This chapter will consider key issues regarding the implementation and
operation of the Bill that have been identified by submitters.
The Bill has the stated purpose of ensuring Australia's immigration
policies are consistent with the nation's obligations as signatories to various
international conventions by:
- Legislating asylum seeker principles;
- Ending mandatory and indefinite detention through judicial
- Repealing the provisions establishing offshore excised zones; and
- Increasing access to judicial review of administrative decisions.
The committee notes that the drafting of the Bill has a significant
number of shortcomings that would result in serious changes to Australia's
migration policies above and beyond those proposed. The proposed changes would
create a significant additional burden on the judiciary, legal aid, and other
government services. The committee also has reservations about the
constitutionality of this Bill as it appears to vest the judiciary with
Matters considered in this inquiry
Under the terms of reference for this inquiry the committee is limited
to considering the provisions of the Bill. Many submissions did not address
specific provisions, but instead undertook broad critiques of Australia's
Legislative drafting concerns
Submissions brought to the attention of the committee a large number of
issues around the drafting of the Bill.
Asylum seeker principles
The Principles as outlined in the Bill elaborate a broad set of goals
and criteria designed to ensure Australia's treatment of asylum seekers is
consistent with some interpretations of international humanitarian obligations,
and ensure that the use of detention is minimised. While many submissions were
broadly supportive of measure to legislate minimum standards for the treatment
of asylum seekers, they also highlighted numerous problems.
The wording of the Principles is very general and open to a number of
interpretations. Neither the Act nor the Bill provide a definition of 'asylum
It was submitted that some interpretations of the Principles, if adopted by the
courts, would render Australia's current immigration detention regime
For example paragraph 4AAA(3)(c) calls for people in immigration detention to
be 'treated fairly and reasonably within the law'; it is unclear how courts
would interpret this overarching requirement. The Department explains: 'It is
very had to see how, without further precision of language, there would be
sufficient detail in the legislation to provide a consistent response from the
Similarly, 'last resort', 'shortest practicable time', 'arbitrary
detention' and 'ensure the inherent dignity of the human person' are all
nebulous terms that can be interpreted in various ways.
Amnesty International has raised concerns that this lack of clarity around
terminology and application would act as an impediment to transparency and fair
Arguing the opposite case, the Public Interest Advocacy Centre (PIAC) argued
that the Principles are an example of principle based legislation that is more
outcome focused than prescriptive legislation which has a tendency to require
As a result of the drafting, the Principles would extend to decisions
that are not related to either refugees or asylum seekers. Subsection 4AAA(4)
of the Bill would require that decision-makers have regard to the Principles in
making 'any decision about refugees, asylum seekers, immigration or a related
matter under this act.' The Department has expressed concern that this would
result in other immigration decisions, many of which are currently subject to
privative clauses, being challenged by applicants claiming that the decision
maker did not adequately take into account the Principles.
As one submission explained:
The strict interpretation of privative clauses favoured by
the courts will ensure that where a decision-maker ignores the explicit
requirement to have regard to the asylum-seeker principles that the offending
decision will be subject to judicial review, regardless of its purported coverage
by a privative clause.
The Queensland Law Society (QLS) also expressed concern regarding the
application of subsection 4AAA(4).
A number of submissions highlighted the similarities between the
proposed Principles in the Bill and the government's seven key Immigration
Detention Values (Values) released in July 2008.
Part two of the Bill seeks to end mandatory detention and replace it
with a policy of discretionary detention. It does this by replacing 'must' for
'may' in subsections 189 (1) and (2) which require that if an officer knows or
reasonably suspects a person is an unlawful non-citizen in the migration zone,
or is seeking to enter the migration zone, the officer must detain that person.
The Queensland Police Service raised concerns that the proposed change expands
the decision making process, as the officer must be satisfied that the person
is unlawfully in Australia's migration zone and that there are
justifiable reasons for detaining the person. The submission explains the
potential implication of this change in the absence of further guidelines to
facilitate their operation:
In the absence of clear guidelines, police officers may be
faced with a difficult decision to make between detention and fear of future
litigation arising from unlawful detention.
The Law Council of Australia (LCA) also expressed reservations regarding
the lack of criteria to be applied to the discretion to detain.
Grounds for detention
Section 195B requires that a detainee be provided with the reason for
their detention, and their rights of appeal. A detainee may appeal to a
magistrate for release. There are concerns regarding the lack of detail within
the provisions, and the ramifications of decisions made by the magistrate.
Subsections 195B(1) and (2) of the Bill set out a potential requirement
that an officer who has detained a person under section 189 must provide that
person with the reasons for their detention in writing. There is no guidance
provided in either the Bill or extrinsic material regarding what grounds are
considered acceptable grounds to justify detention, and therefore what should
be included in the notice of detainment provided to the detainee.
