Effectiveness of Responses (HSC SSCE Legal Studies): Revision Notes
Effectiveness of Responses
Introduction to legal system responsiveness
Migrants can use the legal system to appeal decisions about their migration applications or status. However, the legal system has limitations in reaching solutions acceptable to all parties. Migrants face comparative disadvantages when dealing with government decisions, which raises questions about how responsive the legal system truly is to their needs.
Administrative review of immigration decisions
Pre-1989: limited appeal rights
Before 1989, prospective migrants found it extremely difficult to challenge decisions about their applications. Taking a government decision to court was both lengthy and expensive, creating significant barriers to justice.
The Fitzgerald Review (1985)
In 1985, the Human Rights Commission conducted a review of the Migration Act 1958 (Cth), chaired by Commissioner Fitzgerald. The review, titled Human Rights and the Migration Act 1958, strongly criticized the limited availability of independent review of migration decisions.
Introduction of merits review (1989)
Based on the Fitzgerald Review recommendations, Australia established a system of merits review by independent tribunals. This system had two tiers:
- Migration Internal Review Office (MIRO): provided independent internal review of decisions
- Immigration Review Tribunal (IRT): reviewed MIRO decisions and had power to conduct merits reviews
Merits review means a tribunal examines the facts of a case afresh, considers whether the decision was correct, and can change the decision if appropriate. This is fundamentally different from judicial review, where only the application of law is examined.
Creation of the Refugee Review Tribunal (1993)
A 1992 report affirmed the new system was working but recommended refugee decisions should be handled by an independent body. This led to the creation of the Refugee Review Tribunal (RRT) in 1993 to review decisions on refugee applications. Appeals from the RRT went to the Administrative Appeals Tribunal (AAT) or Federal Court, but only on matters of law.
Amalgamation into Migration Review Tribunal (1999)
In 1999, MIRO and the IRT merged to become the Migration Review Tribunal (MRT). This aimed to make review processes more efficient and economical.
Current structure: Administrative Appeals Tribunal (2015)
In 2015, the RRT and MRT became the Migration and Refugee Division of the Administrative Appeals Tribunal (AAT). This consolidated migration reviews under one body. Appeals from the AAT can be heard by the Federal Circuit Court, but only on matters of law.
Key distinction for evaluation: Be clear about the difference between merits review (examining facts and decision correctness) and judicial review (examining only whether law was correctly applied). This distinction is crucial for evaluation questions.
The review process
Administrative Appeals Tribunal (AAT)
When prospective family-sponsored and independent migrants believe their applications were decided incorrectly by the Department of Immigration and Border Protection (DIBP), they can lodge a claim for review with the AAT.
The AAT process includes:
- Power to conduct merits reviews: the tribunal examines facts afresh
- Legal representation allowed: parties can have lawyers, but must pay a fee
- Court-like hearings: formal proceedings are conducted
- Written submissions and evidence: both applicant and DIBP present their case
Federal Circuit Court appeals
If an applicant fails at the AAT, they may challenge the decision in the Federal Circuit Court. However, this is not a merits review – the Court can only consider whether the correct decision-making process was followed. This is called judicial review.
Limitations of Federal Circuit Court appeals:
- Time-consuming
- Expensive
- Not advisable without legal representation
- Not available as a practical option for most unsuccessful applicants
When evaluating effectiveness, note that Federal Circuit Court appeals are theoretically available but practically inaccessible for many migrants due to cost and complexity.
Case study: SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119
Worked Example: Judicial Review in Practice
Background
SZKCQ, a Pakistani national, feared persecution due to his membership of the Pakistani People's Party (PPP). The Refugee Review Tribunal (RRT) dismissed his application, finding Australia had no protection obligations towards him.
RRT process issues
The RRT asked SZKCQ to obtain confirmation letters from PPP officials (Mr A and Mr K) about his standing and situation. The Tribunal then:
- Sent these documents to the Australian High Commission in Islamabad for verification
- Wrote to SZKCQ under s 424A of the Migration Act 1958 (Cth), stating they were not satisfied he faced real harm
- Gave him 14 days to provide comments
The RRT concluded the letter from Mr A was not genuine, and Mr K's letter lacked detail about claimed imprisonment. This suggested SZKCQ had exaggerated his role and harassment.
