Chapter 1 - Ministerial discretion – background issues and problems experienced during the inquiry

Chapter 1 - Ministerial discretion – background issues and problems experienced during the inquiry

1.1       This inquiry into ministerial discretion in migration matters was established following allegations raised in parliament in May and June 2003 about the use of the discretionary powers by the then Minister for Immigration and Multicultural and Indigenous Affairs, the Hon Philip Ruddock, stretching back to 1998.

1.2       During the course of parliamentary debates surrounding the allegations the then Shadow Minister for Immigration, Ms Julia Gillard MP, and Mr Laurie Ferguson MP, raised a number of specific allegations about the possible misuse by Mr Ruddock of his ministerial discretion powers under the Migration Act. The accusations related to instances where the minister was alleged to have granted visas to individuals in exchange for cash donations to the Liberal Party of up to $100,000 by the individuals concerned or by those acting on their behalf.[2]

1.3       The allegations were fuelled in part by media speculation that the immigration minister's strong connection with Australia's Lebanese community influenced his use of the discretionary powers on more than one occasion.[3] At the time the allegations were debated in parliament, they received an air of authenticity in the print media under two eye-catching headlines which soon became catch-all phrases to describe an unfolding political controversy for the Howard Government – the 'cash-for-visa' scandal and 'visagate'.[4]

1.4       This chapter provides a brief overview of allegations raised in parliament against the former Minister for Immigration, Mr Ruddock. The Committee believes that grasping the nature and gravity of the allegations is important because they gave rise to a range of issues relating to the minister's discretionary powers which, in turn, guided the Committee's efforts to investigate the allegations.

1.5       The chapter briefly considers the parliamentary debates on the allegations, in particular the censure motions moved against the immigration minister and the government. It concludes by examining obstacles to the conduct of this inquiry created in the first instance by the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) and subsequently by the new minister, Senator Vanstone, and the wider implications of executive obstruction for parliamentary accountability.

Allegations of impropriety raised by the Opposition

1.6       Four separate cases involving alleged impropriety by the former immigration minister, Mr Ruddock, were raised by the Opposition and debated in the House of Representatives between 29 May and 26 June 2003.[5] The Opposition gradually pieced together details involving each case over a number of weeks, mainly in response to answers provided in the House by Mr Ruddock. The core allegations involved in each of the four cases are summarised below:

The Opposition alleged that Mr Hbeiche was granted permanent residence as a result of the minister's intervention after a $3,000 donation was made to the Liberal Party at a fund-raising dinner by Mr Karim Kisrwani acting on Mr Hbeiche's behalf. It was also alleged that Mr Hbeiche's original application mentioned that he had three sisters in Australia, whereas the minister claimed that the brief that came from DIMIA did not contain this information.

The Opposition raised a number of allegations about Mr Kisrwani, including that he was the central figure in the 'cash-for-visas' scandal, and that he received money for migration advice although he was not a registered migration agent. Specifically, the Opposition alleged that Mr Kisrwani:

The Opposition alleged that Mr Tan's visa was reinstated after he made a $10,000 donation to the minister's re-election campaign at a fund-raising dinner organised by Mr Kisrwani, probably on 14 October 2001. Of added interest to this case is that the Philippine authorities laid charges of fraud against Mr Tan in 2000. When Mr Tan was informed that the Philippine authorities were seeking his extradition, he left Australia in 2003.

1.7       The Committee points out that unlike the cases involving Mr Hbeiche and Mr Kisrwani, those involving the Maha Buddhist Monastery and Mr Dante Tan did not involve Mr Ruddock exercising his ministerial discretion. It became clear during parliamentary debate that ministerial intervention had not been exercised in the granting of visas to the monastery, and that ministerial intervention could not have been considered for Mr Tan under the Migration Act because there had not been a review tribunal decision in that case.

1.8       While the Maha Buddhist Monastery and Tan cases do not fall directly within this inquiry's terms of reference, the Committee notes that they nevertheless raise serious allegations of impropriety by Mr Ruddock similar to the allegations surrounding cases involving Mr Hbeiche and Mr Kisrwani.

