Bills Digest No. 8, 2018–19
PDF version [646KB]
Claire Petrie
Law and Bills Digest Section
13 August 2018
Contents
Purpose of the Bill
Background
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Date introduced: 14
February 2018
House: House of
Representatives
Portfolio: Immigration
and Border Protection
Commencement: Sections
1 to 3 commence on Royal Assent. Schedule 1 commences at Proclamation
or six months after Assent, whichever occurs first.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at August 2018.
Purpose of
the Bill
The purpose of the Migration Amendment (Clarification of
Jurisdiction) Bill 2018 (the Bill) is to amend the Migration Act 1958
to specify that the Federal Circuit Court of Australia, rather than the Federal
Court of Australia, has jurisdiction over certain types of migration decisions
known as ‘purported non-privative clause’ decisions. The Bill is aimed at
clarifying ambiguities identified by the Federal Court in its 2017 decision, Minister
for Immigration and Border Protection v ARJ17.[1]
The Bill also makes consequential amendments to the Administrative
Appeals Tribunal Act 1975 (AAT Act).
Background
Judicial
review of migration decisions
What is
judicial review?
In judicial review, the courts review a decision to
determine whether there has been an error of law—that is, whether the
decision-maker has acted outside the lawful limits of their authority.[2]
This is a different process than merits review, in which a tribunal places
itself in the shoes of the primary decision-maker and will make a fresh
decision based upon all the evidence available to it, with the object of
ensuring that the ‘correct or preferable’ decision is made on the material
before the review body.[3]
As explained by the Australian Law Reform Commission (ALRC):
Judicial review of administrative action is about setting the
boundaries of government power. It is about ensuring government officials obey
the law and act within their prescribed powers.
... Judicial review is available to test the legality of
a decision, and not its merits—the courts are not authorised to ask whether a
decision was a ‘good’ decision. It asks only whether the decision has
been properly made, in accordance with the law.[4]
[emphasis added]
In practice, the final relief most commonly sought by
applicants in judicial review proceedings is a writ of certiorari (to, in
effect, ‘quash’ the decision) together with a writ of mandamus (to compel the
decision-maker to remake their decision in accordance with the law). An
injunction often arises as a form of interim order to preserve the rights and
interests of parties to litigation until their dispute can be finally heard and
determined.
Section 75(v) of the Constitution confers on the
High Court of Australia an original jurisdiction[5]
to hear all matters ‘in which a writ of mandamus or prohibition or an
injunction is sought against an officer of the Commonwealth’ subject to limited
exceptions.[6]
This provides the High Court with a jurisdiction—which cannot be removed or
limited by Parliament—to review the lawfulness of decisions and actions of
government officials.
Recognising the heavy burden that this could otherwise
place on the High Court, other federal courts have been given jurisdiction to
undertake judicial review. The Administrative Decisions (Judicial Review)
Act 1977 (ADJR Act) was originally enacted to provide a simpler and
more accessible mechanism for judicial review than was available under section
75(v).[7]
It sets out a range of grounds on which a person may seek to have a decision
reviewed in the Federal Court or Federal Circuit Court, and gives these courts
wide powers to grant relief.[8]
Additionally, in 1983 section 39B of the Judiciary Act 1903 was enacted
to give the Federal Court the same original jurisdiction as the High Court
under section 75(v).[9]
However, these statutory judicial review provisions can be displaced or limited
by other legislation, as has occurred in relation to a substantial part of the
migration law.
Judicial
review under the Migration Act/h4>
Part 8 of the Migration Act provides for judicial
review of migration decisions. It expressly displaces the Federal Court’s
original jurisdiction in relation to most migration matters, and instead
confers this on the Federal Circuit Court.[10]
The Federal Circuit Court, previously called the Federal
Magistrates Court (and before that, the Federal Magistrates Service), has
incrementally assumed greater responsibility for reviewing migration matters.
In 2001, amendments to the Migration Act provided that the two courts
would have concurrent jurisdiction, and could transfer cases between themselves
as appropriate.[11]
At this time the Federal Magistrates Service had been running less than two
years, and had been established with the aim of providing a ‘quicker, cheaper
option for litigants’ and easing the workload of other federal courts.[12]
In explaining the basis for extending jurisdiction over migration matters to
the Service, then Parliamentary Secretary to the Minister for Finance and
Administration, Peter Slipper, stated:
... the widening jurisdiction of the Federal Court in recent
years has led to an increasing number of routine matters coming before that
court. This has had the effect of diverting the judicial resources of the
Federal Court from the more complex areas of the law upon which it was intended
to focus. Having the Federal Magistrates Service dealing with less complex
cases has meant a better use of judicial resources and, again, less cost for
litigants.
