDMENT (JUDICIAL REVIEW) BILL
1998
OUTLINE
1. The Migration Legislation Amendment (Judicial Review) Bill 1998 implements a number of Government initiatives in relation to judicial review of decisions in the Immigration and Multicultural Affairs portfolio.
2. The amendments contained in the Bill will introduce a new judicial
review scheme, by introducing a privative clause to cover decisions made under
the Migration Act 1958 (“the Migration Act”) relating to the
ability of non-citizens to enter and remain in Australia.
3. The proposed amendments to the Bill clarify that:
• the Federal Court has jurisdiction to review privative clause
decisions made by an independent merits review Tribunal;
• privative
clause decisions made by a primary decision-maker will not be reviewable by the
Federal Court where that decision is able to be reviewed by a merits review
Tribunal or has been reviewed by a merits review Tribunal; and
• the
privative clause decision of a merits review Tribunal is reviewable by the
Federal Court in accordance with the grounds permitted by the privative
clause.
4. It is also proposed to make a number amendments to the Bill to ensure that
the amendments of the Migration Act are effective and consistent
with:
• amendments that have been made to the Migration Act since
the Bill was introduced in Parliament on 2 December 1998; and
• the
proposed amendments to the Migration Act contained in the Migration Legislation
Amendment Bill (No. 1) 2001.
5. These amendments are technical in nature
and do not change the policy parameters of this Bill or the Migration
Legislation Amendment Bill (No. 1) 2001.
FINANCIAL IMPACT STATEMENT
6. The amendments to the Migration Act 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.
1. This amendment omits proposed subsection 474(6) (including the note) which
is inserted into the Migration Act by item 7 of Part 1 of Schedule 1 to the
Bill.
2. Proposed subsection 474(6) is deleted by this amendment to make
it clear that where the Federal Court has jurisdiction to review privative
clause decisions, it is on the same grounds of review that would be available
before the High Court in its original jurisdiction under subsection 75(v) of the
Commonwealth Constitution.
3. In other words, they are the grounds of review that are available by
interpreting the privative clause in proposed subsection 474(1), which is
inserted into the Migration Act by item 7 of Part 1 of Schedule 1 to the Bill,
as if subsection 39B(1) of the Judiciary Act 1903 were equivalent to
subsection 75(v) of the Commonwealth Constitution.
4. This amendment inserts new section 475A to replace proposed subsection
476(3) which is inserted into the Migration Act by item 7 of Part 1 of Schedule
1 to the Bill.
Section 475A Section 476 not to affect the
jurisdiction of the Federal Court in certain cases
5. New section 475A 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 (that is, certain visa decisions which attract no merits review rights under Part 5 or Part 7 or section 500 of the Migration Act).
Amendment (3)
6. This amendment replaces proposed subsection 476(1), which is inserted into
the Migration Act by item 7 of Schedule 1 to the Bill, with a new subsection
476(1).
7. New subsection 476(1), in combination with the proposed new definition of
“primary decision” (see amendment (8)), 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.
Amendment (4)
8. This amendment amends
proposed subsection 476(2) which is inserted into the Migration Act by item 7 of
Part 1 of Schedule 1 to the Bill.
9. Proposed subsection 476(2) sets out
certain decisions of the Minister in respect of which the Federal Court does not
have any jurisdiction. This is the case despite any other law including
sections 39B and 44 of the Judiciary Act 1903.
10. This amendment
ensures that the Federal Court also does not have any jurisdiction in respect of
a decision of a Minister not to exercise, or not consider the exercise of, the
Minister’s power under subsection 37A(2) or 37A(3) or section 91L or 91Q
of the Migration Act.
11. These new Ministerial powers were inserted into
the Migration Act after the introduction of this Bill into Parliament and are
not judicially-reviewable decisions under existing Part 8 of the Act.
12. This amendment ensures that this continues to be the case under new
Part 8 which is inserted into the Migration Act by item 7 of Part 1 of Schedule
1 to the Bill.
