Currently a Select Senate Inquiry is examining ministerial
discretion in migration matters.(1) The first witnesses
appeared before the inquiry on Friday 5 September
2003 and a number of further hearings are scheduled
before the inquiry is due to report early in November.
The current conundrum surrounding the exercise of
ministerial discretion in migration matters needs to be understood
in historical context. The machinery legislation of the 1901 and
1958 Migration Acts conferred wide discretionary powers upon the
Minister. In 1989, reforms to the Migration Act 1958
removed most of these discretionary powers by creating legally
binding statutory rules for visa categories. The original
Bill which conferred most of the residual
discretionary power on the Secretary (and not the Minister) was
blocked in the Senate. After amendments, the
Bill that became Act 59 of 1989 allowed
for a degree of ministerial discretion. More recently (and as
recent as 28 August 2003) a number of new
discretionary powers have been added which broaden the scope of
ministerial discretion.
As initially conceived, these discretionary powers were
meant to balance what is an otherwise inflexible set of regulations
to allow the minister a public interest power to grant a visa in
individual circumstances which the legislation had not anticipated
and where there were compelling, compassionate and humanitarian
considerations for doing so. However in practice ministerial
discretion has undergone an evolution, from being an informal
mechanism for dealing with unique and exceptional circumstances in
a small number of instances, to a systematised administrative
process employing more than 50 staff to manage thousands of
requests on an annual basis.
The main reasons for the growth of ministerial discretion
under the current government include: a growing number of requests
for intervention; the introduction of a broader set of ministerial
guidelines accompanied by an administrative procedure for reviewing
every negative tribunal decision against those guidelines; and the
adherence to a policy approach of dealing with humanitarian cases
that fall under a number of international treaties and large group
claims of a humanitarian nature also on a case by case basis
through ministerial discretion.(2)
The growth in ministerial discretion is not the only
contemporary policy issue. Others include: the informal nature of
triggering discretion, the delegation of the vetting of requests
for ministerial discretion to case officers and officers in the
ministerial intervention unit, the reliance on ministerial
discretion as a de facto humanitarian entry process and the
broadening of the scope of ministerial discretion through the
institution of new powers.
In a context where this discretion is neither reviewable
nor compellable, is triggered through an informal process, and
remains substantially hidden from scrutiny, immigration ministers
are left vulnerable to accusations of favouritism. All
this begs the question whether the current formulation of
ministerial discretion is sustainable.
This brief commences with an overview of the history of
ministerial discretion in immigration law and policy. This history
concentrates mostly on the sweeping changes to migration law and
policy brought about by the 1989 reforms introduced by Senator
Robert Ray following the report of the Fitzgerald inquiry into
Australia's immigration policies. An overview of the parliamentary
debate about ministerial discretion in immigration policy follows.
This is important because much of what was said in that debate is
relevant to the current issues surrounding ministerial discretion
in migration matters. The next section sets out how the reforms
have fundamentally shaped contemporary immigration policy and
legislation in Australia. The final section provides an overview of
contemporary issues relating to the use of ministerial discretion
and offers explanations for the increasing use of this power under
the current government, especially since 1999.
The Immigration Restriction Act 1901 provided
a skeletal framework for making immigration decisions and policies,
allowing wide discretionary powers in determining entry, stay and
deportation from Australia.(3) The Migration Act
1958 codified some of the discretionary powers of the
Minister, but 'gave no indication how discretions would be
exercised in individual cases'.(4) For example, section
18 of the Migration Act simply gave the Minister wide discretion to
deport 'a person who is a prohibited non-citizen', leaving
considerable scope for the unfettered exercise of that discretion
to expel or not expel a person from Australia.(5) For
most of the twentieth century immigration policy was not subject to
any systematic scrutiny by the Parliament, or judicial
review.(6) Prior to the establishment of the Federal
Court in 1976, appeals against discretionary decisions in
immigration matters were rare and generally restricted to highly
politicised cases.(7)
The machinery legislation of the 1901 and 1958 Acts conferred
wide discretionary powers upon the Minister and the Department to
grant entry permits, cancel those permits, deport unlawful
non-citizens and others deemed to be undesirable.(8)
According to immigration law expert, Mary Crock:
While the discretionary powers of the Minister are not
reviewable in domestic law, they can be subject to scrutiny in
international law through complaints mechanisms established by the
United Nations. Two committees, the Human Rights Committee and the
Torture Committee have heard and in some cases upheld complaints
against Australia in relation to its non-refoulement obligations,
where ministerial discretion had been unsuccessfully
sought.(37) However, the views of these international
committees are not legally binding or enforceable. Their efficacy
is reliant on parties to the convention agreeing to implement the
views of the committee.(38)
The 1989 legislative changes also required extensive
administrative changes within the immigration portfolio to
implement the new regulatory scheme introduced at that
time.(39) Policies which implement the regulations and
the Act are specified in a lengthy Policy Advice Manual 3 (PAM 3),
and a set of Migration Series Instructions (MSI). The PAM 3 is
meant to be read in conjunction with the regulations and to provide
an interpretive policy framework for making decisions consistent
with the Act and the regulations.(40) MSIs are temporary
instructions issued to all offices in Australia and overseas. MSI
225 sets out the Ministerial Guidelines for the identification of
unique or exceptional cases where it may be in the public interest
to substitute a more favourable decision under the Migration Act
1958 (Ministerial Guidelines). These guidelines operate as a vital
policy framework setting out the basis upon which case officers
assess whether to refer a particular case to the Minister or
not.
