Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Honourable Philip Ruddock MP)Schedule 1 - Amendments in relation to litigation
Part 1 Amendments
Amendments to the Administrative Decisions (Judicial Review) Act 1977
Item 1 After paragraph (da) of Schedule 1
11. This item inserts paragraph (db) into Schedule 1 to the Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act) to provide that the AD(JR) Act does not apply to purported privative clause decisions within the meaning of new section 5E of the Migration Act (inserted by item 14, Schedule 1).
12. The effect of this item is to exclude AD(JR) review of decisions that would have been privative clause decisions, as defined under subsection 474(2) of the Migration Act 1958 , if there had not been a failure to exercise jurisdiction, or an excess of jurisdiction, in the making of the decision. Judicial review under the AD(JR) Act in relation to privative clause decisions, as defined in subsection 474(2) of the Migration Act, is excluded under paragraph (da) to Schedule 1 to the AD(JR) Act.
Amendments to the Federal Court of Australia Act 1976
13. Item 2 amends subsection 25(1A) to limit the application of the amendments made by item 3, Schedule 1 to appeals from decisions of the FMC which involve migration judgments. Migration judgment is defined in new subsection 25(7), which is inserted by item 6, Schedule 1.
Item 3 After subsection 25(1A)
14. Item 3 inserts a new subsection 25(1AA) to provide that appeals from migration judgments of federal magistrates are heard by a single Federal Court judge, unless a judge considers the appeal should be heard by a Full Court of the Federal Court. 'Migration judgment' is defined in new subsection 25(7), which is inserted by item 6, Schedule 1.
15. This amendment facilitates more efficient and practical handling of the allocation of migration appeals. Currently, the Chief Justice of the Federal Court must decide if migration appeals from the FMC should be heard by a single judge or a Full Court. This item removes the significant administrative burden imposed on the Chief Justice to consider the assignment of every migration appeal from the FMC. At present, nearly all migration appeals from the FMC are suitably heard by a Federal Court judge sitting alone. In 2003-04, 87 per cent of all appeals to the Federal Court from the FMC were heard by a single judge exercising appellate jurisdiction. A majority of these appeals involved migration decisions.
16. This item does not affect migration appeals from decisions of a Federal Court judge exercising original jurisdiction which will continue to be heard by a Full Court of the Federal Court.
17. This item amends subsection 25(1B) to provide that whether a single judge or a Full Court exercises the Federal Court's appellate jurisdiction in relation to migration judgments of the FMC (as provided by item 3, Schedule 1), that arrangement does not limit the powers a single Judge or a Full Court may exercise under subsection 25(2) or (2B) of the Federal Court Act.
18. For example, if a single judge considers that it is appropriate for a Full Court to exercise the appellate jurisdiction in relation to a migration judgment, a single judge (or a Full Court) still has the power to make orders in relation to procedural matters listed in subsections 25(2) and 25(2B) of the Federal Court Act. Such procedural matters include consideration of applications for leave to appeal, an extension of time or leave to amend the grounds of an appeal.
Item 5 After paragraph 25(2B)(a)
19. This item inserts paragraph 25(2B)(aa) to provide that a single judge or a Full Court of the Federal Court exercising the Court's appellate jurisdiction may give summary judgment in relation to a proceeding, or a defence to a proceeding. Item 7, Schedule 1, inserts a new test for summary judgment which directs the Court to consider whether a proceeding or a defence to a proceeding should be summarily disposed as it has no reasonable prospect of success.
Item 6 At the end of section 25
20. This item inserts a new subsection into section 25 defining the expression 'migration judgment' for the purposes of this section. The expression 'migration judgment' means a decision of a federal magistrate exercising the jurisdiction of the FMC under section 476 of the Migration Act. Item 17, Schedule 1, inserts a new section 476 into the Migration Act to provide for the jurisdiction of the FMC in relation to migration decisions. A definition of migration decision is inserted into subsection 5(1) of the Migration Act by item 11, Schedule 1.
21. This item inserts a new section 31A into the Federal Court of Australia Act 1976. Section 31A provides that the Court may give summary judgment in a matter where it is satisfied that a proceeding or part of a proceeding, or a defence to a proceeding or part of a proceeding, has no reasonable prospect of success.
22. Subsection 31A(3) provides that for the purposes of giving summary judgment, a proceeding or part of a proceeding, or a defence to a proceeding or part of a proceeding, need not be hopeless or bound to fail for it to have no reasonable prospect of success. This moves away from the approach taken by the courts in construing the conditions for summary judgment by reference to the 'no reasonable cause of action' test, in
Dey v Victorian Railways Commissioners
(1949)
78 CLR 62
and
General Steel Industries Inc v Commissioner for Railways
(NSW) (1964)
112 CLR 125
. These cases demonstrate the great caution which the courts have exercised in regard to summary disposal, limiting this to cases which are manifestly groundless or clearly untenable.
23. Section 31A will allow the Court greater flexibility in giving summary judgment and will therefore be a useful addition to the Court's powers in dealing with unmeritorious proceedings.
