Bills Digest no. 167 2006–07
Migration Amendment (Statutory Agency) Bill
2007
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
Financial implications
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Migration
Amendment (Statutory Agency) Bill 2007
Date introduced:
24 May 2007
House: House of Representatives
Portfolio: Immigration and
Citizenship
Commencement:
The day after Royal
Assent.
The
Migration Amendment (Statutory Agency) Bill 2007 ( the Bill )
inserts a new section into the Migration Act 1958 ( the
Migration Act ) that will establish a single statutory agency for
the purposes of the Public Service Act 1999 ( the Public
Service Act ).
The proposed agency will consist of the
Principal Member of the Refugee
Review Tribunal ( RRT ) and the registrars, deputy registrars
and other officers of both the RRT and Migration Review Tribunal (
MRT ) engaged under the Public Service Act.
The major change effected by the Bill is that
under the current statutory arrangements, the Australian Public
Service (APS) employees working at the tribunals are legally
employed by the Secretary of the Department of Immigration and
Citizenship (DIAC). If the Bill is passed, the APS staff will
instead be employed by the Principal Member of the RRT. The
Minister states that in reality for all practical purposes,
tribunal staff are directed by the principal member, who is the
executive officer of both of the tribunals, under powers delegated
by the secretary .(1)
The Principal Member of the RRT will be the
agency head of the proposed statutory agency. The Minister
stated:
This is an important provision because it ensures
that, if in future two individuals are separately appointed as the
Principal Member of the Refugee Review Tribunal and the Principal
Member of the Migration Review Tribunal, there will still be
certainty about who is the head of the single statutory agency
established for the purposes of the Public Service Act.
As a statutory appointee, the Principal Member of
the Migration Review Tribunal will not form part of the statutory
agency.(2)
When introducing this Bill into Parliament,
Immigration Minister Kevin Andrews
stated it will implement the last of a range of minor changes
to the legislative framework of the Migration Review Tribunal and
the Refugee Review Tribunal recommended in the Uhrig report,
Review of the Corporate Governance of Statutory Authorities and
Office Holders, in 2003 (the Uhrig Review
).(3) He further states:
The purpose of the recommended changes is to
strengthen the governance of the two tribunals and give legal
effect to the practical reality that they have progressively been
administered as one agency since 2001.(4)
The Uhrig review generally recommends two
templates designed to ensure good governance exists: one where
governance can best be provided by executive management , and the
other where it can best be provided by a board .(5)
The Minister for Finance and Administration
(Finance Minister) announced
the Government s response to the Uhrig Review on 12 August 2004.
The latest update dated May 2007 is available
here. For a summary of the responses and debate that followed
the release of the review, please refer to Dr. Richard Grant,
The
Uhrig Review and the future of statutory authorities ,
Research Note, no. 50, Parliamentary Library, 2004 05.
More information about the Uhrig Review and the Commonwealth
financial framework can be found in the Background section of the
Australian
Centre for International Agricultural Research Amendment Bill
2007 , Bills Digest No. 160, 2006-07, 23 May 2007 by
Juli Tomaras.
The Minister for Immigration and Citizenship
has provided the Migration Review Tribunal and the Refugee Review
Tribunal with a Statement
of Expectations, which is stated to be in response to the Uhrig
Review. The Principal Member of the Tribunals has responded with a
Statement
of Intent, which includes key performance indicators for the
Tribunals.
The operational relationship between the
Tribunals and DIAC is contained in a Memorandum of
Understanding signed on 25 November 2005 by the Principal
Member Steve Karas and Andrew Metcalfe, the Secretary of DIAC. The
Tribunals have also developed a new Corporate
Plan (still in draft with comments invited); a Service Charter; and
a Member Code of Conduct.
The Uhrig Review does not generally deal with
merits review tribunals:
The terms of reference called for the
identification of governance principles and the development of
templates the Government might apply to all statutory authorities
and office holders and more broadly to a wide range of public
sector bodies. As the templates developed by the review are based
on established principles of governance, they lend themselves to
wide applicability. However, notwithstanding the fact that the
principles on which the templates are based are broadly applicable,
some authorities involve considerations which take them outside the
scope of matters examined by the review.
For example, although Commonwealth courts and
tribunals are established by legislation and included in the AAO in
a Minister s portfolio responsibilities, they are covered by the
principle of judicial or quasi-judicial separation of powers and
consequently require different governance arrangements to those
applying to government generally. Similarly, the Auditor-General
has statutory independence, reporting directly to the Parliament
and consequently is not subject to direction by a Minister.
