The intention of this inquiry is not to find fault with the actions or
intended actions of the two individuals in the Brisbane case and Adelaide case.
However, to properly understand the actions and decisions of the Hon Peter
Dutton MP, Minister for Home Affairs, it is important that the committee
set out the sequence of events. This chapter will also outline the key issues
and conclude by providing the committee's view and recommendations.
Number of Ministerial interventions
The department noted that during the period in which Minister Dutton was
the Minister for Immigration and Border Protection—from 23 December 2014 to 31 August
2018—he intervened under section 195A of the Act and granted 4129 visas. At the hearing, the department noted that of the 4129 visas granted, only 25
tourist visas were granted by the minister using his intervention powers under
In answers to questions on notice the department clarified that Minister Dutton
had in fact intervened under section 195A in 18 instances, to grant 24 tourist
visas. The department acknowledged that one of the 25 tourist visas was in fact
granted by the Assistant Minister for Multicultural Affairs, which accounted
for the difference.
Following the receipt of the department's answers to the questions on
notice, the Chair sought clarity on the figures provided by the department due
to an apparent significant discrepancy between the department's responses and
the information held by the Parliamentary Table Office. In response, the
department clarified that between 23 December 2014 and 31 August 2018,
Minister Dutton 'intervened under section 195A to grant a Visitor visa
(subclass 600) in 21 cases involving 31 people, not 18 cases involving 24 people
as previously advised.' In subsequent correspondence from the department, it confirmed that it was able
to locate a further tourist visa that was granted by Minister Dutton using his
intervention powers under section 195A of the Act. According to this most recent correspondence from the department, between 23
December 2014 and 31 August 2018, Minister Dutