House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Daryl Williams AM QC MP)

Schedule 1 - Amendment of the Migration Act 1958

Part 1 - Amendments

Items 1 to 4-Subparagraph 42(2A)(e)(ii); Subsection 114(1); Subsection 137G(1); and Subsection 153(2)

4. Items 1 to 4 amend provisions of the Migration Act to include a reference to Federal Magistrates Court. These amendments are consequential to the amendments to Part 8 of the Migration Act, which give the Federal Magistrates Court concurrent jurisdiction with the Federal Court in matters under Part 8 of the Act.

Item 5 - Part 8 (heading)

5. Item 5 amends the Act by substituting a new heading for Part 8 of the Act. The new heading reflects the fact that the Federal Court and the Federal Magistrates Court have concurrent jurisdiction under Part 8.

Item 6 - Division 2 of Part 8 (heading)

6. Item 6 amends the Act to substitute a new heading for Division 2 of Part 8. This amendment is consequential to the amendments giving the Federal Magistrates Court concurrent jurisdiction under Part 8.

Items 7 to 9 - Sections 476 and 477

7. Items 7-11 amend sections 476 and 477 to insert a reference to the Federal Magistrates Court. These amendments confer jurisdiction on the Federal Magistrates Court in relation to an application for a review of judicially-reviewable decisions (section 476) and in relation to applications in respect of failures to make decisions (section 477).

Item 10 - Subsection 478(1)

8. Item 10 makes a consequential amendment to section 478 to limit the provision to applications made to the Federal Court.

Item 11 - After section 478

9. Section 478 requires an applicant under sections 476 or 477 to make the application for review in such manner as specified in the Federal Court Rules and to lodge the application with a Federal Court Registry within 28 days of being notified of the decision for which review is sought. Subsection 478(2) prevents the Federal Court from granting an extension of time for the lodgment of review applications. Item 11 inserts new section 478A that provides for a similar process for the Federal Magistrates Court.

Items 12 to 18 - Section 481

10. Section 481 sets out the powers of the Federal Court in relation to orders that the Court may make in respect of review of judicially-reviewable decisions and review on the basis of failure to make a decision. Items 12 to 18 make consequential amendments to provide that the Federal Magistrates Court has the same powers as the Federal Court to make orders under section 481 of the Act.

Item 19 - Subsection 482(1)

11. Subsection 482(1) provides that the decision to be judicially reviewed by the Federal Court continues to have legal effect pending the outcome of the application for review. Item 19 inserts a reference to the Federal Magistrates Court so that decisions to be judicially reviewed by the Federal Magistrates Court will also continue to have legal effect.

Item 20 - After subsection 482(2)

12. Subsection 482(2) permits the Federal Court to make interim orders as necessary to ensure that the outcome of an application can be effective. Item 20 inserts new subsection 482(2A), which provides for the Federal Magistrates Court to also be able to make such interim orders as are necessary.

Item 21 - Subsection 482(3)

13. Item 21 consequentially amends subsection 482(3).

Item 22 - After subsection 482(4)

14. Subsection 482(4) allows the Federal Court to revoke, vary or suspend orders made under subsection (2). Item 22 inserts new subsection 482(4A) to provide the Federal Magistrates Court with the same powers as the Federal Court.

Item 23 - Subsection 482(5)

15. Item 23 consequentially amends subsection 482(5).

Item 24 - Subsection 485(1)

16. Subsection 485(1) provides that the Federal Court does not have jurisdiction in respect of judicially-reviewable decisions other than that provided by the Migration Act 1958 or section 44 of the Judiciary Act 1903 . Item 24 amends section 485(1) to include a reference to the Federal Magistrates Court in order to ensure that the Federal Magistrates Court also does not have any other jurisdiction other than that provided by the Migration Act 1958 or section 44 of the Judiciary Act 1903 .

Item 25 - Subsection 485(2)

17. Subsection 485(2) preserves the jurisdiction of the Federal Court where an appeal has been instituted under section 44 of the Administrative Appeals Tribunal Act 1975 . Item 25 amends subsection 485(2) to include a reference to appeals to the Federal Magistrates Court under section 44AA of Administrative Appeals Tribunal Act so that the same preservation of jurisdiction applies to it.

Items 26 to 27 - Subsection 485(3)

18. Subsection 485(3) provides that if a matter relating to a judicially-reviewable decision is remitted to the Federal Court the Court only has the powers in relation to that matter that it would have had if the matter had come to the Court directly by an application under Part 8 of the Act. Items 26 and 27 make consequential amendments to subsection 485(3) so that the subsection will also apply to judicially-reviewable decisions remitted to the Federal Magistrates Court.

Item 28 - Section 486

19. This section provides that, subject only to section 75 of the Constitution, the Federal Court is the only Court with power to review judicially-reviewable decisions. Item 28 amends subsection 486 so that it will also apply to the Federal Magistrates Court.

Item 29 - Subsection 500(6)

20. Subsection 500(6) provides that where an application has been made to the Administrative Appeals Tribunal for the review of a decision under section 200 ordering the deportation of a person, that order shall not be taken for the purposes of section 253 to have ceased or to cease to be in force by reason only of any order that has been made by the Tribunal or a presidential member under section 41 of the Administrative Appeals Tribunal Act 1975 or by the Federal Court or a Judge of that Court under section 44A of that Act. Item 29 restructures the subsection and includes any order that has been made by the Federal Magistrates Court or a Federal Magistrate under section 44A of the Administrative Appeal Tribunal Act 1975 .

Part 2 - Application of amendments

Item 30 - Application of amendments

21. Item 30 provides that the amendments to the Migration Act made by Schedule 1 apply in relation to applications made under:

(a)

section 476 for review of a judicially-reviewable decision made on or after the commencement of this item;

(b)

subsection 477(1) in respect of a failure to make a judicially-reviewable decision where there is no specified time period in which to make the decision but that decision ought reasonably to have been made in a period that ends on or after the commencement of this item; and

(c)

subsection 477(2) in respect of a failure to make a judicially-reviewable decision that is required to be made in a specified time period and that period ends on or after the commencement of this item.