Chapter 9 - Appropriateness of the minister's discretionary powers
9.1
This chapter looks at some of the points of view raised
during the Committee's inquiry on the appropriateness of the minister's
discretionary powers within the broader migration system under term of
reference (b). Having examined aspects of the recent operation of the powers in
earlier chapters, this chapter looks chiefly at the desirability of vesting all
discretionary powers in the migration system in the hands of the minister alone.
9.2
As we have seen in earlier chapters, the ministerial
discretion powers were inserted during the 1989 codification process to provide
an outlet to deal with difficult cases that did not fit statutory visa
criteria. It was parliament, not the incumbent minister, that insisted on the
discretion resting with the minister rather than a departmental delegate. This
approach was different from that suggested in the Committee to Advise on
Australia's Immigration Policies' (CAAIP) report and model migration bill,
which advocated building some room for discretion into the migration
regulations themselves so that departmental officers would have some room to
grant visas in difficult cases.
9.3
Since the powers were inserted in the Act, we have seen
a gradual increase over time in their use, to the point that in 2002-03 the
minister personally intervened in some 483 cases using these powers, having
presumably considered many more. Essentially, powers designed to take care of a
few difficult cases each year seem to have become an established path of review
for visa applicants. In light of this, the question of whether the ministerial
discretion powers remain the best way to deal with difficult cases needs to be
reviewed.
9.4
This chapter notes the reasons put forward for
maintaining an outlet for the exercise of discretion in an otherwise codified
visa system. It discusses why governments have opted to retain the discretion
solely in the hands of the minister and some of the concerns raised by
witnesses about this approach.
9.5
Finally, this chapter considers the appropriateness of
the minister's discretionary powers continuing to exist in their current form
under term of reference (d). It proposes a new model to make the operation of
the powers more transparent and accountable.
The need for discretion in the migration system
9.6
Almost all witnesses to this inquiry have agreed that
some capacity for discretion needs to be built into what is otherwise a highly
codified visa system. No legislation or regulations could be expected to
anticipate all possible life circumstances, and an immigration system bound
strictly by codified visa criteria with no room for discretion could result in
harsh and unintended consequences for individuals and communities.
9.7
DIMIA's submission noted that:
The discretionary powers are integral features of the legal
framework of the [Migration] Act, providing a 'safety net' for the exercise of
migration laws which are generally fair but may, in certain exceptional cases,
lead to an unintended harsh result.[433]
9.8
It went on to say that:
Given the highly prescriptive nature of the statutory framework,
the discretionary powers allow cases that do not fit neatly within that
framework to be resolved at minimum cost to the applicant where:
- there are compelling individual circumstances,
such as where the person has strong family ties in Australia;
- they would meet criteria for a visa, but are
barred from making a further application while in Australia;
- their circumstances do not fit within the
statutory criteria, due to a deficiency with those criteria which may have been
subsequently changed; or
- they face removal from Australia and significant
international obligations for Australia may arise.[434]
9.9
While expressing reservations about the current form of
the ministerial discretion powers, the Migration Institute of Australia
described the powers as 'an important safety valve in an otherwise discretionless
system' and argued strongly for the discretion to be maintained.[435]
9.10
Legal practitioners who gave evidence to the inquiry
were in general agreement that there needs to be some discretionary power in
the area of migration law. Mr Paul
Fergus suggested that:
...a largely discretionless system works hardship on individuals
in many instances since it cannot address all the circumstances of all cases
that come before departmental officers. It is necessary, therefore, to provide
a mechanism to overcome this and the Ministerial discretions to grant visas are
appropriate to achieve this end.[436]
9.11
Mr George
Lombard had the following to say on the need
for discretionary powers in the system:
We are very much in favour of the continued availability of
discretionary powers to overcome the straightjacket of strict regulation under
the Migration Act...In effect, the existence of this power acknowledges that
there are imperfections with the Migration Act and Regulations and that instead
of attempting to foresee and forestall each and every possible negative
eventuality through legislation, it is more convenient to offer this failsafe
mechanism for protecting the innocent.[437]
Humanitarian cases
9.12
As discussed in Chapter 8, the minister's discretionary
powers are the primary means which humanitarian claims not falling within the
Refugee Convention definition can be recognised onshore. While questions have
been raised about their adequacy in this regard, most asylum-seeker advocates
supported their retention, especially in the absence of any complementary
protection system. Amnesty International, for example, argued that:
The Ministerial Discretion under s417 of the Act is an essential
part of the current system, as it is the only opportunity for those with a well
founded fear of returning to their country (though not for reasons as set out
in the 1951 Convention...) to be granted protection.[438]
9.13
In sum, the Committee has found almost unanimous
support for having some capacity for discretion in the migration legislation. This
seems entirely logical given the difficulty of framing regulations capable of
producing fair outcomes in the myriad of individual circumstances to which they
may be applied. Agreeing that there needs to be capacity for the exercise of
discretion, however, does not necessarily entail agreeing that that discretion
should rest solely with the minister.