Different Uses of Ministerial Discretion under the
Act
A number of sections of the Act confer a discretionary power
upon the Minister (among them: sections 33, 37A, 46A, 46B, 48B, 72,
91F, 91L, 91Q, 137N, 261K, 351, 391, 417, 454, 495B, 501, 501A,
501J and 503A). These ministerial powers of discretion include
substitution powers, powers to vary processes, order release from
detention or cancel visas on character grounds. In addition the
Minister has a number of discretionary powers available to him or
her under the Migration Regulations.
The discretionary power under Section 48B has been the subject
of contention in cases already examined at length by the Senate
Legal and Constitutional References Committee Inquiry into
Australia's Refugee and Humanitarian Determination
Process.(41) This provision gives the Minister the power
to allow a non-citizen to apply for a protection visa where under
section 48A it would not be otherwise permissible.
The current Ministerial Guidelines refer explicitly to sections
345, 351, 391, 417 and 454. Section 345 was repealed by Act No.
113.(42) The new guidelines in the process of being
implemented add section 501J.(43) The Minister's
discretionary power under these sections is only available after a
decision of one of the relevant tribunals, the AAT (in respect of
an RRT or MRT reviewable decisions), the MRT or the
RRT.(44) The Minister can only substitute a more
favourable decision than the tribunal decision where he or she
considers it in the public interest to do so.(45)
In addition, the
Minister's discretionary power has to be exercised personally and
is not allowed to be delegated.(46) However
administrative routines governed by a set of Ministerial
Guidelines(47) effectively delegate the vetting of a
substantial volume of requests for Ministerial intervention to the
ministerial intervention unit, which currently employs more than 50
staff. Officers of the Department of Immigration and Multicultural
and Indigenous Affairs (DIMIA) are delegated the role of deciding
which cases to refer to the Minister's intervention unit for
consideration, and which ones to cull. This practice of
administrative delegation was challenged unsuccessfully in
Ozmanian (1996) 141 ALR 322.(48) The informal
nature of triggering ministerial discretion through an
administrative process of delegation is an important contemporary
issue dealt with later.
Where a Minister decides to exercise his or her public interest
discretionary power to substitute a more favourable decision than
one of the relevant tribunals, he or she must table a statement
before both houses of parliament setting out the decision of the
relevant tribunal and the reasons for substituting a more
favourable decision, in a manner that does not identify or name the
individual.(49) The Act requires these statements to be
tabled within fifteen sitting days of the end of the six-month
period in which the decision is made.(50) In practice
this could be up to nine months later.
While this provision was designed to act as an accountability
mechanism, in reality these tabled statements read like a set of
templates, containing three or four paragraphs which convey very
little substance about the specific case.(51) The reason
for this is that the statements are not allowed to contain any
individually identifying information. Most are little more than
half a page in length. Statements tabled in relation to MRT matters
under s. 351 tend on the whole to be slightly more detailed than
statements handed down in relation to RRT matters under s. 417.
Much of the rationale underpinning the necessity for ministerial
discretion in immigration matters can be gleaned from the substance
of the 1989 parliamentary debate summarised above. Fundamentally,
the discretionary power balances what is now an otherwise
inflexible set of regulations to allow the minister a public
interest power to grant a visa in individual circumstances which
the legislation had not anticipated and where there are compelling,
compassionate and humanitarian considerations for doing so. In
other words ministerial discretion acts as a safety
net.(52) According to the current Ministerial
Guidelines, signed by the Minister:
The rationale underpinning the use of the ministerial discretion
is dynamic. It shifts according to policy preferences and changing
contexts and pressures. As the ensuing analysis seeks to
demonstrate, the rationale for ministerial discretion has broadened
considerably in recent years to accommodate Australia's protection
obligations under a number of international treaties and
conventions, and more recently to address 'urgent' policy matters
related to the regulation of temporary protection visas.
The process for triggering ministerial intervention in
immigration matters is informal. In the absence of a formal process
there are three main avenues for seeking the favourable
intervention of the Minister in immigration matters. A member from
the Migration Review Tribunal or the Refugee Review Tribunal or
other relevant tribunal may informally refer cases for
consideration. The current Minister has stipulated that such
requests are not to be made as formal recommendations appearing in
tribunal judgements, a view supported by the Senate and Legal
Constitutional References Committee.(54)
Second, individuals may make a request in writing to the
Minister. There is no formal application or formal process set out
by which applicants may seek consideration.(55) They may
make the request on their own behalf in writing, or as appears to
be more common, through a third party, such as a refugee lobby
group, a church group, an ethnic community representative, a
supporter or agent, who could be another state or federal MP or
party member.
Third, and most routinely, the Minister's discretion may be
sought by DIMIA officers who, since the issuing of new guidelines
in 1999, have been instructed to assess every negative tribunal
decision against the criteria set out in the Ministerial
Guidelines, discussed below.(56) They are to bring to
the Minister's attention those cases that fall within the
guidelines or make a file note that the case falls outside the
guidelines.(57) The impact of the new guidelines on
administrative routines relating to the exercise of ministerial
discretion is a matter of some importance considered in the
following section.