... Many migration matters are of a routine nature and would
also be suitable for the service to handle.[13]
Further amendments in 2005 significantly limited the
Federal Court’s migration jurisdiction and gave the Federal Magistrates Court the
same original jurisdiction as the High Court under section 75(v) of the Constitution,
in relation to migration decisions, subject to certain exceptions.[14]
This continues to be the case.
Privative
clauses
Parliament has also sought to restrict the circumstances
in which a migration decision can be reviewed by the courts. The Migration
Legislation Amendment (Judicial Review) Act 2001 introduced the concept of
‘privative clauses’ into the Migration Act.[15]
Section 474 provides that a decision which is a privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed,
quashed or called in question in any court; and
(c) is not
subject to prohibition, mandamus, injunction, declaration or certiorari in any
court on any account.[16]
Most decisions under the Migration Act are classified
as privative clause decisions, unless they fall within an exception under
subsection 474(4) and (5)—these exceptions are called non-privative
clause decisions.[17]
Examples of non-privative clause decisions include certain decisions in
relation to the detention of non-citizens (including in regards to the search,
seizure and disposal of property) and in relation to the migration agents
registration scheme.[18]
Despite the wording of the privative clause provision, it
does not actually prevent decisions from being subject to judicial
review—Parliament is unable to remove the High Court’s entrenched original
jurisdiction under section 75(v). Instead, the High Court has interpreted the
provision narrowly, finding that it can only apply to decisions which are not
affected by ‘jurisdictional error’.[19]
A jurisdictional error will arise where a decision-maker acts outside the scope
of their statutory authority.[20]
As the ALRC has explained, this has been given a wide application:
In Re Refugee Tribunal; Ex parte Aala, the High Court
held that a jurisdictional error arises when a decision maker ‘makes a decision
outside the limits of the functions and powers conferred on him or her, or does
something which he or she lacks power to do’. The High Court gave an expansive
interpretation to the notion of jurisdictional error in this and later
decisions, which means that the scope of decisions that may be affected by
jurisdictional error—and thus not protected by a privative clause—is now very
wide; so wide that it may be that an ouster clause offers no real protection
against any legal error. It appears that there is little value in including
such a clause in legislation.[21]
Privative clause and purported privative clause migration
decisions are excluded from the scope of the ADJR Act, which means an
applicant cannot challenge such decisions on these statutory grounds.[22]
The extent to which this exclusion narrows the grounds for review remains
uncertain. For example, Alan Freckelton has argued that most of the ADJR Act
grounds for review have been found to be jurisdictional errors.[23]
However, the ALRC has suggested that ‘while removing ADJR Act review
may not exclude judicial review, it excludes a simpler and more accessible form
of review’.[24]
What
problem is the Bill looking to address?
Jurisdiction
under the migration law
As explained above, the Migration Act confers on
the Federal Circuit Court the same original jurisdiction ‘in relation to
migration decisions’ as the High Court has under section 75(v) of the Constitution,
subject to certain exceptions.[25]
A migration decision[26]
is defined as:
(a) a privative clause decision; or
(b) a purported privative clause decision; or
(c) a non‑privative clause decision; or
(d) an AAT Act migration decision.[27]
This definition is important in the context of the current
Bill, because it determines the scope of the Federal Circuit Court’s migration
jurisdiction. Firstly, it provides that the Federal Circuit Court has
jurisdiction to review both privative clause and non-privative clause
decisions (though with arguably narrower grounds to review the former).
Secondly, the Federal Circuit Court has jurisdiction over
a purported privative clause decision, which is a decision
‘purportedly made, proposed to be made, or required to be made’ under the
migration law, which:
... would be a privative clause decision if there were not:
(a) a failure to exercise
jurisdiction; or
(b) an excess of
jurisdiction;
in the making of the decision.[28]
That is, it is a decision which would be a privative
clause decision if it were not affected by jurisdictional error.
Finally, the Federal Circuit Court has jurisdiction over
an AAT Act migration decision, which is a decision made under certain
provisions of the AAT Act, to the extent that the decision relates to the
review of decisions by, performance of functions of, or a Tribunal member in,
the Migration and Refugee Division of the AAT.[29]
This includes decisions relating to the appointment, remuneration and
termination of tribunal members, and other administrative decisions regarding
the functioning of the tribunal.
