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Migration Amendment (Clarification of Jurisdiction) Bill 2018



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ISSN 1328-8091

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BILLS DIGEST NO. 8, 2018-19 13 AUGUST 2018

Migration Amendment (Clarification of Jurisdiction) Bill 2018 Claire Petrie Law and Bills Digest Section

Contents

Purpose of the Bill .................................................... 3

Background .............................................................. 3

Judicial review of migration decisions ........................ 3

What is judicial review? ............................................ 3

Judicial review under the Migration Act ................... 4 Privative clauses ........................................................ 5

What problem is the Bill looking to address? ............. 6 Jurisdiction under the migration law ........................ 6

Minister for Immigration and Border Protection v ARJ17 ...................................................................... 7

Criticism of the statutory scheme ............................. 8

Federal Circuit Court matter ..................................... 9

Committee consideration ....................................... 10

Legal and Constitutional Affairs Committee ............. 10 Senate Standing Committee for the Scrutiny of Bills ............................................................................ 10

Policy position of non-government parties/independents ............................................. 10

Position of major interest groups ........................... 10

Bill’s effect on existing legislative scheme ................ 11 Practical consequences of the Bill ............................. 11

Representative proceedings ................................... 11

Decisions relating to immigration detention .......... 12 Financial implications ............................................. 13

Statement of Compatibility with Human Rights ...... 13

Date introduced: 14 February 2018

House: House of Representatives

Portfolio: Immigration and Border Protection

Commencement: Sections 1 to 3 commence on Royal Assent. Schedule 1 commences at Proclamation or six months after Assent, whichever occurs first.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at August 2018.

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Parliamentary Joint Committee on Human Rights ... 13 Key issues and provisions ....................................... 13

Expanding the scope of ‘migration decision’ .......... 13 What is a ‘decision’? ................................................ 14

AAT Act amendment ............................................... 14

Application .............................................................. 14

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Purpose of the Bill The purpose of the Migration Amendment (Clarification of Jurisdiction) Bill 2018 (the Bill) is to amend the Migration Act 1958 to specify that the Federal Circuit Court of Australia, rather than the Federal Court of Australia, has jurisdiction over certain types of migration decisions known as ‘purported non-privative clause’ decisions. The Bill is aimed at clarifying ambiguities identified by the Federal Court in its 2017 decision, Minister for Immigration and Border Protection v ARJ17.1

The Bill also makes consequential amendments to the Administrative Appeals Tribunal Act 1975 (AAT Act).

Background

Judicial review of migration decisions

What is judicial review? In judicial review, the courts review a decision to determine whether there has been an error of law—that is, whether the decision-maker has acted outside the lawful limits of their authority.2 This is a different process than merits review, in which a tribunal places itself in the shoes of the primary decision-maker and will make a fresh decision based upon all the evidence available to it, with the object of ensuring that the ‘correct or preferable’ decision is made on the material before the review body.3 As explained by the Australian Law Reform Commission (ALRC):

Judicial review of administrative action is about setting the boundaries of government power. It is about ensuring government officials obey the law and act within their prescribed powers.

… Judicial review is available to test the legality of a decision, and not its merits—the courts are not authorised to ask whether a decision was a ‘good’ decision. It asks only whether the decision has been properly made, in accordance with the law. 4

[emphasis added]

In practice, the final relief most commonly sought by applicants in judicial review proceedings is a writ of certiorari (to, in effect, ‘quash’ the decision) together with a writ of mandamus (to compel the decision-maker to remake their decision in accordance with the law). An injunction often arises as a form of interim order to preserve the rights and interests of parties to litigation until their dispute can be finally heard and determined.

Section 75(v) of the Constitution confers on the High Court of Australia an original jurisdiction5 to hear all matters ‘in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth’ subject to limited exceptions.6 This provides the High Court with a jurisdiction—which cannot be removed or limited by Parliament—to review the lawfulness of decisions and actions of government officials.

1. Minister for Immigration and Border Protection v ARJ17 (2017) 347 ALR 477, [2017] FCAFC 125. 2. Administrative Review Council (ARC), Federal judicial review in Australia, Report, 50, ARC, Canberra, 2012, p. 35. 3. Administrative Appeals Tribunal (AAT), ‘What is a merits review?’, AAT website. Merits review and judicial review thus serve different functions and provide different remedies.

