BY SARAH STEPHEN
The Howard government's Migration Legislation Amendment (Procedural Fairness) Bill 2002 passed through the House of Representatives with the support of the Labor Party on June 26 with very little publicity.
The new act further restricts the grounds for asylum seekers appealing a rejection of their application to stay in Australia by removing the common law notion of natural justice as a basis for judicial appeal.
Last September, the Migration Legislation Amendment (Judicial Review) Act 2001 introduced a privative clause to remove asylum seekers' access to judicial review in all but exceptional cases. Administrative decisions relating to immigration cases were meant to be final and conclusive, and not to be challenged, appealed against, reviewed or questioned in any court.
Yet the federal and high courts continued to hear some asylum appeals on the grounds that, according to natural justice provisions, they had not received a fair hearing by the Refugee Review Tribunal (RRT) or immigration department officials. In one such case, the review officer had not given an asylum seeker the opportunity to comment on reports about the situation in his country of origin and was thus deemed to have failed to provide the asylum seeker with a fair and adequate hearing.
This angered the government, which hoped to rule out all access to the courts with the privative clause. So it introduced the procedural fairness bill. The bill lapsed because the federal parliament was dissolved for the November federal election, and was reintroduced to parliament on March 13.
The Senate Legal and Constitutional Affairs Committee was given a token opportunity to review the legislation, taking submissions for just one week a week which included the four-day Easter holiday. The bulk of submissions to the committee were critical of the legislation, arguing that there was no way that a code of procedure could adequately replace the common law natural justice hearing rule.
Officers for the immigration department and the RRT make mistakes. They can also be biased in their decision making. Evidence given to the committee included decisions being made on incorrect country information, applicants not receiving notice of hearings and translations of complex documents taking a long time and thus making applicants miss deadlines in replying to the department.
The Refugee Council expressed concern that the asylum application process would become the only area of administrative law not subject to judicial review where a wrong decision could cost a person his or her life.
Critics of the legislation also argue that it is unconstitutional. Section 75(v) of the federal constitution gives the High Court the jurisdiction to hear any case brought against officers of the commonwealth, so it is conceivable that this legislation will be struck down by the court, as will perhaps the privative clause section 474 of last year's judicial review amendment to the act.
The courts are at present testing the validity of last year's legislation. Five Federal Court decisions dealing with this issue are before a specially constituted five-member full court of the Federal Court. The case commenced on June 3 and is to hear appeals from five decisions of single judges and assess whether the privative clause is valid.
Another case, Sayed v The Commonwealth, is shortly due for hearing before the High Court which will also address the question of whether or not the entire privative clause is constitutional.
The government is not interested in the courts' interpretation of the legislation it wants to override the courts' ability to play any role in immigration matters. Immigration minister Philip Ruddock commented during the parliamentary debate on June 26: The fact is that whether the Federal Court judiciary, or the High Court for that matter, considers that the privative clause does or does not exclude natural justice from the Migration Act, this bill simply puts that matter beyond doubt. This bill makes it abundantly clear that the parliament wants this objective to be implemented.
Many Labor MPs indicated strong support for the bill only Carmen Lawrence and Tanya Plibersek expressed concerns with it. The only disagreement Labor MPs had with the legislation was over its timing. ALP immigration shadow minister Julia Gillard moved an unsuccessful amendment which urged the government to consider delaying the passage of the bill until the Federal Court had made a finding on the constitutionality of the previous attempt to remove the right to judicial review.
The bill was pushed through the Senate at 3am on June 28. Democrats Senator Andrew Bartlett forced a division to ensure that those who voted for the legislation were on record as doing so. There were only eight senators, out of a total of 51, who opposed it. No Labor senator opposed the legislation.
From Green Left Weekly, July 3, 2002.
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