Bills Digest No. 49 2001-02
Jurisdiction of the Federal Magistrates Service Legislation
Amendment Bill 2001
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
Endnotes
Appendix
Contact Officer & Copyright Details
Jurisdiction of the Federal Magistrates
Service Legislation Amendment Bill 2001
Date Introduced: 30 August 2001
House: House of Representatives
Portfolio: Attorney-General
Commencement: On Royal Assent
To confer jurisdiction in migration matters on
the Federal Magistrates Court (FMC).(1)
The Federal Magistrates Court
General
The FMC is the first lower level federal court
in Australia.(2) It was established by the Federal
Magistrates Act 1999. Its jurisdiction is conferred and
described by the Federal Magistrates (Consequential Amendments)
Act 1999.(3) When introducing the Federal
Magistrates Bill 1999, the Attorney-General remarked:
The Federal Magistrates Service is intended to
provide a quicker, cheaper option for litigants and to ease the
workload of both the Federal Court and the Family Court. When fully
established, it will free up the Federal and Family Courts to focus
on the more complex matters that require the attention of a
superior court judge.
The FMC is a Chapter III court.(4)
Federal magistrates are appointed by the Governor-General and
remain in office until the age of 70 years.(5) Like
other Chapter III judges(6) they cannot be removed
except by an address of both Houses of Parliament on the grounds of
proved misbehaviour or incapacity.(7) While the Court
Act provides for the appointment of part-time magistrates, all
current federal magistrates are full-time office
holders.(8)
The Chief Federal Magistrate was appointed in
February 2000 and the first federal magistrates were appointed in
June 2000. The first sittings of the FMC were on 3 July 2000 in
Adelaide, Melbourne, Newcastle, Brisbane, Townsville, and
Parramatta. The Court now also sits in Canberra, Launceston and
Sydney with regular circuit sitting to a number of metropolitan and
regional centres including Darwin and Dandenong.(9)
There are now six federal magistrates in NSW and the ACT, four in
Victoria, three in Queensland, one in Tasmania and one in South
Australia.(10) To date, the Court's work has been mainly
in family law and bankruptcy.(11)
The Attorney-General has praised the FMC for
providing 'cheaper(12), simpler and faster court
services ... in its first year of operation'.(13)
However, some concerns have been expressed about the adequacy of
the Court's funding. Commenting on the Budget in May 2001, the Law
Council of Australia remarked:
The Federal Magistrates Service has received a
minimal funding increase. While the Government says the Service is
aimed at providing simpler, cheaper and quicker justice there are
already reports of delays in hearing matters in Canberra and
Newcastle. Since its establishment last year, the Law Council has
been concerned that the funding for this new court would not be
adequate to meet the demand for its services and its stated
aims.(14)
In July 2001, the Attorney-General reported that
in the first year of the FMC's operations, more than 4,500 family
law matters (other than divorces) and 2,000 non-family law
applications had been filed with the FMC.(15) A table of
State-by-State filings for the FMC is attached to this Digest.
Questions relating to funding and resources are
likely to be raised in the context of granting an additional
jurisdiction-in migration matters-to the FMC. When the Bill was
introduced into the Parliament, the Attorney-General said:
I expect that the conferral of migration
jurisdiction on the Service will lead to an increase in work for
the Service. The Government proposes to appoint additional
magistrates to the Federal Magistrates Service so that it will be
able to manage the additional workload. The number of extra
magistrates required is still to be determined.
The Attorney-General's Department will advertise
this weekend for expressions of interest for Federal Magistrates to
be based in Sydney or Melbourne. The new Federal Magistrates will
hear matters in all areas of the Service's jurisdiction, including
family law and the proposed new migration
jurisdiction.(16)
Jurisdiction
The FMC does not have any jurisdiction that is
solely its own. Instead, it has concurrent jurisdiction with the
Federal Court of Australia and the Family Court of Australia,
although in some areas its jurisdiction is more limited than that
of the two other courts.
The FMC is a statutory court and thus exercises
the jurisdiction conferred on it by legislation. The relevant
legislation gives the FMC jurisdiction in certain areas-for
example, administrative law, bankruptcy, family law (including
child support), human rights and trade practices-but also places
restrictions on the court in certain of those areas, explicitly
excludes some matters from its purview and makes the Federal Court
a gatekeeper in respect of other matters.
Thus, in the area of family law, the FMC can
hear applications for divorce, spousal maintenance applications,
applications for parenting orders; it can make enforcement,
location and recovery orders and determine parentage. It can deal
with child support matters. However, it can only deal with property
disputes where the value of the property is less than $300 000
or the parties agree.
Further, the FMC has a restricted administrative
law jurisdiction. The FMC has jurisdiction to hear appeals from
decisions of the Administrative Appeals Tribunal (AAT) but only
where the appeal is commenced in the Federal Court and transferred
by that Court to the FMC. Additionally, there are restrictions on
the appeals that can be transferred. For instance, an appeal from a
decision by an AAT presidential member cannot be transferred to the
FMC. Nor can appeals from AAT decisions relating to administrative
decisions under legislation in the Immigration and Multicultural
Affairs portfolio.(17)
The FMC's jurisdiction under the
Administrative Decisions (Judicial Review) Act 1977
(AD(JR) Act) is not dependent on matters being transferred to it by
the Federal Court. However, it cannot review administrative
decisions made under the Australian Citizenship Act 1948,
the Immigration (Guardianship of Children) Act 1946, the
Migration Act 1958 or under regulations made under any of
those Acts.(18)
The Federal Magistrates Act, the Federal
Court Act of Australia Act 1976 and the Family Law Act
1975 also contain general provisions covering the transfer of
matters between the courts. Among other things, these provisions
are designed to ensure that more complex matters are dealt with by
the appropriate superior court rather than by the FMC. The Federal
Magistrates Act enables the FMC to transfer a matter to the Federal
or Family Courts on its own motion or on the application of a
party. In deciding whether to transfer proceedings to the Federal
or Family Courts, the FMC must consider a number of matters
including whether proceedings in an associated matter are pending
in another court, whether the FMC has sufficient resources to hear
and determine the matter, the interests of the administration of
justice, and factors set out in the Federal Magistrates
Rules.(19) These factors include whether the proceeding
is likely to involve questions of general importance such that it
would be desirable for the matter to be heard by the Federal or
Family Courts.(20) The FMC website states that while
there is no strict indicator of complexity, a general guide is that
less complex matters will require less than 2 days court hearing
time.(21)
Review of migration decisions
Administrative law is designed to ensure that
Government decisions are made lawfully and that the rights of
people affected by those decisions are protected.
In some circumstances, it is possible to obtain
a review of migration decisions made by the Department of
Immigration and Multicultural Affairs. Two types of review may be
available. Merits review involves an administrative tribunal such
as the Migration Review Tribunal (MRT), the Refugee Review Tribunal
(RRT) or the Administrative Appeals Tribunal (AAT) deciding whether
a decision being challenged is the 'correct or preferable' one
after a review of the facts.(22) A merits review
tribunal can ordinarily substitute a new decision for the one being
challenged. Judicial review involves consideration of whether the
law was correctly applied and may be sought if merits review is
unavailable or an applicant wishes to challenge a merits review
decision. Judicial review does not ordinarily involve the court
substituting a new decision. However, it may quash the decision or
send it back to the decision-maker for further consideration.
Relevant Commonwealth merits review bodies-the
MRT, RRT and AAT-have different responsibilities in migration law.
For example, the MRT may be able to review a decision to cancel a
visa or refuse a visa, other than a protection visa. The RRT may be
able to review a decision to refuse or cancel a protection visa.
The AAT may be able to review a decision to cancel a business visa
or refuse or cancel a visa on character grounds.
The system of judicial review of migration
decisions in Australia has been described as
'bifurcated'.(23) It involves the Federal Court and the
High Court. Part 8 of the Migration Act enables the Federal Court
to review what are called 'judicially-reviewable decisions'. This
expression is defined to include decisions of the MRT, the RRT and
other decisions made under the Migration Act or regulations that
relate to visas.
The grounds on which the Federal Court can
review judicially-reviewable decisions are contained in section 476
of the Migration Act. They include certain types of error of law,
and restricted grounds related to failure of jurisdiction, improper
exercise of power, fraud or bias. Some grounds of review which
would otherwise be available under the AD(JR) Act or as a result of
applications made under subsection 39B(1) of the Judiciary Act
1903 are not available when the Federal Court is exercising
its migration jurisdiction. Grounds of review which are unavailable
include failure by a decision-maker to observer natural justice,
taking irrelevant considerations into account, failing to take
relevant considerations into account and
Wednesbury(24) unreasonableness.