4. Australian Law Reform Commission (ALRC), Traditional rights and freedoms—encroachments by Commonwealth laws, Report, 129, ALRC, Sydney, 2015, pp. 413, 415. 5. The original jurisdiction of a court is the power to hear a case for the first time, as opposed to appellate jurisdiction, when a higher court has the power to review a lower court's decision. 6. Australian Constitution, section 75(v). A writ of mandamus compels an officer of the Commonwealth to perform their duty in

accordance with the law. A writ of prohibition forbids an officer of the Commonwealth from commencing an unlawful act or continuing to perform an unlawful act. An injunction is an order that restrains an officer of the Commonwealth from performing an act or, in more exceptional cases, compels the performance of a specific act.

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Recognising the heavy burden that this could otherwise place on the High Court, other federal courts have been given jurisdiction to undertake judicial review. The Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) was originally enacted to provide a simpler and more accessible mechanism for judicial review than was available under section 75(v).7 It sets out a range of grounds on which a person may seek to have a decision reviewed in the Federal Court or Federal Circuit Court, and gives these courts wide powers to grant relief.8 Additionally, in 1983 section 39B of the Judiciary Act 1903 was enacted to give the Federal Court the same original jurisdiction as the High Court under section 75(v).9 However, these statutory judicial review provisions can be displaced or limited by other legislation, as has occurred in relation to a substantial part of the migration law.

Judicial review under the Migration Act Part 8 of the Migration Act provides for judicial review of migration decisions. It expressly displaces the Federal Court’s original jurisdiction in relation to most migration matters, and instead confers this on the Federal Circuit Court.10

The Federal Circuit Court, previously called the Federal Magistrates Court (and before that, the Federal Magistrates Service), has incrementally assumed greater responsibility for reviewing migration matters. In 2001, amendments to the Migration Act provided that the two courts would have concurrent jurisdiction, and could transfer cases between themselves as appropriate.11 At this time the Federal Magistrates Service had been running less than two years, and had been established with the aim of providing a ‘quicker, cheaper option for litigants’ and easing the workload of other federal courts.12 In explaining the basis for extending jurisdiction over migration matters to the Service, then Parliamentary Secretary to the Minister for Finance and Administration, Peter Slipper, stated:

… the widening jurisdiction of the Federal Court in recent years has led to an increasing number of routine matters coming before that court. This has had the effect of diverting the judicial resources of the Federal Court from the more complex areas of the law upon which it was intended to focus. Having the Federal Magistrates Service dealing with less complex cases has meant a better use of judicial resources and, again, less cost for litigants.

… Many migration matters are of a routine nature and would also be suitable for the service to handle. 13

Further amendments in 2005 significantly limited the Federal Court’s migration jurisdiction and gave the Federal Magistrates Court the same original jurisdiction as the High Court under section 75(v) of the Constitution, in relation to migration decisions, subject to certain exceptions.14 This continues to be the case.

7. ARC, Federal judicial review in Australia, op. cit., p. 57. 8. Administrative Decisions (Judicial Review) Act 1977 (Cth), sections 5 and 16. 9. Judiciary Act 1903 (Cth), section 39B; J McMillan, ‘Restoring the ADJR Act in federal judicial review’, AIAL Forum, 72, 2013, p. 13.

10. Migration Act 1958 (Cth), sections 476 and 476A. 11. Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001. 12. J Norberry, Jurisdiction of the Federal Magistrates Service Legislation Amendment Bill 2001, Bills digest, 49, 2001-02, Parliamentary Library, Canberra, 13 September 2001, pp. 1-2.

13. P Slipper, ‘Second reading speech: Jurisdiction of the Federal Magistrates Service Legislation Amendment Bill 2001’, House of Representatives, Debates, 30 August 2001, p. 30618. 14. Migration Litigation Reform Act 2005. See also: P Prince, S Harris-Rimmer and M Coombs, Migration Litigation Reform Bill 2005, Bills digest, 9, 2005-06, Parliamentary Library, Canberra, 4 August 2005.

