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The Migration Litigation Reform Bill 2005

by Jack H Smit

Another D-Day is about to arrive for human rights in Australia - next week Tuesday, as scheduled on the Parliamentary program for about 12:30: the tabling of the Migration Litigation Reform Bill 2005. Some details of the Bill are below, as taken from the Parliament website.

I think the Bill is a disgrace, but it is also an opportunity to show to the better informed how the fight to the death between politicians in the Howard administration and the "refugee lobby" is a callous one, and that for the politicians, backed up by the best of their legal advisors and legislation drafters, this fight is one they're fully prepared to fight - and it seems there's no limit to the budget. No doubt they, the politicians, are set for another win in the context of a Senate majority, but it will not necessarily be a win for public opinion of those politicians. The balance of those accounts has changed considerably since Cornelia Rau and Vivian Alvarez. This week Vivian Alvarez' lawyer George Newhouse wrote in the Sydney Morning Herald

In the coming days, the Senate will consider extending the courts' power to summarily dispose of immigration proceedings and to impose personal liability for legal costs on lawyers. The changes will deliver less impartial supervision of the department and administrative decisions. They will also require lawyers to certify at the start of proceedings that an application has merit and there will be strict time limits for judicial review. With legal aid and pro-bono lawyers exposed to tens or hundreds of thousands of dollars in penalties, many will be forced to leave applicants unrepresented.

The proposed legislative changes are surprising, given that the Palmer inquiry found the department has a "culture that is overly self-protective, a culture that is largely unwilling to challenge organisational norms or engage in genuine self-criticism or analysis". With its poor track record, now is not the time to strengthen the position of departmental officers when making decisions about incarcerating or removing individuals.

The act already limits the right to provide immigration advice to migration agents and restricts rights of appeal and judicial review. The cost and administrative burden of the migration agents licensing regime acts as a choke on legal centres and pro-bono lawyers and stops them from taking on migration cases.

Vivian Alvarez Solon's inability to get help from a local legal aid centre because of immigration licensing restrictions is one of the most serious, but unknown, failings of the Migration Act and contributed to her wrongful deportation.

Likewise, when lawyers visited Baxter on New Year's Eve in 2004 they were not able to see Cornelia Rau because of limits on their rights of access to detainees since the act requires mentally ill detainees to apply formally to see a lawyer.

In his report Mick Palmer recommended improved access to medical care. However, he could not address the act's impediments to obtaining legal advice or judicial review, and this has allowed the Government carte blanche to proceed with this further ratcheting down of legal rights.

The Migration Act is bloated and legalistic, and even a well-educated lay person would find it difficult to wade through its Byzantine regulations. People with limited English or a disability are incapable of understanding their basic rights under it, let alone its arcane provisions and regulations. After the string of recent errors there should be greater review and increased access to legal advice, not less.

Metcalfe has started a structural review of his department. But if the Government is serious about immigration reform, it needs to revisit the Migration Litigation Reform Bill 2005 to ensure it complements the department's new direction, and to change it so that it effectively deals with the real issues that plague our immigration system.

After the criticisms in the Palmer report, the Government's immigration processes are at a watershed. Why is it persisting with this legislation when it goes against recommendations for increased scrutiny and openness?

To propose further limits on legal services and judicial review after the wrongful detentions of Rau and Alvarez suggests that the Government has learned nothing from these tragic cases. These laws do nothing to confront the culture of denial and secrecy in the Immigration Department.

And former Democrats' advisor and Migration Agent Marianne Dickey writes in Online Opinion: (full article recommended for further reading)

Advocates, who assist or encourage refugees and asylum seekers to seek judicial review of migration decisions, may be liable for the costs incurred under proposed changes to legislation.

The impact of the proposed legislation is already being felt, with community lawyers and legal advisers announcing they will be unable to take on pro bono work for asylum seekers once this Bill has been passed.

The Migration Litigation Reform Bill 2005 is one of a series of Bills which is aimed at restricting - some would say preventing - judicial review of migration decisions. Like all migration Bills, it is complex. But the fact that it should pass the government-controlled Senate easily means very little attention has been paid to its possible ramifications.

There is no doubt that the outcome of this legislation will be far reaching and potentially retrograde, especially for those already disadvantaged under the current system. It directly affects litigants, their advisers, legal representatives and migration agents

I tried to prime the media on 7 October for the issue with a furious press release. For the material I could draw on some revealing assessment figures from an article I wrote shortly after the Georgiou group had presented its case for detention policy changes to the Coalition caucus. I wrote in the release:

While there is now overwhelming evidence since the Tampa affair that the DIMIA primary refugee assessors are stacked to such a level by political bias, that it can be said to be entirely corrupt, the Minister for Immigration, just fresh from the Vivian Alvarez debacles, has the audacity to push for this legislation.

