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Migration Legislation Amendment Bill (No. 5) 1997

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1997

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

MIGRATION LEGISLATION AMENDMENT BILL (No. 5) 1997

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the

Minister for Immigration and Multicultural Affairs,

the Hon. Philip Ruddock MP)

 

 

89327 Cat. No. 96 9475 7 ISBN 0644 508248



MIGRATION LEGISLATION AMENDMENT BILL (No. 5) 1997

 

 

OUTLINE

 

Overview

 

1       The Migration Legislation Amendment Bill (No. 5) 1997 ("the Bill") implements a number of Government initiatives in the Immigration and Multicultural Affairs portfolio.

 

2       The Bill amends the Migration Act 1958 and the Administrative Decisions (Judicial Review) Act 1977 .

 

3       The amendments to the Migration Act 1958 and the Administrative Decisions (Judicial Review) Act 1977 in relation to judicial review of immigration decision-making:

 

·              introduce a new judicial review scheme, in particular a privative clause, to cover decisions under the Migration Act 1958 relating to the ability of non-citizens to enter and remain in Australia;

 

·              apply the new judicial review scheme to both the Federal Court and the High Court; and

 

·              allow specified decisions to be reviewable under the Administrative Decisions (Judicial Review) Act 1977 .

 

 

FINANCIAL IMPACT STATEMENT

 

4       The amendments to the Migration Act 1958 in relation to judicial review of immigration decision-making will, if they operate as predicted by reducing the issues to be addressed and allowing cases to be resolved more quickly, deliver substantial savings.  It will take some time before the scheme is fully effective given a backlog of cases to which it will not apply and for any initial court challenges to it to be resolved.



MIGRATION LEGISLATION AMENDMENT BILL (No. 5) 1997

 

 

NOTES ON INDIVIDUAL CLAUSES

 

Clause 1             Short Title

 

1       The short title by which this Act will be known is the Migration Legislation Amendment Act (No. 5) 1997 .

 

Clause 2             Commencement

 

2       Subclause 2(1) provides that, subject to this section, this Act commences on the Royal Assent.

 

3        Subclause 2(2) provides that Schedule 1 commences on a day or days to be fixed by Proclamation.

 

4       Subclause 2(3) provides that Schedule 1 will commence 6 months after the Royal Assent unless Proclamation occurs first.

 

Clause 3            Schedule(s)

 

5       Clause 3 provides that the provisions of the various Acts that are set out in the items of Schedule 1 are amended or repealed as indicated.

 

 

 

 

 

 

 



SCHEDULE 1 - Judicial Review

 

Part 1 - Amendments

 

Administrative Decisions (Judicial Review) Act 1977

 

Item 1               Paragraph (da) of Schedule 1

 

6       This paragraph excludes from the jurisdiction of the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") privative clause decisions under the Migration Act (and regulations and other instruments made under the latter Act).  This amendment leaves the Federal Court's jurisdiction under the ADJR Act confined to those decisions listed at the new subsection 474(4) of the Migration Act and any prescribed under new subsection 474(5).

 

Migration Act 1958

 

Item 2               Subsection 5(1) (definition of judicially-reviewable decision )

 

7       This definition is repealed consequential to the changes to judicial review under the Migration Act.

 

Item 3               Subsection 5(1)

 

8       A new definition - "privative clause decision" - is inserted in relation to the new judicial review provisions for those decisions covered by new subsection 474(1) and made under the Migration Act (or regulations or other instruments made under that Act). 

 

9       The definition has the meaning set out at new subsection 474(2).  Note however that subsection 474(2) needs to be interpreted having regard to subsections 474(3) and (6).

 

Item 4               Subsection 32(2)

 

10     Section 32 deals with the creation of, and criteria for the grant of special category visas.  This amendment makes clear that the Minister's satisfaction is required in relation to whether a person satisfies the legal pre-conditions for a visa to which section 32 of the Migration Act refers where:

 

-                section 65 of the Migration Act requires the Minister to be "satisfied" that  specified legal pre-conditions are satisfied in order for the visa to be granted.  This amendment is intended to put it beyond any doubt that the Minister's satisfaction applies to the grant of a visa to which section 32 of the Migration Act refers.