Should the discretion rest only with the minister?
9.14
While some submissions to this inquiry have argued that
the current ministerial discretion powers are in fact the best way of allowing
for the exercise of discretion,[439]
many of the submissions appear to have supported the existence of the
ministerial discretion powers simply in preference to having no capacity in the
legislation for the exercise of discretion. Ms
Jennifer Burn
summed up this view in evidence to the Committee, saying:
My view would be that because the migration jurisdiction is so
codified there has to be some kind of method to ameliorate the strict effect of
the regulations. The only method that we have, really, is the Minister for
Immigration and Multicultural and Indigenous Affairs exercising his personal
discretion...[440]
9.15
Other witnesses supported the minister having a power
to intervene in truly exceptional cases but advocate some discretion being
built into the system at a lower level to deal with many of the cases that can
now be decided only by the minister.
9.16
In justifying the existence of the ministerial discretion
powers on the grounds that they offer necessary flexibility in an otherwise
rigid system, DIMIA's submission fails to acknowledge that alternative
approaches could have been taken to provide the same degree of flexibility. It
appears to assume that demonstrating a need for discretion in the system is
enough to demonstrate the appropriateness of ministerial discretion.
9.17
In considering the appropriateness of the ministerial
discretion powers, then, it should be pointed out that ministerial discretion
was not the only way that some discretion could have been built into the
legislation. In this context, it is worthwhile noting briefly the approach
suggested by the CAAIP before the migration reforms took place in 1989.
Building discretion into the
regulations: CAAIP's approach
9.18
DIMIA's submission suggests that the ministerial
discretion powers inserted in the Migration Act in 1989 were in line with the
views of the CAAIP and supported by parliamentarians and all parties.[441] This does not seem consistent with the
evidence discussed in Chapter 2 showing that the powers were not initially
supported by the minister of the day, but were in fact inserted at the
insistence of the opposition parties late in December 1989. This Committee has
heard persuasive evidence that the powers are not in a form recommended by
CAAIP.
9.19
Mr Michael Clothier, who was a member of the legal
panel responsible for drafting CAAIP's model migration bill in 1987, points out
in his submission that that bill did not give the minister the power to overrule
the regulations.[442] Instead, a degree
of discretion was built into every statutory rule, as described in the
following excerpt from the CAAIP report:
Each rule will feature both a policy objective and the criteria
for making a decision. Some criteria will be essential, some will not. A
decision maker will be expected to consider all the criteria in reaching a
decision. However, in exceptional cases where strict application of the
criteria would produce an unfair or unjust result, there will be room for discretion
in favour of the applicant. The rules are intended to give a high degree of
predictability of decisions for the people affected by them and those who act
as advisers.[443]
9.20
The CAAIP report advocates a pivotal role for the minister
in setting rules that define the criteria for decision making under the bill. It
envisages that all powers under the Act would be vested in the minister. However,
the power to exercise discretion in individual cases is delegated to decision
makers at the departmental level, who can act with the authority of the minister.[444]
9.21
Both Mr Michael
Clothier and Dr
Mary Crock
suggested to the Committee that an approach devolving the capacity to exercise
discretion to primary decision makers would be preferable to one that channels
all power to make such decisions into the hands of the minister.