Nevertheless, principles of governance are by their nature broadly
applicable and will be relevant to the wider public
sector.(6)
It is not clear therefore on what precise
basis the Uhrig Review applies to the MRT/RRT, except in broad
principle of improving accountability and governance. Unlike the
AAT, the RRT Principal Member is neither a judicial appointment or
drawn from judicial ranks, but the expectation is that the
tribunals provide an independent merits review process as is
reinforced by the language used in the current Annual Report. In
that sense, Uhrig review discussions about the independence of
statutory authorities such as the Reserve Bank of Australia or the
Australian Electoral Commission may be relevant. The statutory
requirement laid down by the Migration Act in existing subsection
353(1) is that the tribunals shall, in carrying out their functions
under this Act, pursue the objective of providing a mechanism of
review that is fair, just, economical, informal and quick .
As explained in the Migration
Review Tribunal and Refugee Review Tribunal Annual Report
2005-06, the MRT and RRT are merits review bodies established
under Parts 6 and 7 of the Migration Act and the jurisdiction,
powers and statutory procedures of the tribunals are set out in the
Act and the Migration Regulations 1994.
The main function of the RRT is to review
decisions made by DIAC to refuse or cancel protections visas to
non-citizens in Australia. The Tribunal also has the power, in
respect of certain 'transitory persons', to conduct an assessment
of whether a person is covered by the definition of a 'refugee' in
Article 1A of the
1951 Refugee Convention (as amended by the 1967 Protocol). The
RRT was established in 1993 by the
Migration Reform Act 1992 (no Bills Digest available).
The MRT provides a final, independent, merits
review of visa and visa-related decisions made by the Minister for
Immigration and Citizenship or, more typically, by officers of
DIAC, acting as delegates of the Minister. The MRT began operating
on 1 June 1999.
Decisions to deport a person, decisions
refusing or cancelling visas on character grounds under section
501, and decisions cancelling business visas under section 134 are
reviewable by the Administrative
Appeals Tribunal.
Mr Steve Karas AO is the Principal Member of
the Tribunals. He was first appointed on 1 July 2001 and his
current appointment is to 30 June 2007.
Sections 397 and 460 of the Migration Act
provide that the Principal Member is the executive officer of the
Tribunals and is responsible for their overall operation and
administration, including monitoring the operations of the
Tribunals to ensure that those operations are as fair, just,
economical, informal and quick as practicable . Sections 353A and
420A provide that the Principal Member may give written directions
as to the operation of the Tribunals and the conduct of reviews by
the Tribunals.
The Members are appointed by the
Governor-General for fixed terms on a full-time or part-time basis.
The remuneration of Members is determined by the Remuneration
Tribunal, and their terms and conditions of employment are
determined by the Minister for Immigration and
Citizenship.(7) A number of tribunal Members are
employed on maximum term contracts, but are eligible for
re-appointment by the Minister.
Staff are employed under the Public Service
Act and are appointed as Tribunal officers under the Migration Act.
Since May 2005, all staff have been cross-appointed to both the MRT
and the RRT.(8)
The two tribunals have progressively
amalgamated their administrative operations. Both tribunals are now
co-located in Sydney and Melbourne and have common registries and
legal, research, library, corporate and administrative facilities.
The Principal Member, and other members are cross-appointed to both
tribunals to allow them to hear cases in either tribunal. The APS
staff who work at the tribunals are covered under the same
certified agreement and provide their services to either tribunal,
as required. These efficiency and saving measures (9)
came about partly as a response to a lively debate in Australian
administrative law about the proper role and reform of merits
review tribunals, and are not linked to the Uhrig review
process.(10)
Regulation 5 Prescribed Agencies , Schedule 1,
Part 1, Item 128AB of the
Financial Management and Accountability Regulations 1997 ( the
FMA regulations ) establish the tribunals as a single prescribed
agency for the purposes of section 5 of the Financial
Management and Accountability Act 1997 and made the Principal
Member of the RRT the head of that agency. Note B of the
regulations describes the RRT as a statutory agency for the
purposes of the Public Service Act. This reform was achieved by the
Financial Management and Accountability Amendment Regulations 2006
(No. 7) (SLI No 154 Of 2006) ( FMA Regulations ) which took
effect from 1 July 2006.
The Minister therefore stated when introducing
the Bill:
It is important to stress that this bill will not
change the functions of the two tribunals under the Migration Act
and will not diminish the role and responsibility of the position
of Principal Member of the Migration Review Tribunal under that
act.(11)
The Explanatory Memorandum and second reading
speech are silent on why the current amendments to the Migration
Act were not introduced prior to the 2006 change in the FMA
regulations. The 2001 cumulative merger of the two tribunals began
prior to the Uhrig process.
Some of the broader issues raised in this Bill
relating to the accountability and governance of the tribunals were
dealt with in some detail in the Senate References Committee on
Legal and Constitutional Affairs report
Administration and operation of the Migration Act 1958
tabled on 2 March 2006, especially
Chapter 3 - Secondary assessment of visa applications. This
report followed on issues about the RRT raised in
Chapter 5 of a previous report titled
A Sanctuary Under Review: An Examination of Australia's Refugee and
Humanitarian Determination Processes tabled in June 2000.