From September 1999 to June 2000, the Senate Legal and
Constitutional References Committee (the Committee) undertook an
examination of the adequacy of 'a non-compellable, non-reviewable
Ministerial discretion to ensure that no person is forcibly
returned to a country where they face torture or death'. The
committee considered various submissions in relation to the case of
Ms Z, refouled to China to face an abortion at eight months
pregnant, and whose repeated verbal requests to be allowed to stay
in Australia were not recognised as s. 417 requests.(58)
The Committee found that this case highlighted the 'potential for
problems to arise from the informal nature of the process of
requesting s. 417 intervention.'(59) In light of these
problems, the Committee recommended that an information sheet be
made publicly available explaining the provisions of s. 417 and the
accompanying Ministerial Guidelines, as well as information about
s. 48B.(60) The government responded by pointing
out that the guidelines were publicly available and that DIMIA Fact
Sheet 41 'explains the Minister's discretionary powers and further
publication of such information is not considered
necessary.'(61) However Fact Sheet 41
makes no mention of Ministerial discretion whereas Fact Sheet 61
does.(62) This public document provides two sentences of
information about Ministerial discretion, but no advice on the
process or how to make a request for consideration under the
guidelines.(63)
In the absence of a transparent accountability process, an
informal process for triggering ministerial intervention may appear
arbitrary, and lacking in transparency, whether it is or not.
A set of Ministerial Guidelines explain the circumstances where
the Minister may want to exercise his discretion.(64) To
ensure that all officers have ready access to this document, the
guidelines are registered as a Migration Series Instruction, No.
225.
These guidelines have undergone a series of
renovations over the last decade. The current and most
comprehensive set of guidelines outline the purpose, the
legislative framework, instances where the power is not available,
the unique and exceptional circumstances which might warrant the
Minister's consideration, other considerations, the applicability
of the guidelines and the relationship between requests for the
Minister's discretion and removal policy. Paragraph 6.2 of the
guidelines directs case officers to assess every rejected
application by one of the tribunals (MRT, RRT and AAT in
immigration reviewable cases). They are intended to operate as a
policy framework for assessing cases where there are 'unique and
exceptional circumstances' which may warrant the Minister's
favourable intervention.(65) At the time of the DIMIA
submission to the select Senate inquiry an even more comprehensive
set of guidelines was in the process of being
implemented.(66)
Earlier versions of the guidelines, one dated 28 July 1994 and a
subsequent version issued a couple of years later, are more limited
in describing the scope for ministerial intervention. The 1994
Guidelines refer to only four of the above dot points and make no
mention of Australia's protection obligations under international
conventions. Likewise the 1996 Guidelines make no reference to
Australia's protection obligations under other treaties, and define
the humanitarian grounds for considering discretion under s. 417
and s. 454 much more narrowly as: persons with convention related
claims in the past with a continuing subjective fear; persons
likely to face treatment closely approximating persecution, and
persons facing serious mistreatment, while not Convention related
constitutes persecution. The significant difference between these
earlier guidelines and those issued in 1999, is that the current
ones refer explicitly to Australia's protection obligations under
the Convention Against Torture and Other Cruel, Inhuman and
Degrading Treatment or Punishment (CAT), the Convention on the
Rights of the Child (CROC) and the International Covenant on Civil
and Political Rights (ICCPR). Consequently the new guidelines
significantly improve the chances of asylum seekers being granted
protection for humanitarian reasons, such as having been
tortured.(67)
The Minister cannot be compelled to act within the current
guidelines. However, it may be that a decision of a case officer
not to refer a matter to the Minister could be reviewable by the
courts, if for example, the file note showed that the officer
failed to consider an issue clearly within the guidelines.
In the case of Ms Z, for example, as discussed earlier, DIMIA
did not refer her matter to the Minister despite her repeated
(verbal) requests to be allowed to stay in
Australia.(68)
If a non-referral is a 'decision' in an administrative law
sense, it would fall under a privative clause [a clause that
attempts to restrict judicial review](69) decision under
section 474 (2) of the Migration Act. Such decisions are not
reviewable under the Administrative Decisions (Judicial Review)
Act.(70) However, the high court has indicated that
privative clause decisions can still be subject to common law
judicial review if there is a 'jurisdictional error'. Even if a
review of a DIMIA decision not to refer a case to the Minister is
possible, all this would achieve under the current wording of the
Migration Act is to place the matter before the Minister. The
Minister would still not be compelled to substitute a more
favourable decision or to even consider doing so.
From taking office in 1996 to the end of 2002, the current
Minister has used his discretionary powers 1916
times.(71) On 1046 occasions he used this power under s.
417 to substitute a more favourable decision than the Refugee
Review Tribunal,(72) and in 516 times he used it under
s. 351 to substitute a more favourable decision than the Migration
Review Tribunal.(73) This number is significantly
greater than the number of times this discretionary power was used
by former Ministers: 81 times under the Hon. Gerry Hand from 1990
to 1993, and 311 times under the Hon. Senator Nick Bolkus, from
1993 to 1996.(74)
The increasing use of ministerial intervention needs to seen in
the context of the growing number of requests, which is also
relative to the growing number of negative decisions affirmed by
the tribunals.
Figure 1: Number of Ministerial Interventions, Requests
for Ministerial Intervention and Negative Decisions Affirmed by the
Tribunals 19922003

Source: Tables 8T and 9T DIMIA
Submission to the Select Senate Inquiry into Ministerial Discretion
in Migration Matters. Prior to 1996
statistics were not kept in a format that enables comparisons to be
made between Ministers for number of requests.
