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Thursday, 25 March 2004
Page: 27212


Mr HARDGRAVE (Minister for Citizenship and Multicultural Affairs and Minister Assisting the Prime Minister) (9:07 AM) —I move:

That this bill be now read a second time.

The Migration Amendment (Judicial Review) Bill 2004 reinstates the original intended operation of several procedural provisions relating to judicial review of migration decisions.

The government has grave concerns about the growing number of unmeritorious judicial review applications being made. These have led to increasing costs and delays in the judicial review process. Increased delays have encouraged many applicants to litigate to the maximum regardless of the legal merits. This is solely to delay their departure from Australia.

These concerns need to be addressed urgently. The opposition also shares these concerns and has been exploring ways to streamline judicial review of migration matters.

The government believes that the restoration of these procedural provisions for judicial review of migration matters will reduce the number of migration judicial review applications by approximately 25 to 30 per cent. This would also reduce the government's litigation costs by about $5 to $7 million per year, to save the taxpayer. This dividend could be used to assist persons in greater need, such as refugees who are being resettled in Australia as part of our offshore humanitarian program—a program that has no peer elsewhere in the world.

These statistics do speak for themselves. In 1995-96 there were 596 judicial review applications before the Commonwealth courts, compared with approximately 6,900 in 2002-03. That is an exponential growth. As a consequence, the litigation expenditure for my department exceeded $19 million in 2002-03.

The amendments being made by this bill to the Migration Act 1958 follow the completion of the Attorney-General's recent migration litigation review. These changes are straightforward and will have a significant impact on reducing the large numbers of unmeritorious migration related judicial review applications. The government will be announcing its response to other matters in the review shortly.

The amendments will restore the following key procedural elements of the migration judicial review scheme:

Time limits on judicial review applications;

Only the High Court, the Federal Court and the Federal Magistrates Court will be able to hear judicial review of migration applications; and

An applicant will not be able to seek judicial review if merits review of the primary decision is available.

In restricting the time limits within which judicial review applications are to be made, the government has a duty to provide a discretion for the courts to extend those limits beyond the 28-day period, for a further period of up to 56 days, where that is in the interests of the administration of justice. I think this is a fair discretion that we offer to the courts.

I emphasise that these amendments will not impact on the existing grounds for judicial review or change the basis of the lawfulness of a decision—they are only procedural in nature.

The judicial review requirements being restored by this bill were first introduced into, and passed by, the parliament in 1992. They were amended to operate in relation to `privative clause decisions' in judicial review amendments that were passed in September 2001.

The intention of the privative clause was to restrict judicial review grounds to only a few specified errors.

The constitutionality of the privative clause was challenged in the High Court in plaintiff s157/2002 v. Commonwealth of Australia [2003] (s157). While the privative clause was found to be constitutional, it did not protect decisions which contained a jurisdictional error.

This has meant that a `privative clause decision' is the only one that does not contain a jurisdictional error. These procedural provisions have no practical effect as a court must undertake a full review of the claims challenged to determine if those restrictions apply.

The existing time limits, exclusive jurisdiction and restrictions on judicial review only apply to a `privative clause decision'.

As a result courts have to undertake complete judicial review of all migration decisions, regardless of the amount of time that has passed, to determine the lawfulness of the decision. Approximately 40 per cent of all current applications are being made outside the time limits specified in the existing provisions, with some being lodged up to six years after the original visa decision under challenge.

The bill will amend the definition of `privative clause decision' in the act so that it includes a `purported decision'. This means that procedural requirements in relation to time limits within which applications can be made will apply to all actions taken under the Migration Act.

The definition of `privative clause decision' for the purpose of section 474, which has been interpreted as setting the judicial review grounds for migration matters, is specifically excluded from the broader `privative clause decision' definition in section 5. This means that the grounds of judicial review are not affected by these amendments.

The objective of the original reforms was to ensure certainty and efficiency in resolving migration review applications. This bill reinstates that original intention.

By strengthening the procedural amendments the government is removing the incentive for an applicant to pursue litigation as an end in itself—to delay their departure from Australia. Upholding the time limits will ensure that applicants will no longer be able to delay indefinitely the final determination of their migration matters.

Given the importance of the amendments, and demonstrating the government's continual, yet urgent, commitment to implement effective reforms to the migration litigation system, the government intends that the bill will be proclaimed to commence as soon as possible after royal assent.

I commend the bill to the chamber and I present the explanatory memorandum.

Debate (on motion by Mr Stephen Smith) adjourned.