There are some limited circumstances in which the Federal
Court, rather than the Federal Circuit Court, retains its original jurisdiction
‘in relation to a migration decision’—these are:
- character-related
visa refusals and cancellations which the Minister has made personally
- privative
clause and purported privative clause decisions of the AAT on review under
section 500 of the Migration Act—this is largely limited to
character-related visa decisions
- a
case transferred to the Federal Court by the Federal Circuit Court, exercising
its discretion under the Federal Circuit Court of Australia Act 1999 and
- a
reference from the AAT on a question of law.[30]
What is unclear in the current legislative scheme, and what
the Bill seeks to address, is which court has jurisdiction when a non-privative
clause decision or AAT Act migration decision is affected by
jurisdictional error. That is, who has jurisdiction to review:
- a
‘purported’ non-privative clause decision or
- a
‘purported’ AAT Act migration decision.
These terms are currently not included in the Migration
Act.
Minister
for Immigration and Border Protection v ARJ17
This legislative ambiguity was considered by the Full
Court of the Federal Court in Minister for Immigration and Border Protection
v ARJ17 (MIBP v ARJ17).[31]
In this matter, the Federal Court found that it—and not the Federal Circuit
Court—had jurisdiction to review ‘purported non-privative clause decisions’.
The case involved representative proceedings (also known
as a class action) brought by the plaintiff on behalf of a number of people in
immigration detention, who sought to argue that the (then) Department of
Immigration and Border Protection did not have authority under section 252 of
the Migration Act or the Detention Services Manual to confiscate their
mobile phones and SIM cards.[32]
A decision under section 252 (which authorises the search of a person in
immigration detention) is classified as a non-privative clause decision.[33]
The respondents in the matter—the Minister for Immigration and Border
Protection, Secretary for Immigration and Border Protection and Commonwealth of
Australia—argued that the Federal Court did not have jurisdiction to hear the
matter, and that it should be heard by the Federal Circuit Court.[34]
Consequently, before it could consider the substantive issue the Court was
required to determine the question of jurisdiction.
Though the three judges of the Full Court issued separate
decisions, they were unanimous in upholding the decision of the primary judge
that the Federal Court did have jurisdiction. Considering the legislative
scheme under Part 8 of the Migration Act, and the amendments to this
since 2001, the Court found that a ‘purported non-privative clause decision’
could not be captured by the definition of migration decision, or
by the phrase ‘decision in relation to a migration decision’.[35]
As a result, the Federal Court retained its original jurisdiction under section
39B of the Judiciary Act in relation to purported non-privative clause
decisions, with Justice Kenny noting that this original jurisdiction:
... is not to be taken away by uncertain and obtuse language.
If it is to be diminished, that implication must “clearly and unmistakably”
appear.[36]
The Court acknowledged arguments by the respondent that
the decision may have undesirable practical consequences—in particular, whether
or not a decision is ‘purported’ will be clear only after the issue of
jurisdictional error is decided.[37]
Justice Flick stated:
It is hardly a desirable conclusion that this Court has
jurisdiction in respect to those decisions that are made “purportedly”
in excess of the authority conferred by s252 but no jurisdiction in respect to
those decisions made within such authority.[38]
However, he further noted that ‘the consequences flowing
from a particular construction of a statutory provision remain a matter for the
Legislature to address and remedy if it sees fit’—the Court could not give the
legislation a construction contrary to the proper meaning of the language used,
simply in order to avoid undesirable consequences.[39]
Criticism of the statutory scheme
In reaching its decision, the Court expressed strong
criticism of the complexity of the judicial review provisions in the Migration
Act in general, and the difficulties this may cause for applicants seeking
to challenge a migration decision in the courts. Justice Flick stated:
It should be noted at the outset that there is nothing more
fundamental to the administration of justice by this Court than the ability to
clearly identify those matters in respect to which it has jurisdiction.
This is more so the case where the jurisdiction of this Court
in respect to migration matters is often invoked by those who are unrepresented
and who frequently have a limited command of the English language. Even those
who command considerable legal skills are often uncertain as to whether a
proceeding should be commenced in the High Court of Australia, this Court or
the Federal Circuit Court of Australia.
The jurisdiction entrusted to one or other of these Courts is
a morass of confusion. Left to the consideration of the Legislature is whether
the existing legislative allocation of jurisdiction between the Courts can be
more simply expressed.[40]
Justice Kerr also noted that a series of legislative
amendments have worked to increase the complexity of the statutory scheme:
... a number of the key provisions of the Migration Act have
become impenetrably dense. Definitions have been built on definitions. Core
concepts such as what is meant by a purported privative clause decision defy
the understanding of any ordinary reader. I respectfully endorse Flick J’s
concerns regarding the problems that that must present for unrepresented litigants.
