Chapter 1
Introduction and background
1.1
On 23 August 2018, the Senate referred allegations concerning the
inappropriate exercise of ministerial powers, with respect to the visa status
of au pairs, and related matters to the Legal and Constitutional Affairs
References Committee (the committee) for inquiry and report by 11 September
2018.[1] On 11 September 2018, the Senate agreed to extend the reporting date
to 19 September 2018.[2]
Background
1.2
The inquiry relates, in the first instance, to two interventions by the
then Minister for Immigration and Border Protection, the Hon Peter Dutton MP,
under section 195A of the Migration Act 1958 (the Act). The
interventions occurred in two separate cases where an individual had been detained
under section 189 of the Act, after Australian Border Force officers
formed the view that those individuals intended to work as au pairs while
in Australia.
1.3
Following the publication of media reports on 26 March 2018, the
intervention by Minister Dutton, in what was later referred to as 'the Brisbane
case', became a matter of public comment.[3] On the same day during Question Time in the House of Representatives,
Minister Dutton revealed that there was a separate matter where a person
had entered Australia on a tourist visa and he had intervened.[4]
There were two young tourists who had come in on a tourist
visa and declared in an interview with the Border Force officers at the
airport—I was advised—they were here on a tourist visa but intended to perform
babysitting duties while here. The decision that was taken, I was advised, was
that the tourist visas would be cancelled, that those two young tourists would
be detained and that they would be deported. I looked into the circumstances of
those two cases and I thought that inappropriate. I thought if they gave an
undertaking they wouldn't work while they were here, I would grant the tourist
visas and they would stay, which they did. They didn't overstay; they returned
back home.[5]
1.4
Further questions relating to these respective matters were pursued
during the Budget Estimates and spillover hearings of the Legal and
Constitutional Affairs Legislation Committee (Legislation Committee) on 21 May
2018, 22 May 2018 and 3 August 2018, respectively.[6] During the Legislation Committee's Budget Estimates hearings, a series of
questions relating to this matter was taken on notice by the Department of Home
Affairs (the department), which have been answered and are available on the
Australian Parliament's website.[7] The department took more related questions on notice during the Legislation
Committee's spillover hearing, which are also available on the committee's
website.[8]
First instance ('the Brisbane
case')
1.5
Questions regarding the potential inappropriate exercise of Minister's
Dutton's ministerial powers first arose in relation to a case hereafter
referred to as the 'Brisbane case'. The Brisbane case involved the arrival of a
non-citizen at Brisbane airport on 17 June 2015.[9] The non-citizen held an eVisitor visa, which was valid for three months.[10]
1.6
Documents tabled during the Legislation Committee's Budget Estimates spillover
confirm that a brief was prepared by the department at the request of Minister
Dutton's office.[11] On 17 June 2015, the same day as the non-citizen in question was detained, Minister
Dutton exercised his powers under section 195A of the Act and granted the
person a Visitor visa (subclass 600) for three months.[12]
Second instance ('the Adelaide
case')
1.7
The second reported case, hereafter referred to as the 'Adelaide case', involved
the arrival of a non-citizen at Adelaide airport on 31 October 2015.[13] The non-citizen also held an eVistor visa, which was valid for three months.[14] She was questioned by Australian Border Force officers, who formed the view
that she was intending to work in breach of her tourist visa. The visa was
subsequently cancelled and the women was placed in immigration detention.
1.8
Similarly, a departmental brief was provided to Minister Dutton at the
request of his office.[15] On 1 November 2015, Minister Dutton intervened under section 195A of the
Act and granted the person a Visitor visa (subclass 600) for three months.[16]
1.9
Further information about the two interventions by Minister Dutton will
be outlined in chapter two of this report.
Conduct of the inquiry
1.10
Details of the inquiry were advertised on the committee's website,
including a call for submissions to be received by 31 August 2018. The
committee also wrote directly to a number of individuals and organisations
inviting them to make submissions.