24. Subsection 31A(4) provides that section 31A does not limit any other powers that the court possesses.
25. An identical amendment is inserted into the Judiciary Act 1903 (item 9, Schedule 1) and the Federal Magistrates Act 1999 (item 8, Schedule 1) to provide a uniform approach to summary judgment in the High Court, Federal Court and FMC.
Amendments to the Federal Magistrates Act 1999
26. This item inserts a new section 17A into the Federal Magistrates Act. Section 17A provides that the FMC may give summary judgment in a matter where it is satisfied that a proceeding or part of a proceeding, or a defence to a proceeding or part of a proceeding, has no reasonable prospect of success.
27. Subsection 17A(3) provides that for the purposes of giving summary judgment, a proceeding or part of a proceeding, or a defence to a proceeding or part of a proceeding, need not be hopeless or bound to fail for it to have no reasonable prospect of success. This moves away from the approach taken by the courts in construing the conditions for summary judgment by reference to the 'no reasonable cause of action' test, in
Dey v Victorian Railways Commissioners
(1949)
78 CLR 62
and
General Steel Industries Inc v Commissioner for Railways
(NSW) (1964)
112 CLR 125
. These cases demonstrate the great caution which the courts have exercised in regard to summary disposal, limiting this to cases which are manifestly groundless or clearly untenable.
28. Section 17A will allow the FMC greater flexibility in giving summary judgment and will therefore be a useful addition to the FMC's powers in dealing with unmeritorious proceedings.
29. Subsection 17A(4) provides that section 17A does not limit any other powers that the court possesses.
30. An identical amendment is inserted into the Federal Court Act (item 7, Schedule 1) and the Judiciary Act (item 9, Schedule 1) to provide a uniform approach to summary judgment in the High Court, Federal Court and FMC.
Amendments to the Judiciary Act 1903
Item 9 After Division 4 of Part III
31. This item inserts a new section 25A into the Judiciary Act. Section 25A provides that the High Court may give summary judgment in a matter where it is satisfied that a proceeding or part of a proceeding, or a defence to a proceeding or part of a proceeding, has no reasonable prospect of success.
32. Subsection 25A(3) provides that for the purposes of giving summary judgment, a proceeding or part of a proceeding, or a defence to a proceeding or part of a proceeding, need not be hopeless or bound to fail for it to have no reasonable prospect of success. This moves away from the approach taken by the courts in construing the conditions for summary judgment by reference to the 'no reasonable cause of action' test, in
Dey v Victorian Railways Commissioners
(1949)
78 CLR 62
and
General Steel Industries Inc v Commissioner for Railways
(NSW) (1964)
112 CLR 125
. These cases demonstrate the great caution which the courts have exercised in regard to summary disposal, limiting this to cases which are manifestly groundless or clearly untenable.
33. Section 25A will allow the Court greater flexibility in giving summary judgment and will therefore be a useful addition to the Court's powers in dealing with unmeritorious proceedings.
34. Subsection 25A(4) provides that section 25A does not limit any other powers that the court possesses.
35. An identical amendment is inserted into the Federal Court Act (item 7, Schedule 1) and the Federal Magistrates Act (item 8, Schedule 1) to provide a uniform approach to summary judgment in the High Court, Federal Court and FMC.
Item 10 At the end of section 44
36. This item amends section 44 to provide expressly that the High Court can remit a matter, or any part of a matter, to another court without an oral hearing. This item does not affect the High Court's discretion to conduct an oral hearing if the Court considers that it is appropriate to do so, having regard to the circumstances of a particular case.
37. Section 44 enables the High Court to remit matters filed in the Court's original jurisdiction to another court which has jurisdiction. This assists the High Court in managing its workload. For example, many migration cases which are filed in the High Court's original jurisdiction are more appropriately handled by the FMC or the Federal Court. As a result, most applications seeking judicial review of migration decisions in the High Court are remitted to the Federal Court or the FMC.
38. This amendment complements new procedures in the High Court Rules 2004 (these commenced on 1 January 2005) which recognise that most matters arising in the original jurisdiction of the Court are now remitted for hearing by another court. Rule 32.01 provides that a party initiating a matter in the original jurisdiction of the High Court must seek directions from a Justice soon after the proceeding is commenced, including a determination as to whether the matter should proceed in the High Court or be remitted to another court.
Amendments to the Migration Act 1958
39. This item inserts a definition of 'migration decision' into subsection 5(1). The expression means privative clause decisions made or purportedly made under the Migration Act and non-privative clause decisions. A privative clause decision is defined in subsection 474(2) of the Migration Act. A purported privative clause decision is defined in new section 5E (inserted by item 14, Schedule 1). A non-privative clause decision is defined in new subsection 474(6) (inserted by item 15, Schedule 1).
40. The expression migration decision is used, among other things, in relation to:
- •
- outlining the jurisdiction of the FMC in migration cases (item 17, Schedule 1)
- •
- outlining the original jurisdiction of the Federal Court in migration cases (item 17, Schedule 1)
- •
- remittals by the High Court of migration cases to the FMC or, in limited circumstances, to the Federal Court (item 17, Schedule 1)
- •
- imposing time limits on commencing applications for judicial review of migration decisions in the FMC, the Federal Court or the High Court (items 18 and 29 - 32, Schedule 1), and
- •
- confirming the exclusive jurisdiction of the High Court, the Federal Court and the FMC in migration cases (item 28, Schedule 1).
