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Wednesday, 26 September 2001
Page: 31559

Mr RUDDOCK (Minister for Immigration and Multicultural Affairs and Minister for Reconciliation and Aboriginal and Torres Strait Islander Affairs) (7:17 PM) —I move:

That the bill be now read a second time.

This bill implements one of the government's important policy initiatives within the immigration and multicultural affairs portfolio.

The bill gives legislative effect to the government's longstanding commitment to introduce legislation that in migration matters will restrict access to judicial review in all but exceptional circumstances. This commitment was made in light of the extensive merits review rights in the migration legislation and concerns about the growing cost and incidence of migration litigation and the associated delays in removal of non-citizens with no right to remain in Australia.

The bill introduces a new judicial review scheme for decisions made under the Migration Act relating to the entry to, and stay in Australia, of non-citizens of Australia. The key mechanism in the new scheme is the privative clause provision at new section 474.

The privative clause, and the related provisions, will replace the existing judicial review scheme at part 8 of the Migration Act. Unlike the existing scheme, the new judicial review scheme will also apply to the High Court and not just the Federal Court.

The privative clause does not mean that access to the courts is denied, nor that only the High Court can hear migration matters. Both the Federal Court and the High Court can hear migration matters, but the grounds of judicial review before either court have been limited.

One need only look at the history of the existing judicial review scheme and how it is operating today to see what would happen in the future if it were left untouched.

The current judicial review scheme for visa decisions was introduced by the last Labor government through the Migration Reform Act 1992 and commenced on 1 September 1994. It was part of a package of changes, building on an existing scheme where the attributes that a non-citizen needs to be granted a visa are set out in detail in the migration legislation. The changes included:

· expanded access to merits review;

· a requirement that any review rights must be exhausted prior to seeking judicial review;

· statutory codes of procedure for visa decision making; and

· some restriction of the grounds of judicial review in light of the access to merits review and statutory codes for visa decision making.

The Labor government intended those changes to reduce Federal Court litigation and to provide greater certainty as to what was required from both decision-makers, visa applicants and visa holders.

That scheme has not reduced the volume of cases before the courts: just the opposite. Recourse to the Federal Court and the High Court is trending upwards, with nearly 400 applications in 1994-95; nearly 600 in 1995-96; 740 in 1996-97; nearly 800 in 1997-98; around 1,130 in 1998-99; nearly 1,300 in 1999-2000; and around 1,640 in 2000-01.

Based on current litigation trends it is anticipated that applications made to the courts will reach at least 2,000 in the current financial year.

And the cost of litigation continues to soar. In 1997-98 the cost of all litigation for the Department of Immigration and Multicultural Affairs was nearly $9.5 million, and that does not include the cost of running the courts. In 1998-99 it was $11.5 million; in 1999-2000 it was nearly $12.3 million; and in 2000-01 the cost to the department exceeded $15 million.

This upward trend in court applications and costs is despite full and open access to heavily subsidised independent merits review by the Migration Review Tribunal and the Refugee Review Tribunal. The high level of litigation, particularly by twice refused refugee claimants, cannot remain unchecked. Increased litigation leads to increased costs and delays, and for those in detention, to a longer period of detention.

From experience we know that a substantial proportion of these cases will be withdrawn by the applicants prior to hearing. The percentage of applicants who withdraw fluctuates between one-third to one-half of applicants. Of the cases that go on to substantive court hearings the merits based decision is currently upheld in around 90 per cent of cases.

It is hard not to conclude that there is a substantial number who are using the legal process primarily in order to extend their stay in Australia, especially given that one-third to one-half of all applicants withdraw from legal proceedings before hearing.

In the migration area, litigation can be an end in itself—it is an area where delaying the final determination is seen as beneficial by those pursuing the court action. Given the importance they attach to staying in Australia, there is a high incentive for refused applicants to delay removal from Australia for as long as possible.

Faced with the problem I have outlined, I asked the Department of Immigration and Multicultural Affairs in early 1996 to explore options for best achieving the government's policy objective of restricting access to judicial review. This was done in conjunction with the Attorney-General's Department, the Department of the Prime Minister and Cabinet and eminent legal counsel.

