Chapter 7 - The role of the minister
7.1
The preceding chapters of this report have dealt with
important aspects of the operation of the ministerial discretion powers under
the Migration Act. However, ultimately the discretion to grant a visa using
these powers is up to the minister alone to exercise. While the minister may
receive advice from the department or representatives of visa applicants, it is
the minister's judgment of the 'public interest' that will determine which
cases succeed and which do not. Being non-delegable, non-compellable and
non-reviewable, the powers vest an extraordinary amount of power over individual
cases in the hands of the minister. The only accountability mechanism is the
requirement that the minister table statements in parliament every six months
giving reasons why he or she has considered it in the public interest to
intervene in particular cases.
7.2
This chapter examines the central role of the minister
for immigration in the operation of the ministerial discretion powers under
term of reference (c). It looks firstly at the extent of the personal
discretion vested in the minister by the way the powers are framed. The second
part of this chapter examines aspects of the powers' operation and use under
the former minister, Mr Philip
Ruddock as required by term of reference (a).
Mr Ruddock's
personal use of the powers was a key area of interest for the Committee, due to
the allegations aired in parliament that led to the establishment of this
inquiry. Most of the evidence presented to the Committee relates to the seven
years during which he was the immigration minister.
7.3
Two key issues raised by the Committee's examination of
former ministers' use of the powers are firstly whether there is sufficient
transparency and accountability in the operation of the powers, and secondly
whether the sheer volume of cases reaching the minister for personal
consideration is an appropriate part of the migration system.
The Minister's personal discretion
7.4
It is worth reiterating here a number of key features of
the ministerial discretion powers noted in Chapter 2. A previous Senate
Committee Report summarises the section 417 power as follows:
- The minister may substitute a more favourable decision
for a decision of a tribunal if the minister thinks it is in the public
interest to do so;
- The power may only be exercised by the minister
personally;
- If the minister substitutes a more favourable decision
he/she must present a statement to inform Parliament of the new decision
reached;
- Certain information is not to be disclosed to parliament
in the statement made. In particular, the person's identity and the identity of
associated persons must not be disclosed;
- Statements must be made to parliament at the times
specified in the legislation; and
- The minister is under no duty to consider whether to
exercise this power.[291]
7.5
Section 351 is substantially the same, except that
there is no provision in the latter to exclude from the statement presented to
parliament information that may identify the applicant or associated persons
other than their names.
Broad personal discretion in 'the
public interest'
7.6
The result of the way these powers have been framed is
that the minister for immigration is vested with a broad discretion to overturn
a tribunal decision and grant a visa on the grounds of 'the public interest'. The
Commonwealth Ombudsman noted that:
It has customarily been noted by courts that the phrase "public
interest" confers an unconfined discretion on a decision-maker,
comprehending all relevant matters of advantage and disadvantage.[292]
7.7
In evidence to the Committee, he added that:
The minister's discretion is an outstanding example of what we
call an unconfined discretion. It is a discretion which does not have to be
exercised, and it is a discretion which is exercised on the ground of public
interest. In theoretical terms, there can be no broader discretion than that.[293]
7.8
As noted in Chapter 4, 'the public interest' has
generally been broadly interpreted by successive ministers to include
recognition of a wide range of humanitarian and compassionate circumstances.
7.9
The minister may, as all ministers have done since
1990, produce guidelines setting out what kind of cases he or she may consider
as possibly raising public interest considerations. The Commonwealth Ombudsman
underlined the value of an executive policy such as the ministerial guidelines
providing structure and guidance for the exercise of a broadly-expressed power.
He also pointed out the risk of such an executive policy being followed too
narrowly without adequate regard for the breadth of the power it is supposed to
inform. He suggested that the former MSI 225 overcame that risk by stating
that: "My ability to exercise my
public interest powers is not curtailed in a case brought to my attention in a
manner other than that described above" and that the guidelines are
not exhaustive and each case: "will
depend on various factors and must be assessed by reference to the
circumstances of the particular case".[294]
7.10
As can be seen, then, the ministerial guidelines are a
guide for departmental staff, and are not binding on the minister's decision
making. Ultimately, what factors are relevant to determining 'the public
interest' in any given case are up to the minister.
7.11
As noted in Chapter 2, the minister is also not bound
by certain sections of the Migration Act when using the discretionary powers. Under
the provisions of sections 351 and 417 the minister, when exercising the
discretionary power, is not bound by subdivisions AA and AC of the Act and the
regulations that complement those subdivisions. DIMIA informed the Committee
that the practical effect of these provisions is that the minister does not
have to be satisfied that criteria specified in the Migration Act are met and
is not restricted as to the type of visa that can be granted.[295]
7.12
According to DIMIA, the Minister not being bound by the
entirety of the Migration Act and Regulations in the exercise of these powers:
...allows individual cases to be considered against public
interest factors that are broader than the strictures of the regulatory
criteria.[296]
7.13
The Committee notes here the broad discretion vested in
the hands of the immigration minister. The Committee has heard of no equivalent
ministerial discretion in other Commonwealth legislation.
Power is non-delegable
7.14
Sections 351(3) and 417(3) provide that the powers may
only be exercised by the minister personally. In practice, the decision not to
consider whether to exercise discretion can be delegated to departmental staff,
as discussed in Chapter 4.[297] As noted
there, the immigration department performs an important screening function by
providing detailed submissions to the minister only on those cases departmental
officers have assessed as raising public interest considerations.
7.15
However, the decision to exercise discretion to grant a
visa can only be made by the minister. In effect, the minister is the sole
arbiter of 'the public interest' with the power to determine who will be
granted a visa through this process.
Power is non-compellable and
non-reviewable
7.16
In addition to conferring a personal discretion on the
minister to make decisions based on 'the public interest', the legislation
provides that the minister does not have a duty to consider whether to exercise
the power.[298]
7.17
In effect, because the minister cannot be compelled to
exercise the discretionary power, the minister's decisions under sections 351
and 417 are not subject to judicial review. DIMIA stated that:
As the minister cannot be compelled in the exercise of the
ministerial discretion powers, there is no scope for a court to issue orders of
mandamus, prohibition or certiorari to the minister in respect of the
ministerial discretion powers. It is also not clear that a court would be able
to make a declaration in such circumstances.[299]
7.18
The codification in 1989 of the then existing
discretions under the Migration Act and the non-compellable ministerial
discretion provisions introduced in 1989 were intended to quarantine decision
making in migration matters from judicial review. DIMIA stated that:
The breadth of the pre-1989 provisions of the Migration Act also
enabled courts to set aside decisions where visas had been refused to onshore
persons on the basis of the court's own view of how the discretion should be
applied. This was particularly true of cases where there were claims to 'strong
compassionate grounds' for remaining permanently in Australia.
This led to rapidly escalating numbers coming within these grounds in the late
1980s, and the government no longer being able to set and manage its migration
program.[300]
7.19
Elsewhere, DIMIA noted that:
The non-compellable nature of the power was carefully framed to
ensure that an unsuccessful applicant cannot use requests for intervention
merely to prolong their stay or disrupt their removal from Australia; nor can a
court order that the minister embark on a consideration of the applicant's case
under these discretionary powers.[301]
7.20
What is important to note here is that the minister's
personal powers to grant or not grant visas under section 351 or section 417
are not subject to judicial scrutiny. The express intention of framing them in
this way was to ensure that the minister's decision was final and not subject
to appeal in the courts. Thus an important check on the workings of executive
government is absent from the ministerial discretion process.
