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Migration Legislation Amendment (Procedural Fairness) Bill 2001

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1998 - 1999 - 2000 - 2001

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

MIGRATION LEGISLATION AMENDMENT (PROCEDURAL FAIRNESS) BILL 2001

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the

Minister for Immigration and Multicultural Affairs,

The Hon. Philip Ruddock MP)

 

 

 

MIGRATION LEGISLATION AMENDMENT (PROCEDURAL FAIRNESS) BILL 2001

 

OUTLINE

 

1.              The purpose of the Migration Legislation Amendment (Procedural Fairness) Bill 2001 (“the Bill”) is to restore one of the main intentions behind having exhaustive codes of procedure in the Migration Act 1958 (“the Act”) for making decisions about visas.

 

2.              The original intention of the amendments enacted by the Migration Reform Act 1992 , which introduced codes of procedure for making decisions about visas, was to eliminate the legal uncertainties that flow from the uncodified common law principles of natural justice or procedural fairness, while retaining fair, efficient and legally certain decision-making procedures.

 

3.              The intention was that compliance with the codes of procedure was all that was legally required by decision-makers in relation to the decision-making process, and that the common law natural justice hearing rule was excluded.

 

4.              The High Court in the case of Re MIMA; Ex parte Miah [2001] HCA 22 found, by a narrow majority, that the code of procedure for dealing fairly, efficiently and quickly with visa applications in Subdivision AB, Division 3, Part 2 of the Act, did not exclude common law natural justice or procedural fairness requirements.  The majority considered that such exclusion would require a clear legislative intention and there was no such clear intention in the Act.

 

5.              The purpose of this Bill is to provide the clear legislative intention that the codes the Bill specifies are taken to be an exhaustive statement of the common law requirements of the natural justice ‘hearing rule’.

 

6.              The amendments affect the codes of procedure contained in the Act for handling:

 

·      visa applications;

·      visa cancellations under sections 109 and 116 of the Act;

·      revocations of visa cancellations without notice under section 128 of the Act; and

·      the conduct of reviews by the relevant merits review tribunals.

 

7.              The intention of the amendments is to make it clear that the Act exhaustively states the common law requirements of the natural justice ‘hearing rule’ for these matters.

 

FINANCIAL IMPACT STATEMENT

 

These amendments will have minimal direct financial impact.

MIGRATION LEGISLATION AMENDMENT (PROCEDURAL FAIRNESS) BILL 2001

 

NOTES ON INDIVIDUAL CLAUSES

 

Clause 1          Short title

 

1.              The short title by which this Act may be cited is the Migration Legislation Amendment (Procedural Fairness) Act 2001 .

 

Clause 2          Commencement

 

2.              Subclause (1) provides that sections 1 to 3 and items 1 to 4 and 9 of Schedule 1 commence on the day after the day on which it receives the Royal Assent.

 

3.              Subclause (2) provides that items 5 to 8 and 10 to 12 of Schedule 1 commence as follows:

 

·        if Parts 4 to 10 of the Administrative Review Tribunal Act 2001 have not commenced before the day after the day on which this Act receives the Royal Assent:

-          items 5, 8 and 10 commence on the day after the day on which this Act receives the Royal Assent;

-          items 6 and 11 do not commence at all;

-          items 7 and 12 commence immediately after the commencement of Parts 4 to 10 of the Administrative Review Tribunal Act 2001 .

·        otherwise:

-          items 6 and 11 commence on the day after the day on which this Act receives the Royal Assent;

-          items 5, 7, 8, 10 and 12 do not commence at all.

 

Clause 3          Schedule(s)

 

4.              This clause provides that each Act specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned.  In addition, any other item in a Schedule to this Act has effect according to its terms.