Appeal grounds
SZKCQ appealed to the Federal Court, arguing:
- The Tribunal delayed sending its refusal by post, preventing adequate response time
- The Tribunal failed to ensure he understood why the information was relevant to the review
Federal Court decision
The Federal Court found the Tribunal had:
- Failed to give enough time for response
- Not properly informed the appellant
The appeal was upheld and the RRT decision was set aside.
Significance
This case demonstrates:
- Importance of procedural fairness in migration decisions
- Federal Court's role in ensuring proper process (judicial review)
- How technical failures can overturn tribunal decisions
- That this was a judicial review (examining process) not merits review (examining facts)
Criticism of detention
Purpose of detention
Detention centres serve as immigration control, not punishment. More recently, they also aim to encourage applicants to use legal channels when applying to live in Australia.
Differential treatment criticism
Border applicants face more likely detention than other unlawful non-citizens. For example, over-stayers (people who remain after their visa expires) generally stay in the community while applications are assessed. This differential treatment raises serious questions about fairness and equality before the law.
Limited bridging visa availability
Bridging visas allow release from detention but are only available in certain circumstances:
- Children
- People over 75 years of age
- Spouses of Australians
- Victims of trauma and torture
Border applicants in detention also face a further restriction: they can only appeal to the Migration Review Tribunal if they claim refugee status.
Lack of awareness of legal rights
People in detention often don't know their legal rights. Although all detainees must be given opportunity to obtain legal assistance upon request, immigration officers don't always inform them of this right.
When evaluating effectiveness, note the gap between theoretical rights and practical access to those rights.
International criticism and human rights concerns
Detention as human rights abuse
Many observers consider mandatory detention an abuse of human rights under international law. The UN Human Rights Committee has criticized:
- Lack of review rights for those in detention
- Extended periods of detention without judicial oversight
A v Australia (1997) CCPR/C/59/D/560/1993
The UN Human Rights Committee found Australia breached Article 9(4) of the International Covenant on Civil and Political Rights (1966) (ICCPR).
Article 9(4) ICCPR provides for the rights of people in detention to seek a determination on the legality of that detention without delay.
Australia's response
Australia's response was controversial:
- Rejected the Committee's findings
- Refused to pay compensation to Mr A
- This response attracted national and international criticism
Ongoing concerns
In January 2008, the Human Rights and Equal Opportunity Commission (HREOC, now Australian Human Rights Commission) stated in its annual inspection report that improvements had been made, but significant work remained.
Children in detention
Increase in detained children (from 1999)
From 1999, the number of children in detention increased significantly, generating substantial community concern about their treatment.
UN Committee on the Rights of the Child criticism
The UN Committee criticized Australia for detaining children of border applicants.
HREOC National Inquiry (2001-2004)
In response to criticism, HREOC undertook a National Inquiry into Children in Immigration Detention in November 2001.
'A Last Resort' report (2004):
Key findings:
- Australian laws requiring child detention led to many and repeated breaches of the Convention on the Rights of the Child (CROC)
- Children in detention faced high risk of serious mental harm
Key recommendations:
- Release children and their parents
- Amend Australia's laws to comply with CROC
- Give unaccompanied children independent guardians
- Codify minimum standards of treatment for children in detention through legislation
- Review amendments to the Migration Act 1958 (Cth) to assess impact on children
'The Forgotten Children' report (2015)
The Australian Human Rights Commission released this report examining children in migrant detention centres.
Findings: The report was damning in its appraisal of the psychological and physical impact on children held indefinitely in detention centres.
Government response: Unfortunately, the government dismissed the report as politically motivated (at time of writing).
Progress and setbacks
While the federal government elected in 2007 took measures to address these issues, a subsequent change in government meant these measures were not carried through. This illustrates how political changes can undermine progress on human rights issues.
Use these reports as evidence when evaluating effectiveness. Note that having reports and recommendations doesn't automatically lead to effective change – implementation matters.
Legislation sanctions against discriminatory behaviour
Anti-discrimination laws
The existence of anti-discrimination laws signals recognition that discriminatory behaviour exists and must be eliminated. These laws send a message that racist attitudes and behaviour are unacceptable in Australian society.
Key legislation
Federal legislation:
- Racial Hatred Act 1995 (Cth): prohibits hate speech and racial vilification
State/Territory legislation:
- Anti-Discrimination Act 1977 (NSW) s 20C
- Discrimination Act 1991 (ACT) s 66
These laws strengthen protections against racial discrimination and vilification.
