New Bill will leave refugees unrepresented

Submissions also challenged the assumption that the majority of cases determined by the courts were represented by lawyers or advised by migration agents who encouraged unmeritorious claims - and by implication, therefore, challenge a key rationale for this Bill.

The same concerns were raised when the Senate Legal and Constitutional Affairs Committee examined the Bill earlier this year. Of the 25 submissions to the committee, only two were in favour of the Bill.

This is because the Bill introduces such dramatic changes to the dealing of cases.

Under this legislation migration matters are directed primarily to the overworked Federal Magistrates Court. The Bill would impose shorter time limits for applying for judicial review, along with an obligation for migration agents and lawyers to certify that cases have a reasonable ground for success before being lodged.

There is real concern that this will hamper a lawyer’s ability to assess the chances of success. Generally lawyers lodge an action, then seek documents under Freedom of Information (FOI) laws, and as they gather evidence, learn more about a case. Shortened time limits will make it almost impossible to make a judgment in case information comes to light that may weaken the client’s case.

The Bill also allows the High Court, Federal Court and Federal Magistrates Court to summarily dismiss proceedings if the court is satisfied there are no reasonable prospects of the case succeeding. A real concern here is the fact this provision is not limited to migration law but covers all proceedings commenced in these courts. Thus the potential implications of this legislation extend well beyond the migration field.

On the face of it, the public may feel that it is reasonable that cases which can’t succeed should not be allowed to clog our court systems. In reality it will be almost impossible to determine what “reasonable prospect of success” actually means. The Bill itself tells us that:

proceedings need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.

Summary dismissal means the court does not hear the case, does not hear the evidence and would move to dismiss without accessing departmental files or tribunal proceedings.

Courts already have the power to summarily dismiss proceedings but they also have clear guidelines as to what type of proceedings should be dismissed. This new definition muddies the water to such an extent it may actually exacerbate things for the government. Judges faced with a motion to summarily dismiss an action may ask for more material, increasing the time and costs of each case, and possibly pushing more cases to the High Court.

The same definition for summary dismissal applies to another contentious provision of the Bill: the requirement that if the court at the time of giving judgment finds the litigation had no reasonable prospect of success, it must consider if a personal cost order should be made against a person, lawyer or migration agent who encouraged the litigant to commence or continue litigation.

The wording of the Bill is important. It very clearly states that the court “must consider whether an order under this section should be made” and sets out that a person or lawyer must not encourage another person to litigate where the litigation has no reasonable prospect of success. In other words, there is no discretion on this count; if a case fails the test, the court must consider imposing costs. Draconian stuff, to say the least.