This decision will not lessen those complexities. However,
those complexities are a product of the intersection of legislative choices
with constitutional principles, both of which this Court must respect.[41]
These concerns have been similarly expressed by interest
groups, and have been a recurring theme in submissions to the Senate inquiry
into the Bill, which have called for substantial reforms to Part 8 of the Migration
Act. The Australian Human Rights Commission (AHRC) has argued that the Act
should be amended so that it clearly identifies ‘in language that an ordinary
member of the community can understand’, both the Court in which, and grounds
on which, a person can seek judicial review of migration decisions.[42]
The Refugee Council of Australia, supporting the AHRC’s recommendation, has
described this area of law as becoming ‘more and more abstruse, intelligible
only to a niche group of lawyers’, which it claims ‘has real effects on the
willingness and ability of even enthusiastic pro bono lawyers to help out these
most vulnerable clients’.[43]
Beyond clarifying the law, the AHRC has further
recommended that the Migration Act be amended to align the grounds of
judicial review of migration decisions with the grounds of review in the ADJR
Act.[44]
The Castan Centre for Human Rights Law at Monash University has queried whether
judicial review should be dealt with under the Migration Act at all,
arguing that the existing common law and ADJR Act ‘provide adequate
guidance on the scope of the available grounds of review’.[45]
Federal
Circuit Court matter
At the same time as the representative proceedings were
brought in the Federal Court, an applicant also commenced proceedings in the
Federal Circuit Court challenging the decision to ban mobile phones and SIM
cards in immigration detention.[46]
An interim injunction was granted, but subsequently dissolved, with the Federal
Circuit Court holding that the removal of the applicant’s mobile phone was
authorised by the Migration Act and did not constitute a denial of
procedural fairness.[47]
As the Federal Circuit Court found that the decision was valid, it was
therefore a ‘non-privative clause decision’ over which the Court had
jurisdiction. However, Justice Smith also suggested that as a result of the ADJR
Act, the Court would retain jurisdiction to review non-privative clause
decisions, whether or not they were affected by jurisdictional error.[48]
Notably, the proceedings were more limited in scope than
those before the Federal Court. Representative proceedings cannot be commenced
in the Federal Circuit Court, and its interim injunction, while in force, had
applied only to prevent the confiscation of the mobile phone of the applicant,
rather than the implementation of the policy more broadly.[49]
This case highlights one practical distinction between judicial review in the
Federal Court and Federal Circuit Court, which is discussed further under the
‘Position of major interest groups’ heading.
Committee
consideration
Legal and
Constitutional Affairs Committee
The Bill was referred to the Senate Standing Committee on
Legal and Constitutional Affairs for inquiry and report. The Committee issued
its report on 5 June 2018, with the majority report recommending that the Bill
be passed, and stating:
The committee considers that fundamental to Part 8 of the Migration
Act is the discrete judicial review scheme whereby a challenge to a
'migration decision' must, in the first instance, be instituted in the Federal
Circuit Court, subject to limited exceptions.[50]
The Australian Greens issued a dissenting report which
argued that the Bill adds ‘a further level of complexity’ for an applicant
trying to identify their rights of review, and the appropriate court in which
to bring their claim, and which recommended that the Bill not be passed.[51]
While expressing support for the Bill, Centre Alliance
issued additional comments which recommended the Government consider directing
the Australian Law Reform Commission to inquire into:
... the current judicial review pathways contained in Part 8 of
the Migration Act 1958 with a view to removing complexity and aligning
grounds of review with those under the Administrative Decisions (Judicial
Review) Act 1977 (Cth).[52]
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills had
no comment on the Bill.[53]
Policy
position of non-government parties/independents
ALP Senators on the Senate Standing Committee on Legal and
Constitutional Affairs were part of the majority report which recommended that
the Bill be passed.
As noted above in relation to the Senate inquiry, Centre
Alliance has also expressed support for the Bill, but raised concerns with the
broader judicial review scheme under Part 8 of the Migration Act. The
Australian Greens do not support the Bill.
Other non-government parties and independents do not
appear to have commented on the Bill to date.
Position of
major interest groups
The majority of submissions to the Senate inquiry were
critical of the Bill, suggesting that it will not improve the clarity of the
existing scheme for judicial review of migration decisions and may have adverse
consequences for those seeking to challenge a decision.
Submissions have also consistently emphasised the need for
more substantial reforms to Part 8 of the Migration Act—these are discussed
above under ‘Criticism of the statutory scheme’.