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Privative clauses Parliament has also sought to restrict the circumstances in which a migration decision can be reviewed by the courts. The Migration Legislation Amendment (Judicial Review) Act 2001 introduced the concept of ‘privative clauses’ into the Migration Act.15 Section 474 provides that a decision which is a privative clause decision:

(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. 16

Most decisions under the Migration Act are classified as privative clause decisions, unless they fall within an exception under subsection 474(4) and (5)—these exceptions are called non-privative clause decisions.17 Examples of non-privative clause decisions include certain decisions in relation to the detention of non-citizens (including in regards to the search, seizure and disposal of property) and in relation to the migration agents registration scheme.18

Despite the wording of the privative clause provision, it does not actually prevent decisions from being subject to judicial review—Parliament is unable to remove the High Court’s entrenched original jurisdiction under section 75(v). Instead, the High Court has interpreted the provision narrowly, finding that it can only apply to decisions which are not affected by ‘jurisdictional error’.19 A jurisdictional error will arise where a decision-maker acts outside the scope of their statutory authority.20 As the ALRC has explained, this has been given a wide application:

In Re Refugee Tribunal; Ex parte Aala, the High Court held that a jurisdictional error arises when a decision maker ‘makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do’. The High Court gave an expansive interpretation to the notion of jurisdictional error in this and later decisions, which means that the scope of decisions that may be affected by jurisdictional error—and thus not protected by a privative clause—is now very wide; so wide that it may be that an ouster clause offers no real protection against any legal error. It appears that there is little value in including such a clause in legislation.

21

Privative clause and purported privative clause migration decisions are excluded from the scope of the ADJR Act, which means an applicant cannot challenge such decisions on these statutory grounds.22 The extent to which this exclusion narrows the grounds for review remains uncertain. For example, Alan Freckelton has argued that most of the ADJR Act grounds for review have been found to be jurisdictional errors.23 However, the ALRC has suggested that ‘while removing

15. Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). 16. Migration Act, subsection 474(1). 17. Ibid., subsection 474(6). 18. Ibid., subsection 474(4). 19. Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, [2003] HCA 2. 20. Examples of jurisdiction error are: identifying a wrong issue; asking a wrong question; ignoring relevant material; relying on

irrelevant material; or an incorrect interpretation and/or application to the facts of the applicable law, in a way that affects the exercise of power. Source: Federal Court of Australia (FCA), ‘Migration law guide’, FCA website, updated April 2013. 21. ALRC, Traditional rights and freedoms—encroachments by Commonwealth laws, op. cit., p. 424. 22. ADJR Act, Schedule 1, paragraphs da-db. 23. A Freckelton, ‘Effect of privative clauses on judicial review of immigration decisions’, Australian Journal of Administrative Law, 22(2), February 2015, pp. 99-100.

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ADJR Act review may not exclude judicial review, it excludes a simpler and more accessible form of review’.24

What problem is the Bill looking to address?

Jurisdiction under the migration law As explained above, the Migration Act confers on the Federal Circuit Court the same original jurisdiction ‘in relation to migration decisions’ as the High Court has under section 75(v) of the Constitution, subject to certain exceptions.25 A migration decision26 is defined as:

(a) a privative clause decision; or

(b) a purported privative clause decision; or

(c) a non-privative clause decision; or

(d) an AAT Act migration decision. 27

This definition is important in the context of the current Bill, because it determines the scope of the Federal Circuit Court’s migration jurisdiction. Firstly, it provides that the Federal Circuit Court has jurisdiction to review both privative clause and non-privative clause decisions (though with arguably narrower grounds to review the former).

Secondly, the Federal Circuit Court has jurisdiction over a purported privative clause decision, which is a decision ‘purportedly made, proposed to be made, or required to be made’ under the migration law, which:

… would be a privative clause decision if there were not:

(a) a failure to exercise jurisdiction; or

(b) an excess of jurisdiction;

in the making of the decision. 28

That is, it is a decision which would be a privative clause decision if it were not affected by jurisdictional error.

Finally, the Federal Circuit Court has jurisdiction over an AAT Act migration decision, which is a decision made under certain provisions of the AAT Act, to the extent that the decision relates to the review of decisions by, performance of functions of, or a Tribunal member in, the Migration and Refugee Division of the AAT.29 This includes decisions relating to the appointment, remuneration and termination of tribunal members, and other administrative decisions regarding the functioning of the tribunal.

24. ALRC, Traditional rights and freedoms—encroachments by Commonwealth laws, Interim Report, 127, ALRC, Sydney, 2015, p. 473. 25. Migration Act, subsection 476(1). 26. ‘A ‘decision’ includes the granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval,

consent or permission, including a visa. It also includes a failure or refusal to make a decision.’ Source: FCA, ‘Migration law guide’, op. cit. 27. Migration Act, subsection 5(1). 28. Ibid., subsection 5E(1). 29. Ibid., section 474A.

