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Wednesday, 26 June 2002
Page: 4411


Mr RANDALL (12:16 PM) —I am pleased to speak today on the Migration Legislation Amendment (Procedural Fairness) Bill 2002 because it goes to serve this House and the courts in a very positive way. The amendment to the Migration Act 1958 is to exclude the common-law rules of procedural fairness, to make it explicit that the procedures set down in the statute are all that decision makers must comply with. I want to give a little bit of background before I go into some further detail. The opportunity to have cases reviewed is set out in the Australian statutes, in Australian law. This is the proper function of judicial review: that they supervise administrative decisions of public officials, whether they be government ministers or officials, and that they examine the laws that we give them. The courts supervise these functions to make sure that the executive does not act ultra vires or, in other words, go beyond its intended power. Such judicial scrutiny is not concerned with the merits of a particular administrative decision but whether it has actually breached the power that it is entitled to.

That sets out where we are heading with this bill about judicial review. We are talking here about judicial review of migration decisions. Judicial review is a constitutionally entrenched mechanism in Australian law, set down by the Commonwealth in 1901 under section 75(v). It was created to simplify remedies and statutory grounds of review et cetera, and the Federal Court has been given the opportunity to examine these matters. But, as other speakers have already alluded to, in terms of the Migration Reform Act 1992, this was a Labor reform.


Ms Gillard —Under a great minister.


Mr RANDALL —We were happy to be quite bipartisan on it, as the shadow spokesman indicates. In fact, I am pleased to see that the opposition have already indicated that in principle they support this bill. There are elements of it that they do not support. The previous member speaking went on a fishing expedition about illegal migrants, but I will try and stick to the bill.

What we are endeavouring to do is to examine the purpose of the bill, which is that of procedural fairness—or, in other words, the natural law of justice—and to see how it applies in terms of migration law. The fact of the matter is that procedural fairness is one of the most frequently evoked grounds upon which judicial review for administrative decisions is sought. The problem with that—and I will go further into this later—is the activism shown by some jurisdictions in the courts in Australia. Notably, the Federal Court of Australia has been a sort of native in the woodpile on this matter, and I will be mentioning a few of those cases shortly. As has been explained—but I must also make sure it is understood in my contribution—the Migration Reform Act 1992 did intend to exclude procedural fairness as a ground of judicial review because of its great opportunity to interpret and its ability to allow certain decision makers in jurisdictions to have a laissez-faire approach to their decisions and to interpret some of their own political activism into the decisions they make.

Gerry Hand said, and I need to reconfirm this, that, under the reforms, decision making processes will be codified. And this is what this bill aims to do: to set out under the common-law parameters of this country exactly what is required of a review before the courts, rather than allow them to wander off into their own little agendas. Judicial review will only be possible after the applicants have pursued all merits review rights or where merit review is not available. Grounds for review will include failure to follow the codified decision making process set out in the act.

As has also been alluded to in this House, there are a number of relevant cases, but one of the main causes that has brought this legislation to the House was the uncertainty that the Aala case and particularly the Miah case created before the High Court of Australia. The five judges sitting there were Gaudron, McHugh, Kirby, Gleeson and Hayne. It was a very close, majority decision, 3-2, that found in favour in the Miah case. The very important point that comes from the Miah case is that basically the High Court was screaming out for some guidance on this matter. Until this case, which was unique, they had consistently ruled against Federal Court decisions, which allowed procedural fairness and the elements of that procedural fairness to be upheld.

It was not until the case of Miah that uncertainty came into the decision. The narrow majority of the court in this case held that the code of procedure relating to visa applications had not clearly and explicitly excluded common-law natural justice requirements. A consequence of this case was that uncertainty arose about the procedure which decision makers are required to follow to make a decision. If the bill is passed—and I believe it will be, given the commitment from the other side—the codification of the bill will exhaustively set out, in clear steps, the processes involved in visa applications and cancellations in the visa decision making process. It is intended that this will make the process of decision making fair, efficient and quick. Apart from general clarification, the clarity, fairness and equity proposals of this amendment are really what both sides of the House and, as it turns out, the legal fraternity, are seeking from this bill.

I want to concentrate on certain matters that have come before the courts in which judicial activism has been painted by individual judges. Coincidentally, today in the Australian newspaper, under the heading of `Death to democracy', an article by Janet Albrechtsen is headlined `Arrogant judges are damaging the rule of law here and in the US'. The article then sets out the detail of who decides what is morally acceptable et cetera in democracies like Australia and the US. As has been alluded to by the member for Wentworth, last week we saw the publication of guidelines aimed at advising judges in Australia on how to avoid political controversies. The member for Wentworth described those guidelines as `a bit of a wet rag' or some similar term. Ms Albrechtsen goes on to say:

If judges genuinely want to avoid political controversy, they'd do well to start with what Scalia said—

Scalia was a judge a case in America where the judges decided that those who were mentally retarded were not subject to the death penalty. In raising this article in the House, I want to raise the point that judicial activism in this country is alive and well, and much of the bill endeavours to stop this behaviour. I refer, for example, to Justice North of the Federal Court in the famous case, which Mr Ruddock has commented on, where Justice North thwarted a premature government plan to deport two Kenyan illegal immigrants. They were already on the plane and in the air on a commercial flight from Sydney to Singapore when North threatened to grant an injunction to stop the plane from leaving Australia. Mr Ruddock was forced to give an undertaking that the government would pay for the Kenyans to return from Singapore on the next available flight to pursue their claims for asylum. This has been used as an example of a case which demonstrates why the ability of the courts to interfere in immigration decisions should be limited.

