Migration Legislation Amendment (Judicial Review) Act 2001
No. 134, 2001
An Act to amend the Migration Act 1958, and for related purposes
Contents
1 Short title...................................
2 Commencement...............................
3 Schedule(s)..................................
Schedule 1—Judicial review
Part 1—Amendments
Administrative Decisions (Judicial Review) Act 1977
Migration Act 1958
Part 2—Application provisions
Migration Legislation Amendment (Judicial Review) Act 2001
No. 134, 2001
An Act to amend the Migration Act 1958, and for related purposes
[Assented to 27 September 2001]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Migration Legislation Amendment (Judicial Review) Act 2001.
2 Commencement
(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(2) Subject to subsection (3), Schedule 1 commences on a day to be fixed by Proclamation.
(3) If Schedule 1 does not commence under subsection (2) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.
3 Schedule(s)
Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Judicial review
Part 1—Amendments
Administrative Decisions (Judicial Review) Act 1977
1 Paragraph (da) of Schedule 1
Repeal the paragraph, substitute:
(da) a privative clause decision within the meaning of subsection 474(2) of the Migration Act 1958;
Migration Act 1958
2 Subsection 5(1) (definition of judicially‑reviewable decision)
Repeal the definition.
3 Subsection 5(1)
Insert:
privative clause decision has the meaning given by subsection 474(2).
4 Subsection 32(2)
After “that” (first occurring), insert “the Minister is satisfied”.
5 Subsection 36(2)
After “whom”, insert “the Minister is satisfied”.
6 Section 73
Omit all the words before “a bridging visa” (second occurring), substitute “If the Minister is satisfied that an eligible non‑citizen satisfies the criteria for a bridging visa as prescribed under subsection 31(3), the Minister may grant”.
7 Part 8
Repeal the Part, substitute:
Part 8—Judicial review
Division 1—Privative clause
474 Decisions under Act are final
(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
(3) A reference in this section to a decision includes a reference to the…
Overview
The Migration Legislation Amendment (Judicial Review) Act 2001 was enacted by the Parliament of Australia to amend the Migration Act 1958 and address the issue of the scope and limitations of judicial review in migration-related decisions. This Act aims to provide greater certainty and clarity regarding the finality of certain decisions made under the Migration Act and to delineate the specific circumstances under which judicial review is available. The enactment of this Act responds to the need to streamline and clarify the judicial review process for decisions made under the Migration Act, ensuring that certain administrative decisions are final and not subject to judicial scrutiny, while still allowing for review in specific, defined instances. The Act introduces amendments to the Administrative Decisions (Judicial Review) Act 1977 and the Migration Act 1958 to implement these changes, establishing a framework that limits the scope of judicial review in migration-related matters while maintaining certain avenues for review under strict conditions.
Scope and Application
The Migration Legislation Amendment (Judicial Review) Act 2001 applies to the Migration Act 1958, the Administrative Appeals Tribunal Act 1975, and the Administrative Decisions (Judicial Review) Act 1977, with the aim of amending the scope and availability of judicial review for certain decisions made under the Migration Act 1958. This Act affects both Commonwealth and state jurisdictions, as it involves amendments to federal legislation and the interaction with state courts, particularly through the jurisdiction of the Federal Court and the High Court. The Act targets decisions made by the Minister for Immigration and those made by the Migration Review Tribunal and the Refugee Review Tribunal, stipulating that certain decisions, referred to as privative clause decisions, are final and conclusive and cannot be challenged, appealed against, or reviewed in any court, except under very specific circumstances. The Act delineates exclusions by specifying particular decisions that are not considered privative clause decisions and thus remain subject to judicial scrutiny. The Act’s application is further refined through subordinate instruments, which may specify additional decisions that are not privative clause decisions or prescribe notification methods for decisions. The Act’s provisions on the exclusivity of Federal Court jurisdiction and the limitations on the High Court’s remit further clarify its scope and application within the Australian legal framework.
Key Provisions
- The Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) primarily amends the Migration Act 1958 (Cth) to limit the judicial review of certain decisions, termed "privative clause decisions." These decisions are final and conclusive, and they cannot be challenged, appealed, reviewed, quashed, or called into question in any court (section 474(1)). The term "privative clause decision" is defined broadly to include various types of decisions made under the Act, such as granting or refusing a visa, imposing conditions, or detaining a person (section 474(2)). However, certain decisions, such as those relating to the liability for costs of detention or removal, are excluded from this definition (section 474(4)).
- The Act imposes significant obligations on various parties involved in the decision-making process. For instance, the Minister and relevant tribunals are required to adhere to the finality of privative clause decisions, which means these decisions are not subject to judicial review except under very specific circumstances (section 474). Additionally, the Act mandates strict timelines for any applications related to privative clause decisions, requiring such applications to be made within 28 days of the decision being notified (section 477). Furthermore, the Act specifies who can make such applications, typically the Minister, the applicant in a tribunal review, or the person subject to the decision (section 478).
- Breach of the provisions limiting judicial review can lead to significant consequences. The Act explicitly states that privative clause decisions are final and not subject to review in any court (section 474(1)). Any attempt to challenge these decisions in court, despite this prohibition, would be ineffective and could result in penalties or sanctions under the respective acts. For example, attempting to seek judicial review of a privative clause decision in the Federal Court, which is explicitly prohibited, could result in the court dismissing the application outright and potentially ordering costs against the applicant. Additionally, any actions taken in reliance on the privative clause decision remain valid and enforceable, regardless of any subsequent application for review (section 486AB).
- Area of Law
- Administrative Law
- Immigration & Refugee Law
- Instrument
- Act
- Concepts
- Commencement Provisions
- Offence Provisions
- Civil Penalty Provisions
- Prohibited Conduct
- Regulatory Standards