Bills Digest no. 167 2006–07
Migration Amendment (Statutory Agency) Bill 2007
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
Financial implications
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Migration
Amendment (Statutory Agency) Bill 2007
Date introduced:
24 May 2007
House:
House of Representatives
Portfolio:
Immigration and Citizenship
Commencement:
The day after Royal Assent.
The Migration
Amendment (Statutory Agency) Bill 2007 (‘the Bill’)
inserts a new section into the Migration Act 1958 (‘the Migration
Act’) that will establish a single statutory agency for the purposes of
the Public Service Act 1999 (‘the Public Service Act’).
The proposed agency will consist of the Principal Member
of the Refugee Review Tribunal (‘RRT’)
and the registrars, deputy registrars and other officers of both the RRT
and Migration Review Tribunal (‘MRT’)
engaged under the Public Service Act.
The major change effected by the Bill
is that under the current statutory arrangements, the Australian Public
Service (APS) employees working at the tribunals are legally employed
by the Secretary of the Department of Immigration and Citizenship (DIAC).
If the Bill is passed, the APS staff will
instead be employed by the Principal Member of the RRT. The Minister
states that in reality ‘for all practical purposes, tribunal staff are
directed by the principal member, who is the executive officer of both
of the tribunals, under powers delegated by the secretary’.(1)
The Principal Member of the RRT will be the agency head
of the proposed statutory agency. The Minister stated:
This is an important provision because it ensures that,
if in future two individuals are separately appointed as the Principal
Member of the Refugee Review Tribunal and the Principal Member of the
Migration Review Tribunal, there will still be certainty about who is
the head of the single statutory agency established for the purposes
of the Public Service Act.
As a statutory appointee, the Principal Member of the
Migration Review Tribunal will not form part of the statutory agency.(2)
When introducing this Bill into Parliament, Immigration
Minister Kevin Andrews stated
it will implement ‘the last of a range of minor changes to the legislative
framework of the Migration Review Tribunal and the Refugee Review Tribunal
recommended in the Uhrig report, Review of the Corporate Governance
of Statutory Authorities and Office Holders, in 2003’ (the ‘Uhrig Review’).(3)
He further states:
The purpose of the recommended changes is to strengthen
the governance of the two tribunals and give legal effect to the practical
reality that they have progressively been administered as one agency
since 2001.(4)
The Uhrig review generally recommends two templates designed
to ensure good governance exists: one where governance can best be provided
by ‘executive management’, and the other where it can best be provided
by a ‘board’.(5)
The Minister for Finance and Administration (Finance
Minister) announced
the Government’s response to the Uhrig Review on 12 August 2004. The
latest update dated May 2007 is available here.
For a summary of the responses and debate that followed the release of
the review, please refer to Dr. Richard
Grant, ‘The
Uhrig Review and the future of statutory authorities’, Research
Note, no. 50, Parliamentary Library, 2004–05. More information about
the Uhrig Review and the Commonwealth financial framework can be found
in the ‘Background’ section of the ‘Australian Centre
for International Agricultural Research Amendment Bill 2007’, Bills
Digest No. 160, 2006-07, 23 May 2007 by Juli Tomaras.
The Minister for Immigration and Citizenship has provided
the Migration Review Tribunal and the Refugee Review Tribunal with a Statement
of Expectations, which is stated to be in response to the Uhrig Review.
The Principal Member of the Tribunals has responded with a Statement of Intent,
which includes key performance indicators for the Tribunals.
The operational relationship between the Tribunals and
DIAC is contained in a Memorandum
of Understanding signed on 25 November 2005 by the Principal Member
Steve Karas and Andrew
Metcalfe, the Secretary of DIAC. The Tribunals have
also developed a new Corporate Plan
(still in draft with comments invited); a Service Charter; and a Member
Code of Conduct.
The Uhrig Review does not generally deal with merits
review tribunals:
The terms of reference called for the identification
of governance principles and the development of templates the Government
might apply to all statutory authorities and office holders and more
broadly to a wide range of public sector bodies. As the templates developed
by the review are based on established principles of governance, they
lend themselves to wide applicability. However, notwithstanding the
fact that the principles on which the templates are based are broadly
applicable, some authorities involve considerations which take them
outside the scope of matters examined by the review.
For example, although Commonwealth courts and tribunals
are established by legislation and included in the AAO in a Minister’s
portfolio responsibilities, they are covered by the principle of judicial
or quasi-judicial separation of powers and consequently require different
governance arrangements to those applying to government generally. Similarly,
the Auditor-General has statutory independence, reporting directly to
the Parliament and consequently is not subject to direction by a Minister.
Nevertheless, principles of governance are by their nature broadly applicable
and will be relevant to the wider public sector.(6)
It is not clear therefore on what precise basis the Uhrig
Review applies to the MRT/RRT, except in broad principle of improving
accountability and governance. Unlike the AAT, the RRT Principal Member
is neither a judicial appointment or drawn from judicial ranks, but the
expectation is that the tribunals provide an independent merits review
process as is reinforced by the language used in the current Annual Report.