41. Other items in this Schedule make amendments to Parts 8 and 8A of the Migration Act to replace references to a privative clause decision with references to a migration decision. The use of the expression migration decision is to ensure that Parts 8 and 8A apply to purported privative clause decisions and non-privative clause decisions as well as privative clause decisions.
42. This item inserts a definition of 'non-privative clause decision' into subsection 5(1). The expression is defined in subsection 474(6) (inserted by item 15, Schedule 1). Subsection 474(6) provides that non-privative clause decisions comprise decisions mentioned in subsection 474(4) or specified in regulations made under subsection 474(5) of the Migration Act.
43. Applications for judicial review under the Migration Act of non-privative clause decisions are directed to the FMC and not the Federal Court (item 17, Schedule 1). This is consistent with a key object of the Bill to direct migration cases to the FMC. Judicial review under the AD(JR) Act is available in relation to non-privative clause decisions.
44. This item inserts the expression 'purported privative clause decision' into subsection 5(1). The expression is defined in new section 5E, which is inserted by item 14, Schedule 1.
45. This item inserts a new section 5E. Section 5E provides that a purported privative clause decision is a decision that would have been classified as a privative clause decision, as defined in subsection 474(2) of the Migration Act, but is not because the decision involves a failure to exercise jurisdiction or an excess of jurisdiction in the making of the decision.
46. The definition of 'purported privative clause decision' in section 5E reflects the terminology used by the High Court in
Plaintiff S157 v Commonwealth of Australia
(2003)
211 CLR 476
(S157). In S157, the High Court held that a 'decision... made under [the Migration] Act' does not include a decision which involves a failure to exercise jurisdiction or an excess of jurisdiction. The Court referred to such decisions infected by jurisdictional error as 'decisions purportedly made under the Act'. As such, these decisions were not privative clause decisions.
47. The expression 'migration decision' (inserted by item 11, schedule 1) means a privative clause decision, a purported privative clause decision or a non-privative clause decision. The use of this expression in Parts 8 and 8A of the Migration Act ensures that provisions in these Parts apply to purported privative clause decisions as well as privative clause decisions.
48. Subsection 5E(2) provides that the reference to 'decision' in section 5E includes anything listed in subsection 474(3) of the Migration Act.
Item 15 At the end of section 474
49. This item inserts new subsections 474(6) and (7) into the Migration Act.
50. Subsection 474(6) defines non-privative clause decisions as those decisions mentioned in subsection 474(4) or specified in regulations made under subsection 474(5). This does not create a new class of decisions under the Migration Act. The definition of non-privative clause decision is included to direct these migration cases to the FMC and not the Federal Court (see item 17, Schedule 1). This is consistent with the key objective of directing migration cases to the FMC.
51. For the avoidance of doubt, subsection 474(7) confirms that certain limited classes of decisions made under the Migration Act are privative clause decisions within the meaning of subsection 474(2) of the Migration Act. These are excluded from the jurisdiction of the FMC. This maintains the current approach in Part 8 of the Migration Act which excludes all judicial review in relation to these migration decisions, except for review by the High Court under section 75(v) of the Constitution. The decisions set out in subsection 474(7) are:
- •
- decisions of the Minister not to exercise, or not to consider the exercise of, specified powers under the Migration Act
- •
- decisions by the Principal Member of the Migration Review Tribunal or the Refugee Review Tribunal to refer a matter to the AAT and decisions of the President of the AAT to accept, or not to accept the referral, and
- •
- decisions of the Minister under Division 13A of Part 2 of the Migration Act to order a thing is not to be condemned as forfeited.
Item 16 Division 2 of Part 8 (heading)
52. This item substitutes a new heading for Division 2 of Part 8.
53. This item repeals sections 475A and 476 and inserts new sections 476, 476A and 476B. The effect of these items is to direct nearly all migration cases to the FMC, to limit the Federal Court's original jurisdiction in relation to migration cases, and to direct migration cases remitted by the High Court to the appropriate lower court.
Jurisdiction of Federal Magistrates Court
54. Subject to the exceptions set out in subsection 476(2), new section 476 provides that the FMC has the same original jurisdiction under the Migration Act in relation to migration decisions as the High Court has under section 75(v) of the Constitution. 'Migration decision' is defined in item 11, Schedule 1. This means that the grounds of judicial review are the same whether an application for judicial review of a migration decision is filed in the FMC or the High Court. Identical grounds make it easier for the courts to deal with applicants attempting to seek multiple rounds of judicial review of the same migration decision, by reference to the doctrine of issue estoppel.
55. Subsection 476(3) provides that section 476 does not affect any jurisdiction that the FMC may have in relation to non-privative clause decisions under section 8 of the AD(JR) Act or section 44AA of the Administrative Appeals Tribunal Act 1975 (AAT Act). The FMC has jurisdiction under the AD(JR) Act in relation to non-privative clause decisions. Review under the AD(JR) Act is not available in relation to privative clause decisions (paragraph (da) to Schedule 1 of the AD(JR) Act) or purported privative clause decisions (paragraph (db) to Schedule 1 of the AD(JR) Act, inserted by item 1, Schedule 1). Similarly, the Federal Court may refer to the FMC under section 44AA of the AAT Act an appeal from the AAT on a question of law about a non-privative clause decision.
