Australian Democrats dissenting report
Senator Andrew Bartlett on behalf of the Australian
Democrats
1.1 After reviewing the evidence and
submission presented to this inquiry, the Australian Democrats' view is that
the Bill should be opposed.
1.2 The Democrats agree with the majority of
witnesses to the inquiry that there is no valid justification for the Bill. The
number of migration cases before the Federal and High Courts continues to
decline from the considerable increase in migration case numbers in 2002 -2003. This peak in migration applications was due
to the large increase in unauthorised arrivals between 1999 and 2001. The
number of unauthorised arrivals has fallen markedly since then. Also evident is
the fact that the 2002-2003 increase in migration cases was also due to the
policy measures pursued by the Government, especially in relation to decisions
not to allow representation actions in migration cases. Also significant is the
Government's continued refusal to publish the findings and recommendations of
the Penfold Report, which the Government asserts form the basis of the Bill.
1.3 In particular, the case has not been made
for introduction of the radical proposal to award cost orders against any
person deemed to have encouraged an unmeritorious application for review of a
migration decision. The Democrats share
the concerns raised by many witness and submissions that such provisions are in
effect an attempt to discourage lawyers, volunteers and other Australians who
have a legitimate role in assisting refugees and migrants.
1.4 Similarly, the Democrats consider that
provisions seeking to restrict judicial review of migration decisions by the
imposition of time limits are inappropriate and unnecessary given the courts'
current powers to manage their caseload and to screen out unmeritorious
applications.
1.5 The proposed privative clause is equally
problematic as is the Bill's reference to 'purported privative clause
decisions'. Serious doubts have been raised over the constitutional validity of
the latter as well as over the imposition of time limits restricting judicial
review of migration decisions. Moreover, these provisions will compound the
complexity already inherent in the Migration Act and provide even more grounds
for appeals. This is at odds with the
Bill's stated aim of reducing the number of migration appeals and the
associated cost and delay.
1.6 The Bill is based on a false premise and
is unworkable and potentially dangerous.
As the Democrats stated in respect of the earlier Migration Amendment
(Judicial Review) Bill 2004:
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. 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.
These comments
apply equally to the Bill and now have even more force given the recent
injustices wrought by the Government against its own citizens who have the
misfortune to become embroiled in its immigration regime.
1.7 Consequently, the Democrats believe that
the Bill should not be passed – even if it is amended in accordance with the
Committee's recommendations. The
Democrats appreciate the reasons for the Committee's recommendations for a
report to Parliament on the operation of the Bill and for the sun setting of
the summary dismissal powers. However, the fact remains that no real evidence
has been presented which warrants the enactment of the Bill in the first place.
1.8 Notwithstanding the above, if the Bill is
to be passed by the Parliament, it will be critical for the Committee's
recommendations to be implemented. In
addition, the Democrats believe that it is crucial that the Bill as a whole be
subject to a sunset clause. The
significant implications of this Bill for the courts, the legal profession, the
rule of law and the lives of individuals at risk of persecution and seeking
Australia's protection make it essential that the operation of the Bill be
fully examined and debated by the Parliament if it is to continue.
Recommendation
1:
That the Bill
be opposed.
Recommendation
2:
That, if the
Bill is not to be opposed, it be amended in accordance with the Committee
Recommendations.
Recommendation
3:
That, if the
Bill is not to be opposed, it be amended to include a sunset clause which
provides that the legislation will cease to have effect three years after it
commences.
___________________
Senator Andrew
Bartlett
Australian
Democrats
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