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Editors --- "The Migration Legislation Amendment (Procedural Fairness) Act" [2003] AdminRw 13; (2003) 55 Admin Review 50

The Migration Legislation Amendment (Procedural Fairness) Act

In 2002 the Commonwealth Parliament passed the Migration Legislation Amendment (Procedural Fairness) Act 2002, which amended the Migration Act 1958. The changes are a response to the High Court’s decision in Re Minister for Immigration and Multicultural Affairs; ex parte Miah.[1] In that case the court by majority (per Gaudron, McHugh and Kirby JJ, with Gleeson CJ and Hayne J dissenting) held that the principles of natural justice can be excluded only by a clear legislative intention. In the circumstances of the case, the court held that the code of procedure for dealing with visa applications did not exclude the common law requirements of procedural fairness.

Accordingly, the Procedural Fairness Act seeks to amend the Migration Act to provide a clear legislative statement that the codes of procedure specified in the Procedural Fairness Act are an exhaustive statement of the natural justice hearing rule. In effect, the amendments seek to oust common law principles of natural justice and limit the scope for judicial review. The amendments will affect the codes of procedure in the Migration Reform Act 1992 that relate to visa applications, visa cancellations, revocations of visa cancellations without notice, and the conduct of reviews by merits review tribunals. In the Bill’s explanatory memorandum, the Hon. Philip Ruddock MP noted that the amendments do not affect the operation of the new judicial review scheme as set out in the Migration Legislation Amendment (Judicial Review) Act 2001.

[1] [2001] HCA 22.

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