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Wednesday, 26 September 2001
Page: 31472


Mr McCLELLAND (11:32 AM) —The opposition will not be opposing the second reading of the Jurisdiction of the Federal Magistrates Service Legislation Amendment Bill 2001, but I will move a second reading amendment, which I understand will now be circulated, towards the conclusion of my remarks in this debate.

Essentially, this bill amends several acts with the purpose of giving that jurisdiction which is currently exercised by the Federal Court of Australia to the Federal Magistrates Service. The opposition agrees that that is appropriate. It is in the specific area of migration law. We agree with the government that the Federal Magistrates Service has the capability to deal with these sorts of matters. Indeed, in many ways it is probably a more appropriate forum than the Federal Court of Australia. From my experience and from communication with practitioners and members of the judiciary, quite frequently in this area of migration law there will be self-represented litigants. The greater formalities that exist in the Federal Court make such self-representation more difficult and cumbersome, whereas the more informal procedure which has been adopted by the Federal Magistrates Service probably lends itself more to the nature of this litigation involving migration cases.

As will be reflected in my second reading amendment, the Australian Labor Party submitted to the Minister for Immigration and Multicultural Affairs last week propositions which, rather than giving the Federal Magistrates Service concurrent jurisdiction, would have transferred the jurisdiction currently exercised by the Federal Court to the Federal Magistrates Service. Indeed, our proposals would have gone further by facilitating the High Court of Australia remitting down to the Federal Magistrates Service those matters which inevitably come before it, and which we believe will still come before it, despite several pieces of legislation which the government will be proceeding with, including later today the Migration Legislation Amendment (Judicial Review) Bill 1998 [2001].

The legislation currently before the House as proposed by the government is in a bit of a hiatus because it does not have regard to the prospect of the Migration Legislation Amendment (Judicial Review) Bill being passed. We see reflected in the Federal Magistrates Service legislation which we are debating now an acknowledgment that the Federal Magistrates Service will be exercising jurisdiction which includes the ability to make interim orders in migration decisions and the ability to suspend or revoke migration decisions, which are areas currently exercised by the Federal Court under part 8 of the Migration Act. As a result of the judicial review bill which will be going through the House today, and probably tomorrow, the government is seeking to significantly curtail the right of review of migration decisions. What I have just said is a long-winded way of saying that I understand that the government will be further amending this legislation at a later stage to have regard to the judicial review bill amendments and, in particular, the fact that they are attempting in that legislation to restrict further the right of review in respect of migration matters.

There are some points that need to be put on the record with respect to giving concurrent jurisdiction to the Federal Magistrates Service. In terms of the financial impact, the following statement appears on the first page of the explanatory memorandum:

The Federal Magistrates Service has some spare capacity to undertake the additional jurisdiction and any additional resources required would be moved from the Federal Court to the Federal Magistrates Service to reflect the fact that workload will move from the Court to the Service.

The assertion that there is spare capacity in the Federal Magistrates Service is the subject of question. I received a copy of a letter dated 27 August 2001 from the President of the Law Society of New South Wales, who expressed concern that the Federal Magistrates Service, because of the extensive workload it is receiving in the cities, is just not able to facilitate country circuit work. Certainly, my observation is that the Federal Magistrates Service is not able to get out on circuit on anything other than a tokenistic level. There is no doubt that rural and regional Australia are suffering as a result, particularly in circumstances where the resources of the Family Court were wound back to facilitate, or provide at least part of the funding for, the Federal Magistrates Service. We have effectively seen the Family Court wound back from rural and regional Australia, but that void has not been filled to anything near an acceptable level by the Federal Magistrates Service, because of resourcing issues. With respect to those who prepare the explanatory memorandum, the bland assertion that the Federal Magistrates Service has spare capacity is an overstatement. It is certainly not a reflection of the views of the Law Society of New South Wales, who wrote this letter to the Attorney-General, and copied it to me, in good faith. The letter talked about persons living in rural and regional Australia having access to justice.

I note that the Attorney-General, in his second reading speech—I may be wrong, but certainly in one of the documents he provided—acknowledged that the migration work undertaken by the Federal Magistrates Service will primarily be undertaken in Sydney and Melbourne. So, again, any additional resources that may come through the pipeline from the Federal Court of Australia to the Federal Magistrates Service will be, I think the government will concede, focused on the cities as opposed to the regions. I underline the point that we are talking about giving additional jurisdiction—albeit concurrent jurisdiction—to the Federal Magistrates Service, but that in itself will, in all probability, impede its ability to do what is expected of it, which is to get a more accessible line of justice to people living in rural and regional Australia. It comes to a question of what resources the government is prepared to put into giving people who live in rural and regional Australia access to justice.

In terms of addressing the issues in this bill, we acknowledge the appropriateness of the concurrent jurisdiction, but my comments are designed to put before the government and the House the view that the answers they have proposed in this legislation and in the judicial review bill, to which I earlier referred, do not hold anywhere near all the answers to what is a very complex question.

We all agree—and fair-minded Australians acknowledge—that there are just too many migration appeals, and too many taking too long. Particularly for asylum seekers, that delay causes considerable hardship if they are detained; it causes considerable expense for the public purse; and it can often and in many ways be cruel to persons who are seeking asylum status. Very few of these cases are ultimately successful—I think something like one per cent of challenges to migration decisions are successful—and the mere facts of delay and of people remaining in Australia often contribute to the development of false expectations that they will be able to stay here. When those expectations have not been met, there have, regrettably, been some instances which have manifested in violence or at least in significant protest. This is because of the build-up of their frustration and their feeling that they have been let down after such a long period of time.

We acknowledge that that is a problem and we acknowledge that something needs to be done about it. Indeed, it is fair to say that we put our pen where our mouth is by putting to the government the propositions we believe will more satisfactorily and sustainably address these problems. For instance, the bill before us, in combination with the judicial review bill, will not address the problem of the backlog of cases. It is my understanding that there are currently about 1,600 applications before the Federal Court of Australia with respect to migration matters and I understand that there are currently about 150 cases before the High Court—not all cases in either court are with respect to asylum seekers or to people necessarily detained, but a fair percentage of them are. My figures may be out a bit—and the government obviously is possessed with that information—but that is my understanding. So there are already significant judicial resources of a sophisticated kind, namely Federal Court judge time and High Court judge time, being taken up with what are, effectively, first instance matters.

That backlog will not be addressed by this legislation to any great extent, given the figures I have put to you. The Federal Magistrates Service simply does not have that excess capacity—or anything like a sufficient excess capacity—to start churning through these matters, which is of concern. In other words, the delay that is already in the system will continue, in our opinion, virtually unchanged. That is of concern because of the hardship that is caused by that delay. Neither this bill nor the Migration Legislation Amendment (Judicial Review) Bill 1998 [2001] will enable the High Court of Australia to remit down to the lower level Federal Court those 150-odd matters that are currently before it. The fact that the High Court of Australia is deciding these migration matters instead of functioning as the highest court in the land, dealing with matters of significant constitutional significance and the like, has been the subject of judicial comment—indeed, very severe comment—that it is quite inappropriate for the High Court of Australia to deal with these matters. Anyone who is looking at the logical use of resources would have to agree with those concerns about the High Court of Australia. These two bills will not do anything to relieve the High Court from its existing burden.

I believe that a number of these cases are before the courts because of inappropriate advice by the Department of Immigration and Multicultural Affairs. Certainly, from correspondence from constituents that I have seen in my electorate office, the department has advised people, after a decision has been made, that they have a right of appeal to the Federal Court of Australia. Unless the department's pro-forma correspondence has been changed, the correspondence that I have seen did not indicate that people's rights of review are limited to some very narrow points, as set out in part 8 of the Migration Act. Indeed, part 8 of the Migration Act was legislation of the former government. We have seen people commence appeals or challenge administrative decisions on the false expectation that, after the Refugee Review Tribunal stage or the Migration Review Tribunal stage, the rights of appeal are at large, that is, considering merits and legal issues, which is not the case. There are very limited grounds of appeal, which are successful in about one per cent of cases. If more effort were made to communicate the narrowness of those rights to people who are the subject of these decisions, I believe there would be fewer appeals going forward. I make that comment for relevant public servants to take on board.

