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Australian Lawyers for Human Rights - Migration Legislation 1 May 2002 The Secretary
Dear Secretary Migration Legislation
Amendment (Procedural Fairness) Bill 2002
Migration Legislation Amendment Bill (No. 1) 2002
Australian Lawyers for Human Rights (ALHR) is a network of Australian lawyers committed to promoting awareness of and adherence to human rights in Australia. We apologise for the delay in making our submission. However, we do observe that the time provided for public consultation on these Bills was inadequate due, we understand, to the very short reporting date given to the Committee by the referring Minister.
ALHR’s concern about both Bills is the exclusion of the operation of common
law natural justice provisions from migration decisions.
Migration Legislation Amendment Bill (No. 1) 2002
The Migration Legislation Amendment Bill (No. 1) 2002 provides that
a special purpose visa ceases to be in effect at a specified time if the
Minister makes a declaration that it is undesirable for the non-citizen to
travel to, enter and remain in Australia.
That provision confirms the that the rules of natural justice
do not apply to the making of such a declaration. Migration Legislation
Amendment (Procedural Fairness) Bill 2002
Codes of procedure were introduced by the Migration Reform Act 1992
to enable decision-makers and tribunals to deal with visa issues fairly,
efficiently and quickly. In Re MIMA; Ex parte Miah [2001] HCA 22 the
High Court held that the code of procedure in Subdivision AB of Division
3 of Part 2 of the Act did not exclude common law natural justice requirements.
The majority considered that such exclusion would require a clear legislative
intention and that there was no such clear intention in the Act.
The Migration Legislation Amendment (Procedural Fairness) Bill 2002
sets out the clear legislative intention that specified codes of procedure
in the Act are an exhaustive statement of the requirements of the natural
justice hearing rule. The amendments
in the Bill apply to the codes of procedure in the Act relating to:
Submission
ALHR supports fair, fast decision making in immigration decisions.
The exclusion of common law natural justice requirements from
this complex area of decision making is unnecessary in order to achieve this
outcome, and abrogates the Government’s responsibility to accord procedural
fairness. The common law requirements
are sufficiently flexible to be able to respond to both the needs of applicants,
and the requirements of speed and efficiency, on a case-by-case basis.
Minister Ruddock told the House in his second reading speech that the Migration Legislation Amendment (Procedural Fairness) Bill would address “concerns about the growing cost and incidence of migration litigation and the associated delays in removal of non-citizens with no right to remain in Australia”. Frequent changes to the Migration Act over the past few years have in fact significantly reduced the role of the courts in reviewing immigration decisions. An immigration policy which features strong measures to deter asylum-seekers need not, and should not, at the same time erode the best practice of Australian administrative law. A balance must be struck. These Bills swing the balance yet further in favour of the Government and a presumption against the claims of asylum-seekers. Insufficient regard is had to the needs and entitlements of asylum-seekers, who must be treated as genuine until proven conclusively not to be so. I hope that these observations are of assistance. ALHR welcomes the opportunity to appear before the Committee. Yours sincerely, Simon Rice Return to the top of this page. |
This page updated 2002/06/30