Editors --- "Administrative Law Developments In The Migration Area: The Trend Towards Minimalism" [1999] AdminRw 7; (1999) 51 Admin Review 33

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ADMINISTRATIVE LAW DEVELOPMENTS IN THE MIGRATION AREA: THE TREND TOWARDS MINIMALISM

The Government introduced a series of Bills into the Parliament, designed to limit access to judicial review of migration decisions. The Bills reflect the Government's concern about the growing cost, and incidence, of migration litigation and its perceived use by applicants to frustrate the Government's immigration policies.

The two major initiatives in this area have been: the Migration Legislation Amendment (Judicial Review) Bill 1998; and the Migration Legislation Amendment Bill (No. 1) 1999.

Migration Legislation Amendment (Judicial Review) Bill 1998

The Migration Legislation Amendment (Judicial Review) Bill 1998 was previously introduced into the Parliament in September 1997, as the Migration Legislation Amendment Bill (No. 5) 1997. It was awaiting debate in the Senate when Parliament was prorogued for the October 1998 election. The Bill was reintroduced in its current form in December 1998.

In his Second Reading Speech for the Bill, the Minister for Immigration and Multicultural Affairs stated that:

The Bill gives legislative effect to the Government's election commitment to reintroduce legislation that in migration matters will restrict access to judicial review in all but exceptional circumstances. This commitment was made in light of the extensive merits review rights in the migration legislation and concerns about the growing cost and incidence of migration litigation and the associated delays in removal of non-citizens with no right to remain in Australia.

If passed by the Senate, the Bill will replace the existing judicial review scheme at Part 8 of the Migration Act 1958 ('Act'), relating to the ability of non-citizens to enter and remain in Australia, with a new mechanism for judicial review.

The key change that the Bill seeks to make to the Act is the insertion of a privative clause provision at what will be new section 474. The operative part of the new section reads:

474 Decisions under Act are final

(1) 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.

(2) In this section:

privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5) [subsection (4) provides a list of provisions in the Act that are defined as not being privative clause decision, subsection (5) provides that regulations may specify a decision to be a non-privative clause decision].

There has been considerable judicial and academic discussion about the effect and constitutionality of privative clauses, both in Australia and overseas, and it appears that any privative clause, no matter how drafted, will be subject to a degree of uncertainty until it has been tested in, and examined by, the courts.

The Administrative Review Council's view on privative clauses was last set out in its submission to the Senate Legal and Constitutional Legislation Committee's inquiry into the Bill - the submission is reproduced as Letter 5 in the Council's Twenty-third Annual Report 1998-1999.

In summary, the Council expressed the view that while clauses restricting review by courts and tribunals may be warranted in particular contexts, they are generally undesirable and there should be clear justification for such provisions. As an alternative to the privative clause of the Bill, the Council suggested that the Federal Court, and proposed Federal Magistracy, could be given clear power to strike out proceedings for judicial review at a preliminary hearing, unless the Court or Magistracy was satisfied, at that stage, that there was a bona fide legal issue raised in the review application.

At the time of writing, the Bill was before the Senate.

Migration Legislation Amendment Bill (No. 1) 1999

The Migration Legislation Amendment Bill (No. 1) 1999 was originally introduced to the Parliament (with some slight variations) in June 1996 as the Migration Legislation Amendment Bill (No. 2) 1996; however the Bill had not been passed by the time Parliament rose at the end of June 1996. The Bill was then reintroduced into the Parliament in its current form in late 1998. It was passed into law in June 1999.

The primary purpose of the legislation is to ensure that there is no obligation on the Minister or any officer to provide to a person who is in immigration detention, having been detained as an unlawful non-citizen when arriving in Australia, access to advice (whether legal or otherwise) in relation to an application for a visa, that is not asked for.

In his Second Reading Speech to the Bill, the Minister stated:

This Bill ensures that Parliament's intention in relation to the management of unauthorised arrivals in immigration detention ... cannot be subverted through the use of the Human Rights and Equal Opportunity Commission Act 1986 ('HREOC Act') or the Ombudsman Act 1976 ('Ombudsman Act').

The Government's concern is that the provision of unsolicited information or advice regarding rights and legal options may encourage unwarranted, lengthy and expensive processing and litigation.

The legislation is a response to the decision of the Federal Court in Human Rights and Equal Opportunity Commission and Another v Secretary of the Department of Immigration and Multicultural Affairs ([1996] FCA 444) in which the Human Rights and Equal Opportunity Commission ('HREOC') successfully challenged the refusal of the Department of Immigration and Multicultural Affairs to deliver information on legal rights to persons who are in immigration detention, having been detained as unlawful non-citizens on arrival in Australia.

In that case, the Federal Court held that, despite section 256 of the Act, which states that a person in immigration detention has a right to access legal advice only when it is requested, paragraph 20(6)(b) of the HREOC Act overrides this provision and operates to give a person in immigration detention the right to have delivered to him or her a 'sealed envelope', containing information on legal rights, even though that person has not made a complaint to HREOC. The Court also held that paragraph 7(3)(b) of the Ombudsman Act, which gives a detainee a similar right to information, regardless of whether it is requested, overrides section 256 of the Act.

To remedy this situation, new section 193 of the Act seeks to ensure these provisions of the HREOC and Ombudsman Acts do not apply to immigration detainees; unless such persons have, themselves, initiated a complaint to HREOC (in writing) or the Ombudsman (either orally or in writing).

The Administrative Review Council made a submission to the Senate Legal and Constitutional Legislation Committee inquiry in relation to the Bill.

The Council noted that the Ombudsman is not an advocate for aggrieved persons, but serves as an independent, neutral, and objective monitor of government action, who, where necessary, identifies deficiencies in government administration.

The Administrative Review Council expressed the view that the Ombudsman's ability to fulfil his statutory function, of conducting independent investigations into matters of administration, may be severely curtailed by the Bill, if the resulting legislation had the effect of limiting his capacity to deliver material to detained persons, to assist any inquiry concerning matters arising out of their detention.