Figure 1 represents the use of ministerial intervention relative
to the number of requests and number of negative decisions affirmed
by the tribunals.(75) Requests for intervention under
the current Minister have risen from 814 in 199697 to 5969 in
200203, an increase of 633 per cent.(76) Over the same
timeframe ministerial interventions have increased by 448 per cent,
but as an annual percentage of requests, ministerial interventions
have only ranged between five and eleven per cent of annual
requests.(77) For instance, the current Minister granted
favourable decisions in 10.8 per cent of requests in 199697
compared to 8.1 per cent of requests in the last financial
year.(78)
Apart from the increase in requests, there are at least two
other reasons for the increasing use of ministerial discretion
under the current government. The Ministerial Guidelines issued in
1999, for the first time, put in place a systematic administrative
process whereby every negative decision of the relevant tribunal
has to be assessed by a departmental case officer against the
criteria set out in those guidelines. Prior to this date the
Minister had exercised his discretion only 257 times from
commencing office in 1996 to the beginning of 1999. After putting
in place an administrative process for routinely assessing negative
tribunal decisions against the 1999 guidelines, the Minister
exercised his discretion 1668 times from 1999 to 2002. Of these,
961 instances were under s. 417, the most likely cases to fall
under one of the international conventions (CAT, CROC, ICCPR)
nominated within the guidelines as a reason for seeking ministerial
intervention. Figure 2 depicts the rise in ministerial discretion
interventions under s. 417 and the rise in negative decisions
affirmed by the Refugee Review Tribunal since
1996.(79)
Figure 2: Number of Ministerial Interventions Under s.
417 and Number of Negative Decisions Affirmed by the Refugee Review
Tribunal, 19962002

Source: Table 6T DIMIA Submission
to the Select Senate Inquiry into Ministerial Discretion in
Migration Matters, and data extracted from Ministerial Statements
Tabled in Parliament as at 30
June 2003.
Another reason for the steep rise in the use of
ministerial discretion under the current government arises from the
different policy approaches of the major parties to global
humanitarian crises. The Labor Party when in government responded
to international crises, such as the 1991 Gulf War, civil war
in Irian Jaya, Sri
Lanka and
Yugoslavia,(80) and the
Tiananmen Square massacre of 4 June
1989, by creating special assistance visa categories
on humanitarian grounds.(81) Some of the submissions to
the current inquiry have suggested the reintroduction of these
humanitarian visa classes as a way of reducing the use of
ministerial discretion.(82)
The Coalition
government on the other hand has consistently adopted a policy
approach opposed to the creation of special category visa classes
on humanitarian grounds, preferring to deal with such circumstances
on a case by case basis through a reliance on the powers of
ministerial discretion. These cases have to first be channelled
through one of the tribunals before ministerial intervention can be
requested, accounting in part for the rise in the number of cases
coming before the tribunals, and the rise in the number of requests
for intervention.
The response of the major parties to the East Timorese asylum
seekers who fled Indonesia in the early 1990s seeking Australia's
protection, exemplifies the difference in policy approach and the
substantial numerical impact on the use of ministerial discretion.
The Government has consistently indicated a preference to deal with
the exceptional circumstances posed by the complex legal history of
the failed East Timorese asylum seekers, on a case by case basis
through the exercise of Ministerial discretion.(83)
On 4 June this year the
Minister indicated that he would use his public interest powers of
discretion in relation to 379 East Timorese failed asylum seekers
subject to health and character checks, and that another 200 of a
similar nature were currently being considered.(84) All
these cases had to first be channelled through the RRT before they
could be considered by the Minister. These figures are not yet
included in the calculation of the current minister's use of
discretion. When they are counted, this policy stance will
significantly inflate the number of times the minister will have to
use his discretionary powers under s. 417 in the latter part of
2003.
The Labor opposition, on the other hand, has indicated a
consistent policy preference for amending the Migration Act to
create a special visa class of entry on humanitarian grounds in
cases like the East Timorese.(85) When in government
Labor created a number of visas on humanitarian grounds, as already
discussed (see above). If successfully implemented this policy
approach would reduce a Labor government's reliance on ministerial
discretion in immigration matters, and reduce the number of cases
being channelled through the refuge review tribunal. The costs and
benefits of such a policy approach have been considered
elsewhere.(86)
A number of difficulties have arisen from the increasing use of
ministerial discretion.
First, the sheer volume of requests creates a massive work load
for the Minister and his or her staff. The current Minister has for
example had to handle an estimated 27 000 requests during his term
of office.(87) The ministerial intervention process
currently employs around 51 staff to handle the administration
associated with this caseload.(88)
Second, the 2000 Senate Legal and Constitutional Committee
inquiry formed the view that 'Ideally, ministerial discretion, and
associated resources, should be reserved to deal with a small
number of cases which are the exception to the
rule',(89) a view echoed in the parliamentary debate at
the time of its introduction in 1989 and a number of submissions to
the current inquiry.
Lastly, in the context of ministerial discretion being used more
frequently, allegations about favouritism toward particular ethnic
groups are, according to Mary Crock and Ben Saul, 'probably
inevitable given the way the power is structured and the
significance of the decisions to individuals'.(90)
Ministerial discretion provides the only policy instrument for
granting protection on humanitarian grounds for applicants whose
on-shore claims fall outside the Refugee Convention.(91)
In the absence of any formal on-shore process for humanitarian
protection outside the Refugee Convention, Ministerial discretion
has increasingly been used to meet Australia's humanitarian
obligations, under several international treaties: CAT, CROC and
ICCPR. A number of difficulties arise from using ministerial
discretion as a de facto on-shore humanitarian entry process.