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There are some limited circumstances in which the Federal Court, rather than the Federal Circuit Court, retains its original jurisdiction ‘in relation to a migration decision’—these are:

• character-related visa refusals and cancellations which the Minister has made personally

• privative clause and purported privative clause decisions of the AAT on review under section 500 of the Migration Act—this is largely limited to character-related visa decisions

• a case transferred to the Federal Court by the Federal Circuit Court, exercising its discretion under the Federal Circuit Court of Australia Act 1999 and

• a reference from the AAT on a question of law.30

What is unclear in the current legislative scheme, and what the Bill seeks to address, is which court has jurisdiction when a non-privative clause decision or AAT Act migration decision is affected by jurisdictional error. That is, who has jurisdiction to review:

• a ‘purported’ non-privative clause decision or

• a ‘purported’ AAT Act migration decision.

These terms are currently not included in the Migration Act.

Minister for Immigration and Border Protection v ARJ17 This legislative ambiguity was considered by the Full Court of the Federal Court in Minister for Immigration and Border Protection v ARJ17 (MIBP v ARJ17).31 In this matter, the Federal Court found that it—and not the Federal Circuit Court—had jurisdiction to review ‘purported non-privative clause decisions’.

The case involved representative proceedings (also known as a class action) brought by the plaintiff on behalf of a number of people in immigration detention, who sought to argue that the (then) Department of Immigration and Border Protection did not have authority under section 252 of the Migration Act or the Detention Services Manual to confiscate their mobile phones and SIM cards.32 A decision under section 252 (which authorises the search of a person in immigration detention) is classified as a non-privative clause decision.33 The respondents in the matter—the Minister for Immigration and Border Protection, Secretary for Immigration and Border Protection and Commonwealth of Australia—argued that the Federal Court did not have jurisdiction to hear the matter, and that it should be heard by the Federal Circuit Court.34 Consequently, before it could consider the substantive issue the Court was required to determine the question of jurisdiction.

Though the three judges of the Full Court issued separate decisions, they were unanimous in upholding the decision of the primary judge that the Federal Court did have jurisdiction. Considering the legislative scheme under Part 8 of the Migration Act, and the amendments to this since 2001, the Court found that a ‘purported non-privative clause decision’ could not be captured

30. Ibid., section 476A. Also see: FCA, ‘Migration guide: migration matters in the Federal Court’, FCA website. The Federal Court also has appellate jurisdiction over decisions of the Federal Circuit Court. 31. Minister for Immigration and Border Protection v ARJ17, op. cit. 32. Ibid., paragraph 2. 33. Migration Act, subsection 474(4), item 7 in table. 34. As discussed below, representative proceedings such as this one (also known as class actions) can be brought in the Federal

Court but not in the Federal Circuit Court. As a result, an injunction granted in a representative proceeding in the Federal Court can apply broadly to prevent the Department implementing its policy (in this case, of removing mobile phones from people in immigration detention), whereas the Federal Circuit Court can only grant an injunction in relation to a particular applicant: Australian Human Rights Commission (AHRC), Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Migration Amendment (Clarification of Jurisdiction) Bill 2018, 4 April 2018, p. 6.

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by the definition of migration decision, or by the phrase ‘decision in relation to a migration decision’.35 As a result, the Federal Court retained its original jurisdiction under section 39B of the Judiciary Act in relation to purported non-privative clause decisions, with Justice Kenny noting that this original jurisdiction:

… is not to be taken away by uncertain and obtuse language. If it is to be diminished, that implication must “clearly and unmistakably” appear. 36

The Court acknowledged arguments by the respondent that the decision may have undesirable practical consequences—in particular, whether or not a decision is ‘purported’ will be clear only after the issue of jurisdictional error is decided.37 Justice Flick stated:

It is hardly a desirable conclusion that this Court has jurisdiction in respect to those decisions that are made “purportedly” in excess of the authority conferred by s252 but no jurisdiction in respect to those decisions made within such authority. 38

However, he further noted that ‘the consequences flowing from a particular construction of a statutory provision remain a matter for the Legislature to address and remedy if it sees fit’—the Court could not give the legislation a construction contrary to the proper meaning of the language used, simply in order to avoid undesirable consequences.39

Criticism of the statutory scheme In reaching its decision, the Court expressed strong criticism of the complexity of the judicial review provisions in the Migration Act in general, and the difficulties this may cause for applicants seeking to challenge a migration decision in the courts. Justice Flick stated:

It should be noted at the outset that there is nothing more fundamental to the administration of justice by this Court than the ability to clearly identify those matters in respect to which it has jurisdiction.

