3.23
The committee acknowledges that extended powers of summary dismissal
under the Bill represent a significant departure from the
existing common law test. While the committee notes the comments of the ARC, in
particular that the courts would in all likelihood exercise caution in relation
to the extended power, the committee expresses its serious concerns in relation
to such an extension. The committee also notes evidence that the courts'
existing extensive powers of summary dismissal are rarely used. Therefore, the
committee concludes that the broadened powers of summary dismissal must be
subject to review by Parliament after an initial period of operation. To ensure
that this occurs, the committee's view is that the Bill should be amended
to provide that the relevant provisions of the Bill shall cease to
have effect after 18 months of operation.
Recommendation 1
3.1 The committee recommends that the Bill be
amended to provide that the proposed provisions in Items 7, 8 and 9 of the Bill
that confer the broadened powers of summary dismissal are
repealed at the end of 18 months from the date of their commencement.
Deterring 'unmeritorious' proceedings
3.24
The
committee received evidence which expressed strong opposition to the provisions
relating to the deterrence of 'unmeritorious' proceedings. For example, Ms Suhad Kamand from the Immigration Advice and Rights Centre told the committee that,
at a fundamental level, the Bill is
flawed because it assumes that since the Federal Government wins approximately
93 per cent of judicial review applications then it automatically follows that
93 per cent of cases are 'unmeritorious':
We strongly object to
the much used ill-defined and empirically unsupported assumption by those
promoting the bill that the high volume of migration litigation is due
primarily to unmeritorious migration litigation. In our view that sort of
analysis is unhelpful and simplifies the causes of the high volume of migration
litigation unfairly by reference to one cause.[32]
3.25
Ms Debra Mortimer, representing the Public Interest Law Clearing House (Vic) and the Victorian Bar commented on the
inappropriate use of the word 'unmeritorious' in the Second Reading Speech and
the Explanatory Memorandum to the Bill:
Our position on that is
that it is a value laden word that is really inappropriate to use in this kind
of situation. It is an especially inappropriate criticism when there is such a
paucity of funding for representation of asylum seekers. People who are in this
position are not the best judges of whether they have meritorious
administrative law claims.[33]
3.26
In its
submission, the Office of the United Nations High Commissioner for Refugees
(UNHCR) argued that:
...a cautious approach is
warranted in seeking to reduce unmeritorious litigation in asylum cases.
Measures that may have the unintended affect of discouraging applications that
are not certain of success, but are nonetheless not abusive, may detract from
what is currently a positive aspect of Australia’s system.[34]
3.27
UNHCR also noted that since Australian migration law is
complex, '(t)here is no "bright line" separating meritorious and
unmeritorious court applications'.[35]
Further:
In UNHCR’s view, it
would be unfortunate if asylum seekers and their legal advisers were discouraged
from applying to the Court in cases of this nature, particularly where the
outcome may have implications not only for the individual, but also for asylum
seekers in general, and may also serve to clarify the law. Similarly, summary
dismissal of such cases would seem to be inappropriate. This issue could be
addressed by amending the items in the bill that rely on the “no reasonable
prospects of success” formulation, to make it clear that cases raising
significant questions of law are not intended to be subject to those
provisions.[36]
3.28
HREOC
argued that the effect of the 'unmeritorious' provisions of the Bill could be devastating and may have the
opposite effect to that intended in improving the efficiency of proceedings
where litigation has already commenced:
...this is one of the key
things that we are concerned about—not only is that person deprived of legal
advice but the court is deprived of somebody who can make sense of what is
potentially a morass of facts that really require a lawyer to refine and present
them in their proper order and in their proper form so that a court can apply
the act to them and make sense of the application. So, in our view, the
provision of legal advice potentially makes the proceedings more efficient.
Insofar as the provisions of the bill lead in the opposite direction, that
seems to have an undesirable result to us.[37]
Personal liability for legal costs
3.29
Many submissions and witnesses expressed
apprehension about the provision of the Bill dealing with personal liability
for legal costs. Submissions and witnesses were concerned about the breadth of
the provision and its potential capacity to create unnecessary apprehension for
lawyers and others who assist, advise and act for disadvantaged clients in
migration matters.
3.30
For example, QPILCH and SBICLS argued that:
The provisions relating to personal liability for legal costs are
highly ambiguous, needlessly broad, and have significant potential to
discourage lawyers from representing and assisting applicants with complex or
uncertain cases, particularly where legal services are required on a pro bono
basis.[38]
3.31
Professor Mary
Crock from the Law Council told the
committee that there were two main problems with the costs order provision of
the Bill:
I think the point is
that in other contexts the focus is on the cost order against somebody who is
plainly responsible for the carriage of proceedings, namely, a solicitor on the
record. There are two problems with this section of the bill. The first is that
the cost order is tied to the definition of unmeritorious; it is not
disconnected from the provisions relating to what constitutes an unmeritorious
decision. The second aspect of it is its breadth and the fact that it does not
just capture, if you like, the person who might have the carriage of litigation
before a court. It covers any person.[39]
3.32
In
evidence, Professor Williams agreed that the provision is an overly
broad approach to addressing problems of protracted or unworthy judicial review
litigation:
In general, I support
the idea of cost orders being available to courts in circumstances where there
is an abuse of process or a range of other matters that ought to lead to special
types of costs or even damages being awarded. The problem with this is that it
does go far beyond the carefully constructed limits that have been imposed. I
am concerned at the absence of an appropriate knowledge requirement on the
person who might be ‘encouraging’ another person. It may be possible that something
said without knowledge that might not be seen as normally giving rise to any
legal consequences in this case might. You can imagine many circumstances where
well-meaning people might make comments encouraging people, and it is not
normally accepted that that should lead to these types of cost orders.[40]
3.33
The New
South Wales Bar Association argued that the costs order provision contains no
clarity:
...there is no clarity in
relation to the matters...reasonable prospects of success, ‘encourage’, ‘proper
consideration’, ‘purpose’ and ‘the objectives which the court process is
designed to achieve’. The courts should not be left to work out the content of
these expressions over time and to the prejudice of litigants and advisers.[41]
3.34
Further,
the New South Wales Bar Association argued that a lawyer should not be
penalised under the provision 'where a lawyer explains any weaknesses in the
proposed migration litigation to his or her client but the client, having
considered those weaknesses, decides to commence or continue the migration
litigation'.[42]
3.35
Dr Ben Saul agreed that the provision could be interpreted broadly, but that the
courts may also exercise caution in this area:
I agree with the
analysis that the word ‘encourage’ could be interpreted broadly. I think there
is a real prospect that a court probably would interpret it as narrowly as it
could, given the manifest problems that would arise. The word ‘encourage’ is
used so broadly that you can imagine all sorts of situations that would be
covered by it. Even forms of moral encouragement could be covered—for example,
wishing somebody the best in their forthcoming litigation or encouraging them
to continue with that litigation in the hope that it leads to a better life for
someone. I think on a normal reading it could lead to the inclusion of those
types of activities. As I say, it is possible a court would read it narrowly,
but it may not work that way.[43]
3.36
Mr
Wayne Martin QC, from the ARC, also conceded that the provision is very broad but,
despite not expressly including certain protections and reassurances, would in
all likelihood be interpreted narrowly by the courts:
There is a reasonable
basis for criticism of its breadth. The only constraints upon it are, firstly,
the requirement that the litigation has no reasonable prospect of success and,
secondly, that the person against whom a costs order is made must have a
purpose which is unrelated to the objectives which the court process is
designed to achieve. Viewing that with my lawyer’s glasses on, I would read
that as: pursuit of litigation for an improper purpose. That is why I give it a
more constrained reading than a number of the submitters.[44]
3.37
Some
constitutional issues were also raised in relation to this provision. For
instance, Professor Williams told the committee that:
I am troubled by the
possibility of a court making an order in a matter against people who are not
parties to the matter and not normally seen as connected to the matter. I can
see the possibility of constitutional issues arising from that in that it
arguably extends beyond the power of the court to make orders beyond that group
of people, particularly to people who clearly here would be third parties in
that they do not actually have any active involvement in the litigation.[45]
3.38
The
committee also received argument that the costs order provision may also be
unconstitutional because it directs a
court to consider whether a personal costs order should be made. The
Co-ordination Committee, Refugee Action Coalition NSW argued that this would
amount to 'an unconstitutional intrusion into federal judicial power'[46] since the Constitution 'delineates a
clear separation of powers between the legislative and judicial branches of
government'.[47]
3.39
Some of the possible adverse effects of the costs order
provision were raised with the committee. QPILCH and SBICLS submitted that:
The great irony, and tragedy, of the proposed scheme is that it
will discourage representation in borderline or difficult cases – the very cases that most require skilled
advocacy – and achieve very little in the way of reducing grossly
unmeritorious litigation, given...that the overwhelming majority of applicants in
unmeritorious litigation are self-represented.[48]
3.40
The Law Council agreed:
In cases where
applicants may have a case which rests on the boundaries of established law
this will deter solicitors or legal services from taking these cases and
testing the established law, and supporting possibly vulnerable and meritorious
applicants because of the possibility of these financial penalties.[49]
3.41
Many
submissions emphasised the capacity of the Bill to impact negatively on free legal advice
regimes such as the pro bono scheme run by the Federal Court or by law
societies, as well as on specialist immigration advice agencies.[50] The National Pro Bono Resource Centre contended
that:
...these amendments may
operate as a significant impediment to access to justice for migration
applicants, and will act as a disincentive to the provision of pro bono legal
services for such applicants. Practitioners may be willing to act for a person
without charging a fee, but may well be unwilling to expose themselves to what
may be perceived as an enhanced risk of personal liability for doing so. These
amendments are likely to have a ‘chilling effect’ on their willingness to
provide pro bono legal services.[51]
3.42
The
Federation of Ethnic Communities' Councils of Australia agreed:
The possibility of
imposing costs orders against lawyers and voluntary organisations will, we
believe, discourage lawyers from conducting pro bono work, make it impossible
for voluntary organisations and non government organisations to support people
through judicial review processes and remove this important safeguard.[52]
3.43
The Law
Society of South Australia expressed a similar view:
The threat of costs
orders is likely to result in pro bono efforts coming to a halt. The Commonwealth
might think that this will give them an advantage in litigation but we submit
that it will result in a huge upsurge in numbers of unrepresented litigants and
increased burden on the judicial system with consequent delays. It will achieve
the opposite to the outcome allegedly desired.[53]
3.44
Some
submissions argued that voluntary organisations and lawyers acting on a pro
bono basis should be exempted from the operation of this part of the Bill.[54]
3.45
However,
the ARC disagreed with this view. At the hearing, its president, Mr Wayne
Martin QC, offered this explanation for the ARC's assessment of the possible
effects on the operation of pro bono legal services:
The reason I disagree
with the proposition that the mere passage of the bill will choke off that
important resource is that I find it very difficult to conceive of a
circumstance in which, under this bill, a pro bono lawyer who has acted in good
faith would be at any appreciable risk of having a costs order made against him
or her. I cannot see that a lawyer acting properly in accordance with our
normal professional obligation and particularly in a pro bono context would be
at any risk of a judicial order. It would only be the most extraordinary case
and a case that would probably lead to the conclusion that the lawyer had acted
unprofessionally. That is the only circumstance in which a costs order would be
made.[55]
3.46
Mr Martin continued:
If the bodies that have
engaged in giving this service looked carefully at the legislation and applied
it to the services they provide I think they would come to the conclusion that
they would be at no appreciable risk of an order—especially in the pro bono
context. I can imagine a judge taking a harsher view of a lawyer who was motivated
by profit in pursuing a case that had no reasonable prospect of success. A pro
bono adviser cannot have that motive.[56]
3.47
At the
hearing, a representative from the Attorney-General's Department argued that
pro bono lawyers are not at risk of cost orders if they are acting properly and
in accordance with their professional obligations:
The government’s view
is that whether pro bono assistance has been provided or the lawyers are acting
for a fee, lawyers who present properly prepared arguments, including raising
novel arguments, have no reason for concern if they have given proper regard to
the law and facts as they apply in these individual cases, so that pro bono
lawyers are at no disadvantage under these provisions.[57]
3.48
Some submissions and evidence expressed the view that
there were existing ways in which the Federal Government could seek to deter
engagement in 'unmeritorious' litigation, namely through broader professional
conduct obligations. As Ms Debra Mortimer SC from the Public Interest Law
Clearing House (Vic) and the Victorian Bar
argued though, it would be imperative as a starting point, to ascertain
precisely to whom the personal obligation and penalty provisions in the Bill
are principally directed:
If they are principally
directed towards, for example, counsel, I think that is offensive, completely
unnecessary and does not reflect how counsel practise in this area. If they are
directed towards lawyers in general, my experience, again, is that I do not
know of lawyers that support or continue migration litigation for secondary
purposes or anything like that. If there is evidence of that then perhaps
something needs to be done. But the point is that there may be other ways in
which one ought to attack individual lawyers who are supporting those kinds of
practices, and that is through their professional conduct obligations—and the
same with migration agents. If it is directed to a different category of
person—people that are standing behind applicants—again, I am not aware from my
experience of any evidence of that being the case.[58]
3.49
Others
also supported the view that the costs order provision is unnecessary. For
example, ALHR submitted that:
Lawyers are already
bound by a professional obligation and a duty to the Courts not to pursue
causes of action that have no reasonable prospects of success. The imposition
of specific costs orders appears aimed at intimidating lawyers rather than
improving access by asylum seekers to proper legal advice as to the merits of
their claim.[59]
3.50
Similarly,
Ms Nitra Kidson from QPILCH told the committee that:
In relation to the
imposition of liability for legal costs, again we do not believe the government
can point to any evidence that lawyers and other persons are encouraging
applicants to abuse the legal system. The explanatory memorandum talks about
advisers operating behind the scenes, but I have to ask: how does the
government know what goes on behind the scenes?...Where there is abuse by
practitioners, if it can be identified as a matter of reality not as
conjecture, the courts already have a general discretion to award costs
personally against lawyers and they have done so in the past where they have
been satisfied it is appropriate. There are professional bodies whose job is to
deal with any systemic conduct which is unprofessional or unbecoming. Migration
lawyers, particularly, are probably the most regulated lawyers in the country
because they are subject to both their own state law societies as well as the
national migration agents authority.[60]
3.51
ALHR
suggested that a more preferable way of combating the perceived problem might
be to change the restrictions on representation of migration claims:
Qualified solicitors
cannot provide any advice under the Migration Act 1958, even on a pro
bono basis, unless they are a registered migration agent. However, anyone can
become a registered migration agent after a short—but expensive—course that
does not necessarily equip people to deal with the complexities of refugee law.
A preferable system
would be to have lawyers with specialist training in representing asylum
seekers conducting all asylum seeker cases (other than those where the claimant
is unrepresented).[61]
3.52
However,
despite acknowledging some concerns about the breadth and effect of the costs
order provision, Mr Wayne Martin QC from the ARC told the committee that, in
his view, the courts would exercise caution in interpreting it:
On balance, we came to
the conclusion that one could have some confidence that the court in
implementing these provisions would act sensibly and in a reserved way and
would not exercise the power to award costs against a third party other than in
an appropriate case, which would essentially be a case involving some
significant element of abuse and culpability on the part of the person against
whom the costs order is made.[62]
3.53
At the
hearing, the committee questioned the Attorney-General's Department and the
Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) in
relation to concerns raised during the inquiry such as perceptions that the
Bill is an attack on the legal profession; the breadth of the provision; the
uncertain practical impact of the provision; and the necessary steps that
should be taken to minimise the risks of being caught by it.
3.54
The
representatives sought to clarify the operation of the provisions. For example:
The provision has a number of conditions in it for it to operate
and, as you say, it is expressed in terms that a person must not encourage the
litigant to commence or continue migration litigation. In the government’s
view, merely advising a person about their prospects of success—or examining
their case to ascertain what their prospects of success are and to advise them
of them—is not encouraging them to pursue litigation. Encouraging a person is
urging or advising or assisting them to actually do something. In this case it
is to actually commence or continue litigation, as distinct from advising them
about the prospects of their case. So if a person does take it upon themselves
to actually encourage or urge a person to pursue litigation, the person does
have an obligation imposed by this provision to consider whether or not there
are reasonable prospects of success and to give proper consideration to the
prospects of success in a case.[63]
3.55
The
representatives also drew the committee's attention to the fact that the Bill gives a person the opportunity to argue why
a costs order should not be made and inform the court of their precise role in
the relevant proceedings.[64] They also
emphasised the need for evidence of the nature of the person's involvement in
the proceedings:
As to the extent to which they help and assist and encourage,
the issue that very much comes out here is precisely what they have done in the
circumstances and whether the court believes it appropriate in the
circumstances to make that costs order. An important safeguard that is in the
bill, of course, is proposed section 486G—that before a costs order can be
made, the court has to give the person an opportunity to argue why it should
not be made. So they do have the opportunity to come and explain precisely what
their role is. If it is a situation where they have merely provided some advice
that there is this capacity to go to a court, without making any judgements or
taking it further to actually directing the person to the court—and it can
happen at times that they do direct these people to the court—then, once again,
given the court’s cautious approach to these matters, it is unlikely that a
costs order would be made. [65]
3.56
The departmental representatives were also questioned on
how the provision would apply to non-legally trained or experienced persons who
'encouraged' an applicant to bring a case. The committee was concerned as to
how non-lawyers - such as volunteers working at a refugee support centre -
could make an appropriate assessment of the reasonable prospects of success of
a legal case and, thereby, avoid the risk of having cost awarded against them.
The representatives argued that:
...[there is] a distinction between a person who is actually
encouraging this particular litigation and a person who is advising a person on
the process, advising a person that there is this possibility, but not
encouraging that person to pursue that specific litigation. In general a person
who is advising like that will be saying: ‘This is how you go about it. It is up
to you to work at whether you have a chance of success in this litigation.’[66]
3.57
Notwithstanding this, the committee fails to see how
any court could reasonably be expected to determine that a non-legally trained
or experienced volunteer at a refugee centre can adequately appreciate the
reasonable prospects of success in the court case. The committee also remains
concerned that the practical result of the proposed provisions will be to
discourage people from helping refugees and migrants. This is notwithstanding assurances
by departmental representatives that this is not the Federal Government's
intention.
Certification requirement
3.58
Many submissions and witnesses were highly critical of
the certification requirement in the Bill and
its interaction with the provisions relating to personal liability for costs.
For example, Ms Debra Mortimer SC, representing the Public Interest Law
Clearing House (Vic) and the Victorian Bar (herself
a barrister working with asylum seekers in judicial review proceedings), gave
the committee an insight into the practicalities of migration law cases:
It is really
inappropriate to ask lawyers to make a judgment about reasonable prospects of
success in this area at the moment when a proceeding is issued. That is for a
number of reasons. It has to do with the fluidity of the law itself in this
area; but it also has to do with the reality of the way litigation is
conducted. For drafters of these provisions to ask for such a certification, I
think just demonstrates that they have no idea what happens in practice in this
area. You do not sit down with these clients and have comfortable long
conversations over days and weeks. You do not have access to all the
information that was before the tribunal. Sometimes you might only see the RRT
[Refugee Review Tribunal] decision the day before the time limit is about to
run out. You cannot make a judgment of that kind in those kinds of
circumstances; that is not to say that that judgment is not made. In my
experience it is made regularly, carefully and bona fide. And it is made before
the trial, in my experience, by counsel who appear for applicants, but you
cannot necessarily do it on the day that you issue the application. To impose
that onerous responsibility on lawyers I think is highly inappropriate.[67]
3.59
Further,
Ms Mortimer told the committee that, in her experience, lawyers and barristers do
their utmost to ensure that proceedings in which they are involved are not
'unmeritorious':
I do not have any
experience of lawyers who have continued cases that they think are manifestly
hopeless. In fact, I have the opposite experience. I have experience regularly
of junior counsel ringing me to have anxious discussions about how they are
going to tell clients for whom they are acting pro bono that they cannot continue
to act for them because, having looked at all the material, they are not able
to say that they have an arguable point. My experience in practice is that
lawyers do precisely the opposite of what this bill in these provisions
contemplates they do.[68]
3.60
QPILCH
and SBILCS noted that the Bill
'does not appear to contemplate the scenario where a lawyer's view of the
proceedings changes subsequent to giving the certification'.[69] In particular:
...if strict time limits are imposed, migration proceedings must often be commenced prior to an applicant’s
file becoming available under Freedom of Information legislation, and before a
transcript of tribunal proceedings can be prepared. It is quite possible that a
lawyer’s view of the merits of an application will change throughout the
progress of the case as more information comes to light. If a client’s case is
perceived to weaken, will the lawyer be obliged to withdraw their
representation, notwithstanding the resulting prejudice to the client? Does the
lawyer have to withdraw the certification previously given?[70]
3.61
QPILCH
and SBILCS also pointed out '(t)here will be many situations in which an
application will have reasonable prospects of success, but where the litigation
is nevertheless justified'.[71]
Furthermore, the test is an objective one and, as Ms Kidson from QPILCH argued
in evidence, 'the minister and the courts get the benefit of hindsight, the
benefit of full argument, the benefit of all the evidence to make that judgment
and to penalise the applicant's lawyer for failing to arrive at the same
conclusion as themselves'.[72]
3.62
Ms Suhad Kamand from the Immigration and Rights Legal Centre told the committee that
this was unrealistic:
The risk is when
circumstances change after provision of the certification. When looked at together
with the strict time limits, practitioners will have in effect less than 28
days to fully assess a case and provide a certification. A freedom of
information request takes around three to four months to process. So the
limitation periods, when looked at together with the certification and the
obligations on practitioners at the early stages of contemplating litigation,
are just unrealistic.[73]
3.63
The Law
Council's view of the certification requirement was as follows:
The Law Council has
consistently expressed the view that legislation requiring the certification of
proceedings should be carefully framed to ensure that fear of the risks of
failure in litigation of a case which, for example, may seem hopeless on the
current state of the law should not prevent the bringing of that litigation
where it is proper to test the limits of what might otherwise be thought to be
settled law. It can be expected that the courts will exercise the power
conferred on them by such sections judicially and not capriciously. However,
the controversy surrounding the conduct of migration litigation in recent years
suggests that if the Bill is
passed, it is in the field of migration law that the scope of the solicitor’s
certificate, the solicitor’s duty on giving such a certificate and the concept
of "unmeritorious litigation" is likely to be given flesh and
substance.[74]
3.64
The Law
Council also made the point that if the Federal Government's concern is
'unmeritorious' litigation in a broad sense, then certification provisions
should apply across all jurisdictions. Otherwise the insertion of such
provisions in just one area 'creates the impression that the government is
trying to drive lawyers out of immigration cases'.[75]
The committee's view
3.65
In the
committee's view, the evidence presented by representatives from both the
Attorney-General's Department and DIMIA did little to allay concerns raised in
relation to the 'unmeritorious' proceedings provisions of the Bill. In
particular, the representatives were not able to adequately explain how these
provisions would operate in practice, nor how people would be able to determine
whether in fact their actions are covered by the Bill.
3.66
The
committee remains concerned that too many terms in the relevant provisions are
undefined and therefore have the potential to operate extremely broadly. This would
in turn create considerable uncertainty for those dealing with the practical
operation of the Bill, including barristers, lawyers (including
those lawyers working on a pro bono basis), and not-for-profit immigration and
community organisations.
3.67
The
committee is also mindful of evidence suggesting that one of the major adverse impacts
of the Bill would be the reluctance of people to assist others with judicial
review applications due to the threat of a costs order being made in the
future, as well as 'certification' requirements that seemingly do not take into
account the realities of work in this area. The committee notes arguments that
serious long-term consequences could be the result of such measures.
3.68
The committee's view is that, subject to the
recommendations made elsewhere in this report, the regime proposed by the Bill
ought to be allowed to operate for a relatively short period after which its
operation and impact can be reviewed and evaluated. To this end, a report on the first 12
month's operation of the Act should be prepared and presented to Parliament.
This report will, among other things, inform Parliament's consideration of any
amendments to extend the operation of the summary dismissal powers beyond 18
months (see Recommendation 1 above).
Recommendation 2
3.2 The committee
recommends that the Bill be amended to insert a requirement that, as soon as
practicable after the end of 12 months from the date of the Bill's commencement, the Minister must cause to be laid before each House of Parliament a comprehensive
report on the operation of the provisions of the Bill.
Imposition of time limits for judicial review
3.69
The issue of time limits for judicial review
applications was raised in the committee's inquiry into the Judicial Review
Bill in 2004.[76] The committee examined
this issue in detail in the course of that inquiry and, accordingly, will only
deal briefly with it in the current report.
3.70
Many submissions and witnesses expressed opposition to
the notion of time limits for judicial review applications. While not objecting
to the issue of time limits per se, many argued that the Bill
should contain discretion to extend time limits in cases where the interests of
justice require it.[77] Further, some contended
that there is little evidence suggesting that matters commenced in or out of
time are more or less likely to be meritorious.[78]
3.71
The Refugee and Immigration Legal Centre (RILC)
submitted that it was 'fundamentally opposed to the provisions of the Bill
which...seek to introduce a regime of strict, non-extendable time limits for
applicants seeking judicial review of migration decisions'.[79] RILC also contended that:
...the Bill fundamentally fails to properly distinguish
between meritorious and unmeritorious applications for judicial review by
applying the non-extendable time limits to all applicants. All will be caught
by the provisions regardless of the merit of the case or reasons for delay. In
our submission arbitrary and absolute time limits are a crude and inflexible
instrument inherently incapable of operating fairly and doing justice in many
circumstances.[80]
3.72
Mr Jonathon Hunyor from HREOC outlined its concerns as follows:
The bill proposes, in
effect, an absolute time limit of 84 days. The commission submits that there is
no sufficient reason to deny an extension of time beyond this period where the
interests of justice require it. To do otherwise is, with respect, to make a
clear and conscious decision to put efficiency before justice. The commission
submits that parliament ought not to do so, especially where there is a
potential for refoulement in which the stakes are potentially life and death.
Cases commenced out of time are not necessarily lacking in merit, and courts
have made it clear on a number of occasions that strict time limits may result
in justice being denied...[81]
3.73
The
Federation of Ethnic Communities' Councils of Australia agreed:
Time limits must be
flexible enough to ensure that litigants are able to access information to
support their claims for permanent residence, and to effectively brief their
legal representatives. We therefore have some real concerns that the time
limits proposed under...the Bill
will prevent some applicants form exercising their right to judicial review.[82]
3.74
The committee
also received evidence questioning the constitutional validity of imposing
non-discretionary, absolute time limits for the judicial review of migration
decisions since the time limit would operate in cases where the applicant could
otherwise successfully argue that a decision is infected with jurisdictional
error and that, at law, no decision under the Migration Act has been made.[83]
3.75
The Co-ordination
Committee, Refugee Action Coalition NSW submitted that:
...the proposed legislative changes attempt to confine judicial review
by placing a defined time limit on migration appeals. Thus we believe these
proposed changes are unconstitutional under section 75(v) for the very reason
they are being proposed; they limit judicial review.[84]
3.76
The Law Council made a similar argument:
It is suggested that,
as far as the High Court provisions in section 486A of the Migration Act are concerned, these may be
unconstitutional as they restrict the jurisdiction of the High Court in section
75(v) of the Constitution. Insofar as the jurisdiction in section 75(v)
was intended to be a broad power to allow the High Court to deal with
substantive matters of justice, it is suggested that these provisions may
restrict access to justice in the High Court.[85]
3.77
And
further:
This question may then
be broadened to ask whether the mirror provisions for the Federal Magistrates
Court and the Federal Court may not also restrict access to justice and in some
cases leave an applicant with no recourse to the judicial system following
their Tribunal decision. The ultimate effect of rigid time limits may again be
to force applications in the original jurisdiction of the High Court, further
delaying the hearing of cases in that Court.[86]
The committee's view
3.78
The committee repeats the views expressed in its report
on the Judicial Review Bill in relation to time limits and makes no additional
comments on this issue.[87] However, the
committee acknowledges that its recommendation from that report with respect to
actual (as opposed to deemed) notification of decisions[88] has been taken up by the Federal
Government in the current version of the Bill.