7.21
The minister's actions in this area are also not
subject to the scrutiny of the Commonwealth Ombudsman, as section 5(2)(b) of
the Ombudsman Act 1976 (Cth) provides
that: 'the Ombudsman is not authorized to investigate...action taken by a Minister'.[302]
Requirement to table statements in
parliament
7.22
The only check on the minister's use of the
discretionary powers is the requirement to table statements in parliament every
six months. Sections 351(4) and 417(4) set out this requirement as follows:
(4) If the minister substitutes a decision under subsection (1),
he or she must cause to be laid before each House of the Parliament a statement
that:
(a) sets out the
decision of the Tribunal; and
(b) sets out the
decision substituted by the minister; and
(c) sets out the
reasons for the minister's decision, referring
in particular to the minister's reasons
for thinking that his or her actions are
in the public interest. [Emphasis added]
7.23
The legislative intention of providing for tabling
statements is to ensure a measure of parliamentary scrutiny of the minister's
use of his or her discretionary powers. In his closing speech to the second
reading debate on the Migration Amendment Bill (No. 2) 1989, the then Minister
for Immigration, Local Government and Ethnic Affairs, Senator Ray,
stated:
I can intervene in the public interest, but I must report to
this chamber as to why I have intervened. That is our critical achievement in
progress through the migration law. Let us make sure that those reports are
scrutinised by every honourable senator. If that happens we can guarantee that
fairness and equity can flow in immigration like it never has before.[303]
7.24
The then Member for Dundas,
Mr Ruddock MP, told the House of Representatives on 21 December 1989 that:
Obviously it is important that the parliament be aware of the
way in which a power of this sort is exercised ... There is a specific provision
for public reporting in relation to the new power that is being introduced: the
minister will report six-monthly on the way he has exercised this power in
particular circumstances.[304]
7.25
In theory, these statements should provide sufficient
information for parliament to understand how the powers are operating, and
effectively scrutinise the incumbent minister's use of them. Whether they are
an adequate accountability mechanism is considered below.
Operation of the powers under Minister Ruddock
7.26
During his seven years as Minister for Immigration, Mr
Ruddock made more use of the ministerial
discretion powers than any previous minister. As noted in Chapter 3, he used
the powers to intervene in 1916 cases from 1996 to mid-2003, with an additional
597 interventions made between July and October 2003.[305] General reasons for the growth in
the use of the powers were discussed in Chapter 3. However, some aspects of Mr
Ruddock's personal use of the powers are
worth noting.
7.27
Many witnesses, from both inside and outside the
department, gave evidence that Mr Ruddock
was attentive to the ministerial discretion workload. Ms Marion Le said she had
a great deal of respect for Mr Ruddock's
knowledge of the immigration law, and suggested that the system had only worked
because of his depth of knowledge of the way the system worked and the law.[306] Mr
Lombard similarly said that the system only
worked: 'because the minister is incredibly assiduous in the amount of work he
does'.[307] Dr
Mary Crock
suggested Mr Ruddock
had an extraordinary capacity for work and for attention to detail.[308]
7.28
Witnesses from the department gave evidence that Mr
Ruddock had extensive knowledge of the
Migration Act and regulations gained through his experience and long term
commitment to this policy area. They suggested that Mr
Ruddock often had greater knowledge of the
Act than departmental officers, and could think of options that departmental
officers simply had not thought about.[309]
7.29
Mr Ruddock
as minister would on occasion use the intervention powers in ways not suggested
by departmental staff. The department gave evidence that from mid 2000 to mid
2003 Mr Ruddock
requested full submissions on 105 cases that the department had placed on a
schedule, presumably as they were assessed as not falling within the
ministerial guidelines. Likewise, Mr Ruddock
would on occasion choose to grant a visa class outside the range presented by
the departmental submission.[310]
7.30
Departmental witnesses saw nothing unusual in Mr
Ruddock acting outside the scope of
departmental advice in his use of the powers. Ms
Godwin, a deputy secretary of DIMIA, told
the committee that:
...because it is a non-compellable discretion, because our role in
it is to provide the minister with information and because in the end it is his
decision to make and his alone that, notwithstanding the information put before
him, if he also raises other issues for consideration or takes a view beyond that
which is in the material put by the department then that is consistent with the
nature of the power.[311]
7.31
When the minister does choose to act outside the scope
of departmental advice, even where he appears to act contrary to his own
published guidelines, he is not required to provide any explanation for so
doing. Even departmental officials could be left in the dark as to reasons for
the minister's decisions.[312] Referring
to the minister's choice of visa class, the department noted that:
The type of visa granted is a matter for the minister to decide.