Bill’s
effect on existing legislative scheme
Although the Bill is intended to ‘clarify the allocation
of jurisdiction between the Federal Circuit Court and the Federal Court’,[54]
submissions to the Senate inquiry have expressed doubt as to whether the Bill
brings any additional clarity to the existing scheme. The AHRC’s submission
stated that, while the Bill ‘seeks to address a narrow jurisdictional point’
decided by the Federal Court in MIBP v ARJ17, it ‘does not respond to
the more substantive issues raised by the appeal judges’.[55]
The AHRC argues that more substantial amendments are needed than are contained
in the current Bill, which it considers:
... does little to clarify the jurisdictional confusion that
Part 8 of the Migration Act engenders in many lawyers experienced in
this specific area of legal practice, let alone in non-lawyers who are subject
to the operation of the Act.[56]
Similarly, the Refugee Council of Australia suggested that,
despite its name, the Bill fails to clarify the jurisdiction of the courts to
review migration decisions and, instead, ‘complicates an already impenetrable system
of review that has no counterpart in any other area of law’.[57]
The Castan Centre agreed that there is a need for simplification and
clarification of the existing law, ‘but not in the manner proposed in the
present Bill’, and argued:
... parliament should not amend the Migration Act again
in a manner which will further complicate the scope of available grounds of
judicial review.[58]
Organisations including the Law Council of Australia,
Asylum Seekers Resource Centre and Refugee Council argued that this complexity
acts as a significant barrier to access to justice.[59]
Australian Lawyers for Human Rights has stated that access to justice requires
the law to be, as far as possible, ‘simple and clear enough to allow all
persons to understand their rights and obligations.’ It notes that many people
seeking asylum in particular will be self-represented and lack the legal
knowledge required to ‘navigate complex provisions of the Migration Act.’[60]
Practical
consequences of the Bill
Representative
proceedings
The Law Council expressed concern that, by limiting access
to the Federal Court, the Bill may narrow an applicant’s rights to a higher jurisdiction
and therefore impact on the remedies they receive.[61]
As noted above, a key point of difference between the two Courts is in relation
to representative proceedings. A representative proceeding—also known as a
class action—can be brought in the Federal Court but not in the Federal Circuit
Court. By removing the Federal Court’s original jurisdiction over purported
non-privative clause decisions, the Bill prevents representative proceedings
being brought in relation to such decisions.[62]
The National Justice Project argued that non-privative
clause decisions are particularly suited to class actions, as they are:
... decisions that affect privacy, liberty, rights against the
person and personal economic and property rights, such as
- the searching of an individual;
- seizing personal possessions; and
- the wide power of the Minister to operate detention centres.[63]
Its submission suggests that forcing purported
non-privative clause decisions back to the Federal Circuit Court will have the
effect of increasing the number of matters before that court, ‘forcing a
multiplicity of individual actions instead of enabling them to be dealt with as
a single class or representative action before the [Federal Court]’.[64]
It recommended that the Bill be rejected or, in the alternative, that it be
amended so either:
- the
Federal Court has jurisdiction to hear all class or representative actions
brought as a review of non-privative clause decisions or
- the
Federal Circuit Court is provided with jurisdiction to hear all class or
representative actions brought in relation to non-privative clause decisions.[65]
The NSW Council for Civil Liberties also raised concerns
about the practical impact of the Bill, pointing to the increased number of
migration cases already placing significant pressure on the resources and
timeliness of the Federal Circuit Court.[66]
Decisions relating to immigration detention
Another point of concern has been that the type of
decisions affected by the Bill largely relate to immigration detention. For
example, the Asylum Seekers Resource Centre (ASRC) noted that many
non-privative clause decisions relate to powers which ‘concern the rights,
freedoms, conditions of detention and property of people in immigration
detention’.[67]
It has submitted that, in light of the ‘existing paucity of proper oversight
and accountability’ for the treatment of people in Australia’s immigration detention
centres:
... it is precisely these kinds of decisions which warrant the
most careful and fulsome scrutiny of our courts in order to act as an effective
brake on the exercise of unlawful executive power.[68]
The Refugee Council endorsed the ASRC’s view, expressing
its own concern at ‘the lack of oversight and accountability of Australia’s
system of detention’.[69]
Financial
implications
The Explanatory
Memorandum states that the Bill has no financial impact on Government
revenue.[70]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[71]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights considers
that the Bill does not raise human rights concerns.[72]
Key issues
and provisions
The Department has stated that the effect of the Federal
Court’s decision in MIBP v ARJ17 was that ‘the judicial review scheme in
Part 8 of the Migration Act no longer operates in accordance with the
original policy intention’. It has accordingly described the purpose of the
Bill as being to ‘clarify and restore the intended operation’ of the Part 8
scheme.[73]
The Bill amends the Migration Act to clarify that
purported non-privative clause decisions, as well as purported AAT Act
migration decisions, are reviewable by the Federal Circuit Court and not the
Federal Court. As a result of the amendments, the Federal Circuit Court’s
jurisdiction to review a decision will not change depending on whether or not
the decision is affected by jurisdictional error.