This is more so the case where the jurisdiction of this Court in respect to migration matters is often invoked by those who are unrepresented and who frequently have a limited command of the English language. Even those who command considerable legal skills are often uncertain as to whether a proceeding should be commenced in the High Court of Australia, this Court or the Federal Circuit Court of Australia.

The jurisdiction entrusted to one or other of these Courts is a morass of confusion. Left to the consideration of the Legislature is whether the existing legislative allocation of jurisdiction between the Courts can be more simply expressed. 40

Justice Kerr also noted that a series of legislative amendments have worked to increase the complexity of the statutory scheme:

… a number of the key provisions of the Migration Act have become impenetrably dense. Definitions have been built on definitions. Core concepts such as what is meant by a purported privative clause decision defy the understanding of any ordinary reader. I respectfully endorse Flick J’s concerns regarding the problems that that must present for unrepresented litigants.

35. Minister for Immigration and Border Protection v ARJ17, op. cit., paragraphs 15-16, 53. 36. Ibid., paragraph 21. 37. Ibid., paragraph 24. 38. Ibid., paragraph 62. 39. Ibid., paragraph 64. 40. Ibid., paragraphs 36-8.

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This decision will not lessen those complexities. However, those complexities are a product of the intersection of legislative choices with constitutional principles, both of which this Court must respect. 41

These concerns have been similarly expressed by interest groups, and have been a recurring theme in submissions to the Senate inquiry into the Bill, which have called for substantial reforms to Part 8 of the Migration Act. The Australian Human Rights Commission (AHRC) has argued that the Act should be amended so that it clearly identifies ‘in language that an ordinary member of the community can understand’, both the Court in which, and grounds on which, a person can seek judicial review of migration decisions.42 The Refugee Council of Australia, supporting the AHRC’s recommendation, has described this area of law as becoming ‘more and more abstruse, intelligible only to a niche group of lawyers’, which it claims ‘has real effects on the willingness and ability of even enthusiastic pro bono lawyers to help out these most vulnerable clients’.43

Beyond clarifying the law, the AHRC has further recommended that the Migration Act be amended to align the grounds of judicial review of migration decisions with the grounds of review in the ADJR Act.44 The Castan Centre for Human Rights Law at Monash University has queried whether judicial review should be dealt with under the Migration Act at all, arguing that the existing common law and ADJR Act ‘provide adequate guidance on the scope of the available grounds of review’.45

Federal Circuit Court matter At the same time as the representative proceedings were brought in the Federal Court, an applicant also commenced proceedings in the Federal Circuit Court challenging the decision to ban mobile phones and SIM cards in immigration detention.46 An interim injunction was granted, but subsequently dissolved, with the Federal Circuit Court holding that the removal of the applicant’s mobile phone was authorised by the Migration Act and did not constitute a denial of procedural fairness.47 As the Federal Circuit Court found that the decision was valid, it was therefore a ‘non-privative clause decision’ over which the Court had jurisdiction. However, Justice Smith also suggested that as a result of the ADJR Act, the Court would retain jurisdiction to review non-privative clause decisions, whether or not they were affected by jurisdictional error.48

Notably, the proceedings were more limited in scope than those before the Federal Court. Representative proceedings cannot be commenced in the Federal Circuit Court, and its interim injunction, while in force, had applied only to prevent the confiscation of the mobile phone of the applicant, rather than the implementation of the policy more broadly.49 This case highlights one practical distinction between judicial review in the Federal Court and Federal Circuit Court, which is discussed further under the ‘Position of major interest groups’ heading.

41. Ibid., paragraph 177. 42. AHRC, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit., p. 4. 43. Refugee Council of Australia, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Migration Amendment (Clarification of Jurisdiction) Bill 2018, April 2018, p. 3.

44. AHRC, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit., p. 5. 45. Castan Centre for Human Rights Law, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, p. 5. 46. SZSZM v Minister for Immigration and Border Protection (2017) 321 FLR 162, [2017] FCCA 819. 47. Ibid., paragraphs 121-2. 48. Ibid., paragraphs 34-5. 49. This point is made in a number of submissions to the Senate inquiry—in particular, see: AHRC, Submission to the Senate

Standing Committee on Legal and Constitutional Affairs, op. cit., p. 6.