In 2002 Jesuit Priest Frank Brennan concluded that the DIMIA primary assessment had an average error rate of 75%, as shown by the number of cases overturned on appeals by the RRT

Last year, the DIMIA Primary Assessor erred 100% of the time in relation to the Hao Kiet Vietnamese, causing them untold grief as a result, by having them locked away in the Christmas Island refugee jail. It took the Vietnamese community tens of thousands of dollars and the refugees a 2-year imprisoned wait until under the threat of Federal Court action the DIMIA started to see some sense - and it took Ministerial intervention with many of the Vietnamese so the heat could be pointed away from also some shonky reviews by members of the RRT.

And paralegals in Western Australia have confirmed to Project SafeCom that the re-proving of refugee claims for TPV holders caused an error rate for the DIMIA assessors of 95% of the time amongst the about 800 applications in the last year. This shocking error rate correlates to similar rates in other states for TPV holders, as confirmed by Ms Pamela Curr of the Melbourne Asylum Seeker Resource Centre.

This is the context where several Liberal MP's have been trying to 'sell the line' that endless periods spent in detention is a result of the many court appeals that are possible for refugees. These MP's are peddling this entirely false notion to push for the legislation, but they fail to be open and accountable for the fact that it was the shocking errors made by the DIMIA that caused this detention in the first place.

Project SafeCom spokesman Jack H Smit said, that "this legislation was pushed immediately following the party room meeting that considered the demands by Petro Georgio's group - and in the weeks following the 31 May party meeting, MP's such as the treasurer Peter Costello, Mal Washer (Moore), Malcolm Turnbull (Wentworth) declared that this legislation would "fix the problem" while Attorney-General Phillip Ruddock at the time expressed he would introduce this legislation using the Senate marority after July 1 this year.

This week we can again witness the serious problems with the DIMIA culture, but the fact that these MPs peddle the false notion that taking away justice of court reviews will fix the problem of detention, shows that the same culture pervades the Howard administration. It is politicians who should be brought to account.  Since Tampa they are the authors of the poisoned climate for unannounced refugees coming to our country.

Senate Inquiry

The Bill was announced by the Immigration Minister Amanda Vanstone in a press release on 10 March - of course as one that would reduce the workload of the courts and a reduction to the huge blow-out of the costs of the Immigration Department's litigation budget, referring to the unmeritorious claims put by lawyers and shonky migration agents. Nobody in government however, informs the public about the consultations of this same Department with translation services, such as those used for (against?) the Bakhtiary family - the company that proved to be linked to Osama Bin Laden and Al Queda - see the link.

The Senate Legal and Constititutional Committee soon afterwards launched their Inquiry, and on the parliamentary website are the 25 submissions received from legal as well as advocacy centres. The documents are worth exploring, and the Senate Report was issued on May 11, 2005.

The Bill

Here's the full text of the Bill from the Parliament website:


Index

Bills Digest no. 132 2004–05

Migration Litigation Reform Bill 2005

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
General Comments
Specific Comments
Endnotes
Contact Officer & Copyright Details


Passage History

    Migration Litigation Reform Bill 2005

    Date Introduced: 10 March 2005

    House: House of Representatives

    Portfolio: Attorney-General

    Commencement: Schedule 1 commences on a day to be fixed by Proclamation or, if this does not occur within six months of Royal Assent, on the first day after that period. Schedule 2 commences on Royal Assent

    Purpose

    To amend the Migration Act 1958, the Federal Court of Australia Act 1976, the Federal Magistrates Act 1999 and the Judiciary Act 1903 to assist courts in managing their migration litigation workload.

    Background

    Given the short time between introduction of this Bill and scheduled debate in the House of Representatives, this digest is a draft covering key points only. It will be revised to include a more comprehensive discussion in time for further consideration of the Bill by the Parliament.

    Readers are directed to Bills Digest No. 118 of 2003-04(1) on the Migration Amendment (Judicial Review) Bill 2004 (the '2004 Bill'). The 2004 Bill contained similar (although not identical) reforms to the 2005 Bill. The digest on the 2004 Bill includes extensive background and a detailed reading list. The 2004 Bill was also the subject of an inquiry(2) by the Senate Legal and Constitutional Legislation Committee. The 2004 Bill lapsed when Parliament was prorogued for the October 2004 federal election.