1.11
The committee received ten submissions, including two accepted in
confidence, which are available on the committee's website. A list of all
submissions received is at appendix 1 of this report.
1.12
The committee held a public hearing in Canberra on 5 September 2018. At
the hearing the committee heard evidence from:
- the Department of Home Affairs;
- Mr Gillon McLachlan and Ms Jude Donnelly who reportedly had
requested Minister Dutton to intervene in the Adelaide case; and
- migration agents and lawyers who provided evidence pertaining to
their experience in seeking Ministerial interventions pursuant to section 195A
of the Act.
1.13
A full list of all witnesses who gave evidence to the committee at this
hearing is at appendix 2 of this report.
1.14
It should be noted that on 29 August 2018, the committee extended an
invitation to the Hon Peter Dutton MP, Minister for Home Affairs, to
appear at the hearing. The committee received no response.
1.15
The committee also invited several members of Mr Dutton's staff to
appear at the hearing, including his Chief of Staff, Mr Craig Maclachlan. On
4 September 2018, Mr Craig Maclachlan advised the committee
secretariat that he would be declining the committee's invitation to appear.
1.16
The committee appreciates the evidence provided by the department at the
hearing on 5 September 2018, including the time set aside by the Secretary of
the department, Mr Michael Pezzullo, and the Australian Border Force
Commissioner, Mr Michael Outram, to appear before the committee. However,
the committee also notes that it had invited the department to make available
certain officers who would have direct knowledge of the matters under
consideration, and the department declined to make those officers available.
While the committee accepts that it is generally the prerogative of the
secretary of a department to determine who should represent the department, it
nonetheless considers that the presence of the requested officers might have
helped shed further light on the matters in question.
1.17
Additionally, the committee notes that despite the inquiry's terms of
reference being clearly articulated in the title of the inquiry, the department
appeared ill‑prepared to properly answer specific questions asked by the
committee. This included not being prepared to discuss the ministerial
intervention submissions made by Minister Dutton, pursuant to section 195A of
the Act, where a tourist visa was granted. The committee also notes the answers
to questions on notice also contained a number of errors or omissions, including
the department needing to correct the number of ministerial interventions that were
granted by Minister Dutton and relating to a tourist visa multiple times.
1.18
The committee also notes that during the hearing on 5 September 2018,
the department was unable to answer questions relating directly to the use of
ministerial intervention powers, taking 24 questions on notice.
Summary of the Minister's power
1.19
Ministerial intervention powers have existed in the migration legal
framework since the early 20th century. Both the Immigration
Restriction Act 1901 (Cth) and the subsequent Immigration Act 1940 (Cth) both enabled the Minister or an authorised officer to grant a person a
'certificate of exemption', which enabled the person to remain in the
Commonwealth.[17] The majority of ministerial discretionary powers in the current Act were
enacted as a result of legislative reforms in 1989.[18] Mr Pezzullo explained the relevant changes:
In 1989, the Hawke government comprehensively overhauled the
statutory basis for regulating entry into Australia, and the foundations of the
modern act were laid down through these reforms. These reforms included the
creation under law of a non-compellable discretion for the minister to
intervene personally. These powers built flexibility into an otherwise highly
prescriptive visa process.[19]
Ministerial powers under the Act
1.20
The current Act contains a number of provisions to empower ministers to
intervene in migration cases at their discretion, otherwise known as
ministerial intervention powers.[20]
1.21
This inquiry focusses particularly on section 195A of the Act, which
applies specifically to persons in detention under section 189 of the Act. [21] Section 195A provides that the Minister may grant a visa of a particular
class to a person if the Minister thinks that it is in the public interest to
do so.[22]
1.22
Ministerial interventions made in accordance with this section are not
bound by Subdivision AA, Subdivison AC, Subdivision AF, of Division 3 of Part 2
of the Act, which relate to applications for visas and the granting of visas;
nor are they bound by the Migration Regulations 1994 (the Regulations),
but are bound by all other provisions of the Act.[23]
1.23
The Minister's intervention power in section 195A is non-delegable and
non‑compellable. Further, the Minister is not under a duty to consider
whether to exercise his or her power under subsection 195A(2).[24]
1.24
However, the Minister is required to provide a statement to the
Parliament, noting the Minister's decision to grant a visa and the Minister's
reasons for granting the visa, and referring in particular to the Minister's
reasons for thinking that the grant is in the public interest.[25]
1.25
Additionally, the 'Guidelines on Minister's detention intervention power
– section 195A of the Migration Act 1958' (the Guidelines) set out
procedures for the assessment and application of ministerial intervention.