The advice received from legal counsel was that the only workable option was a privative clause.

As members are probably aware, section 75 of the Commonwealth Constitution gives the High Court original jurisdiction to consider challenges to the actions and decisions of Commonwealth officers. As a result, access to the High Court cannot be legislatively restricted without a constitutional amendment.

However, access to the Federal Court, and the scope of judicial review it can exercise, can be changed by legislation. To simply restrict access to the Federal Court in migration legislation matters, would in practice deflect many cases to the High Court under section 75 of the Constitution. This has the potential to erode the proper role and purpose of the High Court.

Counsels' advice was that a privative clause would have the effect of narrowing the scope of judicial review by the High Court and of course the Federal Court. That advice was largely based on the High Court's own interpretation of such clauses in cases following the seminal High Court case of Hickman in 1945. The privative clause in the bill is based on a very similar clause in Hickman's case.

The High Court has not since, despite opportunities to do so, repudiated the Hickman principle as formulated by Justice Dixon in Hickman's case. Indeed, that principle was described as `classical' in a later High Court case.

Members may be aware that the effect of a privative clause such as that used in Hickman's case is to expand the legal validity of the acts done and the decisions made by decision makers. The result is to give decision makers wider lawful operation for their decisions, and this means that the grounds on which those decisions can be challenged in the Federal and High Courts are narrower than currently.

In practice, the decision is lawful provided:

· the decision maker is acting in good faith;

· the decision is reasonably capable of reference to the power given to the decision maker—that is, the decision maker had been given the authority to make the decision concerned, for example, had the authority delegated to him or her by the Minister for Immigration and Multicultural Affairs, or had been properly appointed as a tribunal member;

· the decision relates to the subject matter of the legislation—it is highly unlikely that this ground would be transgressed when making decisions about visas since the major purpose of the Migration Act is dealing with visa decisions; and

· constitutional limits are not exceeded— given the clear constitutional basis for visa decision making in the Migration Act, this is highly unlikely to arise.

The options available to the government were very much shaped by the Constitution. While the government accepts that the precise limits of privative clauses may need examination by the High Court, there is no other practical option open to the government to achieve its policy objective.

It has been suggested that the introduction of a leave requirement would achieve the government's policy objective of restricting judicial review to `exceptional circumstances'. In the government's view, that is not a viable option. While it is possible to impose a leave requirement on the Federal Court, it is not constitutionally possible to do so with the High Court in its original constitutional jurisdiction. That would leave that court exposed to applicants going straight to the High Court in order to avoid any leave requirement imposed on the Federal Court. In any event, the imposition of a leave requirement could increase the complexity of the litigation and cause consequential delay and cost, and may in practice even double the number of hearings before the Federal Court. That would exacerbate those problems which the government is aiming to rectify.

Under the reforms in this bill, unlike today, there will be no advantage in sidestepping the Federal Court and going straight to the High Court in its original jurisdiction. This is because the same grounds of review will apply in either the Federal Court or the High Court. It will be open to the High Court to remit all matters to the Federal Court if it wishes. It cannot do so today under the current judicial review scheme because of the disparity between the High Court's original jurisdiction and that of the Federal Court.

Although the measures in this bill will limit judicial review, many applicants who consider that they have received a decision from the department which is wrong will of course still have access to independent merits review by the Migration Review Tribunal and the Refugee Review Tribunal. It is the government's intention that all bona fide applicants meeting the criteria for the grant of a particular visa be granted that visa—and that is particularly so in the case of those seeking protection visas. The independent merits review tribunals act as a safeguard in that respect.

As an additional safeguard, under the Migration Act the minister has special public interest powers enabling the minister to grant a visa even where the non-citizen does not meet the prescribed criteria for the grant of that visa set out in the migration regulations.

The government has other legislative reforms of judicial review either in the parliament or about to be introduced to the parliament. Those reforms, such as the bar on class or other representative actions in visa related matters, and the codification of the natural justice or procedural fairness `hearing rule', are complementary to this bill.

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

Debate (on motion by Mr Martin Ferguson) adjourned.