    Main Provisions

    The main proposals in the Bill are to:

  • Direct migration cases to the Federal Magistrates Court (FMC)

    • The Federal Court will have limited jurisdiction in migration matters, restricted to complex cases referred by the FMC and review of decisions to cancel the visas of, or deport, people on 'character' grounds

    • Nearly all migration cases remitted from the High Court will be channelled directly to the FMC

    (Item 17)

  • Ensure identical grounds of review in migration cases

    • The grounds of review in migration matters in the FMC will be the same as those in the High Court under s75(v) of the Constitution. Section 75 of the Constitution states that the High Court has 'original jurisdiction' (i.e. the authority to hear cases) in all matters:

      (v) in which a writ of Mandamus [directing that an officer do a certain action] or prohibition [preventing an officer from doing a certain action] or an injunction [halting a current or future action for a period of time] is sought against an officer of the Commonwealth.

    (Item 17)

  • Impose uniform time limits in migration cases

    • Applications to the FMC, Federal Court and the High Court must be made within 28 days of actual (rather than deemed) notification of a decision. The 28 day time limit can be extended by a further 56 days if a request for further time is made within 84 days of actual notification of the decision

    (Item 18 and Items 30-33)

  • Facilitate quicker handling of migration cases

    • Require applicants to disclose previous applications for judicial review of the same migration decision

    • Expressly provide for the High Court to remit migration and other cases 'on the papers' (i.e. without a hearing)

    (Items 10 and 37)

  • Deter unmeritorious applications

    • Allow the High Court, Federal Court and FMC to dispose of a matter summarily on their own initiative if satisfied that there are no reasonable prospects of success

    • Prohibit lawyers, migration agents and others from encouraging unmeritorious migration litigation, with the risk of a personal costs order for contravening this prohibition.

    General Comments

    Migration Litigation Workload

    The Explanatory Memorandum notes that:

    The Government is very concerned about the large increases in the number of migration cases in the federal courts in recent years and the very low success rate of this litigation. Migration litigation constitutes a substantial proportion of the workload of the High Court, Federal Court and Federal Magistrates Court (FMC). In recent years, the Government has won over 90 per cent of all migration cases decided at hearing. Unsuccessful cases are not necessarily unmeritorious. However, the very high failure rate reflects concerns raised, including by the courts, about high levels of unmeritorious migration litigation.

    The large volume of judicial review proceedings, unmeritorious litigation and delays are very costly and are placing strains on the courts and the migration system more generally. Extended waiting times in courts have been taken advantage of by some applicants using the court process simply to delay their removal from Australia and prolong their stay in the community. These delays impact on applicants with genuine claims who are waiting to have their cases considered.(3)

    In October 2003 the Government commissioned the Migration Litigation Review conducted by Hilary Penfold QC to inquire into more efficient management of migration cases. According to the Second Reading Speech, the measures in the 2005 Bill have been drawn from recommendations by the Review. Bills Digest no 118 noted in relation to the 2004 Bill that:

    The Government has asked Parliament to approve the current Bill without releasing the Migration Litigation Review. There has been no public indication of what its conclusions and recommendations were. This prevents any assessment either of the adequacy of the Review in addressing the issue of migration caseload or the adequacy of the Bill as a response to the Review.(4)

    The findings of the Review have yet to be released. In other words, the Government has still not revealed publicly the detailed analysis from the Review on which the proposals in the 2005 Bill are based.

    The table below shows figures for judicial review applications in migration matters in various courts from 1997 to 2005. As Bills Digest no.118 noted, there was a large increase in applications in 2002/03 after the government prohibited 'representative' actions in migration matters, causing the single Muin case to be split into an additional 1350 matters, which were filed in the High Court in that financial year.(5) After the distorting effect of the Muin case on migration matters passed, numbers of migration applications have declined dramatically. The extent to which the reforms proposed in the Bill are now necessary is unclear.

    The FMC, which commenced hearings in 2000, received jurisdiction in migration matters in 2001. As the Second Reading Speech notes, 8 additional magistrates have been appointed to the FMC. The graph below indicates that the FMC is playing the role intended for it, taking on a substantial part of the burden in migration matters from the Federal Court and the High Court.

    Judicial review of migration decisions

    Specific Comments

    Time limits and 'Purported decisions'

  • As explained in Bills Digest no 118, in Plaintiff S157 the High Court said that a decision under the Migration Act affected by 'jurisdictional error' (i.e. a significant mistake') was not a valid decision under the Act. So appeals from such a decision could not be caught by the time limits in the Act. The High Court called migration decisions with such mistakes 'purported' decisions.