Outcome of parliamentary debate

1.9       The parliamentary debate that followed airing of the 'cash-for-visa' allegations resulted in two censure motions being moved by the Shadow Minister for Immigration, Ms Julia Gillard, against Mr Ruddock on 5 June and 26 June, respectively. Not surprisingly, both motions were defeated on party lines. A third attempt by the Opposition to move a censure motion against Mr Ruddock on 18 June was prevented when the Deputy Speaker ruled the motion out of order (the motion was not consistent with a special ruling on government business that had been made for that sitting day).[7]

1.10   On both occasions the minister rejected the allegations made against him, and brushed aside the censure motions as nothing more than planned and premeditated political stunts. He claimed that the motive behind the first censure motion was 'quite malevolent', and that it was 'a deliberate attempt to diminish me'.[8] On other occasions, the minister stated categorically that: 'I have never exercised my personal discretion in return for a donation'.[9]

1.11   The parliamentary debate surrounding the allegations reiterated long-standing criticisms of the discretionary powers. These included that the powers are open to real or perceived distortion, political influence and corruption at the highest levels of public office because they are too broad in scope and far removed from the established avenues of accountability that apply across all levels of executive decision-making.[10]

1.12   In short, because the minister's discretionary powers are non-compellable, non-reviewable and non-delegable – an issue examined in detail in this report – they are effectively beyond the reach of parliamentary scrutiny and leave a significant accountability 'black hole' in the administration of immigration policy.

1.13   In the light of the unsatisfactory responses to the allegations by Mr Ruddock, the Opposition parties decided that the allegations and the government's response were serious enough for the issue of the minister's discretionary powers to be brought before a parliamentary committee of inquiry.[11]

1.14   The Select Committee on Ministerial Discretion in Migration Matters was subsequently appointed by the Senate on 19 June 2003. Although the allegations raised in parliament in 2003 provided a focus for the inquiry, the Committee was empowered under its terms of reference to examine broader issues, such as the appropriateness of the ministerial discretion powers under sections 351 and 417 of the Migration Act within the current migration system. The Committee was also empowered to consider the operation of the discretionary powers by immigration ministers, including the criteria that applied (and should apply) to the exercise of the powers.

1.15   The Committee decided during the inquiry process that it would seek access to case files, information and documents held by the immigration department and documents kept by departmental liaison officers in the immigration minister's Parliament House office. The Committee formed the view that having access to the case files and documents was necessary to enable it to properly examine allegations involving Mr Ruddock's use of the discretionary powers, and to address in full the inquiry's terms of reference.

1.16   The following section describes how during the course of its inquiry the Committee met a number of obstacles that prevented the inquiry moving forward. Specifically, in a period of nearly five months, from mid-September 2003 to March 2004, the Committee was impeded on a number of occasions in its efforts to gain access to certain documents it considered important to its inquiry.

Obstacles to the conduct of the inquiry

1.17   The Committee's efforts to test the allegations outlined above were hampered by the lack of cooperation received from both DIMIA and Senator Vanstone, as the new immigration minister. The Committee made numerous requests for information that might shed light on specific cases where allegations had been aired in parliament and the media. At various stages of the inquiry, Committee members requested, inter alia: case files and details of cases where Mr Karim Kisrwani had made representations on behalf of an applicant; details of cases where Mr Ruddock used the intervention powers in a case initially assessed by DIMIA officers as falling outside the ministerial guidelines; cases decided by Mr Ruddock during his last week in office; case files where the 'top ten' sponsors had made representations; and the case history of certain individuals who had received ministerial intervention and who became the subject of media interest, including Mr Bedweny Hbeiche. The Committee was also interested in how Senator Vanstone used the power after she became minister, and sought information about the well-publicised case of Mr Ibrahim Sammaki.

1.18   The Committee also requested the notebooks kept by a departmental liaison officer (DLO) serving in Mr Ruddock's office during the period in question. The departmental liaison officer told the Committee that he kept notebooks to keep track of the content and any outcome of phone calls,[12] some of which could be relevant to ministerial intervention cases of interest to the Committee.[13]

1.19   All of the Committee's requests for detailed case file information were met with resistance, initially from DIMIA and ultimately from Senator Vanstone. Their responses to these requests are summarised below:

1.20   Without access to case files, documents and other contextual information on specific cases where Mr Ruddock used the intervention powers, the Committee has been unable to resolve the suspicion and doubt that has arisen following the airing of allegations last year. This has led to a situation where the Committee has been unable to fully address one of the inquiry's key terms of reference on the operation of the discretionary powers by ministers and the criteria that applied when ministers exercised their discretion (term of reference (c)). The Committee can only conclude that the present minister's unwillingness to provide the detailed information necessary to conduct a full and thorough investigation of relevant cases suggests a reluctance to expose the decision making process to close scrutiny.