Amendment (5)
13. This amendment inserts
new subsections 476(2A) and 476(2B) into proposed section 476 which is inserted
into the Migration Act by item 7 of Part 1 of Schedule 1 to the Bill.
14. 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.
15. This is the case despite
any other law, including sections 39B and 44 of the Judiciary Act
1903.
16. 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 item 7 of Part 1 of Schedule 1 to the Bill.
17. 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.
18. Division 13A was inserted into
Part 2 of the Migration Act after the introduction of this Bill into Parliament
and decisions made under it are not judicially-reviewable decisions under
existing Part 8 of the Act.
19. New subsection 476(2B) ensures that this
continues to be the case under new Part 8 which is inserted into the Migration
Act by item 7 of Part 1 of Schedule 1 to the Bill.
Amendment
(6)
20. This amendment omits proposed subsection 476(3), which is
inserted into the Migration Act by item 7 of Part 1 of Schedule 1 to the Bill,
because it has been replaced by proposed new section 475A (see amendment
(2)).
Amendment (7)
21. This amendment makes a technical
amendment to proposed subsection 476(4) which is inserted into the Migration Act
by item 7 of Part 1 of Schedule 1 to the Bill.
Amendment
(8)
22. This amendment inserts new subsections 476(5) and 476(6)
into proposed section 476 which is inserted into the Migration Act by item 7 of
Part 1 of Schedule 1 to the Bill.
23. New subsection 476(5) provides
that the reference in proposed 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.
24. 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 proposed subsection
476(2).
25. New subsection 476(6) provides a definition of
“primary decision” for the purposes of proposed section 476. It is
consequential to the amendment made by amendment (3).
26. 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.
27. The definition of “primary decision” no longer includes
a decision made by a review officer on an internal review because such internal
review is no longer available under the Migration Act.
Amendment (9)
28. This amendment makes a technical amendment to proposed
subsection 477(1) which is inserted into the Migration Act by item 7 of Part 1
of Schedule 1 to the Bill.
29. The effect of the amendment is that an
application to the Federal Court for judicial review of certain decisions must
be made to the Federal Court rather than the Registry of the Federal Court.
30. This brings proposed subsection 477(1) into line with a similar
provision relating to the High Court which is contained in the Migration
Legislation Amendment Bill (No. 1) 2001.
Amendment
(10)
31. This amendment omits proposed subsections 477(2) to 477(4),
which are inserted into the Migration Act by item 7 of Part 1 of Schedule 1 to
the Bill, and replaces them with new subsections 477(2) and
477(3).
32. New subsections 477(2) and 477(3) no longer deal with the
time limit on applications to the High Court in its original jurisdiction under
the Commonwealth Constitution for judicial review of certain decisions. This is
because this matter is dealt with in the Migration Legislation Amendment Bill
(No. 1) 2001
33. These new provisions are consistent with those
provisions relating to the High Court contained in the Migration Legislation
Amendment Bill (No. 1) 2001.
34. 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.
35. New subsection
477(3) provides that the Migration Regulations 1994 (“the
Regulations”) may prescribe the way of notifying a person of a decision
for the purposes of new section 477.
Amendment
(11)
36. This amendment inserts new paragraph 478(c) into proposed
section 478 which is inserted into the Migration Act by item 7 of Part 1 of
Schedule 1 to the Bill.
37. The effect of new paragraph 478(c) is that an
application to the Federal Court for judicial review under proposed subsection
477(1) can also be made by a person prescribed by the Regulations.
38. 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 proposed
subsection 477(1) on behalf of the person mentioned in proposed paragraphs
478(a) and 478(b), as appropriate.
39. This ensures that proposed
section 478 is consistent with provisions contained in the Migration Legislation
Amendment Bill (No. 1) 2001 (see proposed paragraph
486C(2)(c)).
Amendment (12)
40. This amendment inserts new
paragraph 479(c) into proposed section 479 which is inserted into the Migration
Act by item 7 of Part 1 of Schedule 1 to the Bill.