As one commentator has remarked:
The obvious difficulty created by Part 8 of the
Migration Act is that it creates a 'bifurcated judicial review
process'. The High Court has a constitutionally entrenched
jurisdiction to grant prerogative relief against officers of the
Commonwealth, including Ministers. So long as that jurisdiction
remains intact, an aggrieved applicant may seek prerogative relief
from the High Court in respect of a migration decision on grounds
excluded by Part 8, including a denial of natural justice and a
failure by the decision-maker to take relevant considerations into
account. The High Court's jurisdiction is not affected by the fact
that the Federal Court has been deprived of jurisdiction to review
the particular decision by virtue of Part 8 of the Migration Act.
The practical effect of the 'bifurcation' is that, in certain
circumstances, a person wishing to challenge an adverse migration
decision can do so only be invoking the original jurisdiction of
the High Court.(25)
A further difficulty with the existing system is
that if the High Court remits a migration matter to the Federal
Court under section 44 of the Judiciary Act, the Federal Court can
only exercise the powers it conferred on it by Part 8 of the
Migration Act.(26)
Judicial workloads in migration
matters
Part 8 restrictions on the Federal Court's
ability to review migration decisions have resulted in an increase
of migration cases going to the High Court in its original
jurisdiction. As stated above, this jurisdiction is
constitutionally conferred and allows the Court to review decisions
of Commonwealth officers and grant remedies.(27) The
increase in the High Court's workload in migration matters has been
the subject of political and judicial comment.
In Re The Minister for Immigration and
Multicultural Affairs; Ex parte Durairajasingham, a case
decided in January 2000 involving a section 75(v)(28)
application to the High Court against an RRT decision, McHugh J
said:
In Abebe v The Commonwealth, Gleeson CJ
and I pointed out that:
"[T]he Parliament has chosen to restrict
severely the jurisdiction of the Federal Court to review the
legality of decisions of the Refugee Review Tribunal. That
restriction may have significant consequences for this Court
because it must inevitably force or at all events invite applicants
for refugee status to invoke the constitutionally entrenched s
75(v) jurisdiction of this Court. The effect on the business of
this Court is certain to be serious."
This case is but one of many applications for
prerogative relief against the Tribunal currently pending in this
Court. Its procedural history vividly illustrates that the serious
effect on the Court's business, which Gleeson CJ and I predicted in
Abebe, is now being experienced. The case also
demonstrates, if demonstration were necessary, that the effect of
restricting the jurisdiction of the Federal Court to hear
applications by persons claiming refugee status will often be to
produce two hearings instead of one (a partial remitter to the
Federal Court and a hearing in this Court), to lengthen the time
taken to dispose of those applications and to use the time of the
Federal judiciary inefficiently. A single judge of the Federal
Court can, subject to appeal, dispose of a case in the Federal
Court. A Justice of this Court can only dispose of an application
by holding that the applicant has not overcome the low hurdle for
the grant of an order nisi. Even then his or her decision may be
subject to appeal. If an order nisi is granted, the matter can only
be disposed of by the Full Court of this Court unless it "appears
to be one of urgency".
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.
One of the principal reasons for the setting up
of the Federal Court in 1976 was the recognition that, with more
and more matters arising under laws of the Parliament, this Court
could not act as a federal trial court and still have adequate time
for research and reflection in respect of the important matters
falling within its constitutional and appellate jurisdiction.
...
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") 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.
There is no ground whatever for thinking that
the judges of the Federal Court are not capable of dealing with all
issues arising under the Act which fall within this Court's
jurisdiction. Although the refugee matters that cannot be remitted
to the Federal Court do arise under this Court's constitutionally
entrenched jurisdiction, most of them are not constitutional
matters as that term is ordinarily understood. The great majority
of the matters which cannot be remitted simply involve questions of
administrative law with which the Federal Court has long been
familiar and in respect of which it has great experience and
expertise. ...