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Committee consideration

Legal and Constitutional Affairs Committee The Bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry and report. The Committee issued its report on 5 June 2018, with the majority report recommending that the Bill be passed, and stating:

The committee considers that fundamental to Part 8 of the Migration Act is the discrete judicial review scheme whereby a challenge to a 'migration decision' must, in the first instance, be instituted in the Federal Circuit Court, subject to limited exceptions. 50

The Australian Greens issued a dissenting report which argued that the Bill adds ‘a further level of complexity’ for an applicant trying to identify their rights of review, and the appropriate court in which to bring their claim, and which recommended that the Bill not be passed.51

While expressing support for the Bill, Centre Alliance issued additional comments which recommended the Government consider directing the Australian Law Reform Commission to inquire into:

… the current judicial review pathways contained in Part 8 of the Migration Act 1958 with a view to removing complexity and aligning grounds of review with those under the Administrative Decisions (Judicial Review) Act 1977 (Cth). 52

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills had no comment on the Bill.53

Policy position of non-government parties/independents ALP Senators on the Senate Standing Committee on Legal and Constitutional Affairs were part of the majority report which recommended that the Bill be passed.

As noted above in relation to the Senate inquiry, Centre Alliance has also expressed support for the Bill, but raised concerns with the broader judicial review scheme under Part 8 of the Migration Act. The Australian Greens do not support the Bill.

Other non-government parties and independents do not appear to have commented on the Bill to date.

Position of major interest groups The majority of submissions to the Senate inquiry were critical of the Bill, suggesting that it will not improve the clarity of the existing scheme for judicial review of migration decisions and may have adverse consequences for those seeking to challenge a decision.

Submissions have also consistently emphasised the need for more substantial reforms to Part 8 of the Migration Act—these are discussed above under ‘Criticism of the statutory scheme’.

50. Senate Legal and Constitutional Affairs Legislation Committee, Migration Amendment (Clarification of Jurisdiction) Bill 2018 [Provisions], The Senate, Canberra, June 2018, p. 13. 51. Australian Greens, Dissenting report, Senate Legal and Constitutional Affairs Legislation Committee, Migration Amendment (Clarification of Jurisdiction) Bill 2018 [Provisions], The Senate, Canberra, 5 June 2018, pp. 15-16. 52. Centre Alliance, Additional Comments, Senate Legal and Constitutional Affairs Legislation Committee, Migration Amendment

(Clarification of Jurisdiction) Bill 2018 [Provisions], The Senate, Canberra, 5 June 2018, pp. 17-19. 53. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 3, 2018, The Senate, 21 March 2018, p. 23.

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Bill’s effect on existing legislative scheme Although the Bill is intended to ‘clarify the allocation of jurisdiction between the Federal Circuit Court and the Federal Court’,54 submissions to the Senate inquiry have expressed doubt as to whether the Bill brings any additional clarity to the existing scheme. The AHRC’s submission stated that, while the Bill ‘seeks to address a narrow jurisdictional point’ decided by the Federal Court in MIBP v ARJ17, it ‘does not respond to the more substantive issues raised by the appeal judges’.55 The AHRC argues that more substantial amendments are needed than are contained in the current Bill, which it considers:

… does little to clarify the jurisdictional confusion that Part 8 of the Migration Act engenders in many lawyers experienced in this specific area of legal practice, let alone in non-lawyers who are subject to the operation of the Act. 56

Similarly, the Refugee Council of Australia suggested that, despite its name, the Bill fails to clarify the jurisdiction of the courts to review migration decisions and, instead, ‘complicates an already impenetrable system of review that has no counterpart in any other area of law’.57 The Castan Centre agreed that there is a need for simplification and clarification of the existing law, ‘but not in the manner proposed in the present Bill’, and argued:

… parliament should not amend the Migration Act again in a manner which will further complicate the scope of available grounds of judicial review. 58

Organisations including the Law Council of Australia, Asylum Seekers Resource Centre and Refugee Council argued that this complexity acts as a significant barrier to access to justice.59 Australian Lawyers for Human Rights has stated that access to justice requires the law to be, as far as possible, ‘simple and clear enough to allow all persons to understand their rights and obligations.’ It notes that many people seeking asylum in particular will be self-represented and lack the legal knowledge required to ‘navigate complex provisions of the Migration Act.’60

Practical consequences of the Bill

Representative proceedings The Law Council expressed concern that, by limiting access to the Federal Court, the Bill may narrow an applicant’s rights to a higher jurisdiction and therefore impact on the remedies they receive.61 As noted above, a key point of difference between the two Courts is in relation to representative proceedings. A representative proceeding—also known as a class action—can be brought in the Federal Court but not in the Federal Circuit Court. By removing the Federal Court’s

