Terms of reference
On 19 June 2003 the Senate agreed that a
Select Committee, to be known as the Select Committee on Ministerial Discretion
in Migration Matters, be appointed to inquire into and report on the following
- the use made by the Minister for Immigration of the
discretionary powers available under sections 351 and 417 of the Migration Act
1958 since the provisions were inserted in the legislation;
- the appropriateness of these discretionary ministerial
powers within the broader migration application, decision-making, and review
and appeal processes;
- the operation of these discretionary provisions by
ministers, in particular what criteria and other considerations applied where
ministers substituted a more favourable decision; and
- the appropriateness of the ministerial discretionary
powers continuing to exist in their current form, and what conditions or
criteria should attach to those powers.
Background to the inquiry
This inquiry had its origins in concerns
aired in parliament about the use of the ministerial discretion powers under
the Migration Act 1958 by the then
Minister for Immigration and Multicultural and Indigenous Affairs, the Hon
Philip Ruddock MP. Between 26 May and 12 June 2003, Mr Ruddock was
asked several questions in parliament about cases where ministerial discretion
appears to have been granted to people who had made donations to the Liberal
party or their associates. In the course of parliamentary debate on the
so-called 'cash-for-visa' allegations, the opposition parties aired
long-standing concerns about the nature of the discretionary powers under the
Migration Act, including that they are insufficiently accountable and open to
the possibility of corruption and influence peddling. Finding that Mr Ruddock did
not satisfactorily address either the individual allegations or the broader
concerns raised in the House, the Senate established this Select Committee to
investigate these and broader issues concerning the discretionary powers.
Conduct of the inquiry
The Committee advertised the inquiry on 2 July 2004 in the Australian and on the Senate website
and wrote directly to a range of relevant organisations and experts. Interested
persons and organisations were invited to lodge submissions by 1 August 2003,
although the Committee agreed to accept submissions after that date. A total of
43 submissions and 30 supplementary submissions were received from Commonwealth
agencies, lawyers and migration agents, academics, community groups and
individuals. The majority of submissions were published, although a number were
received in camera at the request of
the submittor. A list of submissions is at Appendix 1.
Between 5 September 2003 and 18 November 2003 the
Committee conducted seven public hearings in Canberra and Sydney, at
which evidence was taken from 51 witnesses. A list of the public hearings and
witnesses is at Appendix 2.
In addition to the public hearings, the
Committee held two in camera hearings
Taking evidence in camera enabled
Committee members to discuss a number of issues in detail without jeopardising
the privacy or security of individuals. With the agreement of the witness
concerned, the transcript of part of one in
camera hearing was later published.
The Committee takes this opportunity to thank
all those who made submissions and gave evidence at public and in camera hearings.
Structure of the report
The structure of this
report reflects the Committee's terms of reference, which were to examine the
use, operation and appropriateness of the ministerial discretion powers under
sections 351 and 417 of the Migration Act
–Chapters 1 and 2
Chapter 1 sets out the
issues that led to the establishment of the inquiry including the allegations
aired in parliament and outcome of the parliamentary debates. It also details
how the Committee's efforts to investigate specific allegations were hampered
by the new immigration minister, Senator
refusal to provide information on individual cases as requested by the
Chapter 2 sets out the
policy context of the ministerial discretion powers, including the background
to their insertion in the Migration Act in 1989, and the way they are framed.
It briefly notes the outcome of previous parliamentary reports dealing with
of the powers – Chapter 3
Chapter 3 gives a
statistical overview of the patterns of use of the powers under previous
ministers, noting the limitations of the available data to gaining a full
understanding of the ways in which the powers have been used.
of the powers – Chapters 4 to 7
Chapters 4 to 7 consider
aspects of the operation of the powers over recent years, with a focus on
whether current procedures are sufficiently transparent and accountable to prevent
abuse of the system and whether there is equity for visa applicants.
Chapter 4 examines the
development of the ministerial guidelines on the discretionary powers and
current administrative and decision-making processes within the Department of
Immigration and Multicultural and Indigenous Affairs (DIMIA). It briefly
considers the role of the Migration Review Tribunal (MRT) and Refugee Review
Tribunal (RRT) in the operation of the powers.
Chapter 5 discusses
problems encountered by visa applicants trying to access ministerial
intervention as related to the Committee. It considers the adequacy of publicly
available information, assistance to visa applicants seeking ministerial
intervention and a number of procedural issues that can adversely affect an applicant's
status in Australia.
Chapter 6 looks at the
role played by representatives of visa applicants, including migration agents,
lawyers, community leaders and parliamentarians, in bringing cases to the
minister's attention and considers claims that certain advocates or communities
have had an undue influence on the minister's exercise of the discretionary
Chapter 7 is about the
central place of the minister for immigration in exercising the non-delegable
discretionary powers in the public interest. In examining a number of features
of the operation of the powers under former Minister Ruddock, it questions
whether there is sufficient transparency and accountability for decision making
and whether the volume of cases decided by the minister in person in recent
years is problematic.
discretion and Australia's
international obligations – Chapter 8
Chapter 8 examines an issue raised by many
witnesses to the inquiry, namely the adequacy of the ministerial discretion
powers to implement Australia's
non-refoulement obligations under several international human rights treaties.
of the current form of the powers – Chapter 9
Chapter 9 looks at the appropriateness of the
current form of the ministerial discretion powers in light of the increased
number of cases decided in this way in recent years and the widely-held concern
about the corruptibility of the present system.
It proposes maintaining the ministerial discretion power but with increased
transparency in its operation.