Constitutional validity of a 'purported privative clause decision'
3.79
The background to the extended definition of privative
clause matters is well known to the committee and was canvassed in detail in
the committee's inquiry into the Judicial Review Bill.[89] The committee does not propose to examine
this matter again in detail in the current inquiry. The next section of the
report will deal briefly with the main issues raised in relation to privative
clauses in this inquiry.
3.80
Several submissions and witnesses objected to the
perceived further restriction on the ability of applicants in migration matters
from accessing judicial review, particularly through the Bill's
use of privative clauses.[90]
3.81
For example, the Migration Institute of Australia
contended that:
...the proposed
definition of a purported decision is so broad as to reduce the ability for
people to know that a reviewable decision or action has been made and they need
to lodge an application for review, and...this may lead to lodgement of
‘precautionary appeals’ leading to a conflict between the ability to adhere to
strict time limits and the prohibition on appealing if there is 'no reasonable
prospect of success' linked to personal costs.[91]
3.82
Many
others agreed with this assessment. At the hearing, Professor Mary Crock from the Law Council expressed strong ideological opposition to the use
of the privative clause device:
The High Court of
Australia has made it patently clear that the Australian Constitution contains
guarantees that cannot be ousted by parliamentary enactment. These guarantees
are contained in sections 73 and 75 of the Constitution. They provide that the
judicial power in Australia is to be exercised by a federal court,
known as the High Court, and that as an irreducible minimum the High Court is
to have the power or jurisdiction to review actions taken by an officer of the
Commonwealth. These provisions embody the notion that the rule of law in this
country involves the power of parliament and of the executive being balanced by
the oversight of the court. This means that if a court says that either
legislation or administrative action stands outside the law it should be
subject to judicial correction. In its reference to purported decisions—I know
very few decisions are caught by this—the legislation attempts to preclude the
review of decisions affected by the jurisdictional error, and it says that in
the legislation. I find it hugely distressing that parliament would purport to
put words like that in an enactment given the terms of the Constitution.[92]
3.83
The Law
Council's submission also raised an interesting point regarding the privative
clause provisions in the Bill:
On one level, there
seems to be an irony in introducing provisions to limit judicial review that
will encourage litigation: once again the High Court will be asked inevitably
to rule on the effect of the amendments. On the other hand, it is difficult to
see that the amendments will have any effect at all on the ultimate jurisdiction
asserted by the High Court (and through it, the lower Federal Courts).[93]
3.84
ALHR
agreed that any '(f)urther tinkering with the privative clause is likely to
lead to further complex litigation to tease out the actual effect of the
privative clause'[94] and that 'there
will be no marked "efficiency" in moving the cases as it is clear
that the High Court's jurisdiction cannot be ousted'.[95]
3.85
Professor Williams and Dr Saul expressed a similar viewpoint:
...the application of
privative clauses to migration decisions involving noncitizens undermines the
principle of equal treatment that is fundamental to the rule of law and the
common law, and may infringe the human right to freedom from
non-discrimination. The idea of equality before the law demands that Australia’s justice system, including the basic right
of judicial review of administrative action, must extend to all persons within Australia’s jurisdiction, regardless of their status.[96]
3.86
The committee also received evidence arguing that the
reference to a 'purported privative clause decision' in the Bill is contradictory in
seeking to regulate something that is not a decision at all. For example, in
their submission, Professor George
Williams and Dr
Ben Saul
contended that the amendment might be invalid because it might not be seen as a
'law' that could be enacted by Parliament under section 51 of the Constitution.[97]
3.87
At the
hearing Professor Williams elaborated on this point:
I am concerned about the
very idea of providing a legal framework for the regulation of a purported
decision. It seems to be a strange thing to do indeed, within a legal framework
that is meant to be compliant with the rule of law, to seek to regulate
something which, by its very nature, is illegal or an unlawful decision. In
terms of the constitutional problems that might flow from that, significantly
this does not make such decisions unreviewable. If it did, I think it is very
likely that the bill would have been unconstitutional as a result of the
decision in Plaintiff S157, but clearly a sensible decision has been made not
to go down that path. However, there are further, less likely problems with the
legislation, even in its current form. The mere idea of regulating a purported
decision may give rise to a question about whether the regulation is a law at
all, as is required by section 51 of the Constitution. There are some fairly
oblique references to that idea in that recent High Court decision.[98]
3.88
However, at the hearing, Mr Wayne Martin QC from the
ARC expressed the view that the insertion of the term 'purported privative
decision' in the Bill was purely mechanical:
My own view...is that I
thought this ground was covered pretty much by the bill that lapsed with the
parliament last year. My impression of it was that the effect of the
introduction of the definition was largely mechanical and procedural to
overcome what might have been an unintended consequence of the High Court’s
decision in S157. As I read the provisions of the bill—and I may have misread
them—both that bill and, to the extent the provisions have been carried forward
in this bill, this one, it was not intended by that definition to attempt to,
as it were, resurrect the scope of the privative clause that was emasculated in
S157 but, rather, to apply that decision to some of the mechanical provisions
of the bill relating to time limits and so forth.[99]
3.89
A representative from DIMIA informed the committee that
it had sought legal advice on the constitutional validity of the Bill
and also argued that the insertion of the privative clause provisions was procedural,
rather than a restriction on judicial review:
...the advice that we had
is that it would be constitutionally valid. It is on the basis that it does not
change the grounds of review. It deals primarily with, and its purpose and
focus are on, the procedural aspects. The Migration Act in its current form has