The minister is not required to provide an explanation for his decision other
than in the information tabled in parliament, nor is the department required to
report on his decision.[313]
7.32
Despite repeated requests to DIMIA to provide relevant
case files, the Committee has not been able to examine individual cases where
Mr Ruddock may have acted contrary to his own guidelines by intervening in a
cased assessed by DIMIA as falling outside them. It therefore remains unclear
to the Committee exactly what may have prompted the minister to seek further
information about a case placed on a schedule: whether there was something in
the brief case summary that caught his attention, or whether his desire for
further information was triggered by other considerations. It does seem unlikely
to the Committee that, of the thousands of cases presented in the schedule
format, the minister would select a few for special consideration solely on the
basis of a brief case summary.
7.33
As mentioned in Chapter 6, the Committee heard in
evidence that Mr Ruddock
was open to discussing individual cases with advocates able to access him or
his office, such as parliamentarians and community leaders. A departmental
liaison officer, Mr Peter
Knobel told the Committee that:
The minister [ie. Mr Ruddock]
has made it clear that he is open to speak to parliamentarians and community
leaders about individual cases.[314]
7.34
While he would not usually discuss cases with
individuals who called his office,[315]
Mr Ruddock
was open to interested people at community events making representations to him
about cases. After such events, he would sometimes seek information on cases that
had been raised with him. Mr Knobel
said that:
The minister [Mr Ruddock]
is often out and about at functions and meets many people. Occasionally he will
come back with a case that has been raised with him and he will just ask for
some background information on where it is at.[316]
7.35
This could happen at any stage of the process. In some
instances, Mr Ruddock
would alert his DLOs, and through them the MIU, of a case raised with him where
a formal intervention request had not yet been made. As noted in Chapter 6, Mr
Ruddock would on occasion alert DLOs to a
case that had been raised with him at a community function before an
application had been received, and the DLOs would in turn notify the relevant
MIU that the case was coming through.[317]
Referring to such occasions, Mr Knobel
said:
I recall that on those occasions the minister alerted me to the
fact that an intervention request would be coming through and that there might
be circumstances surrounding it that could warrant consideration.[318]
7.36
It does seem therefore that direct contact with Mr
Ruddock at a community event could help
expedite a case through the department's initial processing phase as Mr
Ruddock was prepared to alert the department
to cases of interest to him before they reached him through the normal
channels.
7.37
The mixed views of external stakeholders about the
appropriateness of raising individual cases directly with the minister were
canvassed in Chapter 6. The Committee observes that Mr
Ruddock's open door policy appears to have
added to the perception that direct access to him could assist a case gain
ministerial intervention. Mr Ruddock
does not seem to have taken steps to contain this perception by, for example,
insisting that all cases should be processed on equal terms by the department
before being brought to his attention. Mr Ruddock's willingness to discuss
individual cases at community events and other functions may also have encouraged
a climate in which community leaders could assert that their links with the minister
could help individuals known to them get visas through the ministerial
intervention process.[319]
7.38
Again, without access to individual case files, the
Committee has been unable to examine the extent to which the media allegations
of undue influence of certain community leaders on Mr
Ruddock's decision making are justified. As
repeatedly stressed by departmental witnesses, the intervention powers are the
minister's alone, and he or she is the sole arbiter of the 'public interest'. Any
need to document decision making appears to stop once a case reaches the minister's
office. Exactly what factors led to intervention in some cases and not others
may be known only to the minister, or recorded in case files or documents the
Committee was unable to obtain.
