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Thursday, 27 September 2001
Page: 28144

Senator BOLKUS (10:00 AM) —I seek leave to incorporate my speech in Hansard.

Leave granted.

The speech read as follows—

The Jurisdiction of the Federal Magistrates Service Legislation Amendment Bill 2001 will amend the Migration Act 1958 to give jurisdiction to the Federal Magistrates Service in matters under Part 8 of the Migration Act.

This jurisdiction will be concurrent with the jurisdiction of the Federal Court.

The bill will also remove the restrictions on the Federal Magistrates Service hearing migration matters under the ADJR Act and hearing appeals in relation to migration matters under the AAT Act.

The Government has stated that many migration matters are of a routine nature and would be suitable for the Service.

In considering this bill it is necessary to make reference to the system for migration and refugee appeals as a whole—which this bill seeks to further modify.

Current system of migration and refugee appeals

The current system is under pressure because of the lengthy delays that occur in determining refugee matters. Generally, unsuccessful applicants for asylum pursue every avenue of appeal. This means that those people who have not made out genuine claims of asylum can spend very long periods—sometimes years—in detention, prior to being deported back to their country of origin. These lengthy periods cause great psychological and physical pressures.

Litigation costs stemming from the defence by the Department of Immigration of appeals lodged in the Federal and High Courts and the Administrative Appeals Tribunal by applicants in migration and refugee matters have now reached $15m per annum. The costs (some $104 per person, per day) associated with maintaining asylum seekers in detention who use the appeals process also places a heavy financial burden on the Commonwealth.

Accordingly, not only is it in the national interest but also in the interest of those people who claim refugee status, that applications and appeals should be dealt with as fairly and as quickly as possible.

Currently, determinations of refugee status are made by a delegate of the Minister for Immigration. Where the person is determined not to be a refugee, an application is then made for review of that decision to the Refugee Review Tribunal (RRT). Unsuccessful applicants then have two avenues of further appeal.

The first avenue of appeal is to the Federal Court under a restricted range of grounds specified in Part 8 of the Migration Act. An appeal from the decision of the Federal Court can then be lodged with the Full Court of the Federal Court. An application for special leave to appeal to the High Court can also be made.

The second avenue is directly to the High Court under section 75(v) of the Constitution—known as the “original jurisdiction” of the High Court. In practice, applicants usually choose one of these avenues, but not both.

The Migration Act currently prohibits the High Court remitting refugee matters to any other court for review. This means that the judges of the High Court must themselves sit in judgment on matters involving applications for refugee status.

This is placing enormous pressure on High Court judges who now spend considerable time hearing these low-level migration matters rather than attending to the proper business of the Court as the nation's highest court of appeal, namely Constitutional issues, the application of the general criminal law and the ever-burgeoning complexity of commerce related legislation.

Judicial Review Bill

This week the Senate passed [will pass] the Migration (Judicial Review) Bill 1999.

Its effect will be to abolish all avenues of judicial review of decisions made by the Migration Review Tribunal and Refugee Review Tribunal. It seeks to achieve this by enacting a “privative clause” which would have the effect of severely limiting the types of appeals which can be heard by the Federal Court and the High Court.

There is substantial legal opinion that the attempt to exclude the jurisdiction of the High Court in migration matters would be unconstitutional. This is because there is an explicit guarantee in the Constitution that the High Court has authority to hear applications for judicial review.

While a Constitutional challenge to the bill is likely, Labor has agreed to pass the bill so that the matter will be able to be tested. In the event that the High Court rules that the “privative clause” is not consistent with the Constitution, a Labor government would consider the position again at that time.

This Bill

This bill confers jurisdiction on the Federal Magistrates Court to hear appeals under the Migration Act.

With the passage of the Judicial Review Bill, this bill has only limited effect.

This legislation will give the Federal Magistrates Court concurrent jurisdiction to hear appeals with the Federal Court on those few migration matters which will continue to be appealable.

One problem with the legislation, despite the government's professed goal of reducing layers of appeal, this bill will actually introduce an extra layer of appeal. Applicants who choose the Federal Magistrates Court to hear their case will then be automatically entitled to a further appeal to the Federal Court.

Essentially, this will create more opportunities for unsuccessful applicants to delay the resolution of their cases by introducing yet another layer of appeal.

For these reasons, Labor remains skeptical that the measures introduced by the government will have a positive effect on addressing the backlogs in the resolution of migration matters.

We put to the Minister for Immigration an alternative proposal—in the form of amendments to the Judicial Review legislation—which we believe would have been far more effective.

A “One Stop Shop” for judicial review of migration and refugee applications

Labor's amendments would have provided for fair and expeditious review of applications while discouraging the bringing of applications which have no merit.

Labor's amendments would have retained judicial review, but only allow applicants a single opportunity for judicial review in the Federal Magistrates Court. There would be no right of appeal from a decision of a Federal Magistrate.

The amendments also gave the FMC jurisdiction to hear those matters which currently can only be heard by High Court because the High Court is prohibited from remitting those matters to other courts.

Some applicants would elect to seek a review of the decision of the Migration Review Tribunal or Refugee Review Tribunal in the original jurisdiction of the High Court—as is presently the case. However, Labor's amendments would have allowed the High Court to send those directly cases to the Federal Magistrates Court for a decision.

It is envisaged that the High Court would refer all but the most exceptional cases to the Federal Magistrates Court so that, either way, the matter will be heard in the Federal Magistrates Court and dealt with fairly and quickly.

Labor's amendments also introduced new rules designed to discourage lawyers and migration agents from encouraging applicants to make appeals which have no reasonable prospect of success.

These rules would allow a court to impose a personal costs order of up to $5000 on an adviser who encourages a person to make an appeal which has no reasonable prospects of success. Body corporates will be liable for a fine of $10000.

This measure was designed to discourage advisers from exploiting applicants by urging them to take up appeals which, while without foundation, result in considerable further delay, expense and create unreasonable expectations of remaining in Australia.

The Minister rejected these suggestions, which Labor put forward in a spirit of bipartisanship.


The bill which is before us—the Jurisdiction of the Federal Magistrates Service Legislation Amendment Bill 2001—only has a limited effect.

It invests the Federal Magistrates Court with a jurisdiction co-extensive with the Federal Court in a very limited range of migration matters.

Labor agrees that there will be cases currently heard by the Federal Court which can appropriately be dealt with at the Federal Magistrates level.

Labor supports the passage of the bill.

Question resolved in the affirmative.

Bill read a second time.