Second Reading Speech
Mr Ruddock (Attorney-General)
I move:
That this bill be now read a second time.
This bill amends the Migration Act 1958 and other related legislation to improve the overall efficiency of migration litigation.
The bill builds on the substantial progress already made by the government in implementing a comprehensive package of migration litigation reforms.
In May 2004, the government provided an extra $34.2 million over four years in the 2004-05 budget for the appointment of eight additional federal magistrates. These additional magistrates, who have all taken up their appointments, are enabling the Federal Magistrates Court to handle the migration workload more efficiently.
The government has been concerned about the high volume of migration cases, unmeritorious litigation and delays which are impacting on the federal courts and the migration system as a whole.
In recent years, the government has won over 90 per cent of all migration cases decided at hearing. Of course the government recognises that not all unsuccessful cases are unmeritorious. However, the very large proportion of unsuccessful migration cases is a strong indicator that some unsuccessful visa applicants are using judicial review inappropriately to prolong their stay in Australia.
The measures in the bill have been drawn from recommendations by the Migration Litigation Review-also called the Penfold inquiry. This was established by the government to inquire into more efficient management of migration cases. Other measures stem from recommendations by my department in a federal civil justice system strategy paper which was published in December 2003.
A key feature of the bill is to enhance the role of the Federal Magistrates Court in migration cases. The court was established to deal with a high volume of shorter and less complex matters, making it a suitable forum for most migration cases.
It is commonsense that efficiency is to be gained by directing migration cases to the Federal Magistrates Court. To that end, the bill limits the original jurisdiction of the Federal Court in migration cases.
The bill provides that the Federal Magistrates Court has the same jurisdiction under the Migration Act as the High Court under paragraph 75(v) of the Constitution.
Identical grounds for relief in the High Court and Federal Magistrates Court will assist the courts to quickly identify applicants who are seeking to re-litigate matters that have already been the subject of judicial consideration. A complementary reform in the bill requires the disclosure by applicants of any prior judicial review applications in relation to the same migration decision.
Migration cases filed in the High Court's original jurisdiction and remitted will be directed to the Federal Magistrates Court. Further, the bill expressly provides that the High Court may remit on the papers without hearing. This is an appropriate efficiency for the handling of all matters filed in the High Court. The High Court is the apex of our judicial system. It should not be burdened with cases that are more appropriately handled by a lower court.
The Federal Court will retain appellate migration jurisdiction. The bill will facilitate the current practice of single judges hearing most migration appeals from the Federal Magistrates Court, except in circumstances where it is appropriate for the appeal to be heard by a full court.
The bill also includes amendments to ensure that procedural provisions relating to judicial review in parts 8 and 8A of the Migration Act apply to all migration decisions. These amendments are necessary following the High Court's decision in Plaintiff S157 v Commonwealth. In S157, the High Court upheld the constitutionality of the privative clause in the Migration Act but the decision meant that time limits ceased to apply in many migration cases. The bill reinstates the original intended operation of these procedural provisions.
More than one-third of all applications currently seeking judicial review of migration decisions are made outside the 28-day time limit specified in the Migration Act. Some applications are being lodged up to six years after the original visa decision.
The bill provides uniform extendable time limits in the High Court, the Federal Court and the Federal Magistrates Court. The time limit measures provide a balance between giving applicants an opportunity to seek judicial review of migration decisions and ensuring timely handling of these applications.
The bill also strengthens the power of the courts to deal with unmeritorious matters, by broadening the grounds on which federal courts can summarily dispose of unsustainable cases. It is appropriate that this provision is of general application. It will be a useful addition to the courts' powers in dealing with any unsustainable case.
Having regard to the high rate of unsuccessful migration cases, the government is also concerned to ensure lawyers and other advisers on migration matters do not promote the prosecution of unmeritorious cases and claims.
It is grossly irresponsible to encourage the institution of unmeritorious cases as a means simply to prolong an unsuccessful visa applicant's stay in Australia.
It is equally irresponsible for advisers to frustrate the system by lodging mass-produced applications without considering the actual circumstances of each case.
The measures in this bill seek to deter such conduct and require lawyers and others who provide advice on bringing migration litigation to do so carefully and having regard to the chances of the claim succeeding. Before lawyers file documents in migration cases, they will be required to certify that the application has merit.
Lawyers acting ethically and in accordance with their professional duties have no need for concern. However, representatives who encourage the institution and continuation of proceedings which have no reasonable prospect of success run the risk of a costs order being made personally against them if they did not give proper consideration to the prospects or acted for an ulterior purpose.
The bill also includes amendments to the arrangements for the administration of the Federal Magistrates Court to reflect its growth from 16 magistrates in 2000 to 31 at present, including the eight new magistrates funded in the 2004-05 budget. The Chief Federal Magistrate will be responsible for the administration of the court. This brings the arrangements for the administrative management of the court in line with the arrangements in the Federal Court and Family Court of Australia.
All of the measures in the bill, taken together, combined with the additional resources that the government has provided to the Federal Magistrates Court, will assist the courts in managing their workloads and will improve access for all cases with merit. I certainly hope this will lead to shorter times for which people might be detained-a matter that is often commented on-and to a situation where issues are quickly resolved and those who have no lawful entitlement to remain in Australia return home.
I commend this bill and I present the explanatory memorandum.
Debate (on motion by Mr Gavan O'Connor) adjourned.