Mr RUDDOCK (Minister for Immigration and Multicultural and Indigenous Affairs and Minister Assisting the Prime Minister for Reconciliation) (9:37 AM) —I move:

This bill amends the Migration Act 1958 to provide a clear legislative statement that the `codes of procedure' in the act are an exhaustive statement of the requirements of the natural justice hearing rule.

The bill also makes it clear that the amendments do not in any way limit the scope or operation of the privative clause, which is contained in part 8 of the act.

The Migration Reform Act 1992 introduced codes of procedure for dealing fairly, efficiently and quickly with the processing of visa applications.

It also introduced other detailed codes of procedure for the cancellation of visas and the revocation of the cancellation of visas.

In 1998, the codes of procedure for the Migration Review Tribunal and the Refugee Review Tribunal were enhanced.

The purpose of each of these codes is to enable decision makers to deal with visa applications and cancellations fairly, efficiently and quickly.

It was also intended that they would replace the uncertain common law requirements of the natural justice `hearing rule', in particular, which had previously applied to decision makers.

However, last year in the Miah case, the High Court found that the code of procedure relating to visa applications had not clearly and explicitly excluded common law natural justice requirements.

This means that, even where a decision maker has followed the code in every single respect, there could still be a breach of the common law requirements of the natural justice hearing rule.

A further consequence of the High Court's decision is that there is legal uncertainty about the procedures which decision makers are required to follow to make a lawful decision.

The majority of the court emphasised that parliament's intention to exclude natural justice must be made unmistakably clear.

It concluded that this intention was not made apparent in relation to the code of procedure for dealing with visa applications.

Therefore, the purpose of this bill is to make it expressly clear that particular codes in the Migration Act do exhaustively state the requirements of the natural justice or procedural fairness hearing rule.

This will have the effect that common law requirements relating to the natural justice or procedural fairness hearing rule are effectively excluded, as was originally intended.

The key amendments will affect the codes of procedure contained in the Act relating to:

· visa applications;

· visa cancellations under sections 109 and 116;

· revocations of visa cancellations without notice under section 128; and

· the conduct of reviews by the merits review tribunals.

The Migration Legislation Amendment (Judicial Review) Act 2001 set out a new judicial review scheme to address concerns about the growing cost and incidence of migration litigation and the associated delays in removal of non-citizens with no right to remain in Australia—in other words, it sought to address the point that is made frequently by members opposite about the time that it takes to reach final conclusions in migration and refugee matters, in particular.

The key mechanism in the judicial review scheme is the privative clause provision at section 474. This greatly expands the legal validity of acts done and decisions made by decision makers.

The amendments to the codes of procedure do not affect in any way the operation of the new judicial review scheme.

In conclusion, these amendments are necessary to restore the parliament's original intention that the Migration Act should contain codes of procedure that allow fair, efficient and legally certain decision making processes that do replace the common law requirement of the natural justice hearing rule.

I commend the bill to the chamber and I table the explanatory memorandum.

Debate (on motion by Ms Ellis) adjourned.