9.22
Mr Clothier
expressed the opinion that the immigration department had 'botched' the
codification reforms in 1989 by refusing to build appropriate discretions into
the regulations themselves. This led, he suggests, to:
Enormous pressure on the Minister to intervene when the
Department's regulations produced many absurd outcomes and failed to allow
discretion in cases where it was needed.[445]
9.23
Dr Crock
also felt the current system had gone 'off the rails' by not giving some
discretion to primary decision makers. She spoke of a draining of power from
the bureaucracy, accompanied by a 'loss of belief in notions that individuals
should be able to choose and to exercise balancing functions in a way that is
legitimate'. She said:
With one stroke of the legislative pen in 1989 we had removed
from the Migration Act the power to grant visas on strong humanitarian or
compassionate grounds. That was never replaced, except with this residual
discretion that we have vested in the minister. Therein, I think, lies the main
problem.[446]
9.24
Ms Jennifer
Burn expressed a similar view to Dr
Crock, stating that:
My feeling is that the problem is not just that the minister has
been given more discretion but rather that everybody else has had their
discretion taken away from them. The thrust of my submission is that it is not
bad per se to have discretion in a system. On the contrary: I would advocate
the reintroduction of discretion. The problem with the system is that the
discretion is focused in one person. What we need to see happen is the
diversification of power again.[447]
9.25
Having established that there was an alternative to
ministerial discretion advocated by the government's expert advisory body prior
to the powers being inserted in their current form, the Committee next considers
the factors that have led governments to adopt and support this approach.
Why ministerial discretion?
9.26
In Chapter 2 the Committee noted the reservations of
then minister Robert Ray
about placing the discretion in the migration system in the hands of the
minister rather than a departmental delegate. On Parliament's insistence,
however, the final form of the legislation as amended in December 1989 gave the
minister a non-compellable, non-delegable, non-reviewable discretion in
individual cases rather than giving any discretion to departmental decision
makers.
Political responsibility for
migration decisions
9.27
In parliamentary debate on the 1989 codification
reforms, Mr Philip
Ruddock, as shadow minister, opposed vesting
the discretion in the Secretary of the immigration department as proposed in
the original legislation. His reasoning was that:
...it is inappropriate for the Minister to divest himself of that
discretion, a discretion which was seen by us to be important and, certainly,
was seen to be important to ethnic communities in Australia.[448]
9.28
The Opposition's view was put more expansively by Senator
Richard Alston,
who said:
We welcome the Government's ultimate decision to retain in the
Minister the discretion to make the ultimate decision on who should enter this
country and who should remain here. As the Minister said previously, it is
necessary to detach final decisions from political influence but, at the end of
the day, there are some decisions the Government simply cannot shirk. It is a
responsibility of the Government, not the bureaucracy, and there are and always
will be hard cases.[449]
9.29
He also expressed a view that it is not appropriate to
vest real decision making power in the bureaucracy, saying:
It has been a change for the better that the Minister, to his
credit, has been prepared to rethink the matter and to have the discretion vest
where it ought to vest and not be devolved to bureaucrats, who should not be
put in the invidious position of having to make hard decisions.[450]
9.30
Initially, then, the discretionary powers were vested
in the minister rather than the bureaucracy at least in part because of a view
that, ultimately, it is politicians, not bureaucrats who should be responsible
for migration decisions.
Flexibility
9.31
A clear advantage for the government in having a
ministerial discretion is the flexibility it allows to deal with difficult
cases quickly without needing to change the legislation or regulations. DIMIA's
submission states:
The Minister's non-compellable discretionary powers provide the
flexibility to address specific individual circumstances (for those groups of
people for whom access to review rights is warranted) that were not intended or
envisaged by the strict statutory rules governing the grant of visas. This
flexibility is provided in a manner that ensures factors such as relevant
international obligations are respected, and broader public interest factors
can be addressed.[451]
9.32
The ministerial discretion powers enable such
flexibility in individual cases without ceding any influence to the courts, or
setting precedents that would broaden the scope of migration regulations, as
discussed below.
Government control over immigration
intake
9.33
DIMIA's submission and evidence to this Committee
reflected a view that retaining the ministerial powers as the only place for
the exercise of discretion in the migration system is necessary to maintain
government control over immigration. DIMIA's submission stressed Australia's
'rigorous and transparent approach' to selecting migrants, and the risk of 'informal
and unregulated movements' breaking down public confidence in the system.[452] It stated that:
The migration selection criteria have been framed to ensure that
those criteria cannot be interpreted such that the government loses its ability
to effectively manage its migration program. Immigration is about people's
lives and people do not always fit neatly within visa categories. The
Ministerial discretion powers provide a mechanism for dealing with people in
extenuating or exceptional circumstances that cannot be easily legislated in
visa rules.[453]
9.34
It went on to argue that:
Without the Ministerial discretion powers, considerable pressure
would be placed on the rigorous migration selection criteria we have in place
and we could be forced to take a less rigorous approach by lowering Australia's
standards in the selection of migrants.[454]
9.35
This paragraph appears to suggest that building
discretion into the regulations themselves, or allowing anyone other than the
minister to exercise discretion in interpreting and applying migration law
would lead to a watering down of the criteria and result in less meritorious applicants
being granted a visa.
