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Bills Digest no. 132 2004–05
Migration Litigation Reform Bill 2005
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
General Comments
Specific Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Migration
Litigation Reform Bill 2005
Date Introduced:
10 March 2005
House:
House of Representatives
Portfolio:
Attorney-General
Commencement:
Schedule 1 commences on a day to be fixed by Proclamation
or, if this does not occur within six months of Royal Assent, on the
first day after that period. Schedule 2 commences on Royal Assent
To amend the Migration Act 1958,
the Federal Court of Australia Act 1976, the Federal
Magistrates Act 1999 and the Judiciary Act 1903 to assist
courts in managing their migration litigation workload.
Given the short time between introduction of this Bill
and scheduled debate in the House of Representatives, this digest is
a draft covering key points only. It will be revised to include a more
comprehensive discussion in time for further consideration of the Bill
by the Parliament.
Readers are directed to Bills Digest
No. 118 of 2003-04(1) on the Migration Amendment (Judicial
Review) Bill 2004 (the '2004 Bill'). The 2004 Bill contained similar
(although not identical) reforms to the 2005 Bill. The digest on the
2004 Bill includes extensive background and a detailed reading list.
The 2004 Bill was also the subject of an inquiry(2)
by the Senate Legal and Constitutional Legislation Committee. The 2004
Bill lapsed when Parliament was prorogued for the October 2004 federal
election.
The main proposals in the Bill are to:
(Item 17)
(Item 17)
(Item 18 and Items 30-33)
(Items 10 and 37)
General Comments
The Explanatory Memorandum notes that:
The Government is very concerned about the large increases
in the number of migration cases in the federal courts in recent years
and the very low success rate of this litigation. Migration
litigation constitutes a substantial proportion of the workload of
the High Court, Federal Court and Federal Magistrates Court (FMC).
In recent years, the Government has won over 90 per cent
of all migration cases decided at hearing. Unsuccessful cases
are not necessarily unmeritorious. However, the very high failure
rate reflects concerns raised, including by the courts, about high
levels of unmeritorious migration litigation.
The large volume of judicial review proceedings, unmeritorious
litigation and delays are very costly and are placing strains on the
courts and the migration system more generally. Extended waiting
times in courts have been taken advantage of by some applicants using
the court process simply to delay their removal from Australia and
prolong their stay in the community. These delays impact on
applicants with genuine claims who are waiting to have their cases
considered.(3)
In October 2003 the Government commissioned the Migration
Litigation Review conducted by Hilary Penfold QC to inquire into more
efficient management of migration cases. According to the Second Reading
Speech, the measures in the 2005 Bill have been drawn from recommendations
by the Review. Bills Digest no 118 noted in relation to the 2004 Bill
that:
The Government has asked Parliament to approve the
current Bill without releasing the Migration Litigation Review.
There has been no public indication of what its conclusions and recommendations
were. This prevents any assessment either of the adequacy of the Review
in addressing the issue of migration caseload or the adequacy of the
Bill as a response to the Review.(4)
The findings of the Review have yet to be released.
In other words, the Government has still not revealed publicly the detailed
analysis from the Review on which the proposals in the 2005 Bill are
based.
The table below shows figures for judicial review applications
in migration matters in various courts from 1997 to 2005. As Bills
Digest no.118 noted, there was a large increase in applications in 2002/03
after the government prohibited 'representative' actions in migration
matters, causing the single Muin case to be split into an additional
1350 matters, which were filed in the High Court in that financial year.(5)
After the distorting effect of the Muin case on migration matters passed,
numbers of migration applications have declined dramatically. The extent
to which the reforms proposed in the Bill are now necessary is unclear.
The FMC, which commenced hearings in 2000, received
jurisdiction in migration matters in 2001. As the Second Reading Speech
notes, 8 additional magistrates have been appointed to the FMC. The
graph below indicates that the FMC is playing the role intended for
it, taking on a substantial part of the burden in migration matters
from the Federal Court and the High Court.
-
As explained in Bills Digest no 118, in Plaintiff S157 the
High Court said that a decision under the Migration Act affected by
'jurisdictional error' (i.e. a significant mistake') was not a valid
decision under the Act. So appeals from such a decision could not
be caught by the time limits in the Act. The High Court called migration
decisions with such mistakes 'purported' decisions.
