Bills Digest No. 140  1999-2000Migration Legislation Amendment Bill (No. 2) 2000


Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details

Passage History

Migration Legislation Amendment Bill (No. 2) 2000

Date Introduced: 14 March 2000

House: House of Representatives

Portfolio: Immigration and Multicultural Affairs

Commencement: Upon Royal Assent, except for:

  • Part 2 of Schedule 1 (preventing class actions) and items 5-7 of Schedule 2, which commence upon Proclamation, or 6 months after the date of Royal Assent, whichever is the earlier
  • Part 1 of Schedule 2 (technical amendments dealing with the Minister's powers to cancel visas on character grounds) and items 8 and 9 of Schedule 2, which are taken to have commenced on 1 June 1999
  • Item 10 of Schedule 2, which is taken to have commenced on 1 March 2000

Purpose

The Migration Legislation Amendment Bill (No 2) 2000 amends the Migration Act 1958 (the Migration Act) to restrict access to the courts for judicial review of migration decisions. The Bill does this is by preventing class actions in migration matters before the Federal and High Courts, by changing the requirements for standing in the Federal Court and by introducing time limits for original applications to the High Court in migration matters. The Bill also makes some minor technical amendments.

Background

Judicial Review of Migration Decisions

Judicial Review distinguished from Merits Review

At the outset it is desirable to clarify the distinction in administrative law between two distinct types of review: merits review and judicial review. Merits review seeks to ensure that the correct and preferable decision is made. Judicial review, on the other hand, seeks to ensure that the decision is made according to law.(1) Although both types of review are important in ensuring the quality and integrity of public decision-making, merits review and judicial review approach the same end through different means.

The Bill seeks to restrict access to judicial review of migration decisions. In this regard, the Bill is part of a legislative push that began in the early 1990s, following the 'hey-day' of judicial activism in migration decision making during the 1980s.(2)

Constriction of Judicial Review of Migration Decisions

The Migration Reform Act 1992 (the Reform Act), which commenced on 1 September 1994, represents the first step towards restricting judicial review of migration decisions. The Reform Act limited the grounds for judicial review in the Federal Court and introduced time limits on applications to the Federal Court: see sections 475 and 478 of the Migration Act. Thus the Reform Act placed significant substantive and procedural restrictions on judicial review.

The ramifications of the Reform Act have only just begun to impact on the High Court. A direct consequence of limiting the grounds of judicial review in the Federal Court has been to force applicants seeking review on one or more of the excluded grounds to commence proceedings in the High Court. The High Court's jurisdiction to hear applications for judicial review on any ground is in effect constitutionally entrenched by section 75(v) of the Constitution. The Reform Act has caused a large increase in the workload of the High Court. Two Justices of the High Court have expressed concern over the implications of an increased migration workload for the Court in performing its other roles as final appellate court for the nation and arbiter of the Constitution.(3)

In his Second Reading Speech on the Bill, the Minister for Immigration and Multicultural Affairs explained that:

the government's stated policy [is] to restrict access to judicial review in visa related matters 'in all but exceptional circumstances'.(4)

The rationale for this policy is multifarious. First and foremost, the government is concerned about the increasing cost and incidence of migration litigation. The Minister stated that migration litigation cost the Department in excess of $11 million in the last financial year, with a projected cost of more than $20 million in 2001-02.(5) Secondly, the government is disturbed by what is perceived to be an abuse of the judicial review process. This is further discussed under the heading Class Actions, below. The 'abuse' delays and frustrates the Department's attempts to remove non-citizens from Australia. Thirdly, the government considers that judicial review is less necessary 'in light of the extensive merits review enshrined in migration legislation'.(6)

The Bill is a further step towards achieving the government's policy aim. The Bill imposes procedural restrictions that narrow the group of applicants who are able to access the courts for judicial review of their migration decisions. The restrictions are in the form of time limits on, and de facto cost barriers to, commencing applications for judicial review.