9.36
DIMIA's submission also suggested that keeping the
discretion in the minister's hands only is necessary to prevent 'unmeritorious'
applicants using review processes to prolong their stay in Australia, saying,
for example that:
These powers provide flexibility in an otherwise highly
prescriptive visa process with set criteria. The flexibility provided by the
scheme enables the government to provide responsive visa solutions in
exceptional and unforeseen circumstances in a way which retains its capacity to
manage the onshore visa framework and also limits the scope for unmeritorious
applicants to use processes to frustrate and delay removal from Australia.[455]
9.37
It stated that suggestions in the Sanctuary Under
Review report on aspects of the powers' operation have been ignored 'due to the
capacity to undermine or remove the Government's ability to effectively manage
its migration program.'[456]
9.38
Maintaining control over the outcome of onshore
applications appears to be one factor behind former Minister Ruddock's
preference for using ministerial discretion to deal with difficult categories
of case, such as the East Timorese, rather than create regulations to deal with
systemic problems affecting large numbers of people. DIMIA's submission stated
in relation to this that:
The Government's approach has been to work within the existing
legislative framework including the exercise of the Minister's public interest
powers to resolve the status of large numbers of people. This represents a move
away from adopting broad group resolution approaches, which tend to grant
permanent residence without regard to the strength of the individual's claims
for residence and more importantly without weeding out those group members who
clearly would have little personal claim for special treatment.[457]
9.39
In justification of this position, DIMIA's submission
stated that the approach taken by previous ministers of creating special visa
classes:
...was not based on a full case by case assessment of the person's
circumstances, it did not address whether there were individual compelling
circumstances, nor did it address the outcome for those who did not meet the
criteria for a special category visa.[458]
9.40
It seems a somewhat surprising admission to say that
the regular assessment process for a visa in any category is not based on a
full case by case assessment of a person's circumstances. Also, given that the
former minister personally decided some 203 individual cases in his last week
in that office,[459] at least 129 of
which were East Timorese,[460] the
Committee wonders how thoroughly he was able to assess each individual case on
its merits.
9.41
It would seem to the Committee that creating
regulations to account for such large groups of cases would at least provide
clear criteria against which a case could be assessed and a degree of certainty
in the process for the applicants concerned. Instead, this government has
chosen to use an inscrutable ministerial discretion power which provides no
criteria other than the 'public interest' against which to assess individual
cases. Additionally, there is no avenue of review at all for those who are not
granted ministerial intervention at the end of the day.
9.42
The government's preference for using the ministerial
discretion power to determine cases such as the East Timorese reflects a key
benefit of this type of system from the government's point of view: it enables the
minister of the day to retain tight control over the immigration intake, to the
point of retaining final decision making power over individual cases.
Limiting the influence of the
courts
9.43
From the government's point of view, another key
benefit of having the discretionary power in the hands of the minister stems
from its non-compellable and non-reviewable nature. As seen in Chapter 7, this
means that a court cannot compel the minister to consider exercising his
discretion in a particular case, and thus enables a minister to make decisions
on individual cases that cannot be reviewed or challenged in the courts.
9.44
As also pointed out in Chapter 7, DIMIA's submission states
that the non-compellable nature of the power was carefully framed to prevent
abuse of court processes to avoid deportation. Elsewhere, DIMIA suggests that
making the powers compellable:
...would establish an opportunity for
litigation with the potential for the test for intervention being widened and
potentially lowered.[461]
9.45
During his tenure as immigration minister, Mr
Ruddock was outspoken on his views on the
desirability of keeping the courts from interpreting migration law in ways the
government did not intend, as was noted in Dr
Mary Crock's
submission. Dr Crock
cited as an example the following excerpt from a speech by Mr
Ruddock:
It is the government, not some sectional interests or loud
intolerant individual voices or ill-defined international interests, or, might
I say, the courts that determines who shall and shall not enter this country,
and on what terms.