In that sense, Uhrig review discussions about the independence of statutory
authorities such as the Reserve Bank of Australia
or the Australian Electoral Commission may be relevant. The statutory
requirement laid down by the Migration Act in existing subsection 353(1)
is that the tribunals shall, in carrying out their functions under this
Act, pursue the objective of providing a mechanism of review that is ‘fair,
just, economical, informal and quick’.
As explained in the Migration
Review Tribunal and Refugee Review Tribunal Annual Report 2005-06,
the MRT and RRT are merits review bodies established under Parts 6 and
7 of the Migration Act and the jurisdiction, powers and statutory procedures
of the tribunals are set out in the Act and the Migration Regulations
1994.
The main function of the RRT is to review decisions made
by DIAC to refuse or cancel protections visas to non-citizens in Australia.
The Tribunal also has the power, in respect of certain 'transitory persons',
to conduct an assessment of whether a person is covered by the definition
of a 'refugee' in Article 1A of the 1951
Refugee Convention (as amended by the 1967 Protocol). The RRT was
established in 1993 by the Migration
Reform Act 1992 (no Bills Digest available).
The MRT provides a final, independent, merits review
of visa and visa-related decisions made by the Minister for Immigration
and Citizenship or, more typically, by officers of DIAC, acting as delegates
of the Minister. The MRT began operating on 1 June 1999.
Decisions to deport a person, decisions refusing or cancelling
visas on character grounds under section 501, and decisions cancelling
business visas under section 134 are reviewable by the Administrative Appeals Tribunal.
Mr Steve
Karas AO is the Principal
Member of the Tribunals. He was first appointed on 1 July 2001 and his
current appointment is to 30 June 2007.
Sections 397 and 460 of the Migration Act provide that
the Principal Member is ‘the executive officer’ of the Tribunals and is
responsible for their overall operation and administration, including
‘monitoring the operations’ of the Tribunals ‘to ensure that those operations
are as fair, just, economical, informal and quick as practicable’. Sections
353A and 420A provide that the Principal Member may give written directions
as to the operation of the Tribunals and the conduct of reviews by the
Tribunals.
The Members are appointed by the Governor-General for
fixed terms on a full-time or part-time basis. The remuneration of Members
is determined by the Remuneration Tribunal, and their terms and conditions
of employment are determined by the Minister for Immigration and Citizenship.(7)
A number of tribunal Members are employed on maximum term contracts, but
are eligible for re-appointment by the Minister.
Staff are employed under the Public Service Act and are
appointed as Tribunal officers under the Migration Act. Since May 2005,
all staff have been cross-appointed to both the MRT and the RRT.(8)
The two tribunals have progressively amalgamated their
administrative operations. Both tribunals are now co-located in Sydney
and Melbourne and have common registries and legal, research,
library, corporate and administrative facilities. The Principal Member,
and other members are cross-appointed to both tribunals to allow them
to hear cases in either tribunal. The APS staff who work at the tribunals
are covered under the same certified agreement and provide their services
to either tribunal, as required. These ‘efficiency and saving measures’(9)
came about partly as a response to a lively debate in Australian administrative
law about the proper role and reform of merits review tribunals, and are
not linked to the Uhrig review process.(10)
Regulation 5 ‘Prescribed Agencies’, Schedule 1, Part
1, Item 128AB of the Financial
Management and Accountability Regulations 1997 (‘the FMA regulations’)
establish the tribunals as a single prescribed agency for the purposes
of section 5 of the Financial Management and Accountability Act 1997
and made the Principal Member of the RRT the head of that agency. Note
B of the regulations describes the RRT as a statutory agency for the purposes
of the Public Service Act. This reform was achieved by the Financial
Management and Accountability Amendment Regulations 2006 (No. 7) (SLI
No 154 Of 2006) (‘FMA Regulations’) which took effect from 1 July
2006.
The Minister therefore stated when introducing the Bill:
It is important to stress that this bill will not change
the functions of the two tribunals under the Migration Act and will
not diminish the role and responsibility of the position of Principal
Member of the Migration Review Tribunal under that act.(11)
The Explanatory Memorandum and second reading speech
are silent on why the current amendments to the Migration Act were not
introduced prior to the 2006 change in the FMA regulations. The 2001 cumulative
merger of the two tribunals began prior to the Uhrig process.
Some of the broader issues raised in this Bill relating
to the accountability and governance of the tribunals were dealt with
in some detail in the Senate References Committee on Legal and Constitutional
Affairs report Administration
and operation of the Migration Act 1958 tabled on 2 March 2006,
especially Chapter
3 - Secondary assessment of visa applications. This report followed
on issues about the RRT raised in Chapter
5 of a previous report titled A
Sanctuary Under Review: An Examination of Australia's Refugee and Humanitarian
Determination Processes tabled in June 2000.