The principle reasons upon which asylum seekers are currently detained
are to enable the government to conduct health, character and identity checks,
and ensure the detainee does not pose a threat to the community.
Subsection 195B(3) allows a person detained under section 189 to:
...apply to a magistrate for an order that he or she be released
from detention because there are no reasonable grounds to justify: the
officer's decision to detain the person; or the officer's decision to continue
to detain the person.
The committee is concerned that there is a lack of clarity around what
'reasonable grounds' would constitute, and as a result there is an unacceptable
lack of guidance for officials charged with administering the legislation. It
would appear that many submissions for release lodged under 195B(3) would rely
on the Principles to support their claims that there are no reasonable grounds
for detention. LCA suggests that criteria need to be developed to provide
magistrates, officers and detainees clarity regarding what constitutes
reasonably grounds to justify a person's detention pursuant to proposed
sections 195B and 195C.
Australian Lawyers for Human Rights capture the crux of the issue:
Without greater clarity, it is uncertain which 'grounds' and
'reasons' will be relied upon, or on what basis a magistrate need be satisfied
that detention is appropriate or inappropriate. As a result, discretion will be
guided by non-binding policy, resulting in inconsistency, a lack of
transparency and certainty, and confusion when the matters are eventually
brought before judicial officers.
The Refugee Council of Australia also notes the need for further detail to
enable officials and magistrates to make decisions in line with the intent of
Pursuant to subsection 195B(3), subsection 195B(4) empowers magistrates
to determine if it is reasonable that a person be detained, or if the magistrate
believes it is unreasonable to detain that person, make any order that the
magistrate sees fit. The LCA notes that there is no time limit placed on the
length of detention a magistrate may authorise, nor does it indicate how many
continuances of detention may be sought.
At the committee's public hearing, the LCA testified that without any limits
set on the duration of detention a magistrate may authorise, or the number of
extensions permissible, the detention may become indefinite.
The Department also expressed concerns relating to the proposed amendment submitting
Of significance in the proposed amendments, a court order to
release an unlawful non-citizen does not appear to be time limited, and there
is no provision enabling the Department to revisit the matter if the client's
circumstances change later.
The committee is concerned that the lack of review processes
significantly undermines one of the purposes of detention: to ensure the safety
of the community. The lack of maximum detention a magistrate may authorise also
undermines a key justification for the Bill: minimising long-term detention.
Order for continued detention
Section 195C of the Bill seeks to minimise long-term detention of asylum
seekers by requiring judicial review of any detention in excess of 30 days. The
justification put forward for requiring a court order for ongoing detention is
to ensure external scrutiny of detention decisions to ward against needless
ongoing administrative detention.
What constitutes a necessary duration of detention of unlawful
non-citizens was raised by many submissions. Civil Liberties Australia is of
the view that: 'Thirty days is adequate time to make an assessment, and to
decide whether or not a person should, prima facie, qualify for refugee
The QLS notes that 30 days may not be a realistic timeframe in which to expect
all the necessary assessments to be completed; the Law Society New South Wales
also takes this view.
Senator Hanson-Young drew the attention of the committee to evidence provided
by the Australian Security Intelligence Organisation that security checks for
eligibility for community based detention can be completed in a few days.
There are significant concerns regarding the application of section 195C
and the power it grants to magistrates, the statutory effect of the 30 day
timeline, the additional burden it would place on the courts and immigration
officials, and a seeming proclivity within the drafting to guarantee the
release of detainees into the community.
Subsection 195C(1) states that: 'a person detained under section 189
must not be detained for more than 30 days except in accordance with an order
made under this section.' In cases where the Secretary has lodged an
application to continue detention beyond 30 days, but the court has not heard
the case, the current drafting would seem to imply that the detainee would be
released. This represents a significant erosion of Australia's immigration
Subsection 195C(2) requires the Secretary of the Department to:
...apply to a magistrate for an order that a person detained
under section 189 is to continue to be detained for more than 30 days.
The Bill does not reveal on what grounds the secretary can apply for
continued detention, stating only that 'an application under subsection (2)
must specify why it is necessary to continue to detain the person.'
While supportive of the thrust of the Bill, PIAC notes that Part 2 of the Bill
would be more effective if it included a finite list of criteria that would
qualify further detention.
As discussed in relation to section 195B, it is necessary that further detail
be provided as to what would constitute acceptable grounds for detention.