...Only two weeks ago a decision to deport a man was overturned by
the Federal Court although he had been convicted and served a gaol sentence for
possessing Heroin with an estimated street value of $3 million. Again, the courts have reinterpreted and
re-written Australian law – ignoring the sovereignty of Parliament and the will
of the Australian people. Again, this is simply not on.[462]
9.46
DIMIA's submission makes it clear that vesting the only
discretionary power in the hands of the minister is designed to limit the
influence of the courts and maintain executive control over the administration
of the migration program, noting that:
The statutory framework ensures that external influences such as
the courts and various commentators can not expand the statutory rules to
include circumstances never intended by the government. The expansion of these
provisions, together with large number of persons seeking to advantage
themselves by claiming to come within those interpretations could jeopardise,
and render meaningless, the careful and considered settings of the government's
migration and humanitarian programs.[463]
9.47
In sum, vesting the discretion in the hands of the
minister reflects a view that ultimately it is the minister, rather than
officials, who should be responsible for decisions on who is and is not granted
a visa to Australia.
This approach has a number of advantages for the government, by limiting the influence
of external bodies such as the courts on migration decisions and enabling
tighter government control of the immigration intake.
Arguments against ministerial discretion
Challenges to the separation of
powers and the rule of law
9.48
This report is not the place for a full length
dissertation on the subtleties of the notions of the separation of powers and
the rule of law as foundations of Australia's
political system. However, the Committee must note concerns expressed by
several witnesses that the structure of the current migration system, with its largely
unfettered ministerial discretion powers to determine individual cases as well
as set migration policy, undermines these important principles.
9.49
Dr Mary
Crock suggests that the former minister's
statements on the desirability of keeping the courts out of the migration
process show disregard for notions of separation or balancing of official
powers.[464] She notes the worrying
implications of the stance apparently taken by the former minister that,
because a minister is an elected representative, his should be the final word
in any administrative process. She writes:
This way of thinking is predicated on very simplistic notions of
both democracy and the Rule of Law...the Minister appears to be alleging that
because he is elected, he alone should be the source and voice of government
policy; and that for the courts or other 'unelected' body to oppose his
policies or interpretations of the law is anti-democratic and anti 'the rule of
law'.[465]
9.50
Dr Crock's
argument is that vesting the minister alone with the power to exercise
discretion in individual administrative decisions conflates the power to set
policy and introduce legislation into parliament, which is the legitimate power
of an elected government, with the power to make the ultimate choices in
individual cases.[466] She cautions
against making the leap to say that, just because a minister has the legitimate
power to set policy, he or she should therefore be the only one to determine
the outcome of particular cases.[467] She
argues that:
To accept that one individual should be vested uniquely with
this power to choose, or to exercise power, is to render indiscernible the
divide between democracy and tyranny. [468]
9.51
Mr Michael
Clothier also voiced concerns about the
current system of ministerial discretion undermining the rule of law. His
evidence to the Committee suggests a view that the current situation, where
thousands of cases are considered each year for ministerial discretion and
hundreds are decided in person by the minister, in effect takes us back to the
days before codification. It places excessive power in the hands of the
minister to 'micro-manage' Australia's
immigration discretions without appropriate checks and balances.[469]
9.52
In short, the argument has been put forcefully to this
committee that placing the only discretionary power in the migration system in the
hands of one person, albeit an elected minister, with no opportunity for
judicial or meaningful parliamentary scrutiny, undermines the notions of
separation or balancing of official powers. Without wishing to engage in a long
theoretical debate on Australia's
political system, the Committee notes the question mark that has been raised
about whether the ministerial discretion powers as currently framed are
appropriate in this context. In light of the increasing use of these powers to
determine hundreds of cases every year free from any meaningful scrutiny or
accountability, and with nothing to ensure natural justice for those not
granted intervention, it would seem that some concern on this front is
justified.
A system open to corruption?
