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1998
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
SENATE
MIGRATION
LEGISLATION AMENDMENT (JUDICIAL REVIEW) BILL 1998
EXPLANATORY
MEMORANDUM
(Circulated by authority
of the
Minister for Immigration and Multicultural Affairs,
the Hon.
Philip Ruddock MP)
MIGRATION LEGISLATION AMENDMENT (JUDICIAL REVIEW) BILL
1998
OUTLINE
Overview
1
The Migration Legislation Amendment (Judicial Review) Bill 1998 ("the Bill")
implements a number of Government initiatives in the Immigration and
Multicultural Affairs portfolio.
2 The Bill
amends the Migration Act 1958 and the Administrative Decisions
(Judicial Review) Act 1977.
3 The
amendments to the Migration Act 1958 and the Administrative Decisions
(Judicial Review) Act 1977, in relation to judicial review of
immigration decision-making:
• introduce a new judicial review
scheme, in particular a privative clause, to cover decisions made under the
Migration Act 1958 relating to the ability of non-citizens to enter and
remain in Australia;
• apply the new judicial review scheme to both
the Federal Court and the High Court; and
• allow specified
decisions to be reviewable under the Administrative Decisions (Judicial
Review) Act 1977.
FINANCIAL IMPACT
STATEMENT
4 The amendments to the
Migration Act 1958 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.
MIGRATION LEGISLATION AMENDMENT (JUDICIAL REVIEW) BILL
1998
NOTES ON INDIVIDUAL CLAUSES
Clause
1 Short title
1 The short title
by which this Act will be known is the Migration Legislation Amendment
(Judicial Review) Act 1998.
Clause
2 Commencement
2 Subclause 2(1)
provides that, subject to this section, this Act commences on the Royal
Assent.
3 Subclause 2(2) provides that,
subject to subsection 2(3), Schedule 1 commences on a day to be fixed by
Proclamation.
4 Subclause 2(3) provides that
Schedule 1 will commence 6 months after the Royal Assent unless Proclamation
occurs first.
Clause
3 Schedule(s)
5 Clause 3 provides that,
subject to section 2, the provisions of the various Acts that are set out in the
items of Schedule 1 are amended or repealed as
indicated.
SCHEDULE 1 - Judicial review
Part 1 -
Amendments
Administrative Decisions (Judicial Review) Act
1977
Item 1 Paragraph (da) of Schedule
1
6 This paragraph excludes from the
jurisdiction of the Federal Court under the Administrative Decisions
(Judicial Review) Act 1977 ("the ADJR Act") privative clause decisions under
the Migration Act 1958 (“the Migration Act”) (and regulations
and other instruments made under the latter Act). This amendment confines the
Federal Court's jurisdiction under the ADJR Act in respect of migration matters
to those decisions listed at the new subsection 474(4) of the Migration Act and
any prescribed under new subsection 474(5).
Migration Act
1958
Item 2 Subsection 5(1) (definition of
judicially-reviewable decision)
7
This definition is repealed consequential to the changes to judicial review
under the Migration Act.
Item 3 Subsection
5(1)
8 A new definition - "privative
clause decision" - is inserted in relation to the new judicial review provisions
for those decisions covered by new subsection 474(1) and made under the
Migration Act (or regulations or other instruments made under that Act).
9 The definition has the meaning set out at
new subsection 474(2). Note however that subsection 474(2) needs to be
interpreted having regard to subsections 474(3) and (6).
Item
4 Subsection 32(2)
10 Section 32 deals
with the creation of, and criteria for the grant of special category visas. This
amendment makes clear that the Minister's satisfaction is required in relation
to whether a person satisfies the legal pre-conditions for a visa to which
section 32 of the Migration Act refers. Section 65 of the Migration Act
requires the Minister to be "satisfied" that specified legal pre-conditions are
satisfied in order for the visa to be granted. This amendment is intended to
put it beyond any doubt that the Minister's satisfaction applies to the grant of
a visa to which section 32 of the Migration Act refers.