First, the reliance on the exercise of a non-reviewable,
non-compellable and largely informal exercise of ministerial
discretion to meet Australia's humanitarian obligations to provide
protection under CAT, CROC or ICCPR has raised widespread concerns
among legal scholars, the judicial community, international lawyers
and a range of refugee advocate groups.(92) The main
issue of concern is that a claim to protection under one of these
conventions cannot be guaranteed by a discretionary power that the
Minister may choose not to exercise.(93) These concerns
are reiterated in at least ten submissions to the current
inquiry.(94) In particular, the submissions by Amnesty
International and the Human Rights and Equal Opportunity
Commission, argue strongly that Australia's protection obligations
under these treaties should be explicitly incorporated into
domestic law, and reflected in the on-shore refugee determination
process, rather than left to the discretion of the minister.
Second, a reliance on ministerial discretion for
processing on-shore humanitarian cases outside the Refugee
Convention embodies an administrative logic that is both lengthy
and costly.(95) Under the current system, people who
have legitimate humanitarian grounds for protection, under
one of several international treaties ratified by Australia, are
forced to first apply for refugee status and be rejected before
being able to invoke the only on-shore process currently available
for offering protection on humanitarian grounds under s. 417
through a request to the Minister. This is because the Minister's
substitution powers can only apply after a negative decision is
handed down. In addition to court, administrative and processing
costs, those who arrive unlawfully in Australia and are ultimately
channelled into seeking protection through ministerial discretion
will have to be detained under the mandatory detention regime at a
cost of around $120 per day.(96)
This raises other problems, as pointed out by various
submissions to the inquiry, including:
Many of these concerns were considered by the Senate Legal and
Constitutional References Committee inquiry in 2000. The committee
concluded that 'this discretion is a valuable mechanism for a
Minister to have,' that 'it should be retained' and it does provide
a mechanism for Australia to fulfil its international obligations,
but that 'the Guidelines should be more widely
disseminated'.(100) Elsewhere in the report, however,
the Committee expressed the view that ' this discretion must be
exercised through a transparent accountability
process',(101) a view strongly echoed in many of the
submissions to the current inquiry.(102)
Over the last few years, the scope of ministerial discretion has
been broadened by changes to the Migration Act and accompanying
regulations. Most of these changes have related to the regulation
of temporary safe haven and temporary protection
visas.(103) The most recent of these, the Migration
Amendment Regulations 2003 No. 6 (No. 224), was gazetted on
28 August 2003.
The new regulation introduces two new avenues for ministerial
discretion. First, it allows for visa periods (under classes
447, 451 and 785) to be granted for 'a shorter period specified by
the minister in relation to the visa holder'.(104)
Second, the new regulations create a discretionary power for the
Minister to allow those who arrive lawfully in Australia to
apply immediately for permanent protection, if the Minister is
satisfied it is in the public interest to do
so.(105)
The major policy purpose of the new regulation is to effectively
broaden the Temporary Protection Visa (TPV) regime to all on-shore
applicants seeking protection, regardless of whether they arrived
lawfully or unlawfully.(106) Previously the TPV regime
discriminated against those who arrived unlawfully and was
criticised as a way of punishing them.(107) While the
new regime introduces more consistency, only those who arrive
lawfully will be able to invoke the Minister's new public interest
power to apply for permanent protection, without having first held
a TPV.(108)
These new provisions, alongside the others introduced in 1999
and 2001, have broadened the scope of the minister's public
interest powers of discretion and conceivably may lead to their
even greater use.
This brief has provided an overview of the use of ministerial
discretion in immigration matters. The scope of that discretion was
reduced dramatically following the 1989 reforms to the Migration
Act 1958 which established a statutory regime for granting visas.
The major impetus underpinning the reforms was a desire to make
decision-making in immigration matters accountable, equitable and
transparent. The strict regime of regulations governing visa entry
and stay in Australia is balanced by a residual power of
ministerial discretion used in 'unique and exceptional'
circumstances where the Minister considers it is in the public
interest to do. It is reasonable to conclude that the exercise of
that discretion was intended to be used sparingly at the time the
legislation was introduced in 1989.
However, different policy approaches, particularly between the
major political parties to creating visa categories on humanitarian
grounds, has impacted significantly on the use of ministerial
discretion. The Government's opposition to the creation of special
visa classes to respond to periodic humanitarian crises (such as
the war in Iraq and Afghanistan and the ten year saga with the East
Timorese asylum seekers) has lead to extensive reliance on
ministerial discretion on a case by case basis. This raises real
issues of administrative efficiency and appropriateness where a
large number of claimants are involved, and begs the question
whether the increasing use of ministerial discretion as currently
formulated is sustainable.
The other major factor underpinning
the steep rise in the use of discretion arises from the new
Ministerial Guidelines issued in 1999 which now explicitly reflect
Australia's humanitarian obligations under three international
treaties.(109) These guidelines direct case officers to
assess every negative decision of the relevant tribunal against the
criteria set out in those guidelines in deciding whether or not to
recommend a case to the Minister for consideration. This
instruction has led to the establishment of a systematic
administrative process for identifying cases where the Minister may
want to consider exercising his or her discretion, significantly
enhancing the chance of many more cases of a humanitarian nature
being recommended. A systematic administrative process has evolved
for handling what are still informal requests for the minister's
favour.
The combined effect of these changes has resulted in an
exponential increase in the use of Ministerial discretion in
immigration matters. However in a context where this discretion is
neither reviewable nor compellable, the exercise of this discretion
remains substantially hidden from scrutiny. Public accountability
is limited to a short general statement tabled before both houses
of Parliament up to nine months later. In this context, suspicions
about favouritism are, as Mary Crock and Ben Saul suggest,
'probably inevitable given the way the power is
structured'.(110)
-
The Select Senate Inquiry in
Ministerial Discretion in Migration Matters was established on 19
June 2003 and is to report by the 3 November 2003. The inquiry has
received 24 written submissions mostly from migration agents, legal
academics, refugee advocates and human rights bodies.