These guidelines provide guidance regarding the circumstances in which the
Minister may choose to consider exercising his or her power under section 195A
of the Act, and explain when officers of the Department of Home Affairs
(previously the Department of Immigration and Border Protection) should refer a
case to the Minister for consideration of exercising ministerial power under
section 195A.[26]
1.26
Ministerial intervention powers are not subject to judicial or tribunal
review. Oversight is provided either by parliamentary scrutiny of the
statements referred to above, or by the Commonwealth Ombudsman which can
investigate departmental action on ministerial interventions.[27]
1.27
The Minister for Immigration and Border Protection holds the highest
number of intervention powers across all portfolios. A Liberty Victoria report
notes that, at the time of its publication, the Minister for Immigration and
Border Protection administered 20 Acts which contained 47 ministerial
intervention powers exercisable in relation to 'public interest' or 'national
interest' considerations.[28] This was contrasted with other portfolios, such as the Attorney-General's
portfolio which administered 152 Acts which contained 38 ministerial
intervention powers, and the Defence portfolio which administered 21 Acts which
contained two ministerial intervention powers.[29]
Ministerial Guidelines
1.28
The Guidelines contain advice and a number of procedures for the
exercise of ministerial power under section 195A. The Guidelines include the
criteria for cases that may be referred to the Minister for consideration, the
information required to be presented in referred cases, and who may make
requests of the Minister to exercise the intervention power.[30]
1.29
The Guidelines were originally put in place to assist departments in
assessing which cases should be referred to the Minister for consideration of
ministerial intervention, in addition to the types of matters to be considered
and the detail that should be provided to the Minister when assessing cases.[31] The types of matters that may be referred to the Minister include:
- the person has individual needs
that cannot be properly cared for in a secured immigration detention facility,
as confirmed by an appropriately qualified professional treating the person or
a person otherwise appointed by the Department.
- there are strong compassionate
circumstances such that a failure to recognise them would result in irreparable
harm and continuing hardship to an Australian citizen or an Australian family
unit (where at least one member of the family is an Australian citizen or
permanent resident), or there is an impact on the best interests of a child in
Australia.
- the person has no outstanding
primary or merits review processes in relation to their claims to remain in
Australia but removal is not reasonably practicable...
- there are other compelling or
compassionate circumstances which justify the consideration of the use of my
public interest powers and there is no other intervention power available to
grant a visa to the person.[32]
1.30
However, it is noted in the Guidelines that the Minister is not bound by
any of the Guidelines nor is he or she required to consider any of the factors
for consideration when assessing applications for ministerial intervention
outlined in the Guidelines.
Public interest test
1.31
While Ministers are required to base their decision to intervene in a
case under section 195A on the 'public interest', this concept remains unclear
and is not defined in the Act or in the Regulations.
