Law Council of Australia


Immigration Law Conference 2024 – Opening Remarks

Speech delivered by Law Council of Australia President, Mr Greg McIntyre SC at the 2024 Immigration Law Conference in Melbourne, 14 March 2024.

"I echo the acknowledgement of Traditional Owners made by our Chair, Ms Carina Ford.

Lawyers practising in the field of Immigration Law have been the foot-soldiers in a decades long battle. A battle between the Executive and Parliament, on the one hand, and the Judiciary, on the other.

A battle in which the Judiciary seeks to maintain the Rule of Law, human rights in accordance with international standards, procedural fairness and appropriate levels of access to judicial review of legislative and executive action, consistent with a democracy underpinned by the separation of powers between the Executive, Legislative and Judicial arms of government.

As Justice Sackville commented in an article in the University of New South Wales Law Journal in the year 2000:

"[f]ew areas of Australian law have attracted such sustained public attention in recent years as judicial review of migration decisions. Successive governments have either enacted, or proposed, legislation designed to curtail the power of the courts to override the determinations of administrative decision-makers ..."

Justice McHugh commented in an address to an Australian Bar Association Conference in 2002 that –

“Friction has risen from concerns that mirror those in administrative law generally … judicial review of migration decisions conflicts with Executive goals of timeliness and efficiency. But a greater cause of tension is the desire of the Executive to exercise control over migration matters to the exclusion of the courts. Irrespective of what political party is in government, migration law has seen a "bipartisan governmental mistrust of the role performed by the courts in reviewing migration decisions". From the Executive point of view, courts have little or no business being in the migration area.

In 1989, the Migration Act was amended, as the Minister for Immigration at the time said, to replace "broad discretions vested in decision-makers with sets of statutory criteria for the making of decisions".

It was amended again in 1992 by inserting Part 8, which excluded migration decisions from the Administrative Decisions (Judicial Review) Act 1977 (Cth). Part 8 restricted access to judicial review of migration decisions to "all but exceptional circumstances".

Read full speech below.


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