Item
5 Subsection 36(2)
11 Section 36 deals
with the creation of, and criteria for the grant of protection visas. This
amendment makes it clear that the Minister's satisfaction is required in
relation to whether a person satisfies the legal pre-conditions for a visa to
which section 36 of the Migration Act refers. Section 65 of the Migration Act
requires the Minister to be "satisfied" that specified legal pre-conditions are
satisfied in order for the visa to be granted. This amendment is intended to
put it beyond any doubt that the Minister's satisfaction is necessary to the
grant of a visa to which section 36 of the Migration Act refers.
Item
6 Section 73
12 Section 73 deals with
the criteria for the grant of bridging visas. This amendment makes it clear
that the Minister's satisfaction is required in relation to whether a person
satisfies the legal pre-conditions for a visa to which section 73 (and section
37) of the Migration Act refer. Section 65 of the Migration Act requires the
Minister to be "satisfied" that specified legal pre-conditions are satisfied in
order for the visa to be granted. This amendment is intended to put it beyond
any doubt that the Minister's satisfaction is necessary to the grant of a visa
to which section 73 (and section 37) of the Migration Act refers.
Item
7 Part 8
13 Part 8 of the Migration Act,
which dealt with the review of decisions by the Federal Court, is repealed and
replaced by the new judicial review provisions.
PART 8 - Judicial
review
Division 1 - Privative clause
474 Decisions
under Act are final
14 New subsection
474(1) introduces a privative clause for decisions made under the Migration Act,
regulations made under that Act or other instruments under that Act except for
decisions made under the provisions set out in new subsection 474(4) or as
prescribed under new subsection 474(5). A privative clause affects the extent
of judicial review by both the Federal Court and the High Court of decisions
covered by the clause.
15 A privative clause
is a provision which, although on its face purports to oust all judicial review,
in operation, by altering the substantive law, limits review by the courts to
certain grounds. Such a clause has been interpreted by the High Court, in a
line of authority stemming from the judgment of Dixon J in R v Hickman; ex
parte Fox and Clinton (1945)
70 CLR 598, to mean that a court can still
review matters but the available grounds are confined to exceeding
constitutional limits, narrow jurisdictional error or mala fides.
16 The intention of the provision is to
provide decision-makers with wider lawful operation for their decisions such
that, provided the decision-maker is acting in good faith, has been given the
authority to make the decision concerned (for example, by delegation of the
power from the Minister or by virtue of holding a particular office) and does
not exceed constitutional limits, the decision will be
lawful.
17 New subsection 474(2) defines a
"privative clause decision" as a decision made under the Migration Act, or
regulations or other instruments made under that Act, except for the decisions
specified at new subsection 474(4), or prescribed under new subsection
474(5):
- the specified decisions, and any prescribed decisions, are
reviewable under the ADJR Act - see this Bill's proposed amendment to paragraph
(da) of Schedule 1 to that Act.
18
New subsections 474(2) and (3) make it clear that "decision" is to be given a
wide meaning. New subsections 474(2) and (3) are substantially in the same form
as the definition of "decision" for the purposes of the ADJR Act, with the
addition of "conduct preparatory to the making of a decision", and actions
specific to the Migration Act such as the "cancelling" of visas.
19 New subsection 474(4) specifies the
decisions which are not subject to the operation of the privative clause in new
subsection 474(1).
20 New subsection 474(5)
allows for flexibility for exempting additional decisions from the operation of
the privative clause by way of regulations made under the Migration
Act.
21 New subsection 474(6) requires that
in construing new section 474, including the privative clause, the section
should be given its full effect and not be limited in its operation, subject to
the requirements of the Commonwealth Constitution.
Division 2 -
Provisions relating to privative clause
decisions
22 As set out above in
relation to new subsection 474(1), a privative clause has been interpreted by
the High Court to permit judicial review of decisions covered by such a clause
on restricted grounds. Division 2 of this Bill makes provision for these
matters to be litigated subject to the limitations contained in that Division,
to the Federal Court under sections 39B and 44 of the Judiciary Act 1903
and to the High Court under section 75 of the Commonwealth Constitution.
Division 2 of this Bill also ensures that application for judicial review of
privative clause decisions cannot be made to the Federal Court unless applicants
have exhausted their merits review rights.