The Migration Legislation Amendment (Judicial Review) Bill 1998 (the Judicial Review Bill) is the proposed final step that will fully and substantively restrict judicial review of migration decisions. The Judicial Review Bill introduces a privative clause which, if upheld, would exhaust the jurisdiction of the High Court under the Migration Act. This would spell the end of judicial review in the migration area. For an incisive analysis of the privative clause and the question of its validity, the reader is referred to Bills Digest No. 90 of 1998-99.(7)

Constitutionality of Time Limits on the High Court

One of the acknowledged purposes of the Bill is to place time limits on the making of applications to the High Court for judicial review. The time limits are expressed to be absolute and not able to be varied by the Court. Original applications to the High Court for judicial review of migration decisions (as opposed to appeals to the High Court from the Federal Court concerning migration decisions) are usually framed as applications for one or more of the prerogative writs, including the writs of mandamus and prohibition.(8) For example, a visa applicant who seeks judicial review by the High Court of a decision of the Refugee Review Tribunal will seek, amongst other relief, a writ of prohibition directed to the Minister for Immigration, prohibiting him from acting on the decision of the Tribunal.

Section 75(v) of the Constitution states:

In all matters:

...

(v) in which a writ of Mandamus or prohibition or injunction is sought against an officer of the Commonwealth;

the High Court shall have original jurisdiction.

Thus applications for judicial review of migration decisions come within the original jurisdiction of the High Court. That jurisdiction is guaranteed by the Constitution, and forms the basis for the exercise in the proceedings of the judicial power of the Commonwealth. The question that arises, therefore, is: does the imposition of absolute time limits on applications to the High Court for judicial review impermissibly interfere with the exercise of federal judicial power. While the Government clearly does not consider that the Bill interferes with the judicial power of the Commonwealth, this question is perhaps one over which constitutional lawyers may be divided.(9)

Class Actions

Class actions, or representative proceedings, have been available both in the Federal Court and the High Court for many years now.(10) A class action is one in which a person brings proceedings on behalf of a group of people where the claims of those persons arise out of the same or similar circumstances, and the claims give rise to substantial common issues of fact or law.(11) In the words of the then Attorney-General who introduced the amending legislation that enables class actions to be brought in the Federal Court, they give

... access to the courts to those people in the community who have been denied justice because of the high cost of taking action.(12)

The high cost of litigation is a well known fact. Filing fees for initiating proceedings in the Federal Court and the High Court are currently $505 and $1,000 respectively.(13) Although there are provisions for the filing and other court fees to be waived,(14) litigation remains prohibitively expensive for many visa applicants.

For non-citizens who have had their visa application rejected, joining a class action also allows them to stay in Australia until until at least 28 days after the class action is finally determined.(15) It is the entitlement to a bridging visa which has prompted the government to suggest that many non-citizens join class actions purely in order to extend their stay in Australia. The Minister stated that are currently 3,500 people involved in pending class actions.(16)

The Minister stated that of the 14 class actions that have been commenced since October 1997, the 10 that have been decided have all been dismissed.(17) Yet there has been at least one instance of a class action being upheld by the courts. The decision of the Federal Court in Fazal Din v Minister for Immigration and Multicultural Affairs [1998] 961 FCA (14 August 1998) is an example of a successful class action.

Main Provisions

Schedule 1

Part 1

This part deals with the jurisdiction of the Federal Court, and the commencement of proceedings in the High Court.

Section 485 of the Migration Act prescribes the jurisdiction of the Federal Court in migration matters. Subsection 485(3) deals with the jurisdiction of the Federal Court over judicially-reviewable decisions that are remitted to it by the High Court pursuant to section 44 of the Judiciary Act 1903. The subsection limits the available grounds of review to those that are normally available in the Federal Court for judicially-reviewable decisions. However, not all migration decisions are judicially-reviewable decisions: subsection 475(2).

In 'A' v Pelekanakis(18) the applicant argued that when a matter that does not involve a judicially-reviewable decision is remitted to the Federal Court by the High Court, all the grounds of review are available in the Federal Court. This is because subsection 485(3) only applies to judicially reviewable decisions. At first instance, Weinberg J upheld the applicant's argument.

