Migration Litigation Reform Act 2005
No. 137, 2005
An Act to amend legislation in relation to courts and litigation, particularly in migration matters, and for related purposes
Contents
1 Short title
2 Commencement
3 Schedule(s)
Schedule 1—Amendments in relation to litigation
Part 1—Amendments
Administrative Decisions (Judicial Review) Act 1977
Federal Court of Australia Act 1976
Federal Magistrates Act 1999
Judiciary Act 1903
Migration Act 1958
Part 2—Application of amendments
Schedule 2—Amendments relating to the management of the Federal Magistrates Court
Federal Magistrates Act 1999
Migration Litigation Reform Act 2005
No. 137, 2005
An Act to amend legislation in relation to courts and litigation, particularly in migration matters, and for related purposes
[Assented to 15 November 2005]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Migration Litigation Reform Act 2005.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information |
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent. | 15 November 2005 |
2. Schedule 1 | A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. | 1 December 2005 (see F2005L03684) |
3. Schedule 2 | The day on which this Act receives the Royal Assent. | 15 November 2005 |
Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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—Amendments in relation to litigation
Part 1—Amendments
Administrative Decisions (Judicial Review) Act 1977
1 After paragraph (da) of Schedule 1
Insert:
(db) a purported privative clause decision within the meaning of section 5E of the Migration Act 1958;
Federal Court of Australia Act 1976
2 Subsection 25(1A)
After “judgment”, insert “, other than a migration judgment,”.
3 After subsection 25(1A)
Insert:
(1AA) The appellate jurisdiction of the Court in relation to an appeal from a migration judgment of the Federal Magistrates Court is to be exercised by:
(a) a single Judge; or
(b)
Overview
The Migration Litigation Reform Act 2005 was enacted by the Parliament of Australia to address issues and inefficiencies in the existing legislative framework surrounding migration-related litigation. The Act aims to streamline the judicial review process for migration decisions and enhance the efficiency of the courts handling such matters. The primary focus is on amending the existing legislative provisions to improve the management of migration litigation, ensuring that the courts are equipped to handle these cases more effectively while maintaining the integrity and fairness of the judicial process. The Act also seeks to clarify jurisdictional boundaries and the procedural requirements for migration-related litigation, contributing to a more coherent and expeditious legal framework for dealing with migration decisions.
Scope and Application
The Migration Litigation Reform Act 2005 applies to various persons and entities involved in migration matters, including applicants, the Minister for Immigration, the Federal Magistrates Court, the Federal Court, and the High Court. This Act amends several legislative instruments to alter the jurisdiction and procedures of courts concerning migration decisions, with a focus on privative clause decisions, purported privative clause decisions, and non-privative clause decisions as defined within the Migration Act 1958. The amendments are applicable to proceedings commenced on or after the commencement day, which is 1 December 2005, or as specified in the Schedule. The Act applies across the Commonwealth of Australia, affecting federal courts and legislation. Exclusions include primary decisions and specific privative clause decisions that fall outside the scope of the amended jurisdiction provisions. The application of the Act may be extended or restricted through subordinate instruments, though the primary text does not detail such provisions.
Key Provisions
- The Migration Litigation Reform Act 2005 (Cth) amends several pieces of legislation to alter the procedural framework for migration-related litigation in Australian courts. The Act primarily modifies the Administrative Decisions (Judicial Review) Act 1977, Federal Court of Australia Act 1976, Federal Magistrates Act 1999, Judiciary Act 1903, and Migration Act 1958. Section 1 of the Act introduces definitions critical to its operation, such as "migration judgment" and "purported privative clause decision". These definitions help clarify the scope and application of the subsequent amendments.
- The Act imposes various obligations on the parties involved in migration litigation. For instance, it mandates that applications to the Federal Magistrates Court for remedies concerning migration decisions must be made within 28 days of the notification of the decision (section 477). The Act also requires lawyers to certify in writing that there are reasonable grounds for believing that migration litigation has a reasonable prospect of success before filing the relevant documents (section 486I). Additionally, it mandates that individuals must not encourage others to commence or continue migration litigation if it has no reasonable prospect of success (section 486E).
- The Act delineates specific offences and penalties for breaches of its provisions. For example, if a person acts in contravention of section 486E, the court may make orders for that person to pay costs incurred by other parties due to the litigation (section 486F(1)). The Act also provides for the possibility of limited waiver of legal professional privilege in certain circumstances (section 486H). Furthermore, the Act stipulates that a court must refuse to accept a document commencing migration litigation if it is required to be certified under section 486I and it has not been (section 486I(2)). These measures underscore the legislative intent to streamline migration litigation processes and deter frivolous or unfounded legal actions.
- Area of Law
- Administrative Law
- Civil Litigation & Procedure
- Instrument
- Act
- Concepts
- Commencement Provisions
- Reporting & Disclosure Obligations
- Offence Provisions
- Transitional Provisions
- Enforcement Powers
- Rights & Protections