a series of time limits and provides for the exclusive jurisdiction of the
federal courts in relation to privative clause decisions. The effect of the
High Court’s decision is that the privative clause decision, in effect, is a
decision that is not tainted by jurisdictional error. The consequence is that,
in order for the court to ascertain whether or not the person is within time
limits, they have to conduct a complete judicial review. The purpose behind the
amendment relating to a purported decision is to say that, in effect, any
action or decision that is taken or purportedly taken under the Migration Act
comes within those procedural requirements, such as the time limits, the primary
decision restriction and also the exclusive jurisdiction of the federal courts.[100]
3.90
Further, the representative noted that his
understanding was that there was far greater confidence that the current
version of the Bill is constitutionally valid as
opposed to the Judicial Review Bill, due to amendment of the current Bill
to include this committee's recommendation from its previous report:[101]
In the form that is in
the bill, of course, the government has taken up the committee’s recommendation
in relation to the earlier proposed provision that operated from deemed
notification. This is from actual notification. So I understand that there is
far greater confidence that this is constitutionally valid because of that
actual notification provision. You will not have the situation where,
potentially under the deemed notification provision, a person may not have been
aware or they may have only become aware of the decision somewhere within that
broadly 84-day period. Here they will in fact have the 84-day period from actually
knowing about the decision and having the reasons for that decision in which to
seek judicial review.[102]
The committee's view
3.91
The committee accepts DIMIA's assertion that the
purpose of the 'purported privative clause' device in the Bill is merely procedural,
seeking only to apply time and jurisdiction limits to 'purported' decisions
under the Migration Act and not bar review of such decisions. The committee
repeats the views expressed in its report on the Judicial Review Bill in
relation to privative clauses and makes no additional comments on this issue.
Possible alternative approaches
3.92
Many submissions and witnesses acknowledged the attempt
in the Bill to improve the efficiency of court
processes in relation to migration matters. For example, Ms
Kidson from QPILCH, applauded the proposed
changes to the structure of the jurisdiction of the courts:
We have said that we
have no objection to [giving the High Court power to remit on the papers],
provided that safeguards are in place—provided, for example, that the High
Court retains the power to hear old submissions if it believes it is necessary
and if one of the parties makes a case for that. We have stated that we have no
in-principle objection to the Federal Magistrates Court becoming the primary
judicial jurisdiction for hearing cases—again, provided it retains the
discretion, which under the bill it currently does, to refer complex cases to
the Federal Court.[103]
3.93
Ms Suhad Kamand from the Immigration Advice and Rights Centre agreed that the Bill's aim has some merit:
We share the concerns
expressed by those promoting the bill regarding the high and increasing volume
of migration litigation and the delays in, and burdens on, the migration
determination process which result. We share the objective of increasing
efficiency and expedition in the migration determination process, but only to
the extent that the quality, fairness, integrity and constitutionality of that determination
are preserved.[104]
3.94
However, the
committee received considerable evidence expressing strong opposition to the
way in which the Bill seeks to achieve this aim. This evidence
pointed to the failure to address or seek to implement structural
reforms which are deemed to be at the core of problems in the use of the
judicial review process in Australia,
particularly in relation to migration matters.[105]
3.95
Many also criticised the Federal Government's continued
failure to release the Penfold Report for scrutiny and comment, particularly in
light of the fact that the Report contains the evidence and findings which form
the basis of the Bill.[106] In its report on the Judicial Review
Bill, this committee urged the Federal Government to release the Penfold Report
for public comment before seeking to further amend the Migration Act.[107] The report also stated that the
committee would have been in a better position to comment on the Judicial
Review Bill if the Penfold Report had been available at the time of its inquiry.[108] The committee reiterates its
concerns here.
3.96
The Law Society of South Australia argued that, although
the Federal Government has refused to make available the Penfold Report, a few
presumptions can be made from the Bill:
In seeking to reduce
the number of matters before the courts, the government response has focussed
on implementing barriers and restrictions on the judicial process. It has
failed to consider the structural reasons behind the problem. In particular, it
has failed to introduce measures designed to improve the quality and
transparency of primary decision making. It has also failed to address the
consistency, quality and transparency of both the Migration Review Tribunal and
the Refugee Review Tribunal. Further, the government has made no proposals
designed to strengthen the availability of legal advice and assistance, whether
pro bono or otherwise, to applicants before the tribunals leaving some of the most
vulnerable members of society to attempt to represent themselves in these matters.[109]
3.97
The committee notes advice by a representative of the
Attorney-General's Department at the hearing for this inquiry that 'the report
was prepared for the government and for the purposes of a cabinet decision and
that therefore it would not be released apart from the limited material that
has been provided to the committee'.[110]
However, the committee restates its view that availability of the Penfold
Report would have greatly assisted its assessment of the merits and adequacy of
the current Bill and its objectives.
3.98
The committee heard that alternative measures to those
taken in the Bill would be more successful in
addressing the problems relating to judicial review of migration proceedings in
Australia. Dr
Ben Saul told
the committee that:
...we take a very
different approach to how you should respond to this problem of judicial review
being manipulated. Rather than taking a punitive approach by closing down
avenues of appeal and imposing cost orders, we think it is preferable instead
to address the root causes of why so many applicants seem to be using judicial
review as a means of seeking asylum but yet being quite unsuccessful.
...