The reforms brought about by the amendments 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.(29)
The change in the Court's workload was described
in its Annual Report for 1999-2000:
The number of order nisi(30)
applications filed during the year remained high, following the
trend noted in 1998-99. More than 70% of the order nisi
applications filed during 1999-00 involved immigration matters. The
impact of this growing jurisdiction is most obvious in the increase
of single Justice hearings. In 1998-99 there were 25 single Justice
hearings involving order nisi applications. In 1999-00 this figure
soared to 173, of which 88% involved immigration matters. These
applications consume a large amount of judicial time, particularly
in cases requiring more than one hearing.(31)
More recently, the Minister for Immigration and
Multicultural Affairs stated that migration applications to the
High Court declined by 27 per cent from the 1999-2000 to the
2000-2001 financial years.(32)
In May 2001, articles dealing with the High
Court's workload in migration matters appeared in the
Weekend Australian and the Australian
newspapers.(33) The Weekend Australian reported
that the Attorney-General and the Minister for Immigration and
Multicultural Affairs had discussed the issue. The article
continued:
Legal academics and Law Council of Australia
president Anne Trimmer have lent their support to the possibility
of using the Federal Magistrates Service to deal with less complex
appeals against Refugee Review Tribunal decisions.
High Court observers, including leading
constitutional academics, have warned that the seven High Court
judges face a crisis because of the increase in immigration matters
that can no longer be heard by the Federal
Court.(34)
However, giving a migration jurisdiction to the
FMC will not, of itself, result in fewer applications being made to
the High Court unless-despite the fact that the FMC will have the
same limited migration jurisdiction as the Federal Court-applicants
are persuaded they will have a speedier, more informal or less
expensive hearing than in the High Court(35) or the High
Court's jurisdiction is validly circumscribed.(36) A
media release by the Minister for Immigration and Multicultural
Affairs in July 2001 contained the following comments:
... the [Law] Council's suggestion to use the
Federal Magistrates Service (FMS) to reduce the increasing burden
on the High Court was also off target as that would do little more
than add another stage to the review process(37),
enabling people to further prolong their stay in Australia.
However, the Minister said the Government was
examining how the use of the FMS could make a positive contribution
to reducing abuse of the judicial review process. To achieve this
end, limitations on access to other review processes would be
necessary.(38)
Since 1997, the Government has been attempting
secure the passage of legislation to restrict the High Court's
ability to review migration decisions. In 1997, the Migration
Legislation Amendment Bill (No. 4) 1997 was introduced into the
Parliament. This Bill sought to restrict access to Federal and High
Court judicial review of migration decisions through the use of
privative clauses. Additionally, it amended the structure of merits
review of migration decisions. The privative clause proposals were
the subject of criticism, removed from the Bill and included in a
new Bill-the Migration Legislation Amendment Bill (No. 5) 1997.
Parliament was prorogued for the 1998 General Election before
either Bill had passed. In 1998, the Migration Legislation
Amendment Bill (No. 1) 1998 (which reflected the remnant No. 4
Bill) was enacted. The No. 5 Bill was substantially re-introduced
as the Migration Legislation Amendment (Judicial Review) Bill 1998
on 2 December 1998. The Second Reading debate was adjourned on the
same date and has not yet resumed. However, debate is now scheduled
for 17 September 2001.(39)
For an account of the Migration Legislation
Amendment (Judicial Review) Bill 1998, readers are referred to
Bills Digest No. 90 1998-99(40) and to the
report of the Senate Legal and Constitutional Legislation
Committee.(41)
Other proposals for amending migration
laws
A number of migration bills are currently before
the Parliament. The Migration Legislation Amendment (Judicial
Review) Bill 1998 has already been described. Other Bills include
the Migration Legislation Amendment Bill (No. 6)
2001.(42) Among other things, this bill defines
persecution for the purposes of protection applications.
More recently, the Government announced that it
will introduce legislation on 17 September 2001 excising Christmas
Island and Ashmore Reef from the Migration Zone.(43)
Schedule 1
Items 1-6 are consequential
amendments generated by the extension of the FMC's jurisdiction to
migration matters.
Subparagraph 42(2A)(e)(ii) of the Migration Act
deals with High Court and Federal Court orders in the context of
the removal of unlawful non-citizens from Australia.