Limitations of the law
Despite anti-discrimination legislation, several factors limit effectiveness:
Slow processing of complaints
Complaints can take several years to finalize. This significant delay reduces the legislation's effectiveness, as migrants may feel taking a complaint to the Anti-Discrimination Board isn't worthwhile.
Inadequate remedies
Many complainants are dissatisfied with outcomes, believing available remedies aren't strong enough to:
- Stop further discrimination
- Send a strong message to the public
NSW legislation provides for heavy fines and imprisonment, but these penalties are rarely used.
Australian Human Rights Commission (AHRC) has power to make determinations, but cannot make them binding on parties. The AHRC will investigate and conciliate disputes to bring about satisfactory resolution, but lacks enforcement power.
Burden of proof
Difficulty proving discrimination occurred and that treatment was based on race makes migrants reluctant to bring complaints. Applicants must demonstrate:
- That discrimination took place
- That treatment was based on race
Continued barriers
Problems in eliminating racial discrimination persist due to:
- Limited government authority
- Continued racist attitudes in the community
- Language barriers
- Migrants' ignorance of their rights
When evaluating anti-discrimination laws, distinguish between having laws on paper and achieving effective outcomes. Consider access, enforcement, and remedies.
Future directions
Although federal and state governments have done much to recognize migrants' needs and minimize difficulties in establishing permanent residency, inequalities persist and greater reforms are needed.
Proposed reforms
Key reform proposals to improve effectiveness:
1. Increase funding for English language programs
Better English proficiency helps migrants access services and understand their rights.
2. Promote public education about multiculturalism
Education can reduce racially discriminatory behaviour and racist speech in the community.
3. Increase availability of and access to legal aid for migrants
Many migrants cannot afford legal representation, limiting their ability to challenge decisions or pursue discrimination complaints.
4. Provide greater access to social security for migrants
Financial support helps migrants establish themselves and reduces vulnerability.
5. Provide greater access to legal assistance for people in detention
Detainees need to understand their rights and have support in navigating complex legal processes.
6. Increase availability of review of immigration decisions
More accessible review mechanisms would improve fairness and accountability.
7. Streamline application processes for migration
Consistent processes worldwide would improve clarity and fairness.
8. Reform rules regarding mandatory detention
Changes to mandatory detention could address human rights concerns while maintaining border control.
Use these future directions to demonstrate understanding of ongoing issues and ability to suggest improvements. Link them to specific problems identified earlier in your answer.
Remember!
Key Points to Remember:
Evolution of administrative review:
- The legal system allows migrants to appeal decisions, but they face comparative disadvantages against government
- Administrative review evolved from limited pre-1989 system through MIRO/IRT (1989), RRT (1993), MRT (1999) to current AAT structure (2015)
- Merits review examines facts afresh and can change decisions; judicial review only examines whether law was correctly applied
Detention criticisms:
- Mandatory detention faces significant criticism: differential treatment, limited bridging visas, lack of legal awareness, human rights concerns
- International bodies found Australia breached ICCPR (A v Australia case) and CROC (children in detention)
Legislative responses and limitations:
- Anti-discrimination laws exist but have limited effectiveness due to slow processing, weak remedies, burden of proof, and language barriers
- Future reforms needed include increased funding for English programs, legal aid, public education, social security access, and detention reforms
Key terms:
- Merits review: tribunal examines facts afresh and can change decision
- Judicial review: court examines only whether law was correctly applied
- AAT (Administrative Appeals Tribunal): federal tribunal hearing appeals against government decisions
- Mandatory detention: compulsory detention of unauthorized arrivals
- Bridging visa: temporary visa allowing release from detention in certain circumstances
- ICCPR: International Covenant on Civil and Political Rights
- CROC: Convention on the Rights of the Child
- Racial vilification: public acts inciting hatred based on race
Critical framework for evaluation:
When assessing effectiveness of responses, consider:
- Access: Can migrants actually use these mechanisms? (cost, knowledge, language barriers)
- Process: Is the process fair, timely, and transparent?
- Outcomes: Do responses achieve justice and protect rights?
- Implementation: Are laws and policies actually enforced?
- International obligations: Does Australia meet its international human rights commitments?