Both reports summarise concerns raised about
the RRT, particularly its independence. Under Recommendation 5.5 of
the 2000 report, the Senate Committee recommends the Principal
Member of the RRT should be a person with judicial experience.
Notably the President of the AAT must be a judge of the Federal
Court of Australia.
In the 2006 report, the Committee cites a
concern raised by the International Commission of Jurists:
It is not satisfactory in terms of the
independence of the review tribunals that the Minister who
determines appointment and re-appointment of tribunal Members, is
also the Minister responsible for administering DIMIA, whose
decisions are under review by the tribunal. It is a classic example
of a structure whereby the purportedly independent tribunals could
be subjected to powerful political pressure from the Minister whose
departmental delegates are being called into question in the review
cases. It is reasonable to fear that review tribunal Members may
feel indirect, if not direct, pressure to provide decisions that
please the Minister, and which could not be seen to be contrary to
government policy. ... Further, concerns about the independence of
the review tribunals are reinforced when one notes that many
tribunal Members are ex-DIMIA officers, promoted by the Minister
through the ranks of the public service. Further, if a visa
applicant takes the tribunal and the Minster to court over a
tribunal decision, the tribunals engage the same lawyer as the
Minister to represent both parties in the
proceedings.(12)
In contrast, DIAC informed the Committee that
RRT Members are statutory office holders independent of the
Minister and the Department of Immigration and Multicultural
Affairs. Whilst the Act permits the Minister and Principal Member
of the Tribunals to provide general Directions to Members
concerning their method of performance or exercise of general
powers or functions under the Act, that power does not allow a
member to be directed as to how to exercise his or her powers in
specific cases .(13)
Paragraphs 3.45 to 3.47 the 2006 report
outlines concerns raised that the measures used to assess the
performance of the Tribunals such as performance indicators
compromised their independence and decision-making. At paragraph
3.102 the Committee states:
The fact remains that DIMIA's tribunals are
considered to be partisan, to not adequately apply natural justice
procedures, and therefore not able to consistently deliver just
outcomes.(14)
The government response
to the Senate References Committee on Legal and Constitutional
Affairs 2006 report
Administration and operation of the Migration Act 1958
is not yet available.
The Auditor-General approved the conduct of a
performance audit of the Tribunals as part of the 2004-05 Australian National Audit Office
(ANAO) audit work program issued in July 2004. The ANAO audit,
which commenced in April 2005, is focussed on productivity issues,
quality of service and trends in review outcomes and the
relationship between the Tribunals and DIAC. The ANAO s report is
expected to be available in June 2007.
The Explanatory Memorandum states that the
Bill has no significant financial impact.
Item 1 inserts new
Part 7A entitled Statutory agency for purposes of Public
Service Act .
New section 473A provides
that for the purposes of the Public Service Act 1999:
(a) the Principal Member of
the Refugee Review Tribunal and the persons mentioned in
subsections 407(4) and 472(4) together constitute a Statutory
Agency; and
(b) the Principal Member of the
Refugee Review Tribunal is the Head of that Statutory Agency.
This Bill amends the Migration Act to clarify
the current operational arrangements of the MRT and RRT.
The link between the amendments proposed by
this Bill and the Uhrig Review (see discussion under Background in
this Digest) is imprecise. The
Explanatory Memorandum does not reference the Uhrig process at
all.
Parliament may wish to consider any
operational implications of this Bill with the benefit of the
ANAO audit of the tribunals,
expected to be available in June 2007.
Endnotes
- ibid
- ibid.
- Kevin Andrews MP
(Minister for Immigration and Citizenship),
Migration Amendment (Statutory Agency) Bill 2007: Second
Reading , Debates, House of Representatives, 24 May
2007, p. 5.
- Kevin Andrews, op
cit.
- Senator Nick
Minchin, Australian Government Response to Uhrig Report , media
release, 12 August 2004.
- J. A. Uhrig, AC,
Review of the Corporate Governance of Statutory Authorities and
Office Holders, Canberra, June 2003, p. 19.
- MRT and RRT Annual
Report 2005-6, p. 43.
- MRT and RRT Annual
Report 2005-6, p. 45.
- Kevin Andrews, op
cit.
- See further
Administrative Review Council, Better Decisions: Review of
Commonwealth Merits Review Tribunals, Report No 39 (1995); and
the Australian Law Reform Commission, Managing Justice: A
review of the federal civil justice system, ALRC 89
(2000).
- Kevin Andrews, op
cit.
- ICJ, Submission 115,
p. 2. However, note the
Dissenting Report by Government Senators.
- DIMA, answers to
questions on notice, 7 February 2006.
- Senate References
Committee on Legal and Constitutional Affairs report
Administration and operation of the Migration Act 1958
tabled 2 March 2006, at p. 114.
Sue Harris Rimmer
30 May 2007
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