Other provisions in the Migration Act deal with
what happens when:
-
- the Federal Court sets aside a decision cancelling a person's
visa [subsection 114(1)], and
-
- the Federal Court sets aside a decision cancelling a person's
approval as a business sponsor [subsection 137G(1)].
Subsection 153(2) of the Migration Act provides
that a non-citizen must not be removed or deported from Australia
if doing so would breach a High Court or Federal Court order.
Items 1-4 of Schedule 1 insert
references to the Federal Magistrates Court in each of the
provisions just described.
Item 5 replaces the current
heading to Part 8 of the Migration Act ('Review of decisions by
Federal Court') with a new heading-'Review of decisions by Federal
Court or Federal Magistrates Court' which reflects the extension of
the FMC's jurisdiction. Item 6 makes a similar
amendment to the heading to Division 2 of Part
8.(44)
Division 2 of Part 8 of the Migration Act deals
with Federal Court review of certain administrative
decisions-called 'judicially-reviewable decisions'. 'Judicially
reviewable decisions' are certain decisions made by the MRT, RRT or
other decisions made under the Migration Act or regulations that
relate to visas (section 475).
Section 476 of the Migration Act sets out the
limited grounds on which an application can be made to the Federal
Court by a person who wants a decision judicially reviewed. These
grounds include lack of jurisdiction, improper exercise of power
and error of law. Item 7 of Schedule
1 inserts a reference to the FMC into section 476.
Section 477 of the Migration Act enables a
person to apply to the Federal Court for review of a
decision-maker's failure to make a judicially-reviewable decision.
Items 8 and 9 enable the FMC, as well as the
Federal Court, to hear applications for review in respect of
failure to make decisions.
Section 478 of the Migration Act provides that
an application under sections 476 or 477 must be made according to
Federal Court rules and lodged with the Federal Court within 28
days of the applicant being notified of the decision. Item
11 inserts new section 478A which
replicates section 478 in relation to the FMC.
Items 12-18 amend section 481
of the Migration Act. Section 481 sets out the orders that the
Federal Court can make when reviewing a judicially-reviewable
decision or a failure to make a judicially-reviewable decision.
These include orders quashing the decision, referring the matter
back to the decision-maker or declaring the rights of the parties.
Items 12-18 enable the FMC to make the same
orders.
Section 482 of the Migration Act says action can
be taken to implement an administrative decision even if a review
application has been made to the Federal Court-except where the
Federal Court orders the action to be stayed. Items
19-23 insert references to and provisions about the
Federal Magistrates Court into section 482. The new provisions
relating to the FMC replicate existing provisions relating to the
Federal Court.
Section 485 of the Migration Act provides that
the Federal Court does not have any additional jurisdiction in
relation to judicially-reviewable decisions-other than the
jurisdiction conferred by Part 8 or under section 44 of the
Judiciary Act 1903.(45) Items
24-27 amend section 485 by adding references to the
Federal Magistrates Court.
Section 486 of the Migration Act declares that
the Federal Court's jurisdiction in relation to
judicially-reviewable decisions excludes the jurisdiction of all
courts other than the High Court's jurisdiction under section 75 of
the Constitution. Item 28 amends section 486 so it
will provide that the jurisdiction of the Federal Court and
the Federal Magistrates Court excludes the jurisdiction of all
other courts-except for the High Court's section 75
jurisdiction.
Subsection 500(6) of the Migration Act provides
that where an application has been made to review a Ministerial
deportation decision under section 200 of the Migration Act, the
order is not taken to have ceased simply because certain orders
have been made by the AAT or the Federal Court. Item
29 adds references to the Federal Magistrates Court.
Item 30 is an application
provision. For example, it provides that amendments relating
applications under section 476 of the Migration Act (for review of
judicially reviewable decisions) apply to applications made on or
after the commencement of the Federal Magistrates Service
Legislation Amendment Act 2001.
Schedule 2
Item 1 of Schedule 2 amends the
Administrative Appeals Tribunal Act so that the Federal Court can
transfer appeals from AAT decisions in migration matters to the
FMC. At present, the Federal Court is prevented from doing
so.(46) This amendment will apply to appeals commenced
in the Federal Court on or after the commencement of the
Jurisdiction of the Federal Magistrates Service Legislation
Amendment Act 2001 (item 6).