56. Subsection 476(2) provides that the FMC has no jurisdiction in relation to the following decisions:
- •
- a primary decision (defined in new subsection 476(4))
- •
- a privative clause decision, or purported privative clause decision, of the AAT on review under section 500 of the Migration Act
- •
- a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C, and
- •
- a privative clause decision or purported privative clause decision mentioned in subsection 474(7).
57. Paragraph 476(2)(a) provides that the FMC has no jurisdiction in relation to primary decisions. A primary decision is defined in subsection 476(4) to mean a privative clause decision, or a purported privative clause decision, that is reviewable (on the merits) under Part 5, Part 7 or section 500 of the Migration Act or would have been so reviewable if an application for such review had been made within a specified period. If a person seeks or can seek merits review of a migration decision, the FMC does not have jurisdiction unless and until that person has sought merits review and the merits review processes have been finalised. If a person may seek merits review of a migration decision under Part 5, Part 7 or section 500 of the Migration Act and fails to do so, the FMC does not have jurisdiction in relation to that matter.
58. Paragraph 476(2)(b) provides that the FMC has no jurisdiction in relation to applications for judicial review of privative clause decisions, or purported privative clause decisions, of the AAT on review under section 500 of the Migration Act. Applications for judicial review of these character decisions are directed to the Federal Court (new section 476A, item 17 of Schedule 1).
59. These cases are directed to the Federal Court to avoid decisions of presidential members of the AAT, including members who are or were judges, from being reviewed by a federal magistrate. Subsection 500(5) of the Migration Act requires for the purposes of reviewing decisions under section 500 of the Migration Act that the AAT be constituted by a presidential member sitting alone.
60. Paragraph 476(2)(c) provides that the FMC has no jurisdiction in relation to applications for judicial review of privative clause decisions, or purported privative clause decisions, made personally by the Minister under sections 501, 501A, 501B or 501C of the Migration Act. Applications for judicial review of these decisions will be directed to the Federal Court (new section 476A, item 17 of Schedule 1). It is appropriate that these applications, which involve character-related decisions made personally by the Minister, be reviewed by a Federal Court judge.
61. Paragraph 476(2)(d) provides that the FMC has no jurisdiction in relation to applications for judicial review of privative clause decisions, or purported privative clause decisions, mentioned in subsection 474(7) (inserted by item 15, Schedule 1).
62. Item 17 inserts section 476A into Migration Act. Section 476A confers limited original jurisdiction on the Federal Court in relation to judicial review of migration decisions.
63. The Federal Court only has original jurisdiction in relation to a migration decision if:
- •
- the FMC transfers a migration matter to the Federal Court under section 39 of the Federal Magistrates Act, or
- •
- the decision is a privative clause decision, or purported privative clause decision, of the AAT on review under section 500 of the Migration Act, or
- •
- the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C of the Migration Act, or
- •
- the decision is a non-privative clause decision which is on appeal from the AAT on a question of law under subsection 44(3) of the AAT Act (an appeal from the AAT on a question of law to the Federal Court under subsection 44(3) is excluded in relation to a privative clause decision or a purported privative clause decision, inserted by item 27, Schedule 1),
- •
- the AAT refers a question of law from the AAT to the Federal Court under subsection 45(2) of the AAT Act arising in a proceeding involving a migration decision.
64. The classes of migration decisions which may be transferred from the FMC to the Federal Court under section 39 of the Federal Magistrates Act include applications for judicial review of decisions made by a tribunal under Part 5 or 7 of the Migration Act or involving judicial review of non-privative clause decisions. It is expected that the FMC will only transfer matters to the Federal Court under section 39 of the Federal Magistrates Act where those matters require the attention of a superior court by virtue of their complexity.
65. Subsection 476A(2) provides that the Federal Court's jurisdiction in relation to migration decisions is the same as the High Court's jurisdiction under section 75(v) of the Constitution, where the Federal Court has jurisdiction under paragraph 476A(1)(a), (b) or (c).
Remitting migration cases directly to the Federal Magistrates Court
66. Item 17 also inserts a new section 476B into the Migration Act to provide that applications for judicial review of migration decisions commenced in the High Court, and remitted by the High Court, are to be remitted only to the FMC, with the exceptions specified in new subsection 476B(3). Generally, the High Court, if it remits migration cases filed in its original jurisdiction, remits these cases to the Federal Court. The Federal Court may, in turn, transfer these matters to the FMC. This has led to unnecessary double-handling of migration cases.
67. Subsection 476B(2) provides that the High Court must not remit a migration matter to the FMC if that Court does not have jurisdiction to hear the matter under section 476 of the Migration Act (inserted by item 17, Schedule 1).
