Key issues


2.1        This chapter will consider key issues regarding the implementation and operation of the Bill that have been identified by submitters.

2.2        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:

2.3        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 executive powers.

Matters considered in this inquiry

2.4        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 immigration policies.

Legislative drafting concerns

2.5        Submissions brought to the attention of the committee a large number of issues around the drafting of the Bill.

Asylum seeker principles

2.6        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.

2.7        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 seeker'.[1] It was submitted that some interpretations of the Principles, if adopted by the courts, would render Australia's current immigration detention regime unworkable.[2] 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 courts.'[3]

2.8        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.[4] Amnesty International has raised concerns that this lack of clarity around terminology and application would act as an impediment to transparency and fair process.[5] 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 constant amendment.[6]

2.9        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.[7] 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.[8]

2.10      The Queensland Law Society (QLS) also expressed concern regarding the application of subsection 4AAA(4).[9]

2.11      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.[10]

Discretionary detention

2.12      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.[11] 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.[12]

2.13      The Law Council of Australia (LCA) also expressed reservations regarding the lack of criteria to be applied to the discretion to detain.[13]

Grounds for detention

2.14      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.[14]

2.15      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.

2.16      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.[15]

2.17      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.[16]

2.18      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.[17] 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.[18]

2.19      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 the Bill.[19]

2.20      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.[20] 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.[21] The Department also expressed concerns relating to the proposed amendment submitting that:

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.[22]

2.21      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

2.22      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.

2.23      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 status.'[23] 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.[24] 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.[25] 

2.24      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.

2.25      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 detention regime. 

2.26      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.[26]

2.27      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.'[27] 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.[28] As discussed in relation to section 195B, it is necessary that further detail be provided as to what would constitute acceptable grounds for detention.

2.28      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.[29]

2.29      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.

2.30      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 visa.[30] 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.[31] 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.[32]

2.31      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.[33] This lack of detail means that indefinite detention, an element of the current Act that the Bill seeks to remove, would continue.

2.32      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 case basis.'[34]

The power of magistrates

2.33      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.[35]

2.34      For the purpose of clarity, the committee has assumed that the Bill refers to the Federal Magistrates Court throughout.

2.35      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.[36] 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.[37]

2.36      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.[38]  

2.37      Amnesty International (Australia) testified to the importance of establishing proper supports so that people released into the community have access to healthcare and education.[39] 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.

2.38      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 operate.[40]

Vesting the judiciary with executive powers

2.39      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 administrative power.'[41] Prima Facie, it is likely the proposed amendments facilitating judicial review of detention decisions purport to give executive power to the judiciary.[42]

Privative clauses

2.40      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 [2003] 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.[43]

2.41      PIAC notes that this High Court decision gives subsection 474(1)[44] a very narrow construction, thereby providing no protection against review for jurisdictional errors by the Refugee Review Tribunal.[45] Matters of procedural fairness are included within the definition of jurisdictional error.[46] 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 material.[47]

2.42      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 family programs.[48]

2.43      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.[49]

Increased workload on courts, legal aid and other services

2.44      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.[50] 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 Bill.[51] 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 Magistrates Court.[52]   

2.45      The Department warned that there would be a significant increase in the volume of litigation and costs associated with detainees attending hearings.[53] 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.[54] This increase in workload may impact upon the courts' ability to hear matters, including matters not related to immigration, in a timely manner.

2.46      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.[55]

2.47      Government services would also see significant increases in their caseloads with no additional resources.[56] 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.[57]

2.48      Furthermore, the committee shares the concerns expressed by the LCA that the measures in the Bill could result in further delays in processing asylum seeker applications.[58]

Concurrent inquiries

2.49      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.  

Committee view

2.50      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.

2.51      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.

2.52      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.  

2.53      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.[59] In light of this, the committee believes that there are presently sufficient oversight and jurisprudential safeguards in place.

Recommendation 1

2.54      The committee recommends that the Senate should not pass the Bill.


Senator Trish Crossin

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