Administrative Review Council - Admin Review
On 27 October 2003 the Attorney-General announced a review of migration litigation. The stated purpose was more efficient management of migration cases, the review being in response to concern about the volume of cases, delays in resolution, and the low success rate for applicants. At the time Admin Review went to press the report of the review had not been made public.
The Migration Amendment (Judicial Review) Bill 2004, introduced into the House of Representatives on 25 March 2004, is said to be the first step in implementing the recommendations of the review. It seeks to restore the practical effect of the procedures relating to judicial review of migration decisions that were considered by the High Court in Plaintiff S157/2002 v Commonwealth.
While that decision found ss. 474 and 486A of the Migration Act 1958, which restrict review of ‘privative clause decisions’, to be constitutional, the High Court held that those sections applied only to actual decisions under the Act, not purported decisions involving jurisdictional error. In his second reading speech on the Bill, the Minister for Citizenship and Multicultural Affairs said this meant that ‘a court must undertake a full review of the claims challenged to determine if those restrictions [on review] apply’.
The Bill seeks to overcome this difficulty by inserting a new definition of ‘privative clause decision’ that includes, for all sections of the Act other than s. 474, a purported decision that would be a privative clause decision under s. 474 had there not been jurisdictional error. This would mean that the time limit imposed by s. 486A on applications to the High Court for constitutional writs would apply to purported decisions, as would the time limits for applications to the Federal Court and Federal Magistrates Court imposed by other sections. The exclusive jurisdiction of these courts under s. 484 of the Act would also be ensured.
Additionally, the Bill would reduce the time limit for applications to the High Court from 35 to 28 days (in line with the lower courts) but at the same time give each court a new discretion to extend the time for applications by up to 56 days in the interests of the administration of justice.
At the time of Admin Review’s publication, the Senate had referred the Bill to its Legal and Constitutional Committee for inquiry and report by 15 June 2004.
On 6 May 2004 the Attorney-General announced further measures in response to the migration litigation review:
• allowing applications for judicial review of migration decisions to be made directly to the Federal Magistrates Court • enabling the High Court to remit migration cases directly to the Federal Magistrates Court and to do so ‘on the papers’ • providing identical grounds of review in each Court • legislating to clarify the power of courts to make personal costs orders against lawyers filing unmeritorious cases • changing the fee waiver provision in the High Court so that the fee is reduced by two-thirds rather than waived entirely—although fee exemptions will continue to apply.
  HCA 2.
 House of Representatives 2004, Hansard, 25 March, p. 27 213.