 

SCHEDULE 1 - Amendments

 

Migration Act 1958

 

Item 1                         Before section 52

 

5.              This item inserts new section 51A at the beginning of Subdivision AB of Division 3 of Part 2 of the Act.

 

Section 51A      Exhaustive statement of natural justice hearing rule

 

6.              New section 51A provides that Subdivision AB and sections 494A to 494D are taken to be an exhaustive statement of the requirements of the natural justice ‘hearing rule’ in relation to the matters dealt with in Subdivision AB.

 

7.              Subdivision AB sets out the code of procedure for dealing fairly, efficiently and quickly with visa applications.  It was originally intended to exhaustively replace the common law natural justice or procedural fairness requirements, other than the rule against bias, that had previously applied to visa decision-makers.

 

8.              Sections 494A to 494D set out how the Minister is to provide documents to a person, and provide for deemed receipt of documents sent by the Minister in certain circumstances.

 

9.              The High Court in the case of Re MIMA; Ex parte Miah [2001] HCA 22 found that the code of procedure for dealing with visa applications in Subdivision AB of Division 3 of Part 2 of the Act, did not exclude common law natural justice or procedural fairness requirements.  The majority considered that such exclusion would require a clear legislative intention and there was no such clear intention in the Act.

 

10.          The purpose of this amendment, and the other similar amendments, is to provide that clear legislative intention that the codes specified in the Bill are taken to be an exhaustive statement of the requirements of the natural justice or procedural fairness ‘hearing rule’.

 

11.          New section 51A is intended to make clear that Subdivision AB and sections 494A to 494D are an exhaustive statement of the common law requirements of the natural justice or procedural fairness ‘hearing rule’ for considering and deciding visa applications at the primary decision making stage. 

 

Item 2               After section 97

 

12.          This item inserts new section 97A into Subdivision C of Division 3 of Part 2 of the Act.

 

Section 97A      Exhaustive statement of natural justice hearing rule

 

13.          The purpose of this amendment is to provide that Subdivision C of Division 3 of Part 2 and sections 494A to 494D of the Act are taken to be an exhaustive statement of the requirements of the natural justice or procedural fairness ‘hearing rule’ in relation to the matters dealt with in Subdivision C.

 

14.          Subdivision C provides a power, in section 109, to cancel a visa on the basis of incorrect information.  It also contains the procedure to be followed in exercising that power.

 

Item 3               Before section 119

 

15.          This item inserts new section 118A at the beginning of Subdivision E of Division 3 of Part 2 of the Act.

 

Section 118A    Exhaustive statement of natural justice hearing rule

 

16.          The purpose of this amendment is to provide that Subdivision E of Division 3 of Part 2 and sections 494A to 494D of the Act are taken to be an exhaustive statement of the requirements of the natural justice or procedural fairness ‘hearing rule’ in relation to the matters dealt with in Subdivision E.

 

17.          Subdivision E sets out the code of procedure for cancelling visas under section 116 of the Act. Section 116 provides that the Minister may cancel a visa if certain grounds exist.

 

18.          New section 118A is intended to make clear that Subdivision E and sections 494A to 494D exhaustively state the ‘hearing rule’ of natural justice or procedural fairness, for considering and deciding whether to cancel a visa under section 116.

 

Item 4               Before section 128

 

19.          This item inserts new section 127A at the beginning of Subdivision F of Division 3 of Part 2 of the Act. 

 

Section 127A    Exhaustive statement of natural justice hearing rule

 

20.          New section 127A provides that Subdivision F of Division 3 of Part 2 and sections 494A to 494D of the Act are taken to be an exhaustive statement of the requirements of the natural justice ‘hearing rule’ in relation to the matters dealt with in Subdivision F.

 

21.          Subdivision F allows for visas to be cancelled without notice in certain circumstances, and provides for the revocation of such a cancellation.  It also sets out the procedure for considering and deciding whether to revoke the cancellation.

 

22.          New section 127A is intended to make clear that Subdivision F and sections 494A to 494D exhaustively state the ‘hearing rule’ of natural justice or procedural fairness, for considering and deciding whether to revoke a visa cancellation under Subdivision F.