Section 475 This
Division not to limit section 474
23
This new section makes it clear that new Division 2, by implication or
otherwise, in no way limits the scope or operation of new section 474.
Section 476 Federal Court does not have any other jurisdiction in
relation to certain privative clause
decisions
24 In the case of persons with
merits review rights under Part 5 or Part 7 or section 500 of the Migration Act,
new subsection 476(1) limits the jurisdiction of the Federal Court, for
privative clause decisions, to decisions where those rights have been exercised
and the merits review processes have been finalised.
25 Judicial review by the Federal Court of
matters which involve merits review rights is restricted to the decision made by
the review body. Accordingly, if a person has a merits review right under Part
5, Part 7 or section 500 of the Migration Act and fails to exercise it or cannot
exercise it because the time in which a merits review application can be made
has passed, the Federal Court does not have jurisdiction in relation to that
matter. If a person has begun to exercise that person's merits review right(s),
the Federal Court does not have jurisdiction unless and until that person has
exercised the right(s) to the fullest extent possible and the merits review
processes have been finalised. The jurisdiction of the High Court is
unaffected.
26 New subsection 476(2)
excludes from the jurisdiction of the Federal Court decisions of the Minister
not to exercise, or not to consider the exercise of, the specified personal
public interest powers of the Minister. The jurisdiction of the High Court is
unaffected.
27 New subsection 476(3) makes
it clear that the section does not affect the jurisdiction of the Federal Court
under sections 39B and 44 of the Judiciary Act otherwise than as specified by
new subsections 476(1) or (2).
28 New
subsection 476(4) limits the remittal of matters from the High Court to the
Federal Court where the restrictions in new subsections 476(1) or (2) apply in
order that a person cannot seek to bypass the restrictions in new subsections
476(1) or (2) by making a review application in the High Court and seeking to
have the High Court remit the matter to the Federal Court.
29 The purpose of this limitation in
relation to new subsection 476(1) is to encourage persons to utilise the less
formal and less expensive merits review processes before resort is made to the
Courts. The limitations in relation to the powers referred to in new subsection
476(2) reflect the special nature of these powers and scrutiny is provided by
Parliament through the tabling of statements of reasons by the Minister where
such powers are exercised.
Section 477 Time limits on applications for
judicial review
30 New section 477
ensures that judicial review is sought in a timely manner and it provides
certainty in relation to actions of the Commonwealth that may flow from
decisions, such as the detention and removal of unlawful
non-citizens.
31 New subsection 477(1)
requires any application to the Federal Court under section 39B of the Judiciary
Act, in relation to a privative clause decision in respect of which the Federal
Court has jurisdiction, to be made within 28 days of the notification of that
decision.
32 New subsection 477(2) requires
that any application to the High Court in respect of a privative clause decision
must be made within 28 days of the notification of that decision.
33 In the case of both new subsections
477(1) and (2) express reference to mandamus, prohibition, certiorari,
injunction and declaration has been made to ensure that the time limit applies
to them.
34 New subsection 477(3) makes it
clear that neither the Federal Court nor the High Court can allow applications,
in respect of privative clause decisions, to be made outside the 28 day time
limit that follows notification of the
decision.
35 New subsection 477(4) allows
for the method or time of notification for the purposes of the time limits for
judicial review to be prescribed by the regulations where the Migration Act,
regulations or any other instrument made under the Act do not prescribe a method
or time of notification of a decision.
Section 478 Persons who may
make application
36 New section 478
delimits who may make an application to the Federal Court under section 39B of
the Judiciary Act in relation to a privative clause decision (by reference to
new section 477) to:
• the Minister; and
• if there
are merits review rights under Part 5 or Part 7 or section 500 and a
decision on such a review has been made, the applicant in the review before the
Tribunal; or
• in any other case, the person who is the subject of
the decision.
37 The jurisdiction of the
High Court is unaffected.