    • The 2005 Bill amends the Migration Act so that it specifically includes 'purported decisions'. Any time limits on appealing in the Act will now apply to 'purported' decisions

    • Logically, however, it is difficult to see how this can be effective. The High Court has said that 'purported' decisions are outside the scope of the Migration Act. So amending the Migration Act itself cannot bring them within its scope.

  • A 'purported' decision is defined by the Bill to include anything listed in s474(3) of the Migration Act. So, for example, purported 'conduct preparatory to making a decision', a purported 'failure or refusal to make a decision' or a purported 'refusal to do any other act or thing would all be subject to the time limits and other restrictions on judicial review in the Migration Act

    • the wide definition of 'purported' decision may make it difficult for people to recognise that some decision or action, or inaction, has occurred which has started time limits running for lodging an appeal

    • the consequence may be that people may seek to lodge 'precautionary' appeals in case they have been the subject of a 'purported' decision without this being obvious to them. This will be all the more difficult, however, because of the proposal in the Bill to 'penalise' unmeritorious applications. In practice, therefore, applicants may be caught between, on the one hand, a vague definition of 'migration decision' linked to strict time limits for appealing and, on the other hand, a prohibition on appealing if there are 'no reasonable prospects' for success, linked to personal costs orders.

    The Constitution and time limits

    See the discussion at pp13-14 of Bills Digest No 118.

    Remitting migration matters to the FMC from the High Court

    Pursuant to section 44 of the Judiciary Act 1903, the High Court could remit any matter, on its own motion or on application of the parties, in full or in part, and whether or not the matter originated in the High Court. Importantly however, the Migration Legislation Amendment (Judicial Review) Act 2001, which commenced in September 2001, removed the power of the High Court to remit matters that relate to immigration decisions where those decisions a) have a merits review process attached,(6) and b) are subject to the Minister’s discretion to substitute a more favourable decision.(7) It follows that these constitutionally entrenched matters must now be reviewed by the High Court itself.

  • The Bill does not change this position, but simply directs the High Court to remit other migration matters directly to the FMC.

    Prohibition on unmeritorious applications

  • This proposal may raise constitutional issues, especially the possible intrusion of the legislature into the 'judicial power' of the Commonwealth, in contravention of Chapter III of the Constitution

    • The Bill gives discretion to courts to decide whether an unmeritorious application has been brought and whether a personal costs order should be made against the applicant, his or her lawyer or migration agent. However it directs courts to consider whether a personal costs order should be made. This could potentially amount to an unconstitutional intrusion into federal judicial power.

  • Parliament may also wish to consider a number of policy issues raised by this proposal

    • Whether this would discourage lawyers and/or migration agents offering advice to potential applicants, leading to more unrepresented (and potentially less meritorious) applications. A practical issue may be whether applicants with no ability to pay in any case if a decision goes against them would be discouraged by the threat of a personal costs order

    • Whether this may provoke a significant number of cases about whether an unmeritorious application has been made.

  • The provisions in the Bill allowing summary judgments at the initiative of the High Court, Federal Court or FMC apply not just to migration matters but to all matters. It is suggested that Parliament should seek specific advice on the full implications of this proposal.

    Further reading

    Endnotes

    1. http://www.aph.gov.au/library/pubs/bd/2003-04/04bd118.pdf.

    2. http://www.aph.gov.au/senate/committee/legcon_ctte/completed_inquiries/2002-04/mig_judicial_04/index.htm.

    3. Explanatory Memorandum, p. 1.

    4. Bills Digest no 118 2003-04, p. 9.

    5. Ibid, p. 2.

    6. Subsections 476(4) and (1) of the Migration Act.

    7. Subsections 476(4) and (2) of the Migration Act.

 

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Kaye

Click here to listen to the SBS radio Nightwatch programme - and hear the story of the misapplication of the border protection laws against refugees.

The Australian Government’s willingness to downplay and turn a blind eye to major human rights abuses (in particular our own that can be credited to the policy of mandatory detention), predictably sets the culture and attitudes of officials in DFAT and DIMIA.

This Government’s wilful blindness is the root cause of the length of processing of the refugees who arrived aboard the Hao Kiet from Vietnam, escaping persecution from the communist regime.

Less than 24 hours went by in 2003 when the then Immigration Minister Phillip Ruddock press release spin stated, "I do not think this is a major smuggling enterprise of the sort that we were dealing with when large numbers of vessels arrived.” Mr Ruddock added, "I see this as more of an opportunistic attempt."