 



Item 5               Before section 358

 

23.          This item inserts new section 357A at the beginning of Division 5 of Part 5 of the Act.

 

Section 357A    Exhaustive statement of natural justice hearing rule

 

24.          The purpose of this amendment is to provide clear legislative intention that Divisions 5 and 8A of Part 5, and sections 375 to 376 of the Act are taken to be an exhaustive statement of the requirements of the natural justice or procedural fairness ‘hearing rule’ in relation to the matters dealt with in Part 5.

 

25.          Division 5 sets out how the Migration Review Tribunal goes about conducting its reviews.  Division 8A sets out how the Tribunal is to provide documents to persons, and provides for deemed receipt of documents in certain circumstances.  Sections 375 to 376 deal with the disclosure of confidential information.

 

26.          New section 357A is intended to make clear that Divisions 5 and 8A, and sections 375 to 376 are taken to be an exhaustive statement of the requirements of the natural justice or procedural fairness ‘hearing rule’ in relation to a review conducted by the Migration Review Tribunal.

 

Item 6               Before section 359

 

27.          This item inserts new section 358 in Division 5 of Part 5.  The item commences only if Parts 4 to 10 of the Administrative Review Tribunal Act 2001 (“the ART Act”) commence before the day after the day on which this Bill receives the Royal Assent.

 

Section 358       Exhaustive statement of natural justice hearing rule

 

28.          Current section 358 would be repealed by the ART Act.

 

29.          New section 358 provides that Divisions 5 and 9 of Part 5, and sections 375, 375A and 376 of the Act are taken to be an exhaustive statement of the requirements of the natural justice or procedural fairness ‘hearing rule’ in relation to the matters dealt with in Part 5 in respect of the review by the Tribunal of reviewable general visa decisions or reviewable protection visa decisions.

 

30.          If Parts 4 to 10 of the ART Act commence before the day after the day on which this Bill receives the Royal Assent, Division 5 will set out how the Administrative Review Tribunal goes about conducting its reviews. 

 

31.          Division 5 is intended to exhaustively define the common law natural justice or procedural fairness requirements in respect of the ‘hearing rule’ that would otherwise apply to the Tribunal.  Division 9 sets out how the Tribunal is to provide documents to persons, and provides for deemed receipt of documents in certain circumstances.  Sections 375, 375A and 376 deal with the disclosure of confidential information.

 

32.          New section 358 is intended to make clear that Divisions 5 and 9, and sections 375, 375A and 376 are taken to be an exhaustive statement of the requirements of the natural justice or procedural fairness ‘hearing rule’ for conducting a review by the Tribunal.

 

Item 7               Section 357A

 

33.          This item repeals section 357A and substitutes a new section 357A into the Act.

 

Section 357A    Exhaustive statement of natural justice hearing rule

 

34.          New section 357A provides that Divisions 5 and 9 of Part 5, and sections 375, 375A and 376 are taken to be an exhaustive statement of the requirements of the natural justice ‘hearing rule’ in relation to the matters dealt with in Part 5 in respect of the review by the Tribunal of reviewable general visa decisions or reviewable protection visa decisions.

 

35.          Item 7 commences only if the Parts 4 to 10 of the ART Act commence after the day on which this Bill receives the Royal Assent.  The item commences immediately after commencement of the ART Act.  The amendment is made because the matters dealt with in Division 8A of Part 5 will be dealt with in Division 9 of that Part when the ART Act commences.

 

Item 8               Before section 423

 

36.          This item inserts new section 422B at the beginning of Division 4 of Part 7 of the Act.

 

Section 422B    Exhaustive statement of natural justice hearing rule

 

37.          New section 422B provides that Divisions 4 and 7A of Part 7, and sections 416, 437 and 438 of the Act are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters dealt with in that Division.