Item 5               Subsection 36(2)

 

11     Section 36 deals with the creation of, and criteria for the grant of protection visas.  This amendment makes it clear that the Minister's satisfaction is required in relation to whether a person satisfies the legal pre-conditions for a visa to which section 36 of the Migration Act refers where:

 

-                section 65 of the Migration Act requires the Minister to be "satisfied" that specified legal pre-conditions are satisfied in order for the visa to be granted.  This amendment is intended to put it beyond any doubt that the Minister's satisfaction is necessary to the grant of a visa to which section 36 of the Migration Act refers.

 

Item 6               Section 73

 

12     Section 73 deals with the creation of, and criteria for the grant of bridging visas.  This amendment makes it clear that the Minister's satisfaction is required in relation to whether a person satisfies the legal pre-conditions for a visa to which section 73 (and section 37) of the Migration Act refer where: 

 

-                section 65 of the Migration Act requires the Minister to be "satisfied" that specified legal pre-conditions are satisfied in order for the visa to be granted.  This amendment is intended to put it beyond any doubt that the Minister's satisfaction is necessary to the grant of a visa to which section 73 (and section 37) of the Migration Act refers.

 

Item 7               Part 8

 

13     Part 8 of the Migration Act, which dealt with the review of decisions by the Federal Court, is repealed and replaced by the new judicial review provisions.

 

PART 8 - Judicial Review

 

Division 1 - Privative clause

 

474           Decisions under Act are final

 

14     New subsection 474(1) introduces a privative clause for decisions made under the Migration Act, regulations made under that Act or other instruments under that Act except for decisions made under the provisions set out in new subsection 474(4) or as prescribed under subsection 474(5).  A privative clause affects the extent of judicial review by both the Federal Court and the High Court of decisions covered by the clause.

 

15     A privative clause is a provision which, although on its face purports to oust all judicial review, in operation, by altering the substantive law, limits review by the courts to certain grounds.  Such a clause has been interpreted by the High Court, in a line of authority stemming from the judgment of Dixon J in R v Hickman; ex parte Fox and Clinton (1945)

70 CLR 598, to mean that a court can still review matters but the available grounds are confined to exceeding constitutional limits, narrow jurisdictional error or mala fides .



16     The intention of the provision is to provide decision-makers with wider lawful operation for their decisions such that, provided the decision-maker is acting in good faith, has been given the authority to make the decision concerned (for example, by delegation of the power from the Minister or by virtue of holding a particular office) and does not exceed constitutional limits, the decision will be lawful.

 

17     New subsection 474(2) defines "privative clause decision" as being a decision made under the Migration Act, or regulations or other instruments made under that Act, except for the decisions specified at new subsection 474(4), or prescribed under new subsection 474(5):

 

-                the specified decisions, and any prescribed decisions, are reviewable under the ADJR Act - see this Bill's proposed amendment to paragraph (da) of Schedule 1 of that Act. 

 

18     New subsections 474(2) and (3) make it clear that "decision" is to be given a wide meaning.  Subsections 474(2) and (3) are substantially in the same form as the definition of "decision" for the purposes of the ADJR Act, with the addition of  "conduct preparatory to the making of a decision", and actions specific to the Migration Act such as the "cancelling" of visas.

 

19     New subsection 474(4) specifies the decisions which are not subject to the operation of the privative clause in subsection 474(1).

 

20     New subsection 474(5) allows for flexibility for exempting additional decisions from the operation of the privative clause by way of regulations made under the Migration Act.

 

21     New subsection 474(6) requires that in construing new section 474, including the privative clause, the section should be given it full effect and not limited in its operation, subject to the requirements of the Commonwealth Constitution.  (Note that section 5A of the Migration Act ensures that that Act is not applied so as to exceed the Commonwealth's legislative power, but to have every valid application if there is at least one valid application.)