Family ties
7.39
The Committee heard strong anecdotal evidence that Mr
Ruddock had a clear preference for
intervening in cases where the applicant had family connections in Australia
rather than cases raising purely humanitarian considerations. As seen in
Chapter 3, this anecdotal evidence is backed up by data on the type of visas
granted under the intervention powers, which show a preponderance of spouse and
close ties visas granted under both sections 351 and 417.
7.40
One issue raised in connection with Mr
Ruddock's use of the powers to recognise
family ties is that his judgment of what constitutes 'family ties' could be
entirely subjective, and bear no reference to relevant legislation. A number of
witnesses suggested to the Committee that Mr
Ruddock was more likely to intervene on
behalf of an applicant with biological Australian citizen children than
Australian citizen step children. If this were the case, it appears to be
contrary to the definition of 'child' in both the Migration Regulations and the
Family Law Act.[320] Another witness
suggested that Mr Ruddock
was more likely to intervene on behalf of an applicant with Australian citizen
children if that applicant had not previously been married or in a relationship
giving rise to children.[321]
7.41
Whether the minister's personal judgment of what
constitutes 'family ties' when considering an intervention request is
inconsistent with other legislation is a moot point. The Committee has not been
able to test these assertions, owing to the lack of detailed information on
what factors influenced the minister's decision in any given case, especially
where the minister decided not to intervene. More importantly, since there is
no avenue to appeal the minister's decision to the courts, there is no way to
test whether the grounds for a given decision are consistent with other
Commonwealth legislation.
Accountability to parliament
7.42
As noted above, the sole accountability mechanism in
cases where the power is used to grant a visa is the requirement to table statements
in parliament on a six-monthly basis. According to the legislation, these
statements should set out the minister's reasons
for thinking intervention is in the public interest.
7.43
While the statements made under section 351 go some way
to providing case specific reasons for ministerial intervention, those made
under section 417 since 1998 provide no case specific reasoning. The majority
of witnesses to this inquiry argued that the ministerial statements under s417
contain insufficient information to judge how the power is being used. The
complaint was succinctly put by Dr Crock,
who said that: 'they do not tell you anything'.[322] In A Sanctuary Under Review the Senate Legal and Constitutional
References Committee reported that 'the only information that can be gleaned
from [s 417 tabling statements] is the number of times the discretion has been
used, and the type of visa class granted'.[323]
7.44
There has been some evidence of a decline in the amount
of information provided in the section 417 statements during Mr
Ruddock's tenure as immigration minister. Research
undertaken by Ms Johanna
Stratton noted Mr
Ruddock's failure since 1998 to provide
case-specific reasons for section 417 interventions.[324] Supporting Ms
Stratton's research, the Catholic Commission
for Justice Development and Peace submitted that:
The result of the current practice of only referring to the
public interest reason without specifically stating what it is, means that
there is a lack of clarity about the reasons behind the minister's exercise of
s 417 and makes it an opaque and unaccountable process.[325]
7.45
The Refugee Council of Australia commented that:
... it was the practice that the minister would set out in parliament
the case-specific reasons why he/she had chosen to exercise these
[discretionary] powers. This is no longer done. The minister now uses a
standard reporting format, making reference to the public interest. This means
that it is no longer possible for parliament to scrutinise the reasons why
decisions have been made, making the process far less accountable and opening
the way for criticism that the system is being abused.[326]
7.46
DIMIA claimed that the nature of the tabling statements
has been consistent over the years. Ms Godwin
stated:
There are minor variations in wording, but essentially they
reflect, I think, successive views about the balance between the need for
information and the need to meet, in some instances, statutory requirements ...
if you look at the tabling statements over a period of years the pattern has
remained pretty much the same.[327]
7.47
However, the Committee's examination of the tabling
statements supports the view that section 417 tabling statements no longer
provide reasons for the minister's decisions. Until late 1997, reasons were
generally given, even if these were often not particularly revealing. For example,
ministers often merely stated that the applicant would face hardship or severe
hardship if returned to his of her country of nationality. Some were more
detailed, for example, 'The applicant is from India,
has suffered torture in the past and because of his subjective fear, it would
be inhumane to return him to India'.
