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Tuesday, 11 May 2004
Page: 28292


Mr Murphy asked the Minister representing the Minister for Immigration and Multicultural and Indigenous Affairs, upon notice, on 9 March 2004:

(1) Further to the answer to question No. 2820 (Hansard, 2 March 2004, page 25160) does subsection 474(4) of the Migration Act 1958 apply to decisions to which section 198, 199 and 200 relate, such that (a) decisions to deport unlawful non-citizens (s.198), (b) decisions to deport dependents of deported non-citizens (s.199), and (c) the Minister's decision to exercise discretionary power to order the deportation of non-citizens (s.200), are all privative clause decisions within the meaning of the Act.

(2) Has the Minister considered the policy impacts of the foreshadowed amendments to section 198 and 199 of the Migration Amendment (Duration of Detention) Bill 2004 as it relates to the privative provisions of s. 474.

(3) Does the Explanatory Memorandum for the Migration Amendment (Duration of Detention) Bill 2004 make any reference to policy or other impacts on the proposed amendments to the privative classification of decisions made under sections 198 or 199 of the Act.

(4) Following the reported judgements in Al Masri v MIMIA [2002] FCA 1009, M276/200; Ex parte - Re Woolley & Anor and MIMIA v VFAD, Federal Court decision dated 9 December 2002, what is the policy rationale in maintaining that decisions under sections 198, 199 and 200 remain decisions which are statutorily deemed to be privative clause decisions within the meaning of section 474.

(5) Will the Minister seek to amend subsection 474(4) so that decisions under sections 198, 199 and 200 are not privative clause decisions; if not, why not.


Mr Hardgrave (Minister for Citizenship and Multicultural Affairs and Minister Assisting the Prime Minister) —The Minister for Immigration and Multicultural and Indigenous Affairs has provided the following answer to the honourable member's question:

(1) No. Subsection 474(4) of the Migration Act 1958 does not apply to sections 198, 199 and 200. Decisions or actions made under those sections fall within the definition of privative clause decisions in section 474(2) of the Act.

(2) The Migration (Duration of Detention) Bill 2004 did not propose amendments to sections 198 and 199 of the Migration Act 1958.

(3) No. As there are no proposed amendments to sections 198 or 199 in the Migration (Duration of Detention) Bill 2004, the Explanatory Memorandum does not contain any reference to these sections.

(4) The judgements referred to do not affect the objective of having consistent grounds of judicial review for matters arising under the Migration Act 1958.

(5) For the reasons referred to in (4), no amendments have been introduced to exclude sections 198, 199 and 200 from the operation of the privative clause.