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Monday, 20 August 2001
Page: 29707


Ms GAMBARO (2:43 PM) —My question is addressed to the Minister for Immigration and Multicultural Affairs and Minister for Reconciliation and Aboriginal and Torres Strait Islander Affairs. Is the minister aware of comments or suggestions that measures to restrict access to judicial review through a privative clause are unconstitutional, particularly in relation to unauthorised arrivals? Can the minister inform the House whether privative clauses have been used in the past in relation to appeals by Australian citizens?


Mr RUDDOCK (Minister for Immigration and Multicultural Affairs and Minister for Reconciliation and Aboriginal and Torres Strait Islander Affairs) —I thank the honourable member for Petrie for her question and for her interest in this matter of the large number of unlawful arrivals who access Australia, the extent to which there is considerable delay in determining the claims that some may present for refugee status, and some of the reasons for that delay. We have seen a good deal of comment in recent months that people are held for long periods of time. The fact is, of course, that most people who come to Australia unlawfully, if they come with documents that can prove who they are, are able to get prompt decisions from us; some will have decisions in as few as four weeks. Others who do not present with documentation, who often try to conceal their identity and whose circumstances and experiences are not necessarily clear, can get decisions in as few as 14 or 15 weeks, and that occurs in 80 per cent of cases.

The sorts of people who find that they are detained for much longer periods are those being held for removal or those who seek to access all the opportunities available for appeal. The appeal system in Australia does mean that some people can access not only a first tier decision by the department but also an independent review by a qualified tribunal. They can then get before a judge of the Federal Court, they can get before three judges of the Federal Court, they can get before seven judges of the High Court of Australia—and they can still present their cases to me on humanitarian grounds, and in some cases they can go off to the United Nations. That situation has been long known. The Labor Party when it was in office tried to get rid of that system. It wanted the tribunal decisions to be final and determinative, and it introduced provisions in the Migration Act to achieve that outcome. Those provisions have not achieved that outcome, because section 75 of the Constitution says that you cannot limit people's access to the High Court if they wish to have it.

So is there another way? The government took advice on this matter from some of the leading counsel in Australia, and the advice was that, if we use what is known as a privative clause—a clause which boosts the authority of the tribunal that first makes the decision—that would exclude most people from being able to access our courts for judicial review. It does not in any way limit the constitutional provision, but it does ensure that you can get quick, final and determinative decisions, that you can remove these allegations of injustice that people are being held too long, and that you can save the Australian taxpayers money—which the honourable member for Bowman often laments about.

I have been asked whether there are any other views. I have found some other views. I found in the Australian of 30 July that the Labor Party now says it has a plan and it is going to take a `radically different approach', particularly in relation to the `push to restrict court appeals'. Its radical plan, which was to avoid an `unconstitutional breach of the separation of powers doctrine' was in fact to order the courts to speed up the process. I cannot think of anything more calculated to offend the separation of powers doctrine than to give the judges some direction about the way in which they ought to deal with the cases before them.

Further, I found that when he was considering the matter on 9 August the shadow minister suddenly thought, `Well, maybe it's not unconstitutional,' because at a Racial Respect Conference he had this to say:

We say no, that is against the separation of powers doctrine, probably the High Court would throw it out as being unconstitutional, and we want to help them from themselves.

We are not sure what that meant, that he wants to help us from ourselves. It seems that the Leader of the Opposition has picked up on this, because the Courier-Mail today states:

But Opposition Leader Kim Beazley said Australia's legal system was based on the appeal process and it was enshrined in the Constitution.

Some members are wondering where I am leading in relation to that—I hear some noise opposite. Privative clauses are not new. They were upheld by the High Court in Hickman's case, and used to limit the rights of primarily Australians to access the courts to appeal decisions from tribunals.

Most of the legislation in which privative clauses have been used were introduced by Mr Chifley when he was Prime Minister, and he did that in the Conciliation and Arbitration Act 1904; it was certainly done by Mr Hawke in the Industrial Relations Act 1998; it was done by Curtin in the National Security (Coal Mining Industry) Employment Act; it was done by Chifley in the stevedoring industry act; it was done by Curtin again in the Coal Production Wartime Act. Mr Speaker, I would not want to keep the House so long. It has been done in many enactments at a Commonwealth level. It has been utilised by the states in a number of areas. We have here a situation in which the Labor Party wants to preclude Australians from being able to access appeals, because it wants to boost the decisions of tribunals. When it comes to people who are non-Australians abusing the asylum system, it wants to ensure that they have access to the most comprehensive appeals system imaginable—one which not only is supported by Australian taxpayers but which deprives people of what they are seeking: a prompt, fair and quick system in which their claims can be validly determined. I table the list of enactments in which privative clauses have been used both at a Commonwealth and at a state level.



Mr SPEAKER —The member for Parramatta will exercise some courtesy, as is expected of all other members in this House.