-
For
example, as with the East Timorese asylum seekers in
2003.
-
John McMillan, 'Controlling Immigration
LitigationA legislative challenge', People and Place, vol.
10, no. 2, 2002, p. 16.
-
Mary Crock, Immigration and Refugee
Law in Australia, Federation Press, Sydney, 1998,
p. 34.
-
ibid., p. 218.
-
ibid., pp. 3341; Katherine Betts,
'Immigration Policy Under the Howard Government', Australian
Journal of Social Issues, vol. 38(2), 2003, p. 171, John
McMillan, op. cit., p. 16; see also Barry York, Australia and
Refugees, '19012002: An Annotated Chronology Based on Official
Sources', Chronology, no. 2, Department of
Parliamentary Library, Canberra, 2003.
-
John Power, 'The Executive, the
Judiciary and Immigration Appeals in Australia', in Neal Tate and
Torbjorn Vallinder, (eds.), The Global Expansion of Judicial
Power, New York University Press, New York, 1995.
-
Mary Crock, op. cit., p. 42.
-
ibid.
-
See for example, Senator Robert Ray, Second
reading speech Migration Legislation Amendment Act 1989, Senate,
Debates, 5 April 1989.
-
Catherine Betts, op. cit., p. 172; John
McMillan, op. cit., p. 17 and John Power, op. cit.,
p. 102.
-
On 4 September 1987, a Committee to
Advise on Australia's Immigration Policies (chaired by Stephen
Fitzgerald) was established with a wide brief to examine
immigration policy and legislation. (Stephen Fitzgerald,
Immigration a commitment to Australia: The report of the
committee to advise on Australia's Immigration Policies,
Commonwealth of Australia, 1998, vol. 1, p.iii.). After six months
of extensive consultation, expert input and commissioned research,
the committee produced a three volume report (widely referred to as
the Fitzgerald Report). The Fitzgerald report concluded that the
major deficiency in the Migration Act 1958 was 'the broad and
unstructured nature of the discretionary powers contained in the
Act'. (ibid., vol. 2, p. v.).
-
Immigration Review Tribunal, Annual
Report 199091, Commonwealth of Australia, Canberra, 1991, p.
1. On 1 June 1999 this tribunal was renamed the Migration Review
Tribunal (MRT).
-
Refugee Review Tribunal, Annual
Report 199394, Commonwealth of Australia, Canberra, 1994, p.
1. This tribunal was established by the Migration Reform
Act 1992.
-
John Power, op. cit., p. 106.
-
Senator Robert Ray, Second reading
speech Migration Legislation Amendment Act 1989, Senate,
Debates, 5 April 1989.
-
Senator Jenkins, Australian Democrats,
Human Rights and Equal Opportunity Commission, Annual Report
198788, Senate, Debates, 25 May 1989.
-
'Migration Amendment Bill facing defeat', ABC
Radio Program PM, 2 May
1989.
-
Senator Robert Ray interviewed on ABC
AM radio, 3 May 1989.
-
Mr Alan Cadman, MP, Migration
Legislation Amendment Bill 1989, House of Representatives,
Debates, 1 June 1989.
-
Migration Legislation Amendment Bill
1989, Senate, Journals, no. 161, 30 May 1989.
-
Phillip Ruddock, MP, Migration (and
Consequential Amendments) Bills 1989, Speech, House of
Representatives, Debates, 31 October 1989.
-
Senator Robert Ray, Speech Migration
Legislation Amendment Act 1989, Senate, Debates, 30 May
1989.
-
ibid.
-
Migration Legislation Amendment Act
1989, (Act 59 of 1989), date of assent 19 June 1989.
-
Phillip Ruddock,
MP, Speech: Migration Amendment Bill 1989,
House of Representatives, Debates, 1 June 1989.
-
Migration Legislation Amendment Bill
(No. 2) 1989. Date of Assent 28 December 1989; Date of
Commencement, 28 December 1989.
-
For
example, see the speeches of Senator Jenkins, AD, Senate,
Debates, 14 December
1989 and Mrs Sullivan, House of
Representatives, Debates, 21 December
1989.
-
Senator
Jenkins, Speech: Migration Legislation Amendment
(Consequential Amendments) Bill 1989; Migration Legislation Amendment
Bill (no. 2) 1989, Second Readings,
Senate, Debates, 14
December 1989.
-
Mary Crock, op. cit., p. 42.
-
Sections 37A, 46A, 46B, 48B, 72, 91F,
91L, 91Q, 137N, 261K, 351, 391, 417, 454, 495B, 501A, 501J and
503A.
-
Mary Crock, op. cit., p. 274.
-
Under s. 351 (7), s. 391 (7), s. 417
(7) and s. 454 (7) Migration Act 1958.
-
Ian Ellis-Jones, Essential
Administrative Law, Second Edition, Cavendish Publishing,
Sydney, 2001, p. 96.
-
Re Minister for Immigration and
Multicultural and Indigenous Affairs; Ex parte Applicants
S134/2002 (2003) 195 ALR 1 at 12 (per Gleeson CJ, McHugh,
Gummow, Hayne and Callinan JJ).