68. Subsection 476B(3) provides that the High Court may remit a matter or part of a matter relating to a migration decision to the Federal Court where the Federal Court has jurisdiction paragraph 476A(b) or (c). This jurisdiction comprises judicial review of section 500 decisions of the AAT or decisions made by the Minister personally under section 501, 501A, 501B or 501C of the Migration Act. The FMC does not have jurisdiction in relation to these migration decisions (new paragraphs 476(2)(b) and (c), inserted by item 17, Schedule 1).
69. Subsection 476B(4) clarifies that subsection 476B(1) has effect despite section 44 of the Judiciary Act.
70. This item repeals section 477 and inserts new sections 477 and 477A. These sections provide time limits for applications for judicial review of migration decisions filed in the FMC (section 477) and the Federal Court (section 477A). A key part of this package of legislative reforms is to impose uniform time limits in migration cases in the FMC, the Federal Court and the High Court.
Time limits on applications to the Federal Magistrates Court
71. Subsection 477(1) requires applications for judicial review of migration decisions in relation to which the FMC has jurisdiction under section 476 to be filed in the FMC within 28 days of the applicant receiving actual notification of the decision.
72. If the application for judicial review is not filed in the FMC within 28 days of actual notification of the decision, the applicant may seek an order from the FMC to extend the time limit by up to 56 days. Subsection 477(2) empowers the FMC to make an order to extend the time limit only if the person seeking the extension has sought the order within 84 days of actual notification of the decision and the FMC is satisfied that it is in the interests of the administration of justice to extend the time limit.
73. Subsection 477(3) provides that, except in accordance with subsection 477(2), the FMC must not make an order allowing an applicant to make an application outside the 28 day period.
74. Subsection 477(4) allows regulations to be made prescribing how persons may be notified of a decision for the purposes of section 477.
75. The FMC will only be able to transfer a migration case to the Federal Court as referred to in paragraph 476A(1)(a) (item 17) if the application is filed in the FMC within the time limit specified in subsection 477(1) or within any longer period permitted by the FMC in accordance with subsection 477(2).
Time limits on applications to the Federal Court
76. Section 477A applies in relation to applications for judicial review of migration decisions referred to in paragraphs 476A(b) and (c). The time limits provided in section 477A are identical to the time limits provided in section 477 for applications commenced in the FMC.
77. Subsection 477A(1) requires applications for judicial review of migration decisions in relation to which the Federal Court has jurisdiction under paragraphs 476A(b) and (c) to be filed in the Federal Court within 28 days of the applicant receiving actual notification of the decision. The relevant 'decision' is the decision made by the AAT under section 500 of the Migration Act or the decision made personally by the Minister under section 501, 501A, 501B or 501C of the Migration Act.
78. If the application for judicial review is not filed in the Federal Court within 28 days of actual notification of the decision, the applicant may seek an order from the Federal Court to extend the time limit by up to 56 days. Subsection 477A(2) empowers the Federal Court to make an order to extend the time limit only if the person seeking the extension has sought the order within 84 days of actual notification of the decision and the Federal Court is satisfied that it is in the interests of the administration of justice to extend the time limit.
79. Subsection 477A(3) provides that, except in accordance with subsection 477A(2), the Federal Court must not make an order allowing an applicant to make an application outside the 28 day period.
80. Subsection 477A(4) allows regulations to be made prescribing how persons may be notified of a decision for the purposes of section 477A.
81. This item amends section 478 to take into account circumstances where the Secretary of the Department of Immigration and Multicultural and Indigenous Affairs is the appropriate person to make an application under new section 477 or 477A (inserted by item 18, Schedule 1).
82. This item repeals paragraph 478(a) and substitutes a new paragraph. It is a consequential amendment to include a reference to 'migration decision' in paragraph 478(a) and thereby extend the application of section 478 to privative clause and purported privative clause decisions made on review under Part 5 or 7 or section 500.
83. This item amends section 479 to take into account circumstances where the Secretary of the Department of Immigration and Multicultural and Indigenous Affairs is the appropriate party to a review of a migration decision resulting from an application referred to in new section 477 or 477A (inserted by item 18, Schedule 1).
Item 22 Paragraphs 479(a) and (b)
84. This item repeals paragraphs 479(a) and (b) and substitutes new paragraphs to provide that section 479 applies in relation to all migration decisions (inserted by item 11, Schedule 1).
85. This item inserts a reference to section 477A (inserted by item 18, Schedule 1) into subsection 480(1). The inclusion of references to both sections 477 and 477A in subsection 480(1) is necessary to enable the Attorney-General to intervene on behalf of the Commonwealth in proceedings commenced in the FMC (section 477) or the Federal Court (section 477A).
86. This item amends subsection 480(2) by altering the order of the references to the Federal Court and the FMC to reflect the fact that most migration cases are directed to the FMC and the Federal Court has the limited jurisdiction provided for in new section 476 (item 17, Schedule 1).
87. This item amends section 481 to insert a reference to section 477A (inserted by item 18, Schedule 1). This means that making an application for judicial review of a migration decision under either section 477 or 477A does not prevent the decision for which review has been sought from continuing to have legal effect pending the outcome of the review.