Since late 1997, however, a standard form of words has been used, namely, 'Having
regard to the applicant's particular circumstances and personal
characteristics, I consider it would be in the public interest to allow the
applicant to remain (temporarily) in Australia'.
Examples of statements tabled in parliament before and after 1997 are at
Appendix 6.
7.48
It is the Committee's view that this now-standard form
of words is not sufficient for parliamentary scrutiny. The statements are
failing to provide, as required by legislation, the ministers reasons for considering his or her
actions to be in the public interest. The Committee appreciates that it may be
difficult in some cases for the minister to balance the legislative requirement
under paragraph 417(4) that reasons be tabled for the decisions with other
requirements under paragraph 417(5) that are intended to protect the applicant
or the applicant's associates. Nevertheless, the Committee considers the
statements that were presented by the former minister inadequate for the
purposes of parliamentary scrutiny. Sufficient information should be provided for
the Houses to determine how the discretionary powers are being exercised.
7.49
As noted above, Mr
Ruddock's statements relating to the use of
his discretion under section 351 set out case-specific reasons. Nevertheless one
witness suggested that these statements could be made more useful if they
included the names of the persons concerned. Mr
Clothier argued that, given that MRT
hearings are public and its decisions are published, there is no justification
for secrecy. He suggested that:
Parliament could, in my view, could go a long way to fixing this
problem, by amending section 351 and making all non-refugee interventions transparent
to the public. The minister would have to truly justify himself if he
intervened for one person's grandmother but not for another and people would be
able to compare and judge those interventions because they would be out in the
public arena, which is what I think parliament really intended in 1989.[328]
7.50
The Committee notes advice from the Privacy
Commissioner that other means of making the operation of the powers more
transparent should be carefully considered before seeking to amend the
legislation to name individuals.[329] However,
given the pressing need for parliament to have sufficient information to
scrutinise the use of the powers, and that MRT decisions are public, there
seems little justification for withholding the names of all people granted a
visa through the ministerial intervention process where the safety of the
individual or their family is not an issue.
7.51
The Commonwealth Ombudsman also highlighted the need
for the tabled statements to provide more information so that parliament can
understand how the system is operating. He suggested that:
The transparency of the system would be enhanced if the minister's
notification statement to the parliament under ss 351 or 417 indicated briefly
the path by which a case came to the attention of the minister – by an approach
from the visa applicant, on the suggestion of a tribunal, at the initiative of
an officer of the department, or in some other way. Over time, this would
enable a better picture to be drawn of the manner in which this important
aspect of the migration scheme is operating.[330]
7.52
The Committee's inquiry has found that meaningful
transparency and accountability in the ministerial intervention processes
essentially stops at the door to the minister's office. The Migration Act vests
a very broad personal and non-reviewable discretion in the minister, and the now-standard
format of statements tabled in parliament when the powers are used provides
inadequate information about the operation of the powers. With a process
designed to deal with a few exceptional cases now being used on average several
hundred times each year, this Committee considers it more important than ever
to improve the transparency and accountability of the minister's decision
making process.
Recommendation 15
7.53
The Committee recommends that the minister ensure all
statements tabled in parliament under sections 351 and 417 provide sufficient
information to allow parliament to scrutinise the use of the powers. This
should include the minister's reasons for believing intervention in a given
case to be in the public interest as required by the legislation. Statements
should also include an indication of how the case was brought to the minister's
attention – by an approach from the visa applicant, by a representative on
behalf of the visa applicant, on the suggestion of a tribunal, at the
initiative of an officer of the department or in some other way.