Both reports summarise concerns raised about the RRT,
particularly its independence. Under Recommendation 5.5 of the 2000 report,
the Senate Committee recommends the Principal Member of the RRT should
be a person with judicial experience. Notably the President of the AAT
must be a judge of the Federal Court of Australia.
In the 2006 report, the Committee cites a concern raised
by the International Commission of Jurists:
It is not satisfactory in terms of the independence of
the review tribunals that the Minister who determines appointment and
re-appointment of tribunal Members, is also the Minister responsible
for administering DIMIA, whose decisions are under review by the tribunal.
It is a classic example of a structure whereby the purportedly independent
tribunals could be subjected to powerful political pressure from the
Minister whose departmental delegates are being called into question
in the review cases. It is reasonable to fear that review tribunal Members
may feel indirect, if not direct, pressure to provide decisions that
please the Minister, and which could not be seen to be contrary to government
policy. ... Further, concerns about the independence of the review tribunals
are reinforced when one notes that many tribunal Members are ex-DIMIA
officers, promoted by the Minister through the ranks of the public service.
Further, if a visa applicant takes the tribunal and the Minster to court
over a tribunal decision, the tribunals engage the same lawyer as the
Minister to represent both parties in the proceedings.(12)
In contrast, DIAC informed the Committee that RRT Members
‘are statutory office holders independent of the Minister and the Department
of Immigration and Multicultural Affairs. Whilst the Act permits the Minister
and Principal Member of the Tribunals to provide general Directions to
Members concerning their method of performance or exercise of general
powers or functions under the Act, that power does not allow a member
to be directed as to how to exercise his or her powers in specific cases’.(13)
Paragraphs 3.45 to 3.47 the 2006 report outlines concerns
raised that the measures used to assess the performance of the Tribunals
such as performance indicators compromised their independence and decision-making.
At paragraph 3.102 the Committee states:
The fact remains that DIMIA's tribunals are considered
to be partisan, to not adequately apply natural justice procedures,
and therefore not able to consistently deliver just outcomes.(14)
The government response to the Senate References Committee
on Legal and Constitutional Affairs 2006 report Administration
and operation of the Migration Act 1958 is not yet available.
The Auditor-General approved the conduct of a performance
audit of the Tribunals as part of the 2004-05 Australian
National Audit Office (ANAO) audit work program issued in July 2004.
The ANAO audit, which commenced in April 2005, is focussed on productivity
issues, quality of service and trends in review outcomes and the relationship
between the Tribunals and DIAC. The ANAO’s report is expected to be available
in June 2007.
The Explanatory Memorandum states that the Bill
has no significant financial impact.
Item 1 inserts new Part 7A entitled ‘Statutory
agency for purposes of Public Service Act’.
New section 473A provides that for the purposes
of the Public Service Act 1999:
(a) the Principal Member of the
Refugee Review Tribunal and the persons mentioned in subsections 407(4)
and 472(4) together constitute a Statutory Agency; and
(b) the Principal Member of the Refugee
Review Tribunal is the Head of that Statutory Agency.
This Bill amends the Migration
Act to clarify the current operational arrangements of the MRT and RRT.
The link between the amendments proposed by this Bill
and the Uhrig Review (see discussion under ‘Background’ in this Digest)
is imprecise. The Explanatory
Memorandum does not reference the Uhrig process at all.
Parliament may wish to consider any operational implications
of this Bill with the benefit of the ANAO audit of the tribunals, expected to be
available in June 2007.
Endnotes
- ibid
- ibid.
- Kevin Andrews MP (Minister
for Immigration and Citizenship), ‘Migration
Amendment (Statutory Agency) Bill 2007: Second Reading’, Debates,
House of Representatives, 24 May 2007, p. 5.
- Kevin
Andrews, op cit.
- Senator Nick
Minchin, ‘Australian Government Response to Uhrig Report’,
media
release, 12 August 2004.
- J. A. Uhrig, AC, Review
of the Corporate Governance of Statutory Authorities and Office Holders,
Canberra, June 2003, p. 19.
- MRT and RRT Annual Report
2005-6, p. 43.
- MRT and RRT Annual Report
2005-6, p. 45.
- Kevin
Andrews, op cit.
- See further Administrative
Review Council, Better Decisions: Review of Commonwealth Merits Review
Tribunals, Report No 39 (1995); and the Australian Law Reform Commission,
Managing Justice: A review of the federal civil justice system,
ALRC 89 (2000).
- Kevin
Andrews, op cit.
- ICJ, Submission 115,
p. 2. However, note the Dissenting
Report by Government Senators.
- DIMA, answers to questions
on notice, 7 February 2006.
- Senate References Committee
on Legal and Constitutional Affairs report Administration
and operation of the Migration Act 1958 tabled 2 March 2006,
at p. 114.
Sue Harris Rimmer
30 May 2007
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