Expanding
the scope of ‘migration decision’
Item 1 of the Bill repeals the definition of migration
decision under subsection 5(1) and substitutes a new definition. This states
that a migration decision means:
- privative
clause and purported privative clause decisions
- non-privative
clause and purported non-privative clause decisions and
- AAT
Act migration and purported AAT Act migration decisions.
Item 3 inserts proposed sections 5EA and
5EB, which provide definitions of purported non-privative clause
decision and purported AAT Act migration decision,
respectively. These are in the same terms as the existing definition of
‘purported privative clause decision’ under section 5E, covering decisions
‘purportedly made, proposed to be made, or required to be made’ under the
migration law, where there has been a failure to exercise jurisdiction or an
excess of jurisdiction in the making of the decision.
By expanding the definition of ‘migration decision’, the
Bill expands the scope of the Federal Circuit Court’s original jurisdiction ‘in
relation to migration decisions’ under section 476.
What is a
‘decision’?
In relation to a purported non-privative clause decision, proposed
subsection 5EA(2) states that a decision includes anything
listed in existing subsection 474(3). This provision captures a broad range of administrative
actions including the granting, varying, revoking or refusing to make an order
or give an approval, consent or permission; imposing or refusing to impose a
condition or restriction; making or revoking (or refusing to make or revoke) a
declaration, demand or requirement; conduct preparatory to the making of a
decision (including the taking of evidence or holding of an inquiry); or a
failure or refusal to make a decision.[74]
In relation to both a purported AAT Act migration
decision and AAT Act migration decision, the term decision
is defined to include anything listed in proposed subsection 474A(2).[75]
This is in largely similar terms to subsection 474(3) and includes a broad
range of administrative actions, such as conduct preparatory to the making of a
decision or a failure to make a decision. The Explanatory Memorandum notes that
proposed subsection 474A(2):
... relates only to establishing jurisdiction and the procedure
of courts pursuant to Part 8 of the Migration Act, and does not affect
any exercise of power under the AAT Act.
New subsection 474A(2) reflects the original policy intention
of section 474A. Prior to the commencement of the Tribunals Amalgamation Act
2015, the decisions set out in current section 474A were made under the Migration
Act and captured by administrative actions listed in subsection 474(3) of
the Migration Act.[76]
Part IVA of the AAT Act deals with the Federal
Court’s jurisdiction to hear appeals of AAT decisions on questions of law. It
also provides the AAT with the power to refer to the Federal Court a question
of law that arises in a proceeding before the tribunal.[77]
Existing section 43C provides that Part IVA does not apply to an application in
relation to, or a proceeding for the review of, the following Migration Act decisions:
- a
privative clause decision
- a
purported privative clause decision and
- an
AAT Act migration decision.
Item 8 amends this section by inserting proposed
paragraph 43C(d) to provide that Part IVA also does not apply to an
application or proceeding relating to a purported AAT Act migration
decision. This ensures consistency between the AAT Act and Migration
Act on questions of which court has jurisdiction over different types of
migration matters.
Application
Item 9 provides that the Bill’s amendments apply in
relation to a purported non-privative clause decision or purported AAT Act
migration decision made on or after the day on which the Act commences. It
appears that the Federal Court will continue to have jurisdiction to review any
such decision made prior to commencement.
Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.
[1]. Minister
for Immigration and Border Protection v ARJ17 (2017) 347 ALR 477, [2017]
FCAFC 125.
[2]. Administrative Review Council
(ARC), Federal
judicial review in Australia, Report, 50, ARC, Canberra, 2012, p. 35.
[3]. Administrative
Appeals Tribunal (AAT), ‘What
is a merits review?’, AAT website. Merits review and judicial review thus
serve different functions and provide different remedies.
[4]. Australian
Law Reform Commission (ALRC), Traditional
rights and freedoms—encroachments by Commonwealth laws, Report, 129,
ALRC, Sydney, 2015, pp. 413, 415.
[5]. The
original jurisdiction of a court is the power to hear a case for the first
time, as opposed to appellate jurisdiction, when a higher court has the power
to review a lower court's decision.