 

Division 2 - Provisions relating to privative clause decisions

 

22     As set out in relation to subsection 474(1), a privative clause has been interpreted by the High Court to permit some judicial review of decisions covered by such a clause.  Accordingly, provision is made for these residual matters to be litigated, and for applications, subject to the limitation contained in this Division, for judicial review to be made to the Federal Court under section 39B of the Judiciary Act 1903 and to the High Court under section 75 of the Commonwealth Constitution.

 

Section 475         This Division not to limit section 474

 

23     This new section makes it clear that new Division 2, by implication or otherwise, in no way limits the scope or operation of section 474.

 



Section 476        Federal Court does not have any other jurisdiction in relation to certain privative clause decisions

 

24     In the case of persons with merits review rights under Part 5 or Part 7 or section 500 of the Migration Act, new subsection 476(1) limits the jurisdiction of the Federal Court, for privative clause decisions, to decisions where those rights have been exercised and the merits review processes have been finalised. 

 

25     Judicial review by the Federal Court for matters which involve merits review rights is restricted to the decision made by the review body.  Accordingly, if a person has a merits review right under Part 5, Part 7 or section 500 of the Migration Act and fails to exercise it or cannot exercise it because the time in which a merits review application can be made has passed, the Federal Court does not have jurisdiction in relation to that matter.  If a person has begun to exercise that person's merits review right(s), the Federal Court does not have jurisdiction unless and until that person has exercised the right(s) to the fullest extent possible and the merits review processes have been finalised.  The jurisdiction of the High Court is unaffected.

 

26     New subsection 476(2) excludes from the jurisdiction of the Federal Court decisions of the Minister not to exercise, or not to consider the exercise of, the specified personal public interest powers of the Minister.  The jurisdiction of the High Court is unaffected.

 

27     New subsection 476(3) makes it clear that the section does not affect the jurisdiction of the Federal Court under sections 39B and 44 of the Judiciary Act otherwise than as specified by subsections 476(1) or (2).

 

28     New subsection 476(4) limits the remittal of matters from the High Court to the Federal Court where the restrictions in subsections 476(1) or (2) apply in order that a person cannot seek to bypass the restrictions in subsections 476(1) or (2) by making a review application in the High Court and seeking to have the High Court remit the matter to the Federal Court. 

 

29     The purpose of this limitation in relation to subsection 476(1) is to encourage persons to utilise the less formal and less expensive merits review processes provided by the Parliament before resort is made to the Courts.  The limitation in relation to subsection 476(2) reflects the special nature of these powers and the overview provided by Parliament through the tabling of statements of reasons by the Minister where such powers are exercised.

 

Section 477        Time limits on applications for judicial review

 

30     New section 477 ensures that judicial review is sought in a timely manner and it provides certainty in relation to actions of the Commonwealth that may flow from decisions, such as the detention and removal of unlawful non-citizens.

 

31     Subsection 477(1) requires any application to the Federal Court, under section 39B of the Judiciary Act, in respect of a privative clause decision to be made within 28 days of the notification of that decision.

 

32     Subsection 477(2) requires that any application to the High Court in respect of a privative clause decision must be made within 28 days of the notification of that decision.



33     In the case of both subsections 477(1) and (2) express reference to certiorari and declaration has been made to ensure that the time limit applies to them.

 

34     Subsection 477(3) makes it clear that neither the Federal Court nor the High Court can allow applications, in respect of privative clause decisions, to be made outside the 28 day time limit that follows notification of the decision.

 

35     Subsection 477(4) allows for the method or time of notification for the purposes of the time limits for judicial review to be prescribed by regulation where the Migration Act, Regulations or any other instrument made under the Act do not prescribe a method or time of notification of a decision.