 

38.          Division 4 sets out how the Refugee Review Tribunal goes about conducting its reviews.  Division 7A sets out how the Tribunal is to provide documents to persons, and provides for deemed receipt of documents in certain circumstances.  Section 416 restricts the use of evidence in protection visa review matters.  Sections 437 and 438 deal with the disclosure of confidential information.

 

39.          New section 422B is intended to make clear that Divisions 4 and 7A, and sections 416, 437 and 438 are taken to be an exhaustive statement of the requirements of the natural justice or procedural fairness ‘hearing rule’ in relation to the matters dealt with in that Division .

 

Item 9               Application - items 1 to 4

 

40.          Sub-item 9(1) provides that the amendment made by item 1 applies in relation to any application for a visa made on or after the commencement of that item.

 

41.          Item 1 provides that Subdivision AB of Division 3 of Part 2 and sections 494A to 494D of the Act are an exhaustive statement of the natural justice ‘hearing rule’ for the matters dealt with in that Subdivision.

 

42.          Sub-item 9(2) provides that the amendment made by item 2 applies in relation to any cancellation of a visa under section 109 of the Act on or after the commencement of that item, where a notice of cancellation was given under section 107 of that Act on or after that commencement.

 

43.          Item 2 provides that Subdivision C of Division 3 of Part 2 and sections 494A to 494D of the Act are an exhaustive statement of the natural justice ‘hearing rule’ for the matters dealt with in that Subdivision.

 

44.          Sub-item 9(3) provides that the amendment made by item 3 applies in relation to any cancellation of a visa under section 116 of the Act on or after the commencement of that item, where a notice of cancellation was given under section 119 of that Act on or after that commencement.

 

45.          Item 3 provides that Subdivision E of Division 3 of Part 2 and sections 494A to 494D of the Act are an exhaustive statement of the natural justice ‘hearing rule’ for the matters dealt with in that Subdivision.

 

46.          Sub-item 9(4) provides that the amendment made by item 4 applies in relation to any cancellation of a visa under section 128 of the Act on or after the commencement of that item.

 

47.          Item 4 provides that Subdivision F of Division 3 of Part 2 and sections 494A to 494D of the Act are an exhaustive statement of the natural justice ‘hearing rule’ for the matters dealt with in that Subdivision.

 

Item 10             Application - items 5 and 8

 

48.          Item 10 provides that the amendments made by items 5 and 8 apply in relation to any application for review made on or after the commencement of those items.

 

49.          Item 5 provides that Divisions 5 and 8A of Part 5, and sections 375 to 376 of the Act are an exhaustive statement of the natural justice ‘hearing rule’ for the matters dealt with in Part 5 of the Act.

 

50.          Item 8 provides that Divisions 4 and 7A of Part 7, and sections 416, 437 and 438 of the Act are an exhaustive statement of the natural justice ‘hearing rule’ for the matters dealt with in Part 7 of the Act.

 

Item 11             Application - item 6

 

51.          Item 11 provides that the amendment made by item 6 applies in relation to any application for review made on or after the commencement of that item.

 

52.          Item 6 only commences if Parts 4 to 10 of the ART Act commence before this Bill.  

 

53.          Item 6 provides that Divisions 5 and 9 of Part 5, and sections 357 to 376 of the Act are an exhaustive statement of the natural justice ‘hearing rule’ in relation to matters dealt with in Part 5 of the Act in respect of the review by the Administrative Review Tribunal of reviewable general visa decisions and reviewable protection visa decisions.

 

Item 12             Application - item 7

 

54.          Item 12 provides that the amendment made by item 7 applies in relation to any application for review made on or after the commencement of that item.

 

55.          Item 7 only commences on commencement of the ART Act, and only if that Act commences after this Bill.

 

56.          Item 7 provides that Divisions 5 and 9 of Part 5, and sections 375, 375A and 376 of the Act are taken to be an exhaustive statement of the requirements of the natural justice ‘hearing rule’ in relation to the matters dealt with in Part 5 in respect of the review by the Administrative Review Tribunal of reviewable general visa decisions or reviewable protection visa decisions.