-
Re Minister for Immigration and
Multicultural and Indigenous Affairs; Ex parte Applicants
S134/2002 (2003) 195 ALR 1 at 1213.
-
Jane Hearn and Kate Eastman, 'Human
rights issues for Australia at the United Nations: Australia's
non-refoulement obligations under the Torture Convention and the
ICCPR', Australian Journal of Human Rights, 2000, vol. 6
(1) p. 216238.
-
Mary Crock, op. cit., p. 30.
-
ibid., p. 39.
-
Policy Advice Manual 3, CD
Rom, Introduction to Guide, page unspecified.
-
For example, in (Mr SE) Elmi v
Australia cited in Senate Legal and Constitutional References
Committee Report,
A Sanctuary Under Review: an examination of
Australia's refugee and humanitarian determination processes,
Commonwealth of Australia, Canberra, 2000, p. 261; and also cited
in Joanne Kinslor, 'Non-refoulement and torture: the adequacy of
Australia's laws and practices in safe-guarding asylum-seekers from
torture',
Australian Journal of Human Rights, vol. 6 (2),
2000, pp. 16274.
Under
s. 351 the Minister may substitute a more favourable decision
than the one handed down by the MRT, 'if the Minister thinks it is
in the public interest to do so.'
Under
s. 391 the Minister may substitute a more favourable decision
than the one handed down by the Administrative Appeals Tribunal
(AAT) in relation to an MRT-reviewable decision, 'if the Minister
thinks it is in the public interest to do so.'
Under
s. 417 the Minister may substitute a more favourable decision
than one handed down by the RRT, 'if the Minister thinks it is in
the public interest to do so.'
-
Under
s. 454 the Minister may substitute a more favourable decision
than the one handed down by the AAT in relation to an
RRT-reviewable decision, 'if the Minister thinks it is in the
public interest to do so.'
-
Under
s. 501 J The Minister may set aside an AAT protection visa
decision and substitute another decision that is more favourable to
the applicant in the review, 'if the Minister thinks it is in the
public interest to do so'.
-
Under s. 351 (1); s. 391 (1), s. 417
(1) and s. 454 (1) Migration Act 1958.
-
ibid.
-
Under s. 351 (3); s. 391 (3), s. 417
(4) and s. 454 (4) Migration Act 1958.
-
MSI 225:
Ministerial Guidelines for the identification of unique or
exceptional cases where it may be in the public interest to
substitute a more favourable decision under sections 345, 351, 391,
417 and 454 of the Migration Act 1958, effective March
1999.
-
Mary Crock, op. cit., p. 275.
-
Not all the sections of the Act require
the Minister to table a statement where he has used his or her
discretionary power. Those that do include sections: 33, 46A, 46B,
48B, 72, 91D, 91L, 91Q, 137, 345, 351, 391, 417, 454 and 501.
-
Under s. 351 (4), s. 391 (4); s. 417
(4) and s. 454 (4) Migration Act 1958.
-
This judgement is based on reading a
random sample of the many statements tabled from the early 1990s to
December 2002.
-
See also Phillip Ruddock, 'Refugee
Claims: A Ministerial Perspective', University
of New South Wales Law Journal, vol. 23 (3),
2000, p. 2.
-
Section
4.1, MSI 225: Ministerial Guidelines for the identification of
unique or exceptional cases where it may be in the public interest
to substitute a more favourable decision under sections 345, 351,
391, 417 and 454 of the Migration Act 1958.
-
The Hon. Phillip Ruddock, Minister for
Immigration and Multicultural and Indigenous Affairs, Speech to
open the Migration Review Tribunal, 4 June 1999, quoted in Senate
and Legal Constitutional References Committee, op. cit., p.
251.
-
See discussion in Senate and Legal
Constitutional References Committee, op. cit.,
p. 25157.
-
Section 6.2 Ministerial
Guidelines.
-
ibid.
-
For an analysis of this case see also,
Mary Crock, 'A Sanctuary Under Review: Where to from here for
Australia's Refugee and Humanitarian Program?', University
of New South Wales Law Journal, vol. 23
(3), 2000, p. 246.
-
Senate Legal and Constitutional
References Committee, op. cit., p. 253.
-
Senate Legal and Constitutional
References Committee, Recommendation 8.3, op. cit.,
p. 95.
-
Government Response to the Senate Legal
and Constitutional References Committee report, A Sanctuary
under review, an examination of Australia's refugee and
humanitarian determination processes, Commonwealth of
Australia, Canberra, 2001.
-
It could be that the numbering of the
Fact Sheets has changed since the government responded to the
Committee's Report, or that it was an inadvertent mistake.
-
DIMIA Fact Sheet 61, 'Seeking Asylum in
Australia'.
-
MSI
225: Ministerial Guidelines for the identification of unique or
exceptional cases where it may be in the public interest to
substitute a more favourable decision under s. 345, 351, 391, 417,
454 of the Migration Act 1958.
-
See Section 4,
Ministerial Guidelines.
-
See Attachment 9, DIMIA Submission to
the Select Senate Inquiry into Ministerial Discretion in Migration
Matters, August 2003.
-
Joanne Kinslor, op. cit., 2000,
p.174.
-
See Senate and Legal Constitutional
References Committee, op. cit., pp. 25253; see also Mary Crock,
2000, op. cit., p. 246.
-
Ian Ellis-Jones, op. cit., p. 86.
-
Administrative Decisions (Judicial
Review) Act 1997, Schedule 1.
-
Table 8T, DIMIA Submission to the
Select Committee on Ministerial Discretion in Migration Matters,
Table 8T, Appendix, August 2003.
-
Tabled Documents, Senate, Ministerial
Statements made during 19962002 under the Migration Act 1958 tabled
in the Parliament as at 30 June 2003.
-
Tabled Documents, Senate, Ministerial
Statements made during 19962002 under the Migration Act 1958 tabled
in the Parliament as at 30 June 2003.
-
Senator Chris Ellison, Answer to
Question Without Notice (Speech): Immigration: Ministerial
Discretion, Senate, Debates, 17 June 2003.
-
There is a strong positive correlation
of .82 between the rise in negative decisions affirmed by the
Tribunals and the rise in ministerial discretion
interventions.
-
DIMIA Submission to the Select
Committee on Ministerial Discretion in Migration Matters, Table 8T,
Appendix, August 2003.
-
Comparable data for earlier Ministers
is not available.
-
Percentages calculated from data
contained in Table 9T, DIMIA submission, op. cit.
-
The correlation (r = .54) between the
rise in ministerial discretion under s. 417 and the rise in the
number of negative cases affirmed by the Refugee Review Tribunal,
while still positive, is not as strong as the correlation above
(see endnote 75.).
-
These special visa categories were
announced in 1991. For details see Barry York, op. cit.
-
The Hon. Nick Bolkus, Minister for
Immigration and Ethnic Affairs, Media Release,
31 January 1994.
-
Submissions from: Human Rights and
Equal Opportunity Commission and the Catholic Commission for
Justice, Development and Peace.
-
Tabled Document, Letter President of
the Senate from The Hon. Phillip Ruddock, MP, 4 February 2003,
tabled in Senate, 3 March 2003; see also Kerry Carrington, Stephen
Sherlock and Nathan Hancock, 'The East Timorese Asylum Seekers:
Legal Issues and Policy Implications Ten Years On', Current
Issues Brief, no. 17, Department of Parliamentary
Library, 2003.
-
The Hon.
Minister Phillip
Ruddock, Answer to Question Without Notice: Immigration
Protection Visas, House of Representatives,
Debates, 4 June
2003.
-
For example, Julia Gillard MP,
Press Statement, 25 September 2002; Joint
Statement, Leader of the Opposition, The Hon. Simon Crean MP
and Julia Gillard MP, 5 March 2003; The Hon. Con Sciacca MP,
Media Release, 12 October 1999; Senator Trish Crossin,
Labor Senator for the Northern Territory, Senate, Debates,
3 March 2003, Speech East Timor: Asylum Seekers; The Hon. Warren
Snowden, House of Representatives, Debates, 3 March
2003.
-
See Kerry Carrington, Stephen Sherlock
and Nathan Hancock, op. cit.
-
The Hon. Minister Phillip Ruddock,
Answer to Question Without Notice: Immigration Visa Approvals,
House of Representatives, Debates, 25 June 2003.
-
See Table 1T in DIMIA submission, op.
cit.
-
Senate Legal and Constitutional
References Committee, op. cit., p. 259.
-
Mary Crock and Ben Saul, Future
Seekers: Refugees and the Law in Australia,
Federation Press, 2002, p. 62.
-
Paragraph 8.127, Senate Legal and
Constitutional References Committee, op. cit., p. 266.
-
Senate Legal and Constitutional
References Committee, op. cit., pp. 23767; see also Joanne Kinslor,
op. cit.
-
Senate Legal and Constitutional
References Committee, op. cit., p. 64. See also submissions from
Human Rights and Equal Opportunity Commission, Amnesty
International Australia and the Catholic Commission for Justice,
Development and Peace.
-
Submissions from: Dr Andreas
Schloenhardt, University of Adelaide; Christopher Livingston and
Associates; Joanna Stratton, ANU Honours dissertation; Refugee
Council of Australia; Human Rights and Equal Opportunity
Commission; Catholic Commission for Justice, Development and Peace;
Legal Aid NSW; The Uniting Church; South Brisbane Immigration and
Community Legal Service and Amnesty International Australia.
-
See also Senate Legal and
Constitutional References Committee, op. cit., p. 62.
-
In 1998 the Australian National Audit
Office estimated the running cost per person per day in detention
to be around $121.71. Source: Australian National Audit Office,
1998, The Management of Boat People, Tabled Document,
Senate.
-
A point made strongly by the submission
from the Human Rights and Equal Opportunity Commission.
-
ibid.
-
Most of the submissions to the inquiry
stressed this point.
-
Senate Legal and Constitutional
References Committee, op. cit., p. 267.
-
ibid., p. 245.
-
For example see submissions from:
Refugee Council of Australia; Human Rights and Equal Opportunity
Commission; Catholic Commission for Justice, Development and Peace;
Legal Aid NSW; South Brisbane Immigration and Community Legal
Service and Amnesty International Australia.
-
For example, in 2001 under sections
46A; 46B; 48B; in 1999 under sections 91L; 91Q; in 2001 under
regulations 866.215, 866.228 and 866.228A; and in 2003 under
regulations 866.212 and 886.214.
-
Under para. 447.511 (c) ii, para.
451.511 (c) ii, and clause 785.511 (c) ii
-
Under section 866.212 clause 5, and
section 866.214 (2).
-
-
Mary Crock and Ben Saul, Future
Seekers Refugees and the Law in Australia, Federation
Press, Sydney, 2001, p. 106.
-
Under section 866.212 clause 5, and
section 866.214 (2).
-
CROC, CAT and ICCPR.
-
Mary Crock and
Ben Saul, op. cit., p.
62.