Recommendation 16
7.54
The Committee recommends that the Migration Act be
amended so that the minister is required to include the name of persons granted
ministerial intervention under section 351 in the statement tabled in
parliament unless there is a compelling reason to protect the identity of that
person.
Volume of cases decided by the Minister
7.55
Another feature of the operation of the ministerial
discretion powers during Mr Ruddock's
tenure is the comparatively large number of cases in which intervention was
both sought and granted. As observed in Chapter 3, use of the minister's
discretionary powers has gradually become more frequent since they were
inserted in the legislation, going from 17 cases in 1992-92 to 483 cases in
2002-03, to 597 cases in three months from July to October 2003. DIMIA suggests
that the number of interventions may simply reflect the expanding pool of cases
that qualify for consideration of ministerial intervention. Yet the sheer
volume of cases reaching the minister's desk for consideration raises two
related issues: can a minister possibly give equal consideration to so many
cases, and is it appropriate that a minister's time should be spent considering
the details of thousands of individual cases rather than on overall policy
development?
7.56
The Refugee Council of Australia suggested that during
2003, the minister would have before him or her, in addition to the 9 – 12 thousand
persons whose cases will be affirmed by the tribunals, 1700 East Timorese who
applied for refugee status in the early 1990s and about 140 Kosovars who were
granted 3-year Temporary Humanitarian Concern visas that expired in August
2003. During 2004, the minister could also have to deal with more than 2000
requests from persons whose Temporary Protection visas expire. The Council
concluded that the workload would be unreasonable for any full-time worker, let
alone a minister of the crown with exhausting portfolio responsibilities.[331] Witnesses from the department
confirmed that assessing ministerial intervention cases is 'an enormous
workload on the minister of the day'.[332]
7.57
In his last week in that office, the former minister
personally decided some 203 individual cases,[333]
including at least 129 East Timorese.[334]
The Committee calculates that, even if the minister had worked a 40 hour week
doing nothing but assessing intervention requests, that allows at most 17
minutes for considering each intervention. This calculation does not allow for
cases the minister considered but chose not to intervene, or for any other work
during that week.
7.58
While many witnesses to the inquiry suggested that the
former minister dedicated great time and attention to these matters, even he
appears to have felt under some strain due to the quantity of work that was
being generated by requests for ministerial intervention. Mr
Purcell told the Committee of a meeting with
Mr Ruddock
where:
He [Mr Ruddock]
was expressing his frustration at the sheer volume of requests that were coming
through under section 417 and saying that it was beyond any one individual to
be able to work through that volume of applications.[335]
7.59
Given the number of cases reaching his desk, it is
unsurprising that Mr Ruddock
would have felt some frustration. It would be surprising in fact if he were
able to give equal consideration to the merits of every one of the cases put
before him and still have time to fulfil his other portfolio responsibilities. Unfortunately,
procedural constraints have prevented the Committee from directly seeking Mr
Ruddock's views.