Item 2 amends the AD(JR) Act so
that the FMC can hear ADJR applications for review of migration
decisions. Items 3-5 will enable the FMC to hear
applications for review of conduct, failure to make a decision or
reasons for decision in relation to migration matters. These
amendments will apply to decisions made under the AD(JR) Act on or
after the commencement of the Federal Magistrates Service
Legislation Amendment Act 2001 (item 6).
-
- The Court is also referred to as the Federal Magistrates
Service (subsection 8(2), Federal Magistrates Act 1999).
- Other federal courts are superior courts-the High Court, the
Federal Court and the Family Court.
- Jurisdiction may also be vested expressly or impliedly by other
statutes as a result of section 15C of the Acts Interpretation
Act 1901.
- In other words, it exercises the judicial power of the
Commonwealth. Section 71 of the Constitution, part of Chapter III,
enables the Parliament to create federal courts.
- Sub-items 1(1) & (4) of Schedule 1, Federal Magistrates
Act.
- In Re Bryant; Ex parte Guarino [2001] HCA 5 (14
February 2001) Hayne J said, '... the title given to the judicial
officer ... is not determinative of the constitutional reach of sec
79 [which refers to 'judges'] and the other provisions in Ch III.
The constitutional reach of sec 79 extends to the Federal
Magistrates appointed to serve in the court created by Parliament
by the Act.'
- Item 9, Schedule 1, Federal Magistrates Act.
- Sub-item 1(6), Schedule 1, Federal Magistrates Act. However,
the Chief Federal Magistrate holds office on a full-time
basis-sub-item 1(5), Schedule 1, Federal Magistrates Act.
- http://www.fms.gov.au/html/introduction.html
(current at 10 September 2001).
- http://www.fms.gov.au/html/magistrates.html
(current at 10 September 2001).
- Attorney-General, News Release, 'Federal Magistrates
Service-one year on', 3 July 2001.
- An example of how the FMC compares is shown in the relative
costs of filing fees. The FMC filing fee is $250. The fee for
initiating proceedings in the Federal Court is $526.
- Attorney-General, News Release, 'Federal Magistrates
Service-one year on', 3 July 2001. See also, 'Court of first
resort', Weekend Australian, 3 March 2001, 'Magistrates a
success-Williams', Financial Review, 27 July 2001.
- Law Council of Australia, 'Budget does little to improve access
to justice', 23 May 2001.
- Attorney-General, News Release, 'Federal Magistrates
Service-one year on', 3 July 2001.
- Attorney-General, News Release, 'Federal Magistrates
Service jurisdiction extended', 30 August 2001.
- Subsection 44AA(2), Administrative Appeals Tribunal Act.
- Subsections 5(4), 6(4) and 7(3), AD(JR) Act. The FMC is thus
excluded from hearing applications under statutes in the
Immigration and Multicultural Affairs portfolio which relate to
decisions, conduct relating to decision-making or failures to make
decisions.
- Subsections 39(3) and (4), Federal Magistrates Act.
- Rule 8.02(4).
- http://www.fms.gov.au/html/introduction.html
(current at 10 September 2001).
- Administrative Review Council, Review of Commonwealth
Merits Tribunals. Discussion Paper, September 1994.
- Gaudron & Kirby JJ; Gummow J, Minister for Immigration
and Multicultural Affairs v. Eshetu (1999) 197 CLR 611 at 641
and 658, respectively-quoted in Ronald Sackville, 'Judicial review
of migration decisions: an institution in peril?', UNSW Law
Journal, 23(3), 2000, pp. 190-207.
- ibid. Wednesbury unreasonableness is unreasonableness
in exercise of an administrative power which is so unreasonable
that no reasonable person could have so exercised the power:
Associated Provincial Picture Theatre Houses Ltd v Wednesbury
Corp [1948] 1 KB 223.
- Sackville, op.cit, pp. 192-3.
- ibid.
- Section 75(v), Constitution. The remedies are mandamus,
prohibition and injunction. Other remedies-certiorari and
declaration-are not expressly mentioned in section 75(v) but may be
sought in conjunction with mandamus, prohibition or injunction.
- Of the Commonwealth Constitution.
- (1999) 168 ALR 407 at 409-411.
- An order that the writ be issued unless the defendant can show
cause why it should not be issued.