Items 2 and 3 are a response to Weinberg J's interpretation of subsection 485(3). As the Explanatory Memorandum notes, the amendments clarify that the only grounds of review that are available in the Federal Court, in respect of a matter remitted to it by the High Court, are the restricted grounds that are normally available.(19)

Item 4 inserts a proposed Part 8A into the Migration Act, dealing with restrictions on court proceedings. Proposed section 486A would place a time limit of 28 days on the making of an application to the High Court for a writ of mandamus, prohibition or certiorari or a declaration or an injunction. The Explanatory Memorandum indicates that this is intended to ensure that challenging migration decisions in the High Court does not become a way of circumventing the time limits for applications to the Federal Court under Part 8 of the Act.(20) Proposed subsection 486A(2) would prevent the High Court from extending the 28 day time limit. As discussed in the Background section to this Digest, the constitutional validity of proposed section 486A may for this reason be uncertain.

Part 2

Item 6 inserts proposed sections 486B and 486C into proposed Part 8A.(21) Proposed section 486B would effectively place a bar on class actions in the Federal and High Courts. Proposed subsection 486B(1) would prohibit joinder of parties, consolidation of proceedings and representative or class actions in migration matters. However, the proposed section would not prevent members of a family from being involved in the one proceeding: proposed subsection 486(4)(a).(22) Nor would it prevent the involvement of a person performing statutory functions, a prescribed person or an Attorney-General (State or Commonwealth) in a proceeding: proposed subsections 486B(4)(b)-(d).

As the Explanatory Memorandum indicates, proposed section 486C would introduce standing requirements for the Federal Court in all migration matters.(23) 'Standing' is the legal term to denote the group of people who have authority to bring proceedings in respect of a matter. Section 479 of the Migration Act provides standing requirements in relation to review of decisions under Part 8 of the Migration Act.

The Federal Court reviews some migration decisions which do not fall within Part 8, including decisions of the Administrative Appeals Tribunal (AAT) and matters commenced pursuant to section 39B of the Judiciary Act 1903.(24) Proposed subsection 486C(2)(b) would introduce standing requirements for such decisions. The requirements are that a person be the subject of the visa decision, or deportation decision, or removal action,(25) or the decision of the AAT, to which the proceedings relate.

Proposed section 486C would apply to Part 8 decisions as well, although the standing requirements in proposed subsection 486C(2)(a) in respect of Part 8 decisions are virtually identical with the existing requirements in section 479. The Minister, a person performing statutory functions, a prescribed person and Attorneys-General (State and Commonwealth) would also have standing in respect of migration decisions: proposed subsection 486C(2)(c).

Proposed section 486C would apply despite any other law, unless a later Act specifically provided otherwise: proposed subsections 486C(5) and (6). Proposed section 486C would not extend any existing standing requirement: proposed subsection 486C(4).

Item 7 provides that the bar on class actions and the standing requirement for review of migration decisions in the Federal Court (proposed sections 486B and C) would apply to proceedings commenced on or after 14 March 2000. Items 8 and 9 provide transitional arrangements for those actions which are begun on or after 14 March 2000 but before the commencement of the Act. The Court is to treat such proceedings as if it lacked jurisdiction to hear them, and refund any fees: item 10. In his Second Reading Speech the Minister explained that these items are 'to deter any attempt to promote a rush of class actions before these amendments are passed'.(26)

Schedule 2

Part 1

This part contains technical amendments concerning the character test in section 501 of the Migration Act. Under that section, the Minister or his or her delegate may refuse to grant a visa if a person does not pass the character test. Section 500 provides a right of review to the AAT from a decision of a delegate to refuse to grant a visa on character grounds. Section 501A provides the Minister with a personal, non-reviewable power to substitute a favourable decision of the AAT with an adverse one.

As the Explanatory Memorandum indicates, the current wording of subsection 501A(1)(c) wrongly implies that the AAT has the power to grant a visa.(27) In actual fact, the AAT only has the power to decide that a visa should not be refused on character grounds.(28) Item 1 amends subsection 501A(1)(c) to remove the false implication. Item 4 makes a similar amendment to the transitional provisions which are contained in the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998.

Item 2 clarifies that the Minister has the power under section 501A to substitute an adverse decision for a favourable decision of the delegate even when a person passes the character test in section 501.

Item 3 inserts proposed subsection 501A(4A) which clarifies that the power to substitute an adverse decision may be exercised by the Minister at any stage after the approval on character grounds has been given, including after the visa has been granted.

Part 2

This part deals with formal technical amendments, mostly to earlier misdescribed amendments to the Migration Act. The amendments are of no significant consequence and will not be discussed here.

