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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000-2001
The
Parliament of the
Commonwealth of
Australia
THE
SENATE
As read a third
time
Migration
Legislation Amendment (Judicial Review) Bill
2001
No. ,
2001
A Bill for an Act to amend
the Migration Act 1958, and for related purposes
Contents
Part
1—Amendments 3
Administrative Decisions (Judicial Review) Act
1977 3
Migration Act
1958 3
Part 2—Application
provisions 13
THIS bill originated in the Senate; and, having this day passed, is now
ready for presentation to the House of Representatives for its
concurrence.
HARRY EVANS
Clerk of the Senate
The Senate
26 September 2001
A Bill for an Act to amend the Migration Act 1958,
and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Migration Legislation Amendment (Judicial
Review) Act 2001.
(1) Subject to this section, this Act commences on the day on which it
receives the Royal Assent.
(2) Subject to subsection (3), Schedule 1 commences on a day to be fixed
by Proclamation.
(3) If Schedule 1 does not commence under subsection (2) within the period
of 6 months beginning on the day on which this Act receives the Royal Assent, it
commences on the first day after the end of that period.
Subject to section 2, each Act that is specified in a Schedule to this
Act is amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect according to
its terms.
Administrative Decisions
(Judicial Review) Act 1977
1 Paragraph (da) of Schedule
1
Repeal the paragraph, substitute:
(da) a privative clause decision within the meaning of subsection 474(2)
of the Migration Act 1958;
2 Subsection 5(1) (definition of
judicially-reviewable decision)
Repeal the definition.
3 Subsection 5(1)
Insert:
privative clause decision has the meaning given by subsection
474(2).
4 Subsection 32(2)
After “that” (first occurring), insert “the Minister is
satisfied”.
5 Subsection 36(2)
After “whom”, insert “the Minister is
satisfied”.
6 Section 73
Omit all the words before “a bridging visa” (second occurring),
substitute “If the Minister is satisfied that an eligible non-citizen
satisfies the criteria for a bridging visa as prescribed under subsection 31(3),
the Minister may grant”.
7 Part 8
Repeal the Part, substitute:
(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called
in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or
certiorari in any court on any account.
(2) In this section:
privative clause decision means a decision of an
administrative character made, proposed to be made, or required to be made, as
the case may be, under this Act or under a regulation or other instrument made
under this Act (whether in the exercise of a discretion or not), other than a
decision referred to in subsection (4) or (5).
(3) A reference in this section to a decision includes a reference to the
following:
(a) granting, making, suspending, cancelling, revoking or refusing to make
an order or determination;
(b) granting, giving, suspending, cancelling, revoking or refusing to give
a certificate, direction, approval, consent or permission (including a
visa);
(c) granting, issuing, suspending, cancelling, revoking or refusing to
issue an authority or other instrument;
(d) imposing, or refusing to remove, a condition or restriction;
(e) making or revoking, or refusing to make or revoke, a declaration,
demand or requirement;
(f) retaining, or refusing to deliver up, an article;
(g) doing or refusing to do any other act or thing;
(h) conduct preparatory to the making of a decision, including the taking
of evidence or the holding of an inquiry or investigation;
(i) a decision on review of a decision, irrespective of whether the
decision on review is taken under this Act or a regulation or other instrument
under this Act, or under another Act;
(j) a failure or refusal to make a decision.
