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Migration Legislation Amendment (Restoration of Rights and Procedural Fairness) Bill 2007 [2008]

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Explanatory Memorandum

Migration Legislation Amendment (Restoration of Rights and Procedural Fairness) Bill 2007

Senator Andrew Bartlett

 

Schedule 1 - Amendment of the Administrative Decisions (Judicial Review) Act 1977

Schedule 2 - Amendment providing for the restoration of fair process under the Migration Act 1958

Schedules 1 and 2 seek to repeal the introduction of a privative clause mechanism which restricts access to Federal and High Court judicial review of administrative decisions made under the Migration Act.  It does so by repealing certain provisions of the Administrative Decisions (Judicial Review) Act 1977 and the Migration Act 1958 .

 

Schedule 3 - Amendments providing for the duration of detention under the Migration Act 1958

Schedule 3 seeks to repeal the provisions introduced by the Migration Amendment (Duration of Detention) Act 2003 which prevents and limits courts from ordering the release of somebody from immigration detention whilst an appeal seeking their release is before the courts. 

 

Schedule 4 - Amendments providing for the return to procedural fairness under the Migration Act 1958

Schedule 4 seeks to repeal provisions of the Migration Act 1958 inserted by the Migration Legislation Amendment (Procedural Fairness) Act 2002 , which excluded the common law rule of procedural fairness and attempted to make it explicit that the procedures set down in the statute are all that decision makers must comply with.

 

Schedule 5 - Amendments providing for the provisions relating to character and conduct under the Migration Act 1958

Schedule 5 seeks to repeal the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 which increased the Minister's power to refuse or cancel visas on character grounds.  Experience has borne out concerns expressed at the time the amending bill of 1998 was passed that there are insufficient protections in place to prevent unjust or unfair outcomes

 

Schedule 6 - Amendments providing for the end of mandatory detention under the Migration Act 1958

Schedule 6 seeks to eliminate the system of mandatory migration detention which was introduced by the Migration Reform Act 1992 and replace it with an alternative system which is more humane, less expensive, meets Australia’s obligations under international law and provides a more effective mechanism for prompt and efficient administration of Australian migration laws.