It must be acknowledged that the government have said that the Migration Legislation Amendment (Judicial Review) Bill 1998 [2001] will address the number of these cases coming forward by cutting off a right of appeal in all but defined reviewable decisions. It seeks to do that by introducing a privative clause, which effectively asserts that a decision of the Refugee Review Tribunal or the Migration Review Tribunal cannot be challenged; it is valid for all purposes. Elevating that decision, through legislation, to be unchallengeable raises significant questions as to how such a statement or such legislation by the parliament sits in conformity with our Constitution. Section 75 of the Constitution gives the High Court of Australia the right to review administrative decisions taken by officers of the Commonwealth; that is, the High Court has the power to give customary and ancient relief of mandamus injunction and certiorari to set aside decisions or compel decision makers to make their decisions according to law.

The minister for immigration has referred to several cases where the High Court has upheld these privative clauses as negating a right of review against administrative decisions. With respect to the minister, he has overstated the effect of those decisions. Indeed, the primary cases I have studied in this area—the cases of Hickman, Coldham, Darling Harbour Casino, and a taxation matter between the Deputy Commissioner of Taxation and Richard Walter—refer to earlier precedents. But, with respect, the minister has overstated their significance in terms of the privative clause that the government is proposing. In particular, the privative clause in the judicial review bill says that the decisions made by the Refugee Review Tribunal and the Migration Review Tribunal are final and conclusive and cannot be challenged. That is significantly more severe than the privative clauses concerned in those cases to which I have referred. Moreover, those cases have not concerned fundamental freedoms.

The minister, by implication, has acknowledged these arguments. I recall that he said in question time, `If you assert that there are prospects that these will be set aside by the High Court, don't let that stop you from passing the legislation; let the court decide if it is invalid.' With respect, that is not an appropriate way for the minister to fulfil his role, because the mere fact that there will inevitably be High Court challenges to decisions in this area will cause delay and, in all probability, a backlog while those cases are being determined. For instance, it cannot be asserted that the Hickman principle, which the minister has referred to in his response to questions, obliterates any and every right of review. For example, in the Deputy Commissioner of Taxation case that I referred to, the High Court, when referring to the Hickman principle—that is, that you can elevate the status of an administrative decision to make it withstand challenge—said two things. It said that it is a rule of construction as to how you look at that clause and, second, that the decision—that is, the original decision— must be a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation and that it is reasonably capable of reference to the power given to that body.

So there are three issues that stand available to challenge, notwithstanding the government's application of this Hickman principle—that is, that privative clauses can oust review. What I am saying is that, by restricting the right of review even further than currently exists in part 8, the government should be frank and acknowledge that what will inevitably be the case is that there will be applications made to the High Court under, at the very least, these three grounds acknowledged in Hickman as being reviewable by the courts. I suppose the government will argue that they have gone even further than Hickman by saying that the decisions of the Migration Review Tribunal and the Refugee Review Tribunal are absolute and conclusive; therefore, they have obliterated these three remaining potential avenues of review that the High Court has acknowledged will remain even after application of the Hickman principle. That is not sustainable logic. But if their logic is correct, then they jump into another area of challenge, and that is that the parliament has breached the separation of powers doctrine—that is, it has purported to immunise itself from scrutiny of chapter 3 courts under our Constitution.

This was an issue which former Chief Justice Brennan raised in the High Court case, the Minister for Immigration and Multicultural Affairs ex parte Ervin, in 1997. In response to the argument that the migration review avenue could be quashed or nullified by a privative clause, His Honour said in response to the advocate in that case:

... if you wish to maintain that view, no doubt it can be submitted to a Full Bench to consider it. For my part, it is a proposition which I regard as completely inconsistent with the notion of judicial review for it would isolate the Executive from judicial control in respect of acts done which are unlawful, and that cannot be, surely, the intention that one would either attribute to the Constitution or to the Parliament.