[6]. Australian
Constitution, section 75(v). A writ of mandamus compels an
officer of the Commonwealth to perform their duty in accordance with the law. A
writ of prohibition forbids an officer of the Commonwealth from
commencing an unlawful act or continuing to perform an unlawful act. An injunction
is an order that restrains an officer of the Commonwealth from performing an
act or, in more exceptional cases, compels the performance of a specific act.
[7]. ARC,
Federal
judicial review in Australia, op. cit., p. 57.
[8]. Administrative
Decisions (Judicial Review) Act 1977 (Cth), sections 5 and 16.
[9]. Judiciary Act 1903
(Cth), section 39B; J McMillan, ‘Restoring
the ADJR Act in federal judicial review’, AIAL Forum, 72, 2013,
p. 13.
[10]. Migration Act 1958
(Cth), sections 476 and 476A.
[11]. Jurisdiction of
the Federal Magistrates Service Legislation Amendment Act 2001.
[12]. J
Norberry, Jurisdiction
of the Federal Magistrates Service Legislation Amendment Bill 2001,
Bills digest, 49, 2001–02, Parliamentary Library, Canberra, 13 September 2001,
pp. 1–2.
[13]. P
Slipper, ‘Second
reading speech: Jurisdiction of the Federal Magistrates Service Legislation
Amendment Bill 2001’, House of Representatives, Debates, 30 August
2001, p. 30618.
[14]. Migration
Litigation Reform Act 2005. See also: P Prince, S Harris-Rimmer and M
Coombs, Migration
Litigation Reform Bill 2005, Bills digest, 9, 2005–06, Parliamentary
Library, Canberra, 4 August 2005.
[15]. Migration
Legislation Amendment (Judicial Review) Act 2001 (Cth).
[16]. Migration
Act, subsection 474(1).
[17]. Ibid.,
subsection 474(6).
[18]. Ibid.,
subsection 474(4).
[19]. Plaintiff
S157/2002 v Commonwealth (2003) 211 CLR 476, [2003]
HCA 2.
[20]. Examples
of jurisdiction error are: identifying a wrong issue; asking a wrong question;
ignoring relevant material; relying on irrelevant material; or an incorrect
interpretation and/or application to the facts of the applicable law, in a way
that affects the exercise of power. Source: Federal Court of Australia (FCA), ‘Migration
law guide’, FCA website, updated April 2013.
[21]. ALRC,
Traditional
rights and freedoms—encroachments by Commonwealth laws, op. cit., p.
424.
[22]. ADJR
Act, Schedule 1, paragraphs da–db.
[23]. A
Freckelton, ‘Effect
of privative clauses on judicial review of immigration decisions’, Australian
Journal of Administrative Law, 22(2), February 2015, pp. 99–100.
[24]. ALRC,
Traditional
rights and freedoms—encroachments by Commonwealth laws, Interim Report,
127, ALRC, Sydney, 2015, p. 473.
[25]. Migration
Act, subsection 476(1).
[26]. ‘A
‘decision’ includes the granting, giving, suspending, cancelling, revoking or
refusing to give a certificate, direction, approval, consent or permission,
including a visa. It also includes a failure or refusal to make a decision.’
Source: FCA, ‘Migration
law guide’, op. cit.
[27]. Migration
Act, subsection 5(1).
[28]. Ibid.,
subsection 5E(1).
[29]. Ibid.,
section 474A.
[30]. Ibid.,
section 476A. Also see: FCA, ‘Migration
guide: migration matters in the Federal Court’, FCA website. The Federal
Court also has appellate jurisdiction over decisions of the Federal Circuit
Court.
[31]. Minister
for Immigration and Border Protection v ARJ17, op. cit.
[32]. Ibid.,
paragraph 2.
[33]. Migration
Act, subsection 474(4), item 7 in table.
[34]. As
discussed below, representative proceedings such as this one (also known as
class actions) can be brought in the Federal Court but not in the Federal
Circuit Court. As a result, an injunction granted in a representative
proceeding in the Federal Court can apply broadly to prevent the Department
implementing its policy (in this case, of removing mobile phones from people in
immigration detention), whereas the Federal Circuit Court can only grant an
injunction in relation to a particular applicant: Australian Human Rights
Commission (AHRC), Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Migration Amendment (Clarification of Jurisdiction) Bill 2018, 4
April 2018, p. 6.
[35]. Minister
for Immigration and Border Protection v ARJ17, op. cit., paragraphs 15–16,
53.
[36]. Ibid.,
paragraph 21.
[37]. Ibid.,
paragraph 24.
[38]. Ibid.,
paragraph 62.
[39]. Ibid.,
paragraph 64.
[40]. Ibid.,
paragraphs 36–8.