54. Explanatory Memorandum, Migration Amendment (Clarification of Jurisdiction) Bill 2018, p. 2. 55. AHRC, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit., p. 3. 56. Ibid., p. 12. 57. Refugee Council of Australia, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit., p. 1. 58. Castan Centre for Human Rights Law, Submission to the Senate Standing Committee on Legal and Constitutional Affairs,

op. cit., pp. 4-5. 59. Law Council of Australia, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Migration Amendment (Clarification of Jurisdiction) Bill 2018, 18 April 2018, pp. 2-3; Refugee Advice and Casework Service

(RACS), Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Migration Amendment (Clarification of Jurisdiction) Bill 2018, 13 April 2018; Asylum Seeker Resource Centre, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Migration Amendment (Clarification of Jurisdiction) Bill 2018, 12 April 2018, p. 4; Refugee Council of Australia, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit., pp. 2-3. 60. Australian Lawyers for Human Rights, Submission to the Senate Standing Committee on Legal and Constitutional Affairs,

Inquiry into the Migration Amendment (Clarification of Jurisdiction) Bill 2018, 13 April 2018, p. 3. 61. Law Council of Australia, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit., pp. 1-2.

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original jurisdiction over purported non-privative clause decisions, the Bill prevents representative proceedings being brought in relation to such decisions.62

The National Justice Project argued that non-privative clause decisions are particularly suited to class actions, as they are:

… decisions that affect privacy, liberty, rights against the person and personal economic and property rights, such as

- the searching of an individual;

- seizing personal possessions; and

- the wide power of the Minister to operate detention centres. 63

Its submission suggests that forcing purported non-privative clause decisions back to the Federal Circuit Court will have the effect of increasing the number of matters before that court, ‘forcing a multiplicity of individual actions instead of enabling them to be dealt with as a single class or representative action before the [Federal Court]’.64 It recommended that the Bill be rejected or, in the alternative, that it be amended so either:

• the Federal Court has jurisdiction to hear all class or representative actions brought as a review of non-privative clause decisions or

• the Federal Circuit Court is provided with jurisdiction to hear all class or representative actions brought in relation to non-privative clause decisions.65

The NSW Council for Civil Liberties also raised concerns about the practical impact of the Bill, pointing to the increased number of migration cases already placing significant pressure on the resources and timeliness of the Federal Circuit Court.66

Decisions relating to immigration detention Another point of concern has been that the type of decisions affected by the Bill largely relate to immigration detention. For example, the Asylum Seekers Resource Centre (ASRC) noted that many non-privative clause decisions relate to powers which ‘concern the rights, freedoms, conditions of detention and property of people in immigration detention’.67 It has submitted that, in light of the ‘existing paucity of proper oversight and accountability’ for the treatment of people in Australia’s immigration detention centres:

… it is precisely these kinds of decisions which warrant the most careful and fulsome scrutiny of our courts in order to act as an effective brake on the exercise of unlawful executive power. 68

62. This point is made by a number of submissions, including: AHRC, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit., p. 6; RACS, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Migration Amendment (Clarification of Jurisdiction) Bill 2018; National Justice Project, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Migration Amendment (Clarification of Jurisdiction) Bill 2018, 16 April 2018, p. 5.

63. National Justice Project, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit., p. 5. 64. Ibid., p. 5. 65. Ibid., p. 6. 66. NSW Council for Civil Liberties, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into

the Migration Amendment (Clarification of Jurisdiction) Bill 2018, 12 April 2018, pp. 5-7. 67. ASRC, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit., p. 2; also see: Global Mobility Immigration Lawyers, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the

Migration Amendment (Clarification of Jurisdiction) Bill 2018, 11 April 2018, p. 3. 68. ASRC, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit., p. 3.

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The Refugee Council endorsed the ASRC’s view, expressing its own concern at ‘the lack of oversight and accountability of Australia’s system of detention’.69

Financial implications The Explanatory Memorandum states that the Bill has no financial impact on Government revenue.70

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.71

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights considers that the Bill does not raise human rights concerns.72

Key issues and provisions The Department has stated that the effect of the Federal Court’s decision in MIBP v ARJ17 was that ‘the judicial review scheme in Part 8 of the Migration Act no longer operates in accordance with the original policy intention’. It has accordingly described the purpose of the Bill as being to ‘clarify and restore the intended operation’ of the Part 8 scheme.73

The Bill amends the Migration Act to clarify that purported non-privative clause decisions, as well as purported AAT Act migration decisions, are reviewable by the Federal Circuit Court and not the Federal Court. As a result of the amendments, the Federal Circuit Court’s jurisdiction to review a decision will not change depending on whether or not the decision is affected by jurisdictional error.