We were lucky enough to get Justice North off the waiting list in regard to the 1,400 members of the Maritime Union of Australia in the maritime dispute, where he ruled in favour of the Maritime Union; and, on appeal to the High Court, his decision in the Federal Court was overturned. He is also the judge who was involved in the recent immigration case involving the Tampa and the appeal taken by certain people in Melbourne. Again, his decision was appealed to the High Court and the appeal was upheld.

People such as Justice North are the sort of people that we need to address in the codification of the rules, so that the interfering functions of activist members of the judiciary in certain fora of this country are not allowed to continue. There are sources of tension between the parliament and the courts with regard to migration decisions, and the irony lies in the fact that the judicial review of migration decisions is likely to rest with the High Court in most cases—and, as I said, the High Court has called out for greater clarification.

I would like to go to a couple of cases to illustrate the problems we will have, unless we have greater certainty and direction from the codes that will be implemented through this bill, when the courts come into conflict with the decision making process or the migration law of this country. I refer first to the Sarrazola case, which went before the Refugee Review Tribunal and was the subject of proceedings in the Federal Court on two occasions. This was a case where a Colombian who owed an illegal debt of $40,000 to members of the underworld from a drug transaction was murdered. The underground pursued the murdered man's family, and the family fled to Australia. The Colombian government abandoned the family and told them to disappear and resolve the problem for themselves. The Federal Court in Australia upheld the decision to allow them to be granted visas. The case really did not fit the tenor of the migration law as it stood, because they did not belong to a particular social group as required by the convention. They were not ordinary refugees, but the court saw fit to twice uphold their decision.

In another case a Mr Jia had been refused special entry on the grounds that he was not of good character; in fact, he had a criminal record. He sought to come to Australia and the immigration minister exercised his power and decided to cancel his visa. The minister was accused of bias because he had made certain comments in the media about the case and the comments were taken as grounds for appeal. It was patently ridiculous that someone like Mr Jia could be found of good character when he had recent convictions for serious crimes, and it really did go to Australia's ability to maintain a proper migration system when, on character grounds, for example, the minister could not proceed with the law as it stood. The minister was accused of bias, and the Federal Court upheld the appeal by Mr Jia, but—and here is the rub—the High Court overturned the finding by a majority of four to one and rejected the application under the Australian Constitution.

In the Cassim case, Justice McHugh rejected an argument that the Refugee Review Tribunal had denied an applicant natural justice because the action prevented him from being properly and adequately advised and represented at the hearing. The relevant subsection states that a person appearing before the tribunal is not entitled to be represented or to examine or cross-examine witnesses. His Honour held that the common law rules of natural justice cannot prevail against legislative declaration.

The case of Eshetu involved the 1992 Migration Act, which was amended to provide that it was not grounds for judicial review by the Federal Court of decisions of the Refugee Review Tribunal that there was a breach of natural justice which had occurred in connection with the making of decisions if the decision involved was an exercise of power that was so unreasonable that no reasonable person could have exercised the power. The same amendment rendered immune from judicial review in the Federal Court a decision of the Refugee Review Tribunal which was made in bad faith. This caused Sackville J, the judge of first instance in Eshetu v. Minister for Immigration, to say:

... so zealously does the Australian Parliament desire to implement its United Nations Treaty obligations to assist refugees that it has enacted legislation specifically to ensure that it is acceptable for a decision on refugee status to be made ... which not merely denies natural justice to an applicant but also is so unreasonable that no reasonable decision-maker could ever have made it.

The Full Bench of the Federal Court subsequently decided that, because natural justice was a basic common law right and should not be taken to be excluded without the words `natural justice', it could be grounds for review because the tribunal had not observed procedures in connection with the making of its decision which the act required be observed, it being a requirement of the legislation that the tribunal act in accordance with the substantial justice and merits of the case. On appeal to the High Court, however, the decision of the Federal Court was overturned. The High Court found that the legislation excluded the jurisdiction of the Federal Court to set aside a decision of the Refugee Review Tribunal which had denied an applicant procedural fairness or was so unreasonable that no reasonable decision maker could arrive at it. These are cases which outline the fact that judicial activism in the Federal Court in particular needs to be tidied up by giving greater direction and codification in law. (Time expired)