The government has not been frank in acknowledging that there is substantial doubt that its privative clause will be upheld, firstly, because it is dealing with an issue of individual rights. I think it is fair to say that most Australian people do not particularly want people seeking asylum in Australia to claim rights. But the reality is that even the government concedes that they do have a right to have their asylum seeking application considered. That being the case, they do enliven the question as to what powers the Commonwealth has to immunise administrative decisions from all forms of judicial review—that is, review of the decisions made by the Commonwealth officer to ensure that they have been made in compliance with the law. In not being frank about those doubts, in not tabling advice regarding those doubts, the government is creating the false impression for the Australian people that the government is cutting out rights to people seeking asylum status. Where the government has been deceitful in that respect is that, on all the authorities, it cannot completely obliterate those rights. It should acknowledge that.

For that reason, what we proposed to the government was to effectively create one tier of review in the Federal Magistrates Service—that is, the jurisdiction of the Federal Court being shifted to the Magistrates Service and the High Court having the ability to remit down to the Magistrates Service applications that were made directly to the High Court of Australia, effectively creating, if you like, a one-stop judicial shop for review. We thought that would be far more likely to withstand constitutional challenge, because it gave at least one tier of judicial review. It would have been done cheaply and efficiently and would have avoided what we anticipate will be even more cases going to the High Court, with the avenue of appeals to the Federal Court and Federal Magistrates Service being cut off by the judicial review legislation. It is inevitable that there will be an increase in the flow of matters going to the High Court of Australia.

I think the government should acknowledge that. I think they should acknowledge that the legislation they have before the House has not addressed that issue, and that our High Court inevitably, because of the approach taken by the government, will be increasingly burdened by the number of cases before it. Again, this is a misallocation of resources. It will delay how long it will take for these cases to be processed and, again, there will be a backlog in cases while these issues are determined in the High Court of Australia.

The other area where the government has failed to address a significant problem—and it is not the whole problem, we acknowledge—is the practice on the part of some migration agents and some lawyers to use applications for review of migration decisions for the purpose of delaying the application of decisions. Nothing the government has proposed will act as a disincentive to that practice, albeit that a limited number of unscrupulous practitioners engage in that practice. Again we call the government's attention to what we have proposed in that respect.

In concluding, I now move an opposition second reading amendment to this bill:

That all words after “That” be omitted with a view to substituting the following words:

“whilst not declining to give the Bill a second reading, the House:

(1) expresses its concern that recent amendments to the system of judicial review under the Migration Act 1958 that have attempted to exclude the original jurisdiction of the High Court may be found to be unconstitutional or ineffectual;

(2) observes that the Government is yet to table its legal advice which confirms the constitutionality or efficacy of these measures;

(3) expresses its concern that the amendments may actually increase the number of migration decisions challenged in the High Court which will further delay the processing of migration cases and result in a further drain on our legal system;

(4) expresses its concern that the Government has not addressed the issue of vexatious or unwarranted proceedings being commenced as a tactical delay to the implementation of migration decisions;

(5) notes that the Opposition provided to the Minister for Immigration and Multicultural Affairs an alternative proposal to provide a fair but speedy form of judicial review in the form of a `one stop shop' at the Federal Magistrates level; and

(6) expresses its disappointment that the Government has not provided a more constructive response to that proposal”.


Mr DEPUTY SPEAKER (Mr Hollis)— Is the amendment seconded?


Mr Fitzgibbon —I second the amendment and reserve my right to speak.


Mr McCLELLAND —This amendment, which will be included in the Hansard, summarises why we think the government have been short-sighted; it summarises, indeed, why we think they are trying to make a political statement that they are tough on migrants. In actual fact they have left themselves exposed to even more cases going to the High Court of Australia and even more delay. (Time expired)