1.21   Through the course of this inquiry, the Committee has discovered investigations by the Australian Federal Police and Australian Electoral Commission into matters which may be relevant to the subject of the inquiry. However, operational constraints have prevented the Committee from obtaining further details about the nature of those investigations and what, if any, relevant information is held by those organisations. The Committee accepts the reasons given by the AFP and AEC for not disclosing information pertinent to current investigations. The Committee has not been advised of the results of these investigations and is therefore unable to determine whether they would have had any bearing on the findings of this inquiry.

1.22   The Committee was unsuccessful in efforts to obtain direct comment from Senator Vanstone on her views on the ministerial discretion powers. On 27 October 2003, the Chair wrote to Senator Vanstone inviting her to express her views on the use and operation of the ministerial discretion powers for the record. Senator Vanstone did not respond until shortly before this report was due to be printed, when she said a response was 'overlooked' last year and expressed the view that 'it was not appropriate' for her to comment on the issues before this inquiry.

1.23   Despite these constraints, this inquiry has put on the public record a substantial volume of information about an area of public administration not generally known for its transparency and accountability. The information provided by DIMIA, while limited in its usefulness for examining specific uses of the intervention powers subject to the allegations outlined above, has partially enabled the Committee to address its terms of reference in a general way.

1.24   The Committee's examination of the evidence available to it from the department and non-government witnesses suggests that a systematic investigation of the operation of the ministerial discretion powers under the Migration Act is indeed warranted. The Migration Act 1958 vests the minister for immigration with an extraordinarily free discretion to intervene on behalf of unsuccessful visa applicants where the minister considers it 'in the public interest' to do so. However, the minister's exercise of this discretion is subject to no external review. The only accountability mechanism is the requirement to table statements in parliament every six months. Under the Howard Government, the statements have outlined in the broadest terms cases where the minister has intervened.

1.25   A key area of concern for the Committee through the course of this inquiry has been to assess whether the systems currently in place are adequate to ensure that the operation of this unusual power is transparent and open to scrutiny. One area of interest is the department's processes for supporting the operation of the ministerial intervention powers. The Committee noted with some concern that DIMIA officials did not view the department's role as including any 'decision making', despite clear evidence that ministerial intervention requests are vetted by departmental officials in the first instance to determine whether the minister would be briefed in any detail on that case. Furthermore, the Committee has found that departmental processes surrounding the ministerial intervention powers do not involve generating adequate records or statistical data to enable effective external scrutiny of the way the powers are operating. The Committee has also heard of aspects of the administration of the powers that appear to create hardship for individual visa applicants.

1.26   The Committee has heard significant concerns from non-government stakeholders that a lack of authoritative, publicly available information on the operation of the powers leads to a perception in the community that it is not 'what you know but who you know' that will determine whether a ministerial intervention request is successful. Through this inquiry, the Committee has sought to ascertain whether this perception is justified, by looking at the available information on the role of representatives, be they lawyers, community leaders or parliamentarians, in accessing the minister to support cases seeking ministerial intervention. The lack of conclusive evidence in this area has led the Committee to the view that the current structure of the system invites the perception of corruption, and opens the way for unscrupulous behaviour at all levels.

1.27   The most concerning aspect of the inquiry has been the lack of information the Committee has been able to access about the decision making process once a case reaches the minister's office. The Committee's difficulty obtaining evidence to investigate serious allegations relating to the use of these powers highlights how easy it would be for a minister to use them for party political ends. The intention of parliament when these powers were inserted in the Act was that parliament would be able to scrutinise a minister's use of the powers. If, however, as has been seen through this inquiry, a parliamentary committee charged with investigating the use of these powers can be frustrated by a lack of cooperation by the government, the ability of parliament to scrutinise the operation of the powers is impaired.