41. The effect of new
paragraph 479(c) is that a person prescribed by the Regulations may also be a
party to a review of a privative clause decision resulting from an application
to the Federal Court under proposed subsection 477(1).
42. This ensures
that proposed section 479 is consistent with provisions contained in the
Migration Legislation Amendment Bill (No. 1) 2001 (see proposed paragraph
486C(2)(c)).
Amendment (13)
Amendment
(14)
43. These amendments make technical amendments to proposed
section 480, which is inserted into the Migration Act by item 7 of Part 1 of
Schedule 1 to the Bill, and are consequential to amendments (10) and (16).
44. The effect of the amendments is that proposed section 480 now only
deals with the intervention of the Commonwealth Attorney-General in a proceeding
resulting from an application to the Federal Court for judicial review under
proposed subsection 477(1).
45. A similar provision in relation to the
High Court is to be inserted into the Migration Act by amendment (16).
Amendment (15)
46. This amendment makes a
technical amendment to proposed section 481, which is inserted into the
Migration Act by item 7 of Part 1 of Schedule 1 to the Bill, and is
consequential to amendment (10).
47. The effect of the amendment is that
proposed section 481 now only deals with the operation of a decision where an
application to the Federal Court for judicial review has been made under
proposed subsection 477(1).
48. A similar provision in relation to the
High Court is to be inserted into the Migration Act by amendment
(16).
Amendment (16)
49. This amendment inserts new items
7A to 7D after item 7 of Part 1 of Schedule 1 to the Bill.
50. These
items contain amendments relating to the amendments made by the Migration
Legislation Amendment Bill (No. 1) 2001. They are intended to ensure that the
amendments to the Migration Act made by this Bill and the Migration Legislation
Amendment Bill (No. 1) 2001 are consistent and effective.
Item
7A Subsection 486A(1)
51. Item 7A makes a technical amendment to
proposed 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.
52. The purpose of the amendment is to ensure that proposed
subsection 486A will operate as intended after the commencement of this Bill.
53. 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.
Item 7B After section
486A
54. Item 7B inserts new sections 486AA and 486AB after proposed
section 486A of the Migration Act. This is consequential to the amendments made
by amendments (13), (14) and (15).
55. New sections 486AA and 486AB
mirror proposed sections 480 and 481 which are inserted into the Migration Act
by item 7 of Part 1 of Schedule 1 to this
Bill.
Section 486AA Intervention by
Attorney-General
56. 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 proposed
subsection 486A(1).
57. New subsection 486AA(2) allows the High Court to
make cost orders against the Commonwealth if the Attorney-General intervenes in
a proceeding.
58. 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
59. New section 486AB provides that the making of an
application to the High Court for judicial review of a privative clause decision
does not:
• affect the operation of the decision;
or
• prevent the taking of action to implement the decision;
or
• prevent the taking of action in reliance on the making of the
decision.
Item 7C Subsection 486C(1)
60. Item 7C makes a
technical amendment to proposed 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)
61. Item 7D
repeals proposed 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).
62. Proposed 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 proposed subsection 486C(1).
63. It does not
affect 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.
64. Under new subsection 486C(2), the persons who have standing to
commence or continue a proceeding that raises an issue specified in proposed
subsection 486C(1) are:
• a party to a review mentioned in proposed
section 479 which is to be inserted into the Migration Act by item 7 of Part 1
of Schedule 1 to this Bill; 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.
Amendment (17)
65. This amendment omits sub-items 8(4) and
8(5) in Part 2 of Schedule 1 to the Bill, as they are no longer necessary. It
also inserts new sub-items 8(4) and 8(5) which deal with the application of the
amendments made by items 7A to 7D (see amendment (16)).
66. New sub-item
8(4) provides that the amendments made by items 7A and 7B apply to decisions
made after the commencement of those items.
67. New sub-item 8(5)
provides that the amendments made by items 7C and 7D apply to proceedings that
are commencement after the commencement of those items.