Dissenting report - Australian Democrats

1.1 After reviewing the evidence and submissions to the Senate Inquiry, I have reached the view that the Migration Amendment (Judicial Review) Bill 2004 should be opposed.

1.2 Whilst I acknowledge the attempts other members of the Committee have made to address the flaws in the legislation, I do not believe there is any valid justification for the Bill and do not believe it should proceed. I am disappointed that the Committee has not acted in line with the overwhelming evidence of submissions arguing against the provisions of the Judicial Review Bill 2004.

1.3 My primary concern is that this Bill's main purpose is to attempt to restrict judicial review of migration decisions by imposing time limits, without allowing the courts proper opportunity outside of those time limits to assess whether that decision is imbued with jurisdictional error.

1.4 According to the Government's second reading speech, the 'statistics speak for themselves'. However, it is evident that they do not. After a considerable increase in numbers in 2002-2003, there has been a significant decline in migration cases in the current financial year in the Federal and High Courts.

1.5 What is most evident is the fact that a large part of the increase in 2002-2003 is due to policy measures of this Government itself, especially in relation to decisions not to allow representation actions in migration matters. The foreseeable side-effect of this decision is the increase in individual migration cases.

1.6 It must be put into perspective that the peak in numbers of migration applications in 2002-2003 is also due to the sharp increase in unauthorised arrivals between 1999 and 2001. The reduction in unauthorised arrivals since that time must be taken into account in assessing the future migration caseload.

1.7 In relation to the question of whether the Bill seeks to bar judicial review, the committee writes:

3.39 "This means that the Bill does not seek to bar review of 'purported decisions', rather, it seeks to apply time and jurisdiction limits to such review."

1.8 In my view, the effect is the same - potentially unjust and unlawful decisions will be able to stand when they should not. This is not an appropriate goal to try to achieve. We should be seeking to uphold the rule of law, not trying to find ways around it.

1.9 In relation to the Attorney-General's claim of a 92.5 per cent success rate in migration cases before the Federal Court and Federal Magistrates Court, this figure does not allow for matters withdrawn by the Government before hearing or matters remitted by consent to the migration tribunals. Nor does it take into consideration the many other reasons why applicants do not proceed with their cases.

1.10 Without the government releasing the Attorney-General's Migration Litigation Review, we are unable to know the statistics of out-of-time cases that win their appeal vs. the number of cases within the time limits. Unless the Attorney-General releases statistics to the contrary, it can only be assumed that the acceptance of the time limits will indeed stop the judicial review of cases that would have won had they had their day in court.

1.11 The seriousness of the outcomes of migration-related decisions should impose a greater reluctance on the part of law-makers to limit judicial review. While DIMIA statistics state that 92.5% of appeals fail, this means that there is a 7.5% error rate in the review level provided by the RRT. Considering the outcomes for refugees if the Australian system gets it wrong, this means we have a 7.5% error rate in a potential death sentence for people who will be returned to their country of origin.

1.12 It would appear that the priority is being given to achieving efficiency and effectiveness by limiting appeals to the courts over ensuring that decisions on visa applications and on the lives of individuals at risk of persecution are correct and in compliance with Australia's human rights obligations.

1.13 Once we start limiting access to the courts for particular sections of the community, we are creating a legal system that does not hold everyone equal in the eyes of the law.

1.14 It is imperative that those seeking asylum are not denied access to judicial review, particularly given the legitimate concerns about the adequacy of the existing determination process. We should be working harder to ensure that justice is delivered rather than subverted.

Senator Brian Greig
Senator Andrew Bartlett