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Migration Legislation Amendment Bill (No. 1) 2001

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1998 - 1999 - 2000 - 2001

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

SENATE

 

 

 

 

 

 

MIGRATION LEGISLATION AMENDMENT BILL (NO. 1) 2001

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

(Government)

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the

Minister for Immigration and Multicultural Affairs,

the Hon. Philip Ruddock MP)



 

MIGRATION LEGISLATION AMENDMENT BILL (No. 1) 2001

 

OUTLINE

 

1.       The purpose of these amendments is to ensure that consolidation of proceedings in migration litigation may take place where the Court considers it necessary in the interests of the efficient conduct of migration proceedings.  This would not have been permitted under new section 486B, which is to be inserted into the Migration Act 1958 (“the Migration Act”) by the Migration Legislation Amendment Bill (No. 1) 2001 (“the Bill”), as originally proposed. 

 

2.       The amendments are in response to concerns that there are instances when, rather than delaying the resolution of an applicant’s migration status, the ability to consolidate proceedings would expedite proceedings and the resolution of an applicant’s status.

 

3.       The amendments are consistent with the original policy intention behind the Bill as consolidation of proceedings is only to be available where a person has initially made an individual application to the Court.  This will ensure that the decision to consolidate proceedings remains in the control of the Court.  The amendment enables Courts to consolidate matters that deal with common legal issues where it is desirable for the efficient conduct of those proceedings.

 

4.       The amendments do not permit the joinder or the addition of parties to an existing action before the Courts, which further reinforces the Government’s policy intention of prohibiting representative or class actions in migration matters.

 

5.       The amendments also clarify that the time limit in proposed section 486A of the Migration Act applies only where actual notification of a relevant decision has taken place.  This amendment does not alter the original policy intention regarding notification, which was originally intended to be made clear in the Migration Regulations 1994 (“the Regulations”).

 

6.       However, as a consequence of the commencement of the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (“the Electronic Transactions Act”), it is now necessary to make a consequential amendment to Bill.  This is because the Electronic Transactions Act provides for the deemed receipt of decisions. This consequential amendment to the Bill will ensure there is no ambiguity.

 



 

MIGRATION LEGISLATION AMENDMENT BILL (No. 1) 2001

 

NOTES ON AMENDMENTS

 

Amendment (1)           

 

7.       This amendment omits and substitutes words in item 4 of Schedule 1 to the Bill.  

 

8.       That item inserts new section 486A, which provides a 35 day time limit for making certain applications to the High Court.  As presently drafted the 35 day period commences on “notification” of the decision to which the application relates.

 

9.       This amendment ensures that the time limit commences only upon the person receiving actual notification of the decision.  This amendment does not alter the original policy intention regarding notification, which was originally intended to be made clear in the Regulations.

 

10.   However, as a consequence of the commencement of the Electronic Transactions Act, it is now necessary to make a consequential amendment to Bill.  This is because that Actinserted “deemed receipt” provisions (sections 379C, 441C and 494C) into the Migration Act.  This consequential amendment to the Bill will ensure there is no ambiguity as to the notification required to trigger the commencement of the 35 day period.

 

Amendment (2)

 

11.   This amendment omits and substitutes new section 486B in item 6 of Schedule 1 to the Bill.

 

12.   New section 486B sets out the rules for multiple parties in proceedings in the High Court and Federal Court that raise an issue in connection with visas, deportation, or removal of unlawful non-citizens.  The section prohibits representative or class actions, and the joinder of plaintiffs or applicants, subject to certain exceptions. 

 

13.   As substituted by this amendment, new section 486B allows for the consolidation of migration proceedings, where the Court is satisfied that the consolidation:

 

·         would otherwise be permitted under other relevant laws (such as the Rules of Court); and

·         is desirable for the efficient conduct of the proceedings.

 

14.   This recognises the desirability of consolidating proceedings in appropriate cases for the efficient disposition of the litigation by the Courts.  Consolidating proceedings is available where there are several proceedings pending before the Court.  The exception does not extend to other concepts such as joinder or addition of parties in which parties can be included or added to proceedings without needing to have previously lodged an individual action before the Court. 

 

15.   The substituted section 486B expressly prohibits the addition of parties to migration proceedings. The substituted section 486B makes manifestly clear the original policy intention that the addition of parties to migration proceedings is not permitted.

 

Amendment (3)

 

16.   This amendment makes a technical change to item 11 of Schedule 1, consequential to the omission and substitution of new section 486B by amendment (2) above.