88. This item inserts the expression 'migration decision' into paragraph 482(a) so that section 482 applies to all applications for judicial review of migration decisions. Migration decision is defined in section 5(1) (inserted by item 11, Schedule 1).
89. This item repeals section 483 and substitutes a new section. This provides that section 44 of the AAT Act does not apply to privative clause decisions or purported privative clause decisions (inserted by item 14, Schedule 1). Section 44 of the AAT Act provides that a person may appeal a decision of the AAT on a point of law to the Federal Court. An appeal to the Federal Court under section 44 is available in relation to a non-privative clause decision.
90. This item repeals section 483A of the Migration Act which provides that the FMC has concurrent jurisdiction with the Federal Court in relation to matters arising under the Migration Act. Section 483A is no longer necessary as new section 476, inserted by item 17, Schedule 1, sets out the FMC's jurisdiction in relation to migration decisions.
91. This item repeals section 484 and inserts a new section providing for the exclusive jurisdiction of the High Court, the Federal Court and the FMC in relation to migration decisions.
92. Subsection 484(1) provides that only the High Court, the Federal Court and the FMC have jurisdiction in relation to migration decisions. Migration decision is defined in section 5(1) of the Migration Act (inserted by item 11, Schedule 1). Subsection 484(2) provides that the intention of subsection 484(1) is not to confer jurisdiction on these courts in relation to migration decisions but to exclude other courts from jurisdiction in relation to migration decisions.
93. Subsections 484(3) and 484(4) put beyond doubt the exclusive jurisdiction of the High Court, the Federal Court and the FMC in relation to migration decisions by providing that the Supreme Court of the Northern Territory does not have jurisdiction under section 67C of the Judiciary Act 1903 in relation to migration decisions and providing that the Jurisdiction of Courts (Cross-vesting) Act 1987 does not confer jurisdiction on any court in relation to migration decisions.
94. This item repeals subsection 486A(1) and substitutes a new subsection. This ensures that the time limits for applications in relation to migration decisions commenced in the High Court's original jurisdiction are the same as the time limits provided in sections 477 and 477A (inserted by item 18, Schedule 1) for applications in relation to migration decisions commenced in the FMC or the Federal Court.
Item 31 After subsection 486A(1)
95. This item inserts new subsection 486A(1A) into section 486A. This subsection provides that, if an application to the High Court for a remedy is not made within 28 days of actual notification of the migration decision, then the applicant may seek an order from the High Court to extend the time limit by up to 56 days. The High Court may only make an order to extend the time limit if the person seeking the extension has sought the order within 84 days of actual notification of the decision, and the High Court is satisfied that it is in the interests of the administration of justice to extend the time limit. The intention of this provision is that the High Court may not grant an extension of time after 84 days from the date the applicant was notified of the decision.
96. This item amends subsection 486A(2) to provide that the High Court must not extend the 28 day time limit for applications in relation to migration decisions unless the application meets the requirements in new subsection 486A(1A) (inserted by item 31, Schedule 1). That is, the application to extend the time limit must be made within 84 days of actual notification of the decision and the Court is satisfied that it is in the interests of the administration of justice to extend the time limit.
97. This item amends subsection 486A(2) to replace the reference to a 35 day time limit with a 28 day time limit for applications in relation to migration decisions commenced in the High Court. This is consequential to the amendments made to section 486A above to provide the same time limits in the High Court as in the FMC and Federal Court.
98. This item amends subsection 486C(1) to reverse the order in which the Federal Court and the FMC are mentioned in the subsection and heading in order to highlight the central role of the FMC in handling migration cases.
Item 35 Subsections 486C(3) and (3A)
99. This item repeals subsections 486C(3) and (3A) and substitutes new subsections. This takes into account the changes made to the jurisdiction of the FMC and the Federal Court in new sections 476 and 476A (inserted by item 17, Schedule 1) in relation to applications for judicial review of migration decisions.
100. This item repeals subsection 486C(7) as the terms defined in this subsection are no longer used and the subsection is no longer required.
101. This item inserts a new section 486D to require applicants, when commencing any proceeding in the FMC, Federal Court or High Court in relation to a tribunal decision (as defined in subsection 486D(5)) to disclose details of any previous application for judicial review in any court in relation to that decision. The provision is designed to assist the courts to identify applications which have already been the subject of proceedings for judicial review of tribunal decisions and discourage applicants from attempting to re-litigate these matters, including as a means to delay their removal from Australia.
102. Subclause 486D(5) inserts definitions of 'judicial review proceeding' and 'tribunal decision' for the purposes of this section. The expression 'judicial review proceeding' means an application for judicial review of a tribunal decision. A tribunal decision means a privative clause decision, or purported privative clause decision, made on review by a tribunal under Part 5 or 7 or section 500 of the Migration Act.
103. Item 38 inserts a new Part 8B into the Migration Act. New Part 8B imposes an obligation on persons not to encourage other persons to commence or continue unmeritorious migration litigation in the courts. It reinforces the powers of courts having jurisdiction in relation to migration litigation to make personal costs orders against persons who encourage unmeritorious migration litigation. Further, lawyers acting in migration cases will be required to certify at the institution of proceedings that the application has merit.