Powers of Senate committees: ministers, officials and departments

1.28   Parliamentary accountability is the cornerstone of modern democracy. The Committee notes the assessment made in the report of the 'children overboard' inquiry that, within the context of the public service:

...there is a continuum of accountability relationships, both vertical and horizontal, between the public service, the government, the parliament and Australia's citizens. Nevertheless, there are some fundamental tenets and practices of accountability that are well established in public administration, even though these received notions of accountability are increasingly being stretched.[17]

1.29   Against this background, the Committee would like to stress that the difficulty it has had in gaining access to material central to its inquiry and in obtaining full and accurate information in a timely way, is an issue of overriding importance. As discussed in the previous section, the Committee was unable to obtain access to all the documents relevant to its inquiry for reasons provided by the department that the Committee does not accept. Much like the experience of the 'children overboard' inquiry, the Committee is of the view that actions taken by Senator Vanstone and her department during this inquiry do not promote transparency, accountability and good governance.[18]

1.30   The Committee is left in no doubt that it was obstructed in carrying out the full task requested of it by the Senate, as provided in the inquiry's terms of reference. The obstacles to the conduct of this inquiry created by Senator Vanstone and her department raise a number of broader issues relating to parliamentary accountability, the powers of Senate committees and the ability of Senate committees to fulfil their reporting obligations to parliament.

1.31   While the Committee does not wish to dwell on the complex issue of accountability in modern governance arrangements, it believes it is necessary to summarise at the outset four established tenets of parliamentary accountability that underpin the operation of Senate committees:

1.32   The Committee notes that other Senate committees have had similar experiences of ministers, departments and agencies failing to provide documents, and invariably it has been commercial-in-confidence, public interest and, in the case of this inquiry, privacy issues that were provided by the minister as reasons for not complying with committee requests. It is no wonder that the consideration of accountability, especially the accountability of the executive as a whole, featured prominently in their published reports.[21]

1.33   The Committee takes the issue of executive obstruction of a Senate committee inquiry very seriously. In this context, the Committee's dealings with the immigration minister, Senator Vanstone, reinforce the main findings of the first interim report of the Senate Finance and Public Administration Reference Committee's inquiry into the government's information technology outsourcing initiative. That report highlighted:

1.34   The Committee is aware that executive departments have been advised on numerous occasions by the Auditor-General, the Administrative Review Council and by Senate committees about the rules of parliamentary accountability and the powers of Senate committees to call for persons, papers and documents.[23] It is for this reason that the Committee regrets having to repeat the fundamental principles of parliamentary accountability and to remind the immigration minister and her department that they are bound by these clear accountability requirements.

1.35   The minister's disregard for the Committee's power to obtain the departmental case files and ministerial notebooks necessary to fully explore the minister's discretionary powers is a dominant theme that runs through this inquiry. As previously noted, the Committee acknowledges that internal departmental procedures may have been a legitimate factor behind some of the delays experienced by DIMIA in providing the Committee with information. The Committee nevertheless finds that the history of executive obstruction of Senate committees has been magnified during the course of this inquiry, given Minister Vanstone's unacceptable responses to the Committee's repeated requests for information.

1.36   In the light of this obstruction, the Committee decided that the best course of action was to report its findings and recommendations to the Senate and place on the public record information about the operation of the minister's discretionary power that is otherwise not available. The Committee formed the view that further requests to the minister for case files and documents would most likely be refused, which would needlessly prolong the inquiry process. However, the evidence before the Committee was sufficient to enable it to formulate conclusions on the exercise and administration of the discretionary power. The Committee's conclusions are reflected in the recommendations to this report.

1.37   The Committee decided not to attempt to exercise its power to call for persons, documents and witnesses. It concluded that this course of action would have led to considerable and unacceptable delays in bringing the inquiry to a satisfactory conclusion and would probably have embroiled the Committee, and ultimately the Senate, in a protracted dispute with the government. In reaching this decision, the Committee was mindful of the view of the majority report of the 'children overboard' inquiry that a stand-off between a Senate committee and the executive over the powers of Senate committees could be challenged in the courts at considerable cost to taxpayers, causing further delays until the issue was settled.[24]