(4) For the purposes of subsection (2), a decision under a provision, or
under a regulation or other instrument made under a provision, set out in the
following table is not a privative clause decision:
|
Decisions that are not privative clause decisions |
||
|---|---|---|
|
Item |
Provision |
Subject matter of provision |
|
1 |
section 213 |
Liability for the costs of detention, removal or deportation |
|
2 |
section 217 |
Conveyance of removees |
|
3 |
section 218 |
Conveyance of deportees etc. |
|
4 |
section 222 |
Orders restraining non-citizens from disposing of property |
|
5 |
section 223 |
Valuables of detained non-citizens |
|
6 |
section 224 |
Dealing with seized valuables |
|
7 |
section 252 |
Searches of persons |
|
8 |
section 259 |
Detention of vessels for search |
|
9 |
section 260 |
Detention of vessels/dealing with detained vessels |
|
10 |
section 261 |
Disposal of certain vessels |
|
11 |
Division 14 of Part 2 |
Recovery of costs |
|
12 |
section 269 |
Taking of securities |
|
13 |
section 272 |
Migrant centres |
|
14 |
section 273 |
Detention centres |
|
15 |
Part 3 |
Migration agents registration scheme |
|
16 |
Part 4 |
Court orders about reparation |
|
17 |
section 353A |
Directions by Principal Member |
|
18 |
section 354 |
Constitution of Migration Review Tribunal |
|
19 |
section 355 |
Reconstitution of Migration Review Tribunal |
|
20 |
section 355A |
Reconstitution of Migration Review Tribunal for efficient conduct of
review |
|
21 |
section 356 |
Exercise of powers of Migration Review Tribunal |
|
22 |
section 357 |
Presiding member |
|
23 |
Division 7 of Part 5 |
Offences |
|
24 |
Part 6 |
Establishment and membership of Migration Review Tribunal |
|
25 |
section 421 |
Constitution of Refugee Review Tribunal |
|
26 |
section 422 |
Reconstitution of Refugee Review Tribunal |
|
27 |
section 422A |
Reconstitution of Refugee Review Tribunal for efficient conduct of
review |
|
28 |
Division 6 of Part 7 |
Offences |
|
29 |
Division 9 of Part 7 |
Establishment and membership of Refugee Review Tribunal |
|
30 |
Division 10 of Part 7 |
Registry and officers |
|
31 |
regulation 5.35 |
Medical treatment of persons in detention |
(5) The regulations may specify that a decision, or a decision included in
a class of decisions, under this Act, or under regulations or another instrument
under this Act, is not a privative clause decision.
This Division is not to be taken to limit the scope or operation of
section 474.
Section 476 does not affect the jurisdiction of the Federal Court
under section 39B or 44 of the Judiciary Act 1903 in relation
to:
(a) a privative clause decision that is a decision made on a review by a
Tribunal under Part 5 or 7 or section 500; or
(b) any other decision in respect of which the Court’s jurisdiction
is not excluded by section 476.
(1) Despite any other law, including sections 39B and 44 of the
Judiciary Act 1903, the Federal Court does not have any jurisdiction in
relation to a primary decision.
(2) Despite any other law, including sections 39B and 44 of the
Judiciary Act 1903, the Federal Court does not have any jurisdiction in
respect of a decision of the Minister not to exercise, or not to consider the
exercise, of the Minister’s power under subsection 37A(2) or (3),
section 48B, paragraph 72(1)(c), section 91F, 91L, 91Q, 345, 351, 391,
417 or 454.
(2A) Despite any other law, including sections 39B and 44 of the
Judiciary Act 1903, the Federal Court does not have any jurisdiction in
respect of:
(a) 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; or
(b) a decision of the President of the Administrative Appeals Tribunal to
accept, or not to accept, the referral of a decision under section 382 or
444.
(2B) Despite any other law, including sections 39B and 44 of the
Judiciary Act 1903, the Federal Court does not have any jurisdiction in
respect of a decision of the Minister under Division 13A of Part 2 to
order that a thing is not to be condemned as forfeited.
(4) Despite section 44 of the Judiciary Act 1903, the High Court
must not remit a matter to the Federal Court if it relates to a decision or
matter in respect of which the Federal Court would not have jurisdiction because
of this section.
(5) The reference in subsection (2) to section 345 is a
reference to section 345 of this Act as in force before the commencement of
Schedule 1 to the Migration Legislation Amendment Act (No. 1)
1998.
(6) In this section:
primary decision means a privative clause decision:
(a) that
is reviewable, or has been reviewed, under Part 5 or 7 or section 500;
or
(b) that would have been so reviewable if an application for such review
had been made within a specified period.
(1) An application to the Federal Court under section 39B of the
Judiciary Act 1903 for:
(a) a writ of mandamus, prohibition or certiorari; or
(b) an injunction or a declaration;
in respect of a privative clause decision in relation to which the
jurisdiction of the Federal Court is not excluded by section 476 must be made to
the Federal Court within 28 days of the notification of the decision.
(2) The Federal Court must not make an order allowing, or which has the
effect of allowing, an applicant to lodge an application referred to in
subsection (1) outside the period specified in that subsection.
(3) The regulations may prescribe the way of notifying a person of a
decision for the purposes of this section.
An application referred to in subsection 477(1) may only be made by the
Minister and:
(a) if the privative clause decision concerned was reviewable under Part 5
or 7 or section 500 of this Act and a decision on such a review has been
made—the applicant in the review by the relevant Tribunal; or
(b) in any other case—the person who is the subject of the decision;
or
(c) in any case—a person prescribed by the regulations.
The parties to a review of a privative clause decision resulting from an
application referred to in subsection 477(1) are the Minister and:
(a) if the privative clause decision concerned was reviewable under Part 5
or 7 or section 500 of this Act and a decision on such a review has been
made—the applicant in the review by the relevant Tribunal; or
(b) in any other case—the person who is the subject of the decision;
or
(c) in any case—a person prescribed by the regulations.