104. The provisions are designed both to deter the initiation or continuation of proceedings that are an abuse of a court's process and which waste court resources and to safeguard litigants so that they are not encouraged to pursue unmeritorious migration litigation.
105. Subsection 486E(1) imposes an obligation on a person not to encourage a litigant to bring or continue migration litigation if the migration litigation has no reasonable prospect of success and either (i) the person does not give proper consideration to the prospects of success or (ii) a purpose in initiating or continuing the migration litigation is unrelated to the objectives of the court process. The intention of this provision is to ensure that persons advising unsuccessful visa applicants do not encourage court proceedings which they know or should have known could not succeed. A person will not fail to comply with this provision merely because a case is not successful. A court must find that a case had no reasonable prospect of succeeding and that a person who encouraged the litigation has engaged in conduct set out in paragraph 486E(1)(b)(i) or 486E(1)(b)(ii).
106. An example of a failure to give proper consideration could be where a person simply duplicated applications made on behalf of other litigants without turning his or her mind to the particular circumstances of each litigant. An ulterior purpose might be initiating migration proceedings that have no reasonable prospect of success simply to delay removal from Australia.
107. Costs orders may be made against lawyers, migration agents or other persons who have encouraged the prosecution of unmeritorious migration claims by litigants. Courts will be able to make a personal costs order against an adviser promoting litigation behind the scenes if the person has given no proper consideration to the prospects of success or has acted for an ulterior purpose.
108. Subsection 486E(2) makes clear that a migration application need not be hopeless or bound to fail for it to be found to have had 'no reasonable prospect of success'. Cases which are hopeless or bound to fail would, of course, have no reasonable prospect of success. The effect of this provision is that a court may find that a case had no reasonable prospect of success without being satisfied of the stricter threshold that the case was hopeless or bound to fail.
109. Subsection 486E(3) ensures that the obligation under subsection 486E(1) overrides any other duty a person may have to act according to a litigant's wishes. A contravention of section 486E cannot be justified by a claim that an adviser was obliged to act on the litigant's instructions.
110. If a person contravenes section 486E in relation to migration litigation, a court may make a personal costs order under subsection 486F(1).
111. Subsection 486F(1) sets out the types of personal costs orders that the court may make. A person may be held responsible for costs that another party or, indeed, the litigant has unnecessarily incurred because of the person's conduct in encouraging the prosecution of an unmeritorious case. By reason of section 79 of the Judiciary Act , a State law restricting performance of legal work to legal practitioners can prevent a person who is not a lawyer from undertaking legal work in federal courts. An example of such a provision is section 48E of the NSW Legal Profession Act 1987 .
112. Under subsection 486F(2), whenever a court finds, at the time of making a decision on the substantive issues in the migration litigation, that a migration case had no reasonable prospect of success, the court must consider whether to make a costs order under section 486F. A court would then consider whether a person has contravened the obligation under subsection 486E(1).
113. Under subsection 486F(3), the court or any party to the proceeding can seek a personal costs order.
114. As with all agencies which are subject to the Financial Management and Accountability Act 1997 , the Department of Immigration and Multicultural and Indigenous Affairs and its lawyers are required to comply with Legal Services Directions issued by the Attorney-General pursuant to section 55ZF of the Judiciary Act. These include a requirement that the Commonwealth and its agencies behave as a model litigant in the conduct of litigation. The Legal Services Directions on the Commonwealth's Obligation to Act as a Model Litigant note that the obligation does not prevent the Commonwealth and its agencies from acting firmly and properly to protect the Government's interests or from enforcing costs orders or seeking to recover its costs.
115. While observing that the model litigant obligation does not prevent the Commonwealth and its agencies from applying for a personal costs order, the Office of Legal Services Coordination in the Attorney-General's Department has issued guidance to Commonwealth agencies on the model litigant approach to applying for such an order including the following: a personal costs order should be sought only where such action is demonstrably warranted; the litigant should be properly informed why, in the Commonwealth's view, their argument has no reasonable prospect of success; and an intention to seek a personal costs order should not be used tactically to intimidate a litigant or their lawyer into abandoning a legitimate case.
116. Under subsection 486F(4), the court should consider a motion or application under subsection 486F(3) at the time the court is considering the question of costs in the migration litigation.
117. Under section 486G, the court must not make a costs order unless a person has been given a reasonable opportunity to argue why the order should not be made.
118. Subsection 486H(1) waives legal professional privilege as defined in subsection 486H(4) only to the extent that it is necessary for a lawyer or other person to produce communications in order to argue why a costs order should not be made against them. The effect of this provision is to enable a person against whom a costs order might be made to produce communications in support of any argument against a personal costs order, which they would not otherwise be able to do if legal professional privilege applies (and a person entitled to assert it does not waive it).
119. The Commonwealth Evidence Act 1995 recognises that confidential communications between an unrepresented litigant and another person (who may not be a lawyer) for the dominant purpose of preparing for or conducting litigation may be subject to privilege. The limited waiver in this provision is therefore not restricted to lawyers who may seek to adduce confidential communications in support of their arguments against a personal cost order. It is not intended that migration agents or other persons against whom a personal costs order might be made should be prevented from adducing documents which might otherwise be subject to privilege.