Expanding the scope of ‘migration decision’ Item 1 of the Bill repeals the definition of migration decision under subsection 5(1) and substitutes a new definition. This states that a migration decision means:

• privative clause and purported privative clause decisions

• non-privative clause and purported non-privative clause decisions and

• AAT Act migration and purported AAT Act migration decisions.

Item 3 inserts proposed sections 5EA and 5EB, which provide definitions of purported non-privative clause decision and purported AAT Act migration decision, respectively. These are in the same terms as the existing definition of ‘purported privative clause decision’ under section 5E, covering decisions ‘purportedly made, proposed to be made, or required to be made’ under the migration law, where there has been a failure to exercise jurisdiction or an excess of jurisdiction in the making of the decision.

69. Refugee Council of Australia, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit., p. 3. 70. Explanatory Memorandum, Migration Amendment (Clarification of Jurisdiction) Bill 2018, p. 2. 71. The Statement of Compatibility with Human Rights can be found at pages 8-10 of the Explanatory Memorandum to the Bill. 72. Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 3, 27 March 2018, p. 137. 73. DOHA, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Migration

Amendment (Clarification of Jurisdiction) Bill 2018, April 2018, p. 4.

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By expanding the definition of ‘migration decision’, the Bill expands the scope of the Federal Circuit Court’s original jurisdiction ‘in relation to migration decisions’ under section 476.

What is a ‘decision’? In relation to a purported non-privative clause decision, proposed subsection 5EA(2) states that a decision includes anything listed in existing subsection 474(3). This provision captures a broad range of administrative actions including the granting, varying, revoking or refusing to make an order or give an approval, consent or permission; imposing or refusing to impose a condition or restriction; making or revoking (or refusing to make or revoke) a declaration, demand or requirement; conduct preparatory to the making of a decision (including the taking of evidence or holding of an inquiry); or a failure or refusal to make a decision.74

In relation to both a purported AAT Act migration decision and AAT Act migration decision, the term decision is defined to include anything listed in proposed subsection 474A(2).75 This is in largely similar terms to subsection 474(3) and includes a broad range of administrative actions, such as conduct preparatory to the making of a decision or a failure to make a decision. The Explanatory Memorandum notes that proposed subsection 474A(2):

… relates only to establishing jurisdiction and the procedure of courts pursuant to Part 8 of the Migration Act, and does not affect any exercise of power under the AAT Act.

New subsection 474A(2) reflects the original policy intention of section 474A. Prior to the commencement of the Tribunals Amalgamation Act 2015, the decisions set out in current section 474A were made under the Migration Act and captured by administrative actions listed in subsection 474(3) of the Migration Act.

76

AAT Act amendment Part IVA of the AAT Act deals with the Federal Court’s jurisdiction to hear appeals of AAT decisions on questions of law. It also provides the AAT with the power to refer to the Federal Court a question of law that arises in a proceeding before the tribunal.77 Existing section 43C provides that Part IVA does not apply to an application in relation to, or a proceeding for the review of, the following Migration Act decisions:

• a privative clause decision

• a purported privative clause decision and

• an AAT Act migration decision.

Item 8 amends this section by inserting proposed paragraph 43C(d) to provide that Part IVA also does not apply to an application or proceeding relating to a purported AAT Act migration decision. This ensures consistency between the AAT Act and Migration Act on questions of which court has jurisdiction over different types of migration matters.

Application Item 9 provides that the Bill’s amendments apply in relation to a purported non-privative clause decision or purported AAT Act migration decision made on or after the day on which the Act

74. Migration Act, subsection 474(3). 75. Proposed subsection 5EB(2) (in relation to a purported AAT Act migration decision). Proposed subsection 474A(2) is inserted into the Migration Act by item 5, and also applies in relation to AAT Act migration decisions, defined under subsection 474A(1).

76. Explanatory Memorandum, Migration Amendment (Clarification of Jurisdiction) Bill 2018, p. 6. 77. Administrative Appeals Tribunal Act 1975 (Cth), section 45.

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commences. It appears that the Federal Court will continue to have jurisdiction to review any such decision made prior to commencement.

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