Despite Australia holding the Vietnamese asylum seekers who fled the communist regime in an offshore pen on Christmas Island for nearly two years, John Howard openly admitted that he had not taken the golden opportunity to raise well-documented human rights issues with the Vietnam President during his visit to Australia in May last year.

Trade and bilateral relations were exclusively paramount in the talks between the two leaders.

re: The Migration Litigation Reform Bill 2005

Er ... might take a while. What exactly do you mean by "explain"? Do you want a discourse on the draft Bill versus the spin?

Be fair, I'm only a laywer.

ed Kerri: of course you are Malcolm but in spite of that I think you can elucidate on the differences. After all, you noticed them in the first place. But only bother if they are substantive differences to the bill we published.

re: The Migration Litigation Reform Bill 2005

Dear Malcolm. You're right. The full Bill rather than the summary version is at your link.

Please, in your learned way, could you explain the difference? Many thanks.

re: The Migration Litigation Reform Bill 2005

The correct link to the full text of the Bill is here (pdf file).

re: The Migration Litigation Reform Bill 2005

Notice this Penfold woman's name keeps popping up. Any connection with the mob that make plonk?

Nothing that turns up seem to flattering - another Moore Wilton type?

re: The Migration Litigation Reform Bill 2005

According to ACT-based blog RiotACT, Hilary Penfold is apparently the originator of the famous "mate" memo which managed to embarrass her boss.

No doubt he was punished.

re: The Migration Litigation Reform Bill 2005

Department of Parliamentary Services

Executive Staff

Secretary - Ms Hilary Penfold QC
Tel: (02) 6277 7100
Fax: (02) 6277 5417
email: hilary.penfold@aph.gov.au

And from comments to Webdiary's Delving into 'Democracy Denied' because it matters to all of us, where Margo points at the Crikey item of 13 July this year, that outlines the disappearance of essential impartiality of Parliamentary Library Services (the Crikey item describes the resignation of Penfold's colleague, the Head of the Library, Dr June Verrier):

"Hilary Penfold QC is parliament's top bureaucrat, secretary of the Department of Parliamentary Services. Penfold, who has a well-tuned political antenna, secured her job after drafting John Howard's razor-edged border protection legislation when the Tampa arrived off Christmas Island. She did this while sitting in the PM's anteroom as controversy swirled outside."

Of course Penfold was NOT the person who resigned in protest.

re: The Migration Litigation Reform Bill 2005

I do not profess any expertise in Migration Law. These comments are not to be taken as legal advice for the purposes of any Migration legislation and I am not a licensed Migration Agent.

That said, this Bill is pernicious for a number of reasons. Its clear intent is that it is designed to exclude lawyers acting for people in Migration cases, including purported appeals from the decision of the Minister or its delegate (and I use “its” deliberately because no human could do this).

Leaving aside the merits of decisions made by the Minister or the general desirability for some form of redress by way of Judicial review of such decisions, it strikes me that there are three basic problems with this bill.

1. The interaction between the Migration Act link here and the Judiciary Act link here is now unclear. While the Bill provides for amendments to the Judiciary Act, it does not specifically divest the High Court of the power to remit matters to other Courts. It tries to do that by amendments to the Migration Act. Another magnificent cock-up by the draughtsman. I actually feel sorry for Bennett QC if he ends up being the poor bunny who has to argue this rubbish.

2. The act is squarely designed to prevent lawyers from instigating litigation on behalf of clients. In a clumsy way, it tries to pick up the spirit of s 198 L of the Legal Profession Act (NSW) 1987 link here introduced by the Civil Liability Act link here In lay terms that requires a legal practitioner to certify that the proceedings have “reasonable prospects of success”. That is currently being interpreted by the NSW Supreme Court. What it means, in objective terms is still anyone’s guess. The sanction is that the legal practitioner may not only be unable to recover his fees from the client if it turns out that there were no reasonable prospects of success (see e.g. Flower & Hart link here ) but that the lawyer may also be liable for the other side’s costs. This Bill goes further than the NSW legislation in that it includes, in a number of different places, this sting:

For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
This raises the following problems:
(i) the client can still institute or defend proceedings himself;
(ii) under the NSW Bar Rules (now adopted as the Advocacy Rules throughout the Commonwealth and having the force of Regulations) the cab rank rule requires that an advocate MUST accept a brief for anyone with an arguable case who is prepared to pay his fee (subject to certain exceptions which are not presently relevant like conflict of interest and so on);
(iii) having decided that a case has arguable merit and being obliged to take it on under the Bar Rules, the new provision means that, notwithstanding that there is merit in the case at the time of taking the brief, the Court may later decided that it still has no reasonable prospect of success.