...maintaining a system
of mandatory detention and detaining people while their asylum applications are
being processed clearly creates an incentive for detainees to try to get out of
detention in any way possible, including through judicial review applications,
when they do not have much hope of succeeding.[111]
3.99
Many
argued that the Bill sought to achieve its objectives at the
expense of fundamental rights and access to justice. For example, Ms Suhad Kamand from the Immigration Advice and Rights Centre told the committee that:
We have strong concerns
regarding the potentially far-reaching effect of the bill on access to
migration legal services and the likelihood that it will result in an increase
in highly vulnerable socioeconomic groups, often with poor English language
skills and little if any understanding of the Australian migration law and
processes, representing themselves in complex migration litigation. We are
concerned that, while having the potential to significantly decrease access and
equity in relation to migration litigation or migration legal services, the
bill does little to ensure that its stated objectives of increasing efficiency
and minimising unmeritorious claims will be achieved. Indeed it is our view
that the measures the bill seeks to put in place will defeat these objectives
by decreasing access to sound legal advice and representation, prompting a rise
in unrepresented litigants and inviting judicial scrutiny at the application
and intent of the ill-defined, onerous and far-reaching obligations and
penalties proposed.[112]
3.100
The Law Council submitted that 'the Bill
will not succeed in its stated aims, but is likely to make a bad situation worse'.[113] In particular:
...the Law Council is
concerned that problems in one area of migration decision making – refugee
appeals – are driving reforms that impact on the rights of all migration
applicants, stifling opportunities to challenge decisions and hampering the
courts in their development of immigration jurisprudence.
It is the Council’s
view that Parliament has again been invited to focus once again on the wrong
end of the process: trying to stifle review instead of addressing the question
of why so many appeals are being lodged.[114]
3.101
At the
hearing, Professor Mary Crock, representing the Law Council, was highly critical of the approach
taken in the Bill:
It is our view that
this legislation is contemptuous of the notion of the separation of powers in
this country. Like the migration legislation reform enactments that have
preceded it, it is ill-conceived, of questionable constitutionality and is
likely to have effects that are unintended and are detrimental to both the legal
process and the rule of law in Australia. This bill is yet another attempt to oust
the judicial review of migration decisions, but it goes further than that. It
touches the judicial process generally in the federal area. Whereas on the last
occasion the attack was on the courts themselves, this time the approach is
two-pronged and involves an attack on the courts and an attempt to discourage
and penalise those in the community responsible for bringing judicial review
applications.[115]
3.102
Further,
Professor Crock stated that Australia has 'one of the smallest bodies of refugee
claims in the world' yet also has 'one of the most astonishing proportionate
load of cases in the courts'.[116] She
argued that efforts should be made to determine why this the case:
Perhaps we need to
stand back and look more holistically at the system and what is
going wrong.
...
If you have people who
are not being looked after and they are not being captured, if you like, by
people who are going to look after their cases properly, these people will end
up making unmeritorious—or apparently unmeritorious—applications. But in fact
they are people who are in dire need of assistance and who have good claims
that have never been properly articulated. It is a systemic failure that this
is really not addressing. That is the point I would like to make.[117]
3.103
Mr Craig
Lenehan from HREOC expressed a similar view:
The question that
arises for us is: where does the problem really lie? That is an issue that is
raised not just in our submission but in other submissions. Do you answer that
problem by cutting off people’s rights to bring cases that may very well result
in them being awarded protection visas or do you look at more fundamental
aspects of the problem, which include the matter that you have referred to
which is that you have a bunch of unrepresented litigants in the highest court
in the land dealing with legal issues that are not only beyond their
comprehension but also in a language that they may not understand. That is one
issue.[118]
3.104
Further,
Mr Lenehan emphasised that the sound approach to addressing the problems in
relation to judicial review of migration matters, 'particularly when you are
dealing with fundamental rights, [is] not to rush in a solution which does not
first look to what are the real problems here and what are their causes.'[119]
3.105
Professor George Williams and Dr Ben Saul submitted that other alternatives should be pursued:
...the need for the
legislation would be substantially reduced if other alternatives were first
pursued: improving primary decision-making; enhancing the RRT’s independence; increasing
legal aid funding to improve the quality of migration advice about judicial
review; removing restrictive interpretations of the refugee definition, and
establishing complementary protection as a new migration status; and abolishing
mandatory detention.[120]
3.106
At the
hearing, a representative from DIMIA, in response to questioning about the Bill's misguided focus, described some of the
other measures employed by that department:
The department—and it
is probably fair to say that the committee or various parliamentary
committees—have looked at various aspects of immigration decision making. We
certainly do have extensive examination of the quality of our primary decision
making. We take seriously the outcomes of the merits review tribunals, look at
ways of improving and watch very closely the decisions that are made by the
Federal Court. We factor that into our training and have quite a comprehensive,
good decision-making training process that takes account of all those aspects.[121]
The committee's view
3.107
The committee acknowledges concerns in relation to the Bill's
perceived failure to adequately address structural and policy problems
associated with judicial review of migration matters. The committee agrees that
addressing some of these problems in the ways suggested by submissions and
witnesses may have considerable merit. In particular, the committee recognises
that it may be more effective to address the causes of 'unmeritorious'
litigation as opposed to concentrating solely on its effect.
3.108
However, the committee considers that the Bill
represents one of the strategies that may be helpful in streamlining judicial
review of migration litigation, forming part of a broader strategy aimed at
addressing some of the problematic issues at the heart of migration law in Australia.
Therefore, subject to its earlier recommendations, the committee considers that
the Bill should be passed by the Senate.
Recommendation 3
3.3 Subject to the preceding recommendations, the committee
recommends that the Senate pass the Bill.
Senator Marise Payne
Chair
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