Section 479 Parties to
review
38 New section 479 delimits the
parties to any judicial review by the Federal Court under section 39B of the
Judiciary Act in relation to a privative clause decision (by reference to new
subsection 477(1)) to:
• the Minister; and
• if there
are merits review rights under Part 5 or Part 7 or section 500 and a
decision on such a review has been made, the applicant in the review before the
Tribunal; or
• in any other case, the person who is the subject of
the decision.
39 The jurisdiction of the
High Court is unaffected.
40 Note that new
section 480 allows for the Attorney-General to be a party if the
Attorney-General intervenes.
Section 480 Intervention by
Attorney-General
41 This new section
enables the Attorney-General to intervene on behalf of the Commonwealth in
proceedings resulting from an application under new subsection 477(1) or (2).
New subsection 480(2) enables the Federal Court, or the High Court, to make an
order for costs against the Commonwealth resulting from the Attorney-General's
intervention. New subsection 480(3) provides that if the Attorney-General
intervenes, he or she is taken to be a party to the
proceeding.
Section 481 Operation etc. of
decision
42 This new section makes it
clear that the mere making of an application for judicial review of the kind
referred to in new subsections 477(1) or (2) does not of itself prevent the
decision for which review has been sought from continuing to have a legal effect
pending the outcome of the judicial review.
43 For example, if the decision for which
review has been sought results in a person becoming or remaining an unlawful
non-citizen, any action to detain or remove that person is lawful, subject to
the provisions of the Migration Act. However, a court is not prevented by this
section from making whatever interim orders it is otherwise empowered to
make.
Section 482 Changing person holding, or performing the duties
of, an office
44 This new section
ensures that, where a person has made a decision to which the privative clause
applies and the person no longer holds nor is performing the duties of the
office then held, or the office no longer exists, this Part has effect as if the
decision was made by the person performing the duties of the office at the
relevant time or as specified by the Minister.
Section 483 Section 44
of the Administrative Appeals Tribunal Act
1975
45 Section 44 of the
Administrative Appeals Tribunal Act 1975 allows for appeals from the
Administrative Appeals Tribunal to the Federal Court on a point of law. New
section 483 prevents section 44 from applying to a privative clause decision.
Therefore, an application to the Federal Court in respect of such a decision
needs to be made under section 39B of the Judiciary Act.
Section
484 Exclusive jurisdiction of Federal
Court
46 This new section establishes
that the jurisdiction of the Federal Court in relation to a privative clause
decision is exclusive of the jurisdiction of all other courts, other than the
jurisdiction of the High Court under section 75 of the Commonwealth
Constitution. No other Courts may consider review applications in relation to
privative clause decisions.
47 New
subsections 484(2) and (3) put the exclusive jurisdiction of the Federal Court
beyond doubt by ousting the jurisdiction of the Northern Territory Supreme Court
under the Judiciary Act and the operation of the Jurisdiction of Courts
(Cross-vesting) Act 1987.
Part 2 - Application
provisions
Item
8 Application
48 These provisions make
it clear to which decisions the new judicial review provisions apply. Unless an
application for judicial review has been made before the commencement of
Schedule 1, the new judicial review provisions apply. If an application for
judicial review has been made before that commencement date, then the previous
judicial review schemes apply.
49 Express
reference has been made to mandamus, prohibition, certiorari, injunction and
declaration to ensure that the provisions also apply to them.
50 Subitem
8(4) provides that if Schedule 1 to this Act commences before Schedule 2 to the
Migration Legislation Amendment Act (No. 1) 1998 (which mainly deals with
the creation of the Migration Review Tribunal), then:
• item 20 in
the table in new subsection 474(4) does not apply; and
• references in subsection 474(4) to the Migration Review Tribunal
are taken to be references to the Immigration Review Tribunal.
This applies
until such time as Schedule 2 to the Migration Legislation Amendment Act
(No. 1) 1998 commences.
51 Subitem 8(5) provides that if
Schedule 1 to this Act commences before Schedule 3 to the Migration
Legislation Amendment Act (No. 1) 1998 (which deals with changes in relation
to the Refugee Review Tribunal), then item 27 in the table in new subsection
474(4) does not apply until such time as Schedule 3 to the Migration
Legislation Amendment Act (No. 1) commences.