-
The 2005 Bill amends the Migration Act so that it specifically
includes 'purported decisions'. Any time limits on appealing
in the Act will now apply to 'purported' decisions
-
Logically, however, it is difficult to see how this can be effective.
The High Court has said that 'purported' decisions are outside
the scope of the Migration Act. So amending the Migration Act
itself cannot bring them within its scope.
-
A 'purported' decision is defined by the Bill to include anything
listed in s474(3) of the Migration Act. So, for example, purported
'conduct preparatory to making a decision', a purported 'failure or
refusal to make a decision' or a purported 'refusal to do any other
act or thing would all be subject to the time limits and other restrictions
on judicial review in the Migration Act
-
the wide definition of 'purported' decision may make it difficult
for people to recognise that some decision or action, or inaction,
has occurred which has started time limits running for lodging
an appeal
-
the consequence may be that people may seek to lodge 'precautionary'
appeals in case they have been the subject of a 'purported' decision
without this being obvious to them. This will be all the more
difficult, however, because of the proposal in the Bill to 'penalise'
unmeritorious applications. In practice, therefore, applicants
may be caught between, on the one hand, a vague definition of
'migration decision' linked to strict time limits for appealing
and, on the other hand, a prohibition on appealing if there are
'no reasonable prospects' for success, linked to personal costs
orders.
See the discussion at pp13-14 of Bills Digest No 118.
Pursuant to section 44 of the Judiciary Act 1903,
the High Court could remit any matter, on its own motion or on application
of the parties, in full or in part, and whether or not the matter originated
in the High Court. Importantly however, the Migration Legislation
Amendment (Judicial Review) Act 2001, which commenced in September
2001, removed the power of the High Court to remit matters that relate
to immigration decisions where those decisions a) have a merits review
process attached,(6) and b) are subject to the Minister’s
discretion to substitute a more favourable decision.(7)
It follows that these constitutionally entrenched matters must now be
reviewed by the High Court itself.
- The Bill does not change this position, but simply directs the High
Court to remit other migration matters directly to the FMC.
-
This proposal may raise constitutional issues, especially the possible
intrusion of the legislature into the 'judicial power' of the Commonwealth,
in contravention of Chapter III of the Constitution
-
The Bill gives discretion to courts to decide whether an unmeritorious
application has been brought and whether a personal costs order
should be made against the applicant, his or her lawyer or migration
agent. However it directs courts to consider whether a personal
costs order should be made. This could potentially amount to
an unconstitutional intrusion into federal judicial power.
-
Parliament may also wish to consider a number of policy issues raised
by this proposal
-
Whether this would discourage lawyers and/or migration agents
offering advice to potential applicants, leading to more unrepresented
(and potentially less meritorious) applications. A practical
issue may be whether applicants with no ability to pay in any
case if a decision goes against them would be discouraged by the
threat of a personal costs order
-
Whether this may provoke a significant number of cases about
whether an unmeritorious application has been made.
-
The provisions in the Bill allowing summary judgments at the initiative
of the High Court, Federal Court or FMC apply not just to migration
matters but to all matters. It is suggested that Parliament should
seek specific advice on the full implications of this proposal.
-
http://www.aph.gov.au/library/pubs/bd/2003-04/04bd118.pdf.
-
http://www.aph.gov.au/senate/committee/legcon_ctte/completed_inquiries/2002-04/mig_judicial_04/index.htm.
-
Explanatory Memorandum, p. 1.
-
Bills Digest no 118 2003-04, p. 9.
-
Ibid, p. 2.
-
Subsections 476(4) and (1) of the Migration Act.
-
Subsections 476(4) and (2) of the Migration Act.
Peter Prince
15 March 2005
Bills Digest Service
Information and Research Services
This paper has been prepared to support the work of the Australian Parliament
using information available at the time of production. The views expressed
do not reflect an official position of the Information and Research Service,
nor do they constitute professional legal opinion.
IRS staff are available to discuss the paper's contents
with Senators and Members and their staff but not with members of the
public.
ISSN 1328-8091
© Commonwealth of Australia 2005
Except to the extent of the uses permitted under the Copyright Act
1968, no part of this publication may be reproduced or transmitted
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other than by members of the Australian Parliament in the course of their
official duties.
Published by the Parliamentary Library, 2005.
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