 

Section 478        Persons who may make application

 

36     New section 478 delimits who may make an application to the Federal Court under section 39B of the Judiciary Act in relation to a privative clause decision (by reference to new section 477) to:

 

·                               the Minister; and

 

·                               if there are no merits review rights under Part 5 or Part 7 or section 500, the person who is the subject of the decision; or

 

·                               if there are merits review rights under Part 5 or Part 7 or section 500, the person who has those rights and has exercised those rights (persons who had merits review rights but did not exercise them, or cannot exercise them because the time limit has expired cannot make an application for judicial review by the Federal Court).

 

37     The jurisdiction of the High Court is unaffected.

 

Section 479        Parties to review

 

38     New section 479 delimits the parties to any judicial review by the Federal Court under section 39B of the Judiciary Act in relation to a privative clause decision (by reference to subsection 477(1)) to:

 

·                               the Minister; and

 

·                               if there are no merits review rights under Part 5 or Part 7 or section 500, the person who is the subject of the decision; or

 

·                               if there are merits review rights under Part 5 or Part 7 or section 500, the person who has those rights and has exercised those rights (persons who had merits review rights but did not exercise them, or cannot exercise them because the time limit has expired cannot be a party to judicial review by the Federal Court).

 

39     The jurisdiction of the High Court is unaffected.



40     Note that new section 480 allows for the Attorney-General to be a party if the Attorney-General intervenes.

 

Section 480        Intervention by Attorney-General   

 

41     This new section enables the Attorney-General to intervene on behalf of the Commonwealth in proceedings under this Part.  Where the Attorney-General intervenes he or she is taken to be a party to the proceedings.  Subsection 480(2) enables the Federal Court, or the High Court, to make an order for costs against the Commonwealth resulting from the Attorney-General's intervention.

 

Section 481        Operation etc. of decision

 

42     This new section makes it clear that the mere making of an application for judicial review of the kind referred to in new subsections 477(1) or (2) does not of itself prevent the decision for which review has been sought continuing to have a legal effect pending the outcome of the judicial review. 

 

43     For example, if the decision for which review has been sought results in a person becoming or remaining an unlawful non-citizen, any action to detain or remove that person is lawful, subject to the provisions of the Migration Act.  However, a court is not prevented by this section from making whatever interim orders it is otherwise empowered to make.

 

Section 482        Changing person holding, or performing the duties of, an office

 

44     This new section ensures that, where a person has made a decision to which the privative clause applies and the person no longer holds nor is performing the duties of the office then held, or the office no longer exists, this Part has effect as if the decision was made by the person performing the duties of the office at the relevant time or as specified by the Minister.

 

Section 483        Section 44 of Administrative Appeals Tribunal Act 1975

 

45     Section 44 of the Administrative Appeals Tribunal Act 1975 allows for appeals from the Administrative Appeals Tribunal to the Federal Court on a point of law.  New subsection 483 prevents section 44 from applying to a privative clause decision.  Therefore, an application to the Federal Court in respect of such a decision needs to be made under section 39B of the Judiciary Act.

 

Section 484        Exclusive jurisdiction of Federal Court

 

46     This new section establishes that the jurisdiction of the Federal Court in relation to a privative clause decision is exclusive of the jurisdiction of all other courts, other than the jurisdiction of the High Court under section 75 of the Commonwealth Constitution.  No other Courts may consider review applications in relation to privative clause decisions.

 

47     New subsections 484(2) and (3) put the exclusive jurisdiction of the Federal Court beyond doubt by ousting the jurisdiction of the Northern Territory Supreme Court under the Judiciary Act and the operation of the Jurisdiction of Courts (Cross-vesting) Act 1987 .

 



Part 2 - Application of amendments

 

Item 8               Application

 

48     These provisions make it clear to which decisions the new judicial review provisions apply.  Unless an application for judicial review has been made before the commencement of Schedule 1, the new judicial review provisions apply.  If an application for judicial review has been made before that commencement date, then the previous judicial review schemes apply.

 

49     Express reference has been made to certiorari and declaration to ensure that the provisions apply to them.