[41]. Ibid.,
paragraph 177.
[42]. AHRC,
Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit.,
p. 4.
[43]. Refugee
Council of Australia, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Migration Amendment (Clarification of Jurisdiction) Bill 2018,
April 2018, p. 3.
[44]. AHRC,
Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit.,
p. 5.
[45]. Castan
Centre for Human Rights Law, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, p. 5.
[46]. SZSZM
v Minister for Immigration and Border Protection (2017) 321 FLR 162, [2017]
FCCA 819.
[47]. Ibid.,
paragraphs 121–2.
[48]. Ibid.,
paragraphs 34–5.
[49]. This
point is made in a number of submissions to the Senate inquiry—in particular,
see: AHRC, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit.,
p. 6.
[50]. Senate
Legal and Constitutional Affairs Legislation Committee, Migration
Amendment (Clarification of Jurisdiction) Bill 2018 [Provisions], The
Senate, Canberra, June 2018, p. 13.
[51]. Australian
Greens, Dissenting report, Senate Legal and Constitutional Affairs Legislation
Committee, Migration
Amendment (Clarification of Jurisdiction) Bill 2018 [Provisions], The
Senate, Canberra, 5 June 2018, pp. 15–16.
[52]. Centre
Alliance, Additional Comments, Senate Legal and Constitutional Affairs
Legislation Committee, Migration
Amendment (Clarification of Jurisdiction) Bill 2018 [Provisions], The
Senate, Canberra, 5 June 2018, pp. 17–19.
[53]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, 2018, The Senate, 21 March 2018, p. 23.
[54]. Explanatory
Memorandum, Migration Amendment (Clarification of Jurisdiction) Bill 2018,
p. 2.
[55]. AHRC,
Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, op.
cit., p. 3.
[56]. Ibid.,
p. 12.
[57]. Refugee
Council of Australia, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit.,
p. 1.
[58]. Castan
Centre for Human Rights Law, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs,
op. cit., pp. 4–5.
[59]. Law
Council of Australia, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Migration Amendment (Clarification of Jurisdiction) Bill 2018, 18
April 2018, pp. 2–3; Refugee Advice and Casework Service (RACS), Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Migration Amendment (Clarification of Jurisdiction) Bill 2018, 13
April 2018; Asylum Seeker Resource Centre, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Migration Amendment (Clarification of Jurisdiction) Bill 2018, 12
April 2018, p. 4; Refugee Council of Australia, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit.,
pp. 2–3.
[60]. Australian
Lawyers for Human Rights, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Migration Amendment (Clarification of Jurisdiction) Bill 2018, 13
April 2018, p. 3.
[61]. Law
Council of Australia, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit.,
pp. 1–2.
[62]. This
point is made by a number of submissions, including: AHRC, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit.,
p. 6; RACS, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Migration Amendment (Clarification of Jurisdiction) Bill 2018;
National Justice Project, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Migration Amendment (Clarification of Jurisdiction) Bill 2018, 16
April 2018, p. 5.
[63]. National
Justice Project, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit.,
p. 5.
[64]. Ibid.,
p. 5.
[65]. Ibid.,
p. 6.
[66]. NSW
Council for Civil Liberties, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Migration Amendment (Clarification of Jurisdiction) Bill 2018, 12
April 2018, pp. 5–7.
[67]. ASRC,
Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit.,
p. 2; also see: Global Mobility Immigration Lawyers, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Migration Amendment (Clarification of Jurisdiction) Bill 2018, 11
April 2018, p. 3.
[68]. ASRC,
Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit.,
p. 3.
[69]. Refugee
Council of Australia, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit.,
p. 3.
[70]. Explanatory
Memorandum, Migration Amendment (Clarification of Jurisdiction) Bill 2018,
p. 2.
[71]. The
Statement of Compatibility with Human Rights can be found at pages 8–10 of the Explanatory
Memorandum to the Bill.
[72]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 3, 27 March 2018, p. 137.
[73]. DOHA,
Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Migration Amendment (Clarification of Jurisdiction) Bill 2018,
April 2018, p. 4.
[74]. Migration
Act, subsection 474(3).
[75]. Proposed
subsection 5EB(2) (in relation to a purported AAT Act migration
decision). Proposed subsection 474A(2) is inserted into the Migration
Act by item 5, and also applies in relation to AAT Act
migration decisions, defined under subsection 474A(1).
[76]. Explanatory
Memorandum, Migration Amendment (Clarification of Jurisdiction) Bill 2018,
p. 6.
[77]. Administrative
Appeals Tribunal Act 1975 (Cth), section 45.
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