(1) The Attorney-General may, on behalf of the Commonwealth, intervene in
a proceeding resulting from an application referred to in subsection
477(1).
(2) If the Attorney-General intervenes in such a proceeding, the Federal
Court may make such orders as to costs against the Commonwealth as the court
thinks fit.
(3) If the Attorney-General intervenes in such a proceeding, he or she is
taken to be a party to the proceeding.
The making of an application referred to in subsection 477(1) does
not:
(a) affect the operation of the decision; or
(b) prevent the taking of action to implement the decision; or
(c) prevent the taking of action in reliance on the making of the
decision.
If:
(a) a person has, in the performance of the duties of an office, made a
privative clause decision; and
(b) the person no longer holds, or, for whatever reason, is not performing
the duties of, that office;
this Part has effect as if the decision had been made by:
(c) the person for the time being holding or performing the duties of that
office; or
(d) if there is no person for the time being holding or performing the
duties of that office or that office no longer exists—such person as the
Minister specifies.
Section 44 of the Administrative Appeals Tribunal Act 1975 does
not apply to a privative clause decision.
(1) The jurisdiction of the Federal Court in relation to privative clause
decisions is exclusive of the jurisdiction of all other courts, other than the
jurisdiction of the High Court under section 75 of the Constitution.
(2) To avoid doubt, despite section 67C of the Judiciary Act 1903,
the Supreme Court of the Northern Territory does not have jurisdiction in
matters in which a writ of mandamus or prohibition or an injunction is sought
against the Commonwealth or an officer of the Commonwealth in relation to
privative clause decisions.
(3) To avoid doubt, jurisdiction in relation to privative clause decisions
is not conferred on any court under the Jurisdiction of Courts
(Cross-vesting) Act 1987.
7A Subsection 486A(1)
Omit “decision covered by subsection 475(1), (2) or (4)”,
substitute “privative clause decision”.
7B After section 486A
Insert:
(1) The Attorney-General may, on behalf of the Commonwealth, intervene in
a proceeding resulting from an application referred to in subsection
486A(1).
(2) If the Attorney-General intervenes in such a proceeding, the High
Court may make such orders as to costs against the Commonwealth as the court
thinks fit.
(3) If the Attorney-General intervenes in such a proceeding, he or she is
taken to be a party to the proceeding.
The making of an application referred to in subsection 486A(1) does
not:
(a) affect the operation of the decision; or
(b) prevent the taking of action to implement the decision; or
(c) prevent the taking of action in reliance on the making of the
decision.
7C Subsection 486C(1)
Omit “(the relevant issue)”.
7D Subsection 486C(2)
Repeal the subsection, substitute:
(2) Those persons are:
(a) a party to a review mentioned in section 479; or
(b) the Attorney-General of the Commonwealth or of a State or a Territory;
or
(c) a person who commences or continues the proceeding in performing the
person’s statutory functions; or
(d) any other person prescribed by the regulations.
8 Application
(1) If an application for judicial review of a decision under the
Migration Act 1958 is lodged before the commencement of this Schedule,
the Migration Act 1958, the Administrative Appeals Tribunal Act
1975 and the Administrative Decisions (Judicial Review) Act 1977,
as in force immediately before that commencement, apply in respect of the
application, and in respect of the review, as if this Schedule had not been
enacted.
(2) The Migration Act 1958 and the Administrative Decisions
(Judicial Review) Act 1977, as amended by this Schedule, apply in respect of
judicial review of a decision under the Migration Act 1958 if:
(a) the decision was made on or after the commencement of this Schedule;
or
(b) the decision:
(i) was made before the commencement of this Schedule; and
(ii) as at that commencement, an application for judicial review of the
decision had not been lodged.
(3) A reference in subitem (1) or (2) to an application for judicial review
of a decision is a reference to:
(a) an application for review of the decision under:
(i) section 44 of the Administrative Appeals Tribunal Act 1975;
or
(ii) Part 8 of the Migration Act 1958; or
(iii) the Administrative Decisions (Judicial Review ) Act 1977;
or
(b) an application for a writ of mandamus, prohibition or certiorari or an
injunction or a declaration in respect of the decision under:
(i) section 75 of the Constitution; or
(ii) section 39B or 67C of the Judiciary Act 1903.
(4) The amendments made by items 7A and 7B apply to decisions made
after the commencement of those items.
(5) The amendments made by items 7C and 7D apply in relation to
proceedings that are commenced after the commencement of those items.