9.53
Several witnesses to this inquiry have expressed
concern that a system which places the only meaningful discretionary power in
the hands of the minister without meaningful scrutiny is open to corruption, if
not inherently corrupt. Dr Crock
suggested that:
Any system will become corrupt when one person alone has the
power to choose, particularly where the responsible individual is not
accountable in any meaningful sense.[470]
9.54
In response to questioning on whether she saw the
current system as being actually corrupt, Dr
Crock stressed her point that it is 'corruptible',
meaning open to corruption and certainly open to the perception of corruption.[471] She suggests that, even if the
politicians involved are 'as pure as the driven snow', by concentrating all
discretionary power in one individual, the system itself encourages
unscrupulous behaviour behind the scene.[472]
9.55
Mr Clothier
expressed a similar view, suggesting that a system where a minister has a 'completely
unfettered power' and will be influenced by people connected to him has led to:
...growing corruption in that area. You have to have, because if
you have unsupervised power you are going to get corruption. It is axiomatic.[473]
9.56
Mr Clothier
later made the point that the sort of corruption to which he refers is not in
the form of direct bribes for the exercise of ministerial discretion, but
rather the wooing of ethnic communities using that special power.[474]
9.57
Mr Marc
Purcell also had similar concerns,
suggesting that Lord Acton's
famous quote 'Power corrupts and absolute power corrupts absolutely' is
relevant here as:
S417 has all the elements of unfettered power inherent in its
operation, which could undermine the integrity and probity of the most
scrupulous of Immigration Ministers.[475]
9.58
Leaving aside for the moment arguments about systemic corruption,
claims that the structure of the system inevitably leads to the perception of
corruption have been a constant refrain throughout this inquiry. Many witnesses
argued that, while they had seen no suggestion of actual corruption in the way
ministers have used the power, the structure of the system, with its lack of
accountability and lack of public information leaves it open to the perception
of corruption in the form of favouritism and influence peddling. This view was
put by Mr George
Lombard, who, without suggesting that there
is actual corruption in the system at present, submitted that:
The volume of discretions exercised by the present government is
of course at record levels, and to exercise these discretions in this secret
way invites patronage, inconsistency and uncertainty.[476]
9.59
Other witnesses were concerned that vesting the
discretionary power in the immigration minister, whose work inevitably involves
maintaining relationships with representatives of ethnic and community groups, will
invite suspicion that the minister's personal relationships will influence the
exercise of the discretionary power. This point was made by Ms
Judith Burgess
of the Immigration Advice and Rights Centre, who said that:
We are concerned that such a perception could discredit the
process of Ministerial intervention and ultimately make the Minister less
inclined to use the power.[477]
9.60
While ultimately in favour of retaining a discretionary
power as a safety net in the migration system, Ms Burgess made the point that
this need not be done by the minister personally. Her suggestion was that the
public interest power could be exercised by a panel of people appointed by the
minister, instead of by the minister personally.[478]
9.61
The point here is that while discretionary powers may
be necessary, a system which vests all power in the hands of one individual
without proper checks or accountability is open to the perception of
corruption. This is ultimately undesirable, as it undermines confidence in this
part of the migration system, and leaves room for unscrupulous behaviour at all
levels.
Prolonging the visa determination
process
9.62
A final point worth considering is whether, in the
broader context of the application, decision-making and review process, the
discretionary power should be available only at the end, once an applicant has
exhausted all avenues of merits review. DIMIA told the Committee that making
the powers available only after a visa applicant had exhausted their merits
review rights was an important factor in their development.[479] Putting them at the end was
presumably designed to preserve the statutory basis and consistency of visa
decision making generally, while having a last avenue of redress in
circumstances where the system had produced a manifestly harsh or unreasonable outcome.
9.63
While the intention seems sound, as has been seen in
Chapter 5 the Committee has heard evidence from many witnesses that having this
discretion available only at the end of the decision-making and review process
can cause unnecessary delay and hardship for individuals in unusual or
difficult circumstances. There is also the issue considered in Chapter 8 of non-Refugee
convention related humanitarian claims, which can only be considered after a
lengthy assessment and review process against irrelevant criteria.
9.64
Worth noting here is a perhaps unintended consequence
of having this unusual discretionary power at the end of the merits review
stage: namely, that it has apparently come to be seen by many as, in effect, a
supplementary tier of merits review. The department and/or former minister
evidently did not see this state of affairs as desirable, and the reduction in
the number of protection visas granted following section 417 ministerial
intervention was in part designed to suppress this view.[480] Ms
Godwin stressed that the ministerial
discretion process was not a third tier of review, but a safety net after all
of the formal processes have concluded.[481]
9.65
The Committee suggests as a possibility that placing
the only discretionary power at the end of the appeals process may in fact
detract from the finality of the established decision-making and merits review
system. While the intention of limiting discretion throughout the
decision-making process is to limit the grounds for appeal, thus streamlining
the visa determination process, an open ended, vaguely defined discretionary
power coming after the merits review stage appears to prolong it in the eyes of
many determined visa applicants.
A flawed approach?