There are no provisions in the Bill sparing the secretary from having to
apply for an order under Section 195C in circumstances in which a magistrate
has ruled that detention is necessary under subsection 195B(4), even if that
ruling was only handed down days earlier. This may create substantial
duplication of judicial oversight as detainees will be able to appeal their
initial detention, and this will be followed by the secretary applying to
continue detention beyond 30 days if required. The Bill also fails to articulate
whether detainees would remain in detention while waiting for judicial review.
Once the secretary has applied for an order of continued detention, it
appears the Bill creates a significant statutory predisposition to either issue
a visa or release the detainee. If the magistrate is not satisfied that it is
appropriate to continue detention, the magistrate may order that the person is
released or granted a visa. If the magistrate is convinced that continued
detention is appropriate, the magistrate may:
[M]ake an order for the continued detention of the person,
subject to any conditions the magistrate considers appropriate, until:
(a) The person is
released from detention pursuant to paragraph 196(1)(c); or
(b) A specified date.
Section 196(1)(c) states that an unlawful non-citizen detained under
section 189 must be kept in immigration detention until he or she is granted a
The current drafting of the Bill, if enacted, would create a situation in which
detainees would either be released immediately by a magistrate under subsection
195C(5), or detained under subsection 195C(4) until they are either granted a
visa or the expiration of a specified date.
This would preclude the option to deport or removed a person detained under
section 189 using either paragraph 196(1)(a) or (b). In effect, once the
secretary makes an application under section 195C, a detainee would almost
certainly be eventually released into the community. As the Department notes,
the Bill vests magistrates:
[W]ith the power to order that the person must be released
from detention or an order that the person must be granted a
visa...This would effectively allow unlawful non-citizens to be released into
the community without a visa.
The Bill does not specify a maximum length of detention that the
magistrate may order, the number of continuances that may be sought, or indeed,
whether continuances may be sought at all.
This lack of detail means that indefinite detention, an element of the current
Act that the Bill seeks to remove, would continue.
The Department has expressed concerns that the proposed changes in
sections 195B and 195C would create a discretionary detention framework which
'in effect vest the courts with the power to create new conditions on a case by
The power of magistrates
The Bill does not specify which magistrates it would pertain to, as the
LCA points out:
[T]he Migration Act 1958 (Cth) refers to the Federal
Magistrates Court's jurisdiction in migration matters. Although the term
'magistrate' is not defined in the Migration Amendment (Detention Reform and
Procedural Fairness) Bill 2010, it is presumed that any reference to
'magistrate' relates only to federal magistrates, and does not intend to give
jurisdiction to State and Territory magistrates.
For the purpose of clarity, the committee has assumed that the Bill refers
to the Federal Magistrates Court throughout.
Sections 195B and 195C would allow a magistrate to release a detainee or
order that the detainee be granted a visa. If the Bill were implemented in the
manner proposed consideration would need to be given to what form of temporary
or bridging visa would be appropriate to enable the person to lawfully reside
in the community while their application was being processed.
The QLS explains:
It is unclear whether the bridging visas which the magistrate
could grant would be the existing bridging visas...More generally, it is
unclear what would happen to 'unlawful non-citizens' if they were released
under subsections 195B and 195C.
This position was echoed by Australian National University College of
Law academic Professor Penelope Mathew who noted:
In order to ensure that decision makers can properly act on
the change to a presumption against detention, it would also be necessary to
ensure that there are adequate alternatives to detention.
Amnesty International (Australia) testified to the importance of
establishing proper supports so that people released into the community have
access to healthcare and education.
At present it is unclear what rights people released under either sections 195B
or 195C would have in relation to matters such as employment, and for what kind
of assistance a former detainee might be eligible in regard to healthcare,
accommodation, and integration assistance.
Under the Act the minister is endowed with significant discretionary
powers to grant and revoke visas. The Bill does not seek to limit the discretionary
powers available to the Minister under the Act; it is unclear how a decision
made by the minister that contrasts with a decision made by the court would
Vesting the judiciary with executive powers
Part two of the Bill – judicial review of detention – may vest executive
powers with the judiciary in a manner that violates the principle of the
separation of powers as enshrined in the Australian Constitution. As the Department
posits: 'These proposed amendments may infringe the constitutional separation
of powers doctrine by purporting to empower the court to exercise an
Prima Facie, it is likely the proposed amendments facilitating judicial review
of detention decisions purport to give executive power to the judiciary.
Part 4 of the Bill seeks to limit the use of privative clauses within
the Act to facilitate greater judicial review of migration decisions with the
hope of ensuring fair process and procedural fairness in immigration matters.
The Department has challenged the need for this change:
The changes seem to be based on a mistaken belief that the
privative clause actually operates to restrict review, which the High Court
made clear was not the case in its decision in Plaintiff S157/2002 V Commonwealth
of Australia  HCA2...[i]t is unclear, therefore, what the rationale
for removing the privative clause is, and unlikely that this will achieve the
stated objective of the proposed Part 4.