Concluding Comments

Subject to a possible question over the constitutional validity of one of its provisions (proposed section 486A), the Bill appears to be technically effective in implementing the government's stated policy objectives. It is perhaps worthwhile making a few general comments about the impact of those policy objectives.

For many visa applicants, the abolition of class actions is likely to present a barrier to the enforcement of their rights. The cost of commencing and funding litigation will probably deter many individual applicants. This is especially so in view of the lack of legal aid for migration matters. While it may be the case that class actions are being used by some non-citizens simply as a means of prolonging their stay in Australia, the case of Fazal Din referred to above refutes the contention that class actions are necessarily vexatious.

At the same time, there still will be, no doubt, a number of people who are able and determined to pursue their rights in the courts. They will each be required to commence separate proceedings, which will increase the workload of the courts. Some of those proceedings may also serve as test cases. The success of one proceeding may encourage others of a similar nature. Again, this would mean a greater volume of litigation.

The prospect of a continuing heavy, or an increasing, migration workload will not please the Justices of the High Court. In Re the Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham McHugh J made the following comment about the current operation of the Migration Act:

Given this history and the need for this Court to concentrate on constitutional and important appellate matters, I find it difficult to see the rationale for the amendments to the Migration Act (Cth) ("the Act") [made by the Reform Act] which now prevent this Court from remitting to the Federal Court all issues arising under that Act which fall within this Court's original jurisdiction. No other constitutional or ultimate appellate court of any nation of which I am aware is called on to perform trial work of the nature that these amendments to the Act have now forced upon the Court.(29)

One of the rationales given for restricting judicial review is, as is discussed in the Background section of this Digest, that there is already a comprehensive regime for merits review in the migration area. The suggestion is that judicial review is therefore not needed. This suggestion fails to appreciate that merits review and judicial review serve distinctly different functions, as is pointed out at the beginning of this Digest. Both forms of review are necessary to ensure quality and integrity in decision making. Moreover, judicial review is a necessary feature in a system of government that observes the separation of powers.

In the media release that accompanied the introduction of the Bill into Parliament, the Minister urged the Opposition to allow the passage of the Judicial Review Bill which is currently before the Senate. Together they will

allow the Government the tools to address the serious and continuing problem of misuse of judicial processes by non-citizens refusing to leave Australia.(30)

The present Bill is not, as the Minister acknowledges, a substitute for the Judicial Review Bill.(31) This is true in the sense that it does not go nearly as far, but it is nevertheless a step in the same direction.

Endnotes

  1. M Allars, Introduction to Australian Administrative Law, 1990, Butterworths, pp. 162-3.
  2. M Crock, Immigration & Refugee Law in Australia, 1998, Federation Press, p. 33.
  3. In Re Minister for Immigration and Multicultural Affairs & anor; ex parte Abebe (1998) 152 ALR 177 Gummow J referred to the fragmentation of jurisdiction between the Federal Court and the High Court in the migration area caused by the Migration Reform Act 1992 (the Reform Act). His Honour commented (at 180):

    The history to date of this litigation, which I have outlined, indicates the procedural difficulties for all concerned that arise from the legislative fragmentation of what is, in truth, the one controversy between the parties. ... The result achieved by the [Migration] Act as it now stands is to encourage the twin evils of cost and delay, and, it would appear, to impede the efficient administration of the migration laws.

    Similarly, in Re the Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 (21 January 2000), McHugh J remarked (at paras 9 and 15):

    The effect of restricting the jurisdiction of the Federal Court must inevitably impose on the Justices of this Court the dilemma of choosing between two unpalatable alternatives. The first alternative is to give preference to the applications of persons held in custody and claiming refugee status to the detriment of the Court's general constitutional and appellate jurisdiction. The second alternative is to continue to give preference to the constitutional and appellate jurisdiction of the Court with the result that claimants for refugee status are detained in custody for longer periods than is likely to have been the case if the Federal Court had retained all of its jurisdiction to deal with refugee cases.

    ...

    The reforms brought about by the amendments [the Reform Act] are plainly in need of reform themselves if this Court is to have adequate time for the research and reflection necessary to fulfil its role as "the keystone of the federal arch" and the ultimate appellate court of the nation. I hope that in the near future the Parliament will reconsider the jurisdictional issues involved.