1.32
Case law over time has determined that the concept of the 'public
interest' requires a discretionary value judgement dependent on the context of
the situation and the scope and purpose of the relevant Act. Court decisions
have also consistently noted that the public interest test is a matter for the
relevant Minister.[33]
Purpose of the Minister's power
1.33
The purpose of ministerial intervention powers has generally been
considered to be for use in situations in which the strict application of
provisions in the Act may produce an unjust outcome.[34]
1.34
The Senate Select Committee on Ministerial Discretion into Migration
Matters (Senate Select Committee) recommended in its report that ministerial
intervention powers be used sparingly as the 'last resort to deal with cases
that are truly exceptional or unforeseeable'.[35]
1.35
The section 195A power has been recognised by observers to be critical
in situations where a person seeking asylum is able to find safety in
Australia. A report by Liberty Victoria into the subject states that, while
relying heavily on the Minister's discretion, the power is 'essentially a
beneficial power that allows the Minister to give protection, rather than to
withhold it'.[36] Ms Helen Duncan similarly expressed the view that the power for the Minister to
intervene was important for people whose situations are unusual or exceptional,
and that the power should remain.[37]
Concerns regarding the Minister's
power
1.36
Ministerial intervention powers have long been considered to be a
controversial aspect of the migration framework. The powers have been
criticised as being extremely broad, generally non-compellable and
non-reviewable.[38] Concerns have also been raised that the powers are not subject to natural
justice, and that '[p]eople's rights and interests are being harmed and
inadequate, unfair decision‑making process that lead to harm are being
kept secret'.[39]
1.37
This issue was recognised when the legislation was first considered by
the Parliament. When debating the legislation in the Senate in 1989,
Senator Robert Ray expressed concern about the potential operation of
the Minister's discretionary powers into the future:
What I do not like about [ministerial intervention powers] is
access. Who has access to a Minister? Can a Minister personally decide every
immigration case? The answer is always no. Those who tend to get access to a
Minister are members of parliament and other prominent people around the
country. I worry for those who do not have access and whether they are being
treated equally by not having access to a Minister.[40]
1.38
As Minister for Immigration, Senator Ray sought to remove all
ministerial discretion from the Act, stating:
The wide discretionary powers conferred by the Migration Act
have long been a source of public criticism. Decision-making guidelines are
perceived to be obscure, arbitrarily changed and applied, and subject to
day-to-day political intervention in individual cases.[41]
1.39
In 2004, the Senate Select Committee noted in its report that
consideration of the proposed 1989 bills in the Senate reflected the highly
contentious nature of the powers.[42] In its report, the Senate Select Committee concluded that the powers were of
concern, forming the view that:
...vesting a non-delegable, non-reviewable and non-compellable
discretion with the immigration minister without an adequate accountability
mechanism creates both the possibility and perception of corruption.[43]
Statement of Ministerial Standards
1.40
Since 1996, ministers and assistant ministers have been required to
comply with the Statement of Ministerial Standards (Ministerial Standards),
issued by the Prime Minister of the day. The underlying principles are set out
in paragraphs 1.1 and 1.2 within the Ministerial Standards:
1.1. The ethical standards required of Ministers in
Australia’s system of government reflect the fact that, as holders of public
office, Ministers are entrusted with considerable privilege and wide
discretionary power.
1.2. In recognition that public office is a public trust,
therefore, the people of Australia are entitled to expect that, as a matter of
principle, Ministers will act with due regard for integrity, fairness,
accountability, responsibility, and the public interest, as required by these
Standards.[44]
1.41
The Ministerial Standards go on to state:
- Ministers must ensure that they act with integrity – that
is, through the lawful and disinterested exercise of the statutory and other
powers available to their office, appropriate use of the resources available to
their office for public purposes, in a manner which is appropriate to the
responsibilities of the Minister.
- Ministers must observe fairness in making official
decisions – that is, to act honestly and reasonably, with consultation as
appropriate to the matter at issue, taking proper account of the merits of the
matter, and giving due consideration to the rights and interests of the persons
involved, and the interests of Australia.[45]
Structure of this report
1.42
This report consists of two chapters, including this introductory and
background chapter.
1.43
Chapter 2 details the actions and decisions that were taken with respect
to the Brisbane and Adelaide cases, outlines the issues raised by participants
in the inquiry, and sets out the committee's views and recommendation.
Note on terminology
1.44
The terms 'tourist visa', 'visitor visa', and 'subclass 600 visa' relate
to the same type of visa and are used interchangeably in this report.
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