- High Court of Australia, Annual Report 1999-2000, p.
5.
- Philip Ruddock MP, Minister for Immigration and Multicultural
Affairs, News Room, 'Law Council the real hurdle in
reducing High Court burden', MPS 089/2001, 3 July 2001.
- 'Little appeal in justice strained by heavy migrant load',
The Australian, 28 May 2001; 'Help for the High Court',
The Weekend Australian, 26 May 2001. These press reports
were the subject of questioning at Estimates Committee hearings
conducted by the Senate Legal and Constitutional Legislation
Committee in May 2001.
- 'Help for the High Court', The Weekend Australian, 26
May 2001.
- The use of prerogative writs may be more cumbersome-for
example, in relation to procedure-than statutory judicial review.
Additionally, it appears that the High Court has generally adopted
the practice of remitting those parts of applications for orders
nisi that appear to be based on Part 8 (Migration Act) grounds to
the Federal Court and adjourning the rest of the application until
the Federal Court proceedings are completed. See Butterworths,
Practice & Procedure. High Court and Federal Court of
Australia. See also an account of Federal Court and High Court
processes in Re The Minister for Immigration and Multicultural
Affairs; Ex parte Durairajasingham (1999) 168 ALR 407 at
409-11.
- Through the use of a constitutionally valid privative clause.
- It is not clear, however, why this would add another stage to
the review process rather than simply provide an alternative court
to the Federal Court for the conduct of Part 8 judicial reviews of
migration decisions.
- Philip Ruddock MP, Minister for Immigration and Multicultural
Affairs, News Room, 'Law Council the real hurdle in
reducing High Court burden', MPS 089/2001, 3 July 2001.
However, this Bill does not reduce access to other review
processes.
- Senate Draft Legislation Program, 2001 Spring Sittings -- Week
4 (17 - 20 September 2001).
- Krysti Guest, Migration Legislation Amendment (Judicial Review)
Bill 1998, Bills Digest No. 90
1998-99. This Digest was written before the introduction
of Government amendments to the Bill.
- Senate Legal and Constitutional Legislation Committee,
Migration Legislation Amendment (Judicial Review) Bill
1998, April 1999.
- See forthcoming Bills Digest.
- 'Refugees showdown', The Sunday Age, 9 September 200;
'Howard plan to "pull back" migration zone', Sydney Morning
Herald, 9 September 2001.
- Presently 'Review of decisions by Federal Court', it will be
altered to read, 'Review of decisions by Federal Court or
Magistrates Court'.
- Section 44 deals with the remittal of matters by the High Court
to other courts.
- Paragraph 44AA(2)(b).
State-by-State filings for the FMC at 3
July 2001
| Location |
No. of family law applications |
No. of non-family law
applications |
No. of divorce applications filed |
No. of cases transferred from Family
and Federal Courts |
|
National
|
28,000
|
2,000
|
23,500
|
2,000+ (both courts)
|
|
Brisbane
|
4,000
|
490
|
3,550
|
340+ (both courts)
|
|
Townsville
|
1,200
|
-
|
950
|
53+ (Family Court only)
|
|
Sydney
|
3,000+
|
460
|
3,000
|
40+ (both courts)
|
|
Parramatta
|
4,500
|
-
|
3,350
|
256+ (Family Court only)
|
|
Newcastle
|
3,000
|
-
|
2,500 +
|
245+ (Family Court only)
|
|
ACT
|
1,100
|
20
|
8,00
|
155+ (Family Court only)
|
|
Melbourne
|
7,000
|
710
|
5,450
|
600+ (Family Court)
25+(Federal Court)
|
|
Dandenong
|
1,500
|
-
|
1,350
|
60+ (Family Court only)
|
|
South Australia
|
2,000
|
250
|
1,750
|
140+both courts)
|
|
Tasmania
|
700
|
15
|
500
|
85+ (both courts)
|
|
Northern Territory
|
400
|
8
|
300
|
|
|
Western
Australia
|
-
|
50
|
-
|
-
|
Source: Attorney-General, News
Release, 'Federal Magistrates Service-one year on', 3 July
2001.
Jennifer Norberry
13 September 2001
Bills Digest Service
Information and Research Services
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© Commonwealth of Australia 2000
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