  4. Hon P Ruddock MP, Minister for Immigration and Multicultural Affairs and Minister Assisting the Prime Minister for Reconciliation, Migration Legislation Amendment Bill (No 2) 2000, Second Reading Speech, 14 March 2000, Debates, p. 14267.
  5. Ibid.
  6. Ibid.
  7. Migration Legislation Amendment (Judicial Review) Bill 1998, Bills Digest No. 90 1998-99.
  8. Mandamus is an order issued to compel a public official to exercise a power in accordance with his or her public duty. Prohibition is an order issued forbidding a specified act. (Butterworths Concise Australian Legal Dictionary, 1997)
  9. In Australian Building Construction Employees' and Builders Labourers' Federation v Commonwealth (1986) 161 CLR 88 the High Court might be seen to have intimated that the imposition of absolute time limits on its original jurisdiction will interfere with the judicial power of the Commonwealth. The Court held (at 96):

    It is well established that Parliament may legislate so as to effect and alter rights in issue in pending legislation without interfering with the exercise of judicial power in a way that is inconsistent with the Constitution. ... It is otherwise when the legislation in question interferes with the judicial process itself, rather than the substantive rights which are at issue in the proceedings.

    The next issue to be resolved is whether the imposition of absolute time limits interfere with the judicial process itself. On one view, the imposition of absolute time limits curtails substantive rights, albeit through a procedural limitation. On another view, the Bill's failure to provide the High Court with a discretion to extend the time limits in appropriate circumstances constitutes an attempt to control the Court, and an interference with the judicial process itself. See also Liyanage v R [1967] AC 259.

  10. Representative proceedings have been possible in the Federal Court since March 1992 (see the Federal Court of Australia Amendment Act 1991) and in the High Court since 1953 (see Order 16 rule 12 of the High Court Rules).
  11. Section 33C of the Federal Court of Australia Act 1976.
  12. Hon M Duffy MJ, Attorney-General, Second Reading Speech on the Federal Court of Australia Amendment Bill 1991, 14 November 1991, Debates, p. 3174.
  13. Reg. 2, Sch Federal Court of Australia Regulations 1978; reg 4, Sch 1 High Court of Australia (Fees) Regulations 1991.
  14. Reg. 2(2) Federal Court of Australia Regulations 1978; reg 4(4) High Court of Australia (Fees) Regulations 1991.
  15. See clauses 010.212(3), 020.212(3), 050.212(3A) and 050.212(4) of Schedule 2 of the Migration Regulations 1994.
  16. Hon P Ruddock MP, loc cit.
  17. Ibid.
  18. [1999] FCA 236 (17 March 1996).
  19. Explanatory Memorandum, p. 4.
  20. Explanatory Memorandum, p. 5.
  21. New sections 486B and 486C commence on proclamation, whereas new section 486A commences on royal assent.
  22. 'Family' is to be defined in regulations: new subsection 486B(4)(a)(i).
  23. Explanatory Memorandum, p. 6.
  24. Section 39B of the Judiciary Act gives the Federal Court jurisdiction in matters arising under the Constitution and under any laws made by the Commonwealth Parliament.
  25. 'Deportation decision', 'removal action' and 'visa decision' are defined in new subsection 486C(7).
  26. Hon P Ruddock MP, Minister for Immigration and Multicultural Affairs and Minister Assisting the Prime Minister for Reconciliation, Migration Legislation Amendment Bill (No 2) 2000, Second Reading Speech, 14 March 2000, Debates, p. 14267.
  27. Explanatory Memorandum, p. 10.
  28. The power to grant a visa is contained in section 65 of the Migration Act.
  29. [2000] HCA 1 (21 January 2000) at para. 13.
  30. Philip Ruddock MP, Media Release, MPS 027/2000, 14 March 2000.
  31. Hon P Ruddock MP, Minister for Immigration and Multicultural Affairs and Minister Assisting the Prime Minister for Reconciliation, Migration Legislation Amendment Bill (No 2) 2000, Second Reading Speech, 14 March 2000, Debates, p. 14267.

Contact Officer and Copyright Details

Andrew Grimm
3 April 2000
Bills Digest Service
Information and Research Services

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ISSN 1328-8091
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Published by the Department of the Parliamentary Library, 2000.

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