3. There is a further sting. The Bill adds a s 486E. Contrary to the vehemently expressed views of some of the correspondents to this site, lawyers are persons. The effect of this drivel is first, I haven’t a clue what “encourage” means in this context. Does an advocate “encourage” someone by taking a case he is obliged to take under the Bar Rules? I take lots of cases and I always try to discourage my clients by pointing out to them the pitfalls of litigating. Often I am instructed to go ahead anyway. Secondly, under this definition, one can never be certain of whether a Court will decide that an arguable case had no reasonable prospect of success until the Court makes its decision. Post hoc ergo propter hoc is no basis for advising someone about prospects before one begins litigation.

4. One wonders why any of this is necessary anyway. Are we simply to allow faceless Public Servants to make important decisions affecting peoples’ lives without any scrutiny? What if they get it wrong? That surely couldn’t happen in relation to immigration matters could it? Isn’t it dead simple? Either you’re a citizen or you’re not. No-one could possibly make a mistake about that could he?

I say tell them to jam it.

re: The Migration Litigation Reform Bill 2005

Thanks to Malcom B Duncan.
A fascinating insight, both into the sinister thinking behind and involving the Bill and a new insight as to your own talents, when an issue capable of focussing them arises. Some will hold out concerning the more extravagant claim enveloped within the rich assessment of the thinking behind the Bill and its motivations and execution; that lawyers may be human. Self-evidently problematic, if the accuracy of Malcolm’s assessment of the tenuous link between the Bill itself and reality and humanity, holds true.
Malcolm, you are a victim of your own ability, although there is a welcome and insurmountable contradiction in the mere fact of the summary; as opposed to the antics outlined, concerning the government and its hench-people.

re: The Migration Litigation Reform Bill 2005

To answer Paul Walter's question-no she is not related to that respected family. Malcolm B Duncan's analysis seems right on the ball but these changes really go further than that. They are a reaction from a government which has been embarrassed and exposed by it's past actions and seeks to silence it's critics.

To put pro-bono lawyers at financial risk is one of the nastiest moves I've ever seen and likewise seeking to punish advocates who "assist or encourage" is the sort of threatening language that can be used against anyone just as the new so-called 'anti-terrorism' laws that are being enacted. Why is any of this necessary ?. It's actually been the government and DIMIA who have been found to have acted incorrectly so many times and the majority of refugees are found to be genuine.

I'm surprised they aren't using a similar excuse about David Hicks in Gitmo and claiming if he would just admit straight up he was a terrorist he need not have spent nearly four years in jail.

This government increasingly attacks it's critics in the most pernicious way. It's supporters will hail this as yet another good move by a government with a 'mandate'. They need to be reminded that Germany was a civilised nation that slowly slipped down a trail of increasingly retrograde laws that enabled a monster to finally take-over. Howard or his ministers will not always be there. Someone who comes after may be the monster we willingly paved the way for.

re: The Migration Litigation Reform Bill 2005

From the Senate Inquiry reports:

Labor Senators additional comments

1.1 Labor Senators acknowledge that the committee's recommendation from its inquiry into the Judicial Review Bill in 2004 with respect to actual notification of decisions has been taken up by the Federal Government in the current version of the Bill. Labor Senators endorse the Federal Government's reconsideration of its approach to this issue.

1.2 However, Labor Senators remain concerned about several issues raised both in the course of the committee's current inquiry and its previous inquiry, particularly in relation to time limits and the constitutional validity of the Bill. Labor Senators again note that the Bill may be unconstitutional insofar as it imposes non-discretionary, absolute time limits for the judicial review of migration decisions, including those decisions suffering from serious jurisdictional error. Therefore, Labor Senators reiterate their previous concerns in relation to such constitutional validity issues.[122]

1.3 Labor Senators also express their disappointment at the Federal Government's continued failure to release the Penfold Report for scrutiny and comment, particularly in light of the fact that the findings of that Report form the basis of the Bill. Once again, access to the Penfold Report would have been instrumental in allowing the committee to more adequately assess the need and appropriateness of the Bill.

From the Senate Inquiry reports:

Australian Democrats dissenting report - Senator Andrew Bartlett on behalf of the Australian Democrats

1.1 After reviewing the evidence and submission presented to this inquiry, the Australian Democrats' view is that the Bill should be opposed.