7.60
This was not the intention when the powers were
inserted in the Act. On the contrary, the changes were in part designed to
limit the minister's involvement in individual cases. In parliamentary debate
on the 1989 legislation, Senator Ray
noted that the old system giving the minister power to reverse any decision
made by a departmental officer:
...can result in a minister becoming involved in the minutiae of
the portfolio, at the cost of developing overall policy in the depth which, in
my view, is essential.[336]
7.61
In relation to the 1989 changes, he said that:
My concern is to ensure equity and consistency in
decision-making. I believe this is best done where a minister concentrates on
determining overall policy directions, and limits decision-making to those
classes impacting most on national well-being.[337]
7.62
The Committee heard several witnesses suggest that the
large number of cases reaching the minister is one of the problems in the
current regime. Ms Biok
of the Legal Aid Commission of NSW, noted the thousands of applications that
are received regularly. She suggested that:
Because of this, it is difficult for many of the applicants to
understand what will constitute a successful appeal to the minister. This does
create a perception in many people's minds that there is a randomness to who
gets a visa through the ministerial powers.[338]
7.63
The Committee also heard suggestions that the blow-out
in the number of cases being decided personally by the Minister reflects
systemic problems. Ms Marion Le told the Committee that if an immigration
minister was taking so much upon himself in making these decisions then there
was something wrong with the system. She suggested that:
That is because no minister should have that many cases going
through to him if everyone down the line is acting with integrity and only
bringing cases that are...ones that people consider to be absolutely essential.[339]
7.64
Ms Le felt that poor quality decision making in the
first instance and at the RRT was contributing to the rise in the number of
cases reaching the minister.[340] She
suggested that the department was 'not doing its job' in some cases, which led
to the minister having to exercise his intervention powers unnecessarily.[341] She also suggested that more
flexibility in the system would avoid the need for the minister to personally
decide so many cases.[342] This concern
relates to the arguments discussed in Chapter 9 about the desirability of
placing the only meaningful discretion in an otherwise heavily codified system
in the hands of the minister.
7.65
Yet the volume of cases decided by Mr
Ruddock is at least to some extent a matter
of personal choice. The Committee notes that 1994 guidelines issued under Senator
Bolkus included the following paragraph:
Review Monitoring Section will monitor and report regularly on
any interventions, and will initiate discussions with policy areas and the minister's
office when it appears that a series of particular decisions to intervene may
indicate that a preferred approach may be to amend current procedures or
regulations.
7.66
Mr Ruddock,
however, does not seem to have taken the view that continued use of ministerial
intervention for similar cases was in itself problematic and should lead to
reconsideration of the regulations. For example, the Committee heard that many
of the cases receiving ministerial intervention relate to parents of Australian
citizen children. One witness suggested that these cases could be more
appropriately dealt with by creating a visa category,[343] which would mean that such cases
could be dealt with through normal administrative processes and would not need
to be considered by the minister in person. Mr
Ruddock does not appear, however, to have
considered this desirable or necessary, preferring to decide such cases
himself. Similarly, since 1997 Mr Ruddock
has chosen not to create special visa categories for groups such as the East
Timorese, preferring to decide each case in person using the ministerial
intervention power.
7.67
Mr Clothier
suggested to the Committee that one reason ministers have preferred to use this
power is to woo ethnic communities.[344]
While the Committee has not heard unequivocal evidence to suggest that this was
Mr Ruddock's
intention, it notes that excessive use of the minister's personal power rather
than usual administrative processes increases the scope for politicisation of
immigration decision making.
7.68
The Committee considers that the high volume of cases
that Mr Ruddock
dealt with in person indicates serious problems with the operation of the
ministerial discretion system. If ministerial intervention is necessary to
ensure a fair or desirable outcome in so many cases then this suggests that the
system as it exists is becoming unmanageable as the workload being generated is
too great for one minister to handle.
7.69
The evidence suggests that Mr
Ruddock himself had doubts that it was
feasible for an individual minister to cope with the caseload. The Committee
finds it surprising, then, that Mr Ruddock
did not take steps to investigate the factors causing the high number of applications
or find other ways to address a situation that he recognised as problematic.
7.70
The Committee considers that ministerial discretion
should be a last resort to deal with cases that are truly exceptional or
unforeseeable. No immigration minister should be left in the position of
micro-managing the immigration system. Where a series of interventions in
similar cases suggests a recurring problem, a preferable approach would be to
amend the regulations or institute a group visa class so that such cases can be
dealt with under normal administrative processes.
Recommendation 17
7.71
The Committee recommends that the minister should make
changes to the migration regulations where possible to enable circumstances
commonly dealt with using the ministerial intervention power to be dealt with
using the normal migration application and decision making process. This would
ensure that ministerial intervention is used (mainly) as a last resort for
exceptional or unforseen cases.