120. Subsection 486H(2) provides that a communication does not cease to be subject to legal professional privilege for any other purpose. The intention of this provision is to preserve legal professional privilege so that it might be claimed in other proceedings or circumstances where such a claim can be made. To facilitate the preservation of legal professional privilege for other purposes, paragraph 486H(2)(b) provides that a court must make such orders as are necessary to protect the confidentiality of a communication. For example, a court may consider it necessary in all the circumstances of a particular case to hear arguments in closed court.
121. In addition to rights at common law, subsection 486H(4) provides for legal professional privilege to include client legal privilege and other statutory rights under Division 1 of Part 3.10 of the Evidence Act 1995.
122. The intention of subsection 486H(5) is to prevent a person against whom a personal costs order is made from seeking to recover any costs they are required to pay from the litigant.
123. Subsection 486I(1) provides that, where a lawyer represents a person in migration litigation, the lawyer must not file a document initiating a proceeding (including an appeal) unless the lawyer certifies in writing that there are reasonable grounds for believing that the litigation has a reasonable prospect of success. Subsection 486I(2) requires a court to refuse to accept an application commencing migration litigation unless the lawyer has certified accordingly. The intention of this provision is to ensure lawyers properly consider the merits of applications before filing.
124. This certification requirement is similar to the requirement for certification under legislation in other jurisdictions, such as under Part 11, Division 5C of the NSW Legal Profession Act 1987 in relation to a claim or defence of a claim for damages. Court Rules may also require lawyers to certify that pleadings have a proper basis (see eg Federal Court Rules, Order 11, rule 1B).
125. Section 486J makes clear that Part 8B does not limit any power a court may otherwise have to make a costs order against a person who is not a party to proceedings, including any inherent jurisdiction of a court and any rules relating to the making of personal costs orders against third parties.
126. Section 486K is a definition provision. The definition of 'migration litigation' makes clear that this Part only applies to applications for judicial review of migration decisions commenced in a court and does not apply to applications for review by tribunals. The term 'lawyer' has the same meaning as in Part 3 of the Migration Act.
Item 39 Subsection 503B(14) (table)
127. Item 39 repeals the table in subsection 503B(14) and substitutes a new table to reflect the new jurisdiction of the Federal Court and FMC in relation to judicial review of decisions made under section 501, 501A, 501B or 501C of the Migration Act. Section 503B provides for the protection of confidential information disclosed to the Federal Court or FMC by means of permanent non-disclosure orders. This amendment is consequential to the amendments made to the jurisdiction of the Federal Court and FMC inserted by item 17, Schedule 1.
Part 2 - Application of amendments
128. Part 2 of Schedule 1 to the Bill provides for the application of items in Schedule 1.
129. This item provides definitions for the application provisions in Part 2 of Schedule 1.
Item 41 Application of item 1 and items 11 to 36
130. The amendments made by item 1 and items 11 to 36 apply to all migration decisions (defined in item 11, Schedule 1) made on or the day on which Schedule 1 commences.
Item 42 Transitional provision - migration decision made before commencement day
131. This item makes provision in relation to the time limits applicable to migration decisions made before the day on which Schedule 1 commences, where proceedings are commenced on or after that day. Applicants who have received actual notification of a migration decision before that day may calculate the time within which they may commence an application for judicial review of a migration decision from the commencement day.
Item 43 Application of items 2, 3, 4 and 6
132. This item provides that the amendments made by items 2, 3, 4 and 6 of Schedule 1 to the Federal Court Act to provide that all appeals from migration judgments of the FMC will be heard by a Federal Court judge sitting alone unless a judge considers that it is appropriate for the appeal to be heard by a Full Court, will apply to all migration judgments made on or after the commencement of Schedule 1.
Item 44 Application of items 5, 7, 8 and 9
133. This item provides that the amendments made by items 5, 7, 8 and 9 of Schedule 1, which concern summary judgment, will apply to all court proceedings initiated on or after the commencement of Schedule 1.
Item 45 Application of item 10
134. This item provides that the amendments made by item 10, allowing the High Court to remit a proceeding without an oral hearing, will apply to all proceedings initiated on or after the commencement of Schedule 1.
Item 46 Application of item 37
135. This item provides that the amendments made by item 37, which will require applicants to disclose previous applications for judicial review of tribunal decisions, will apply to all proceedings commenced on or after the commencement of Schedule 1.
Item 47 Application of item 38
136. This item provides that the amendments made by item 38, which concerns the powers of courts to make costs orders for encouraging unmeritorious migration litigation will apply to all migration litigation initiated on or after the commencement of Schedule 1.
Item 48 Application of item 39
137. This item provides that the amendment made by item 39 of Schedule 1 applies in relation to substantive proceedings within the original jurisdiction of the FMC or Federal Court, initiated on or after the commencement of Schedule 1. This item also provides that the amendments made by item 39 of Schedule 1 applies in relation to substantive proceedings within the appellate jurisdiction of the Federal Court if the proceedings from which the appeal arose were initiated on or after commencement of Schedule 1.