AS PART of a $34.2 million funding announcement by the Federal Government last week, which is intended to clear the backlog of immigration cases, lawyers will now be personally penalised for filing unmeritorious immigration cases.
The comprehensive reform plans released by Attorney-General Philip Ruddock also include an additional eight magistrates for the Federal Magistrates Court.
Based on recommendations by the Migration Litigation Review, the migration litigation reforms are aimed at achieving a more streamlined system for managing migration cases and easing the burden on the High Court.
Changes that would affect lawyers directly include plans to make it clear that courts have power to make personal costs orders against lawyers filing unmeritorious cases. The Government had been concerned, Ruddock told the media, that some unethical lawyers were encouraging unmeritorious applications for review in immigration matters. This gave clients false hope and wasted court resources, it was believed.
But Law Council president Bob Gotterson warned that a case would not be unmeritorious simply because it had been unsuccessful. He said the power to make personal costs orders against lawyers currently exists under general law.
“It can only be exercised now if litigation is begun and continued without any proper foundation. The foreshadowed statutory power must be confined to just those circumstances,” Gotterson said.
The High Court has also raised a concern about the availability of fee waivers, even for financial hardship, as well as exemptions that contributed to the high levels of unmeritorious litigation in the High Court. An extra $3.6 million in fees could have been made if it were not for the fee waivers and exemptions in 2002-03, it was argued.
Under the reforms, immigrants claiming financial hardship will no longer have their court fees waived. The aim was to remove unmeritorious litigation, Ruddock said, lift case success rates and increase the speed in which cases are processed. People whose fees are currently waived on the grounds of financial hardship will be required to pay one third of the fees.
“There has been an enormous increase in the migration workload of the High Court, the Federal Court and the Federal Magistrates Court in recent years,” Ruddock said. He issued statistics which stated that in 2002-03, the number of constitutional writ filings rose from 300 in the previous year to 2,131. Ninety-nine per cent of these involved migration matters, he stated.
The reforms complement reforms in the Migration Amendment (Judicial Review) Bill 2004, which reintroduced time limits in migration cases in the federal courts, Ruddock stated.
“The Government’s reforms take a holistic approach to improving the overall efficiency of the system, including quicker handling of migration cases.”
Senator Amanda Vanstone said the Government was very concerned that the “large increase” in the migration workload in the courts and the consequent delays in the court system were “hampering the effective management of the migration program”.
The Law Council of Australia has welcomed the reforms overall, describing them as “sensible and balanced”. LCA president Gotterson said they would help channel migration cases into the Federal Magistrates Court first, and appeals on legal questions would ultimately be directed to the Federal Court, or the High Court.
“The reason for setting up the Federal Magistrates Court was to provide justice more quickly and less expensively. So, litigants will benefit. Nor will they be prejudiced because the available grounds of judicial review will be as extensive as in the High Court,” Gotterson said.
The legal system will also benefit due to the reforms, Gotterson said, “because the High Court will be freed up to concentrate on its constitutional role as the pinnacle appellate court in Australia”.