9.66
Ms Jennifer
Burn argued in her submission that the current
Migration Act and Regulations represent a flawed approach to migration
decision-making, suggesting that:
The legislative scheme fails to offer a framework for
decision-making in situations that fall outside a strictly prescriptive
codified fact situation. The failure of the legislation to deal in a sensible
and legally appropriate way with non-citizens who make humanitarian and
compassionate claims has led to a situation where an approach to the Minister
for the exercise of his discretion in the public interest is the last
legislative resort.[482]
9.67
Several other witnesses, such as Dr
Crock and Mr
Clothier already extensively cited above,
maintain that the system put in place in 1989, by placing all discretion in the
hands of one person, is inherently problematic.
9.68
Yet in spite of these concerns, by far the majority of
witnesses were in favour of retaining the ministerial discretion powers at the
end of the process as a final safety-net for difficult cases. Indeed, most
witnesses were more concerned with the powers not being used enough for
deserving cases than with their existence per se.
9.69
Whatever the flaws in the migration system as a whole
that have led to serious complaints about the recent operation of the
ministerial discretion powers, most of the evidence put to this committee has
supported their existence in some form. The general view is that, while they
are not perfect, they are currently a necessary part of a system that would
otherwise provide no outlet to recognise difficult cases not dealt with adequately
by existing regulations.
Appropriateness of the present ministerial intervention processes
9.70
The Committee accepts the compelling evidence put to it
that there needs to be some provision for discretion in an otherwise highly
codified visa system. While noting the concerns aired above about the way the ministerial
discretion powers themselves are framed, the Committee's chief concerns are not
so much with the existence of these powers themselves, but with the problems in
their recent operation outlined in previous chapters. Briefly restated, these
are: weaknesses in administrative procedures, which can lead to problems for
some visa applicants; a perception of favouritism or bias in the way the powers
are used, heightened by the apparent influence of certain advocates with the
minister; a lack of transparency and accountability, due to the inadequacy of
statements tabled in parliament and lack of public information on the operation
of the powers; concerns about the adequacy of discretionary powers to implement
international legal obligations that are not discretionary.
9.71
The Committee finds that ultimately it would be
desirable to consider improvements to the overall migration system to reduce
the number of cases currently coming before the minister. However, on balance it
seems appropriate to maintain the ministerial discretion powers in some form as
a final safety net in cases where the system appears to have produced an unduly
harsh or unreasonable outcome.
9.72
Having said that, immediate steps need to be taken to
improve accountability and transparency to prevent the risk of corruption
endemic to such an unfettered ministerial power.
Recommendation 20
9.73
The Committee recommends that the ministerial
intervention powers are retained as the ultimate safety net in the migration
system, provided that steps are taken to improve the transparency and
accountability of their operation in line with the findings and other
recommendations of this report.
9.74
In this context, the Committee notes one of the
suggestions put forward by the Migration Institute of Australia
for improving the transparency of the ministerial discretion process. MIA's
submission contained an option to replace the existing process with one in
which a committee reviews the decisions. According to MIA:
This may best be achieved through the establishment of a
statutorily appointed committee, comprising a range of informed parties who are
vested with the power to make a decision or recommendation - this could include
representatives from DIMIA, a member of a merits review Tribunal, a community
representative, a member of parliament, an international representative such as
the International Organisation for Migration or the United Nations High
Commissioner for Refugees and a migration agent recommended by the MIA.
This group could be either tasked with making the decision or
making a recommendation. If the group was tasked with making the decision, then
the Minister may wish to retain a veto power. In all cases, the recommendation
and the reasons, or an executive summary, could and should be provided to the
Minister, the Parliament and the person seeking the intervention as a means of
providing transparency and procedural fairness.[483]
9.75
The Committee sees some merit in establishing a system
along these lines, although further consideration would be needed to determine
the committee's membership. While the Committee believes that the ultimate
decision making power should remain with the minister, a statutory committee or
independent panel of experts could be formed to review DIMIA's submissions and
schedules and make a recommendation to the minister on which cases it considers
should receive ministerial intervention. While this recommendation should not
be binding on the minister, the statements tabled in parliament should indicate
whether the minister's decision is in line with the committee's recommendation.
9.76
The Committee considers that bringing the views of an
independent panel of experts into the ministerial intervention process could
help improve the equity and transparency of the process and restore public
confidence in the system.