PIAC notes that this High Court decision gives subsection 474(1)
a very narrow construction, thereby providing no protection against review for
jurisdictional errors by the Refugee Review Tribunal.
Matters of procedural fairness are included within the definition of
The Australian Human Rights Commission provides a useful summary:
The use of privative clauses is relatively controversial, as
they potentially limit judicial review of administrative decisions...the High
Court has interpreted this restriction of the privative clauses in a relatively
minimalist way, allowing for the review of migration decisions involving
jurisdictional error. Review for jurisdictional error can encompass cases
where there is alleged to be a denial of procedural fairness, failure to comply
with statutory procedures, error of law, the inflexible application of public
policy, consideration of irrelevant material and failure to consider relevant
The willingness of the High Court to hear cases notionally covered by
privative clauses in the Act calls into question the need for this amendment. As
the Department notes, the proposed amendments would impact upon all migration
decisions whether they be in relation to asylum seekers, general migration or
The Department noted there are already review mechanisms in the
migration determination process ensuring decisions made are of high quality:
[S]ince the High Court decision in November last year there
are now three levels of judicial review available for decisions relating to the
determination of whether people are owed protection or not. So there are
judicial review levels available at almost all levels that are available for
all other administrative decisions as well.
Increased workload on courts, legal aid and other services
Several of the measures in the Bill would add significant extra burden
upon the judiciary, legal and other services. Parts one, two, four and five of
the Bill would contribute to an increase in demand on the courts. If the Bill
were to be passed by the Senate it would need to be accompanied by appropriate
resourcing to meet the significant increase in workload on legal advice, the
magistrates court, the appellate courts, and counsel.
It was noted by Amnesty International (Australia) that if it were to take the
court six or 12 months to consider a case it would defeat the purpose of the
The LCA informed the committee that there was early evidence of an increase in
workload from the M61 and M69 cases already being felt in the Federal
The Department warned that there would be a significant increase in the
volume of litigation and costs associated with detainees attending hearings.
LCA also notes the potential of the Bill to impact upon the workload of the
administrative review tribunals and the federal courts, as well as increased
demand for legal services.
This increase in workload may impact upon the courts' ability to hear matters,
including matters not related to immigration, in a timely manner.
The proposed amendment to the AD(JR) Act may result in the bifurcation
of the judicial review process as it would enable applicants to seek review
under both common law and on the grounds set out in the AD(JR) Act.
Government services would also see significant increases in their
caseloads with no additional resources.
The proposed changes would create additional demand on accommodation, health,
integration and employment services. Submissions noted the importance of
ensuring that adequate social support is in place for released asylum seekers.
Furthermore, the committee shares the concerns expressed by the LCA that
the measures in the Bill could result in further delays in processing asylum
The committee notes that the Government appointed Professor John
McMillan to review options for enhancing the efficiency and minimising the
duration of the judicial review process for offshore entry persons seeking
refugee status determinations. The Administrative Review Council is also
undertaking an inquiry into judicial review in Australia. Given the shortcomings
of this Bill, and the concurrent inquiries into aspects covered by the Bill,
the committee is of the view that it would be premature to amend the Act until the
government has considered Professor McMillan's report.
The committee acknowledges that Australia's immigration policies as they
relate to refugees and asylum seekers are contentious and evoke strong feelings
in many in the community.
Immigration policy must simultaneously uphold the executive's right and
responsibility to control the nation's boundaries, with Australia's
humanitarian obligations as signatories to various international conventions.
Based on the foregoing discussion of the Bill, the committee is of the view
that its effect would be to seriously erode the executive's ability to manage
immigration matters and potentially vest executive power in the judiciary.
The drafting of the Bill at present is insufficiently developed for the
committee to recommend that the Senate consider it further. The committee notes
that the Explanatory Memorandum was very limited in its explanation of the
Bill's function, and the impact it would have on Australia's migration policies.
Of particular concern to the committee is the fate of asylum seekers released
into the community without a valid visa or access to accommodation, healthcare
and other services.
Recent High Court cases have highlighted that the privative clauses
included in the Act do not prevent cases of genuine jurisdictional error being
challenged, but do create a threshold requirement that minimise spurious legal
challenges. The detention of detainees is already subject to periodic review by
departmental officials and the Commonwealth Ombudsman.
In light of this, the committee believes that there are presently sufficient
oversight and jurisprudential safeguards in place.
2.54 The committee recommends that the Senate should not pass the Bill.
Senator Trish Crossin
Navigation: Previous Page | Contents | Next Page