1.2 The Democrats agree with the majority of witnesses to the inquiry that there is no valid justification for the Bill. The number of migration cases before the Federal and High Courts continues to decline from the considerable increase in migration case numbers in 2002 -2003. This peak in migration applications was due to the large increase in unauthorised arrivals between 1999 and 2001. The number of unauthorised arrivals has fallen markedly since then. Also evident is the fact that the 2002-2003 increase in migration cases was also due to the policy measures pursued by the Government, especially in relation to decisions not to allow representation actions in migration cases. Also significant is the Government's continued refusal to publish the findings and recommendations of the Penfold Report, which the Government asserts form the basis of the Bill.

1.3 In particular, the case has not been made for introduction of the radical proposal to award cost orders against any person deemed to have encouraged an unmeritorious application for review of a migration decision. The Democrats share the concerns raised by many witness and submissions that such provisions are in effect an attempt to discourage lawyers, volunteers and other Australians who have a legitimate role in assisting refugees and migrants.

1.4 Similarly, the Democrats consider that provisions seeking to restrict judicial review of migration decisions by the imposition of time limits are inappropriate and unnecessary given the courts' current powers to manage their caseload and to screen out unmeritorious applications.

1.5 The proposed privative clause is equally problematic as is the Bill's reference to 'purported privative clause decisions'. Serious doubts have been raised over the constitutional validity of the latter as well as over the imposition of time limits restricting judicial review of migration decisions. Moreover, these provisions will compound the complexity already inherent in the Migration Act and provide even more grounds for appeals. This is at odds with the Bill's stated aim of reducing the number of migration appeals and the associated cost and delay.

1.6 The Bill is based on a false premise and is unworkable and potentially dangerous. As the Democrats stated in respect of the earlier Migration Amendment (Judicial Review) Bill 2004:

Once we start limiting access to the courts for particular sections of the community, we are creating a legal system that does not hold everyone equal in the eyes of the law. It is imperative that those seeking asylum are not denied access to judicial review, particularly given the legitimate concerns about the adequacy of the existing determination process. We should be working harder to ensure that justice is delivered rather than subverted.

These comments apply equally to the Bill and now have even more force given the recent injustices wrought by the Government against its own citizens who have the misfortune to become embroiled in its immigration regime.

1.7 Consequently, the Democrats believe that the Bill should not be passed – even if it is amended in accordance with the Committee's recommendations. The Democrats appreciate the reasons for the Committee's recommendations for a report to Parliament on the operation of the Bill and for the sun setting of the summary dismissal powers. However, the fact remains that no real evidence has been presented which warrants the enactment of the Bill in the first place.

1.8 Notwithstanding the above, if the Bill is to be passed by the Parliament, it will be critical for the Committee's recommendations to be implemented. In addition, the Democrats believe that it is crucial that the Bill as a whole be subject to a sunset clause. The significant implications of this Bill for the courts, the legal profession, the rule of law and the lives of individuals at risk of persecution and seeking Australia's protection make it essential that the operation of the Bill be fully examined and debated by the Parliament if it is to continue.

Recommendation 1:

That the Bill be opposed.

Recommendation 2:

That, if the Bill is not to be opposed, it be amended in accordance with the Committee Recommendations.

Recommendation 3:

That, if the Bill is not to be opposed, it be amended to include a sunset clause which provides that the legislation will cease to have effect three years after it commences.

re: The Migration Litigation Reform Bill 2005

The scheduling for the tabling of the Bill has apparently been delayed, and not for the first time according to inside Canberra sources.

It appears that the Bill will now probably not even make it into the Senate during this session of Parliament. The Bill has been postponed umpty times. It seems that the government is waiting for a "cool" period without DIMIA dirt coming out - once again, after last week's Comrie Report into Vivian Alvarez and the revelations by the Ombudsman that yet another person was unlawfully locked away by the DIMIA cowboys for about 3 1/2 years, things are just too hot to present this Bill - it would be "too visible" for this government to sneakily rush the Bill into legislation.

If that's the criterion for this legislation, it may be another year before the Government goes ahead with it: there's another 200 unlawful detention stories that can leak to the media.

re: The Migration Litigation Reform Bill 2005

Media release from human rights campaigner, Kaye Bernard.

Boatpeople and the Malicious Intent of the Government

Vietnamese Refugee, Mr Tol Van Tran and Australian citizen Mr Hao Van Nguyen will stand trial for the 2nd time in the Perth District Court on Monday 17 October 2005 in relation to the arrival of the boat Hoa Kiet in Australia on 1 July 2003.

Mr Trung Doan of the National Vietnamese Community in Australia has slammed the Government saying "We believe that the Government's action in prosecuting the (above) people, then the to date lack of action to alleviate their suffering, indicates malicious intent or at least a repect for the will of Parliament, on the part of the DIMIA officials involved," in a submission to the current Senate Committee Inquiry into the Migration Act. (hyperlink below)

Previous convictions (section 232A of the Migration Act) of the 2 men were quashed in the Perth Supreme Court of Appeal. (hyperlink below) after the men had spent 2 years in prison serving a minimum mandatory sentence of 5 years with a 3 year non parole period.

In the earlier conviction the sentencing Judge called on the Federal Government Executive to 'exercise the royal perogative' of mercy for Mr Tran and Mr Nguyen based on the grounds that this was not a money making venture.

The Chief Crown Prosecutor from the first trial, Mr Hilton Dembo, in addressing a National Crown Prosecutor Conference in 2004 said that 'the conviction of Mr Tran and Mr Nguyen was contrary to the intent and purpose of the Legislature' in the making of the offence.

Mrs Kaye Bernard a Perth human rights advocate says, "The Government and the Oppostion were like small kids telling fibs in '99 when they fiddled with the Migration Act with their fingers crossed behind thier back. The Legislature appears to have given false guarantees to Australia that 'no refugee would suffer penalty' for this offence" and added, "It is rediculous for a Government who grandstands about reforming Migration litigation and then is hellbent on breaking their own promises by pursing this matter." (hyperlink below)

Bungling started on the minute these Hao Kiet passengers presented themselves to Australian authorities. Mr Nguyen handed the Australian authorities his current valid Australian passport and not long after was unlawfully placed under migration detention." said Mrs
Bernard.

Then in an extrodinary move the then Immigration Minister Phillip Ruddock was making public guesses by issuing media releases denouncing the group as 'opportunistic'. There was no interpretor in place on the boat at the time and the AFP had called for one to flown from Perth. It can only be assumed that Mr Ruddock had no available intelligence  about the refugees and made this up to suit the developing culture of rejection of refugees pervading the Department of Immigration.

The arrival of the boat Hao Kiet at Port Hedland caused a storm to erupt after the entire group were transported to Christmas Island aboard the HMAS Canberra and were detained in the recommissioned Immigration Processing centre there. Some estimates put the total cost
of the Government's actions in excess of $50 million.

After an intial 100% rejection of asylum claims by DIMIA the whole group were eventually granted protection visas including Mr Tran.

Amongst the arrivals on the boat Hao Kiet, were the parents of baby Michael Andrew Tran. Michael Tran's birth in detention, caused Government embarrassment when the Immigration Minister and the PM contradicted each other over the child's detention in June this year, acting as a catalyst for the Petro Georgiou enforced movement of children and families out of detention.

NGUYEN
-v- THE QUEEN [2005] WASCA 22 (25 February 2005)

1999 Hansard (PDF
687KB
)

Vietnamese Community in Australia Sernate Submission 8 August 2005 (PDF
1766KB
)

Contact: Kaye Bernard 0400 119 109

re: The Migration Litigation Reform Bill 2005

From the Human Rights and Equal Opportunity Commission:

Human Rights Commissioner visits Baxter Immigration Detention Facility
18 October 2005

Human Rights Commissioner Dr Sev Ozdowski visited Baxter Immigration Detention Facility on Monday, 17 October 2005.

The purpose of his visit was to conduct a routine inspection of the immigration detention facility (IDF), which is part of his role as Human Rights Commissioner.

Dr Ozdowski began visiting all IDFs in February 2001 and has maintained a regular program throughout his five year term. In late 2002, the Attorney-General tabled in Federal parliament a 'Report on visits to
Immigration Detention Facilities by the Human Rights Commissioner 2001'.

This was subsequently complemented by an intensive visitation cycle of IDFs throughout 2002, pursuant to the national inquiry into children in immigration detention, culminating in parliamentary tabling in May of 2004 of a report titled 'A last resort?'.

The Commission has had a continuing role in monitoring the conditions in detention centres from a human rights compliance perspective over many years. Detainees can also make complaints to the Commission under the Human Rights and Equal Opportunity Commission Act if they believe their
human rights have been breached.

In keeping with past practice, Dr Ozdowski will not comment publicly on conditions in Baxter IDF, but will advise DIMIA in writing of any human rights' issues, should that be necessary.

re: The Migration Litigation Reform Bill 2005

Kerri does Ozdowski's visit explain the paint jobs and the disappearance of the razor wire in certain detention centres over the past few months?

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