Recommendation 21
9.77 The Committee recommends that the government
consider establishing an independent committee to make recommendations to the
minister on all cases where ministerial intervention is considered. This
recommendation should be non-binding, but a minister should indicate in the
statement tabled in parliament whether a decision by the committee is in line
with the committee's recommendation.
Conclusion
9.78
This Committee's inquiry has highlighted a pressing
need for reform of the ministerial discretion system. While not opposed to
maintaining the powers in some form, the Committee considers that immediate
steps must be taken to improve the transparency and accountability of their
operation. The Committee's recommendations are therefore aimed at generating
more information about the use of the powers and improving the transparency of
the decision making process.
9.79
The problems encountered by the Committee in obtaining
relevant information to assist its inquiry detailed in Chapter 1 demonstrate
the lack of adequate accountability in the recent operation of the powers. If a
minister can use the ministerial discretion powers without the possibility that
parliament can scrutinise the decision making process then an important check
on the workings of executive government is missing, opening the way for corruption
and misuse of power. The Committee has ongoing concerns about the recent
operation of the powers that have not been alleviated during the course of this
inquiry because of the current minister's refusal to provide relevant
information as requested.
Finding
9.80
In particular, the refusal by the minister and the
department to provide certain key documents and case files has resulted in the
Committee being unable to form a view as to the number of matters which were
properly the subject of its inquiry. These include:
-
The allegations relating to the visa or visas
that were issued to Mr Bedweny Hbeiche, as outlined in Chapter 1;
-
The basis for the high success rate of
intervention requests made by Mr Kisrwani;
-
The process by which intervention requests by Mr
Kisrwani were dealt with by Mr Ruddock and by the department; and
-
The factual basis on, and the process by, which
Mr Ruddock exercised his discretion in relation to applicants whose matters the
department had determined fell outside the ministerial guidelines.
9.81
The Committee expresses its disappointment that the
department and minister have refused to provide certain key documents and
information. It notes with concern that many aspects of the information
requested were patently within the ability of the department to provide. For
example, the Committee requested information regarding the process by which the
successful intervention requests were made by Mr
Kisrwani in its letter of 29 October 2003. Much of the
information requested by the Committee must necessarily have been in the
department's hands in order for Mr Ruddock
to have responded in the terms set out in his correspondence to Ms Gillard MP
on 16 June 2003.
9.82
While appreciating that DIMIA made a significant effort
to compile statistical data on the use of the powers to assist this inquiry,
the Committee has found that this has not been done as a matter of course, and
hence until now parliament and the public have had limited information to
understand the operation of the ministerial discretion system as a whole. The Committee
considers it essential that statistical data on the operation and use of the
powers be routinely kept and published so that parliament and the community can
gain an understanding of how the minister's discretion is exercised overall.
9.83
Although the discretionary powers are the minister's
alone to exercise, the Committee notes the important role that DIMIA plays in
assessing possible intervention cases and preparing briefing for the minister.
The Committee considers that DIMIA must take steps to ensure that its processes
are rigorous and fair to all applicants, which is why it has recommended that a
system of internal and external audit be established to scrutinise the
department's decision making processes in this area.
9.84
In light of the concerns about current procedures
expressed by many representatives of visa applicants, the Committee has made a
number of recommendations to make the system work better for the people it is
designed to assist. It is hoped that increased availability of information will
reduce the scope for exploitation of vulnerable people caused by the seemingly
Byzantine nature of the system at present.
9.85
A key area of concern for the Committee has been to
understand all the factors that may influence a minister in the exercise of the
discretionary powers. It is clear that representations to the minister made by
parliamentarians, lawyers, migration agents and community leaders can be
influential. While recognising the importance in a democracy of people being
able to make representations to a minister, the Committee is concerned about
the perception of bias and favouritism that can be created when access to the minister
is seen as necessary to gain a favourable outcome. The Committee considers that
improvements to the accountability and transparency of this aspect of the system
are essential to address this problem.
9.86
In assessing the appropriateness of the ministerial
discretion powers overall, the Committee has concerns that vesting a
non-delegable, non-reviewable, non-compellable discretion in one person's hands
without an adequate accountability mechanism creates both the possibility and
perception of corruption. More potential for external scrutiny of decisions is
necessary to bring a greater degree of transparency into the decision making
process and reduce the scope for corruption of the system. It is for this reason that the Committee recommends
that the Government consider establishing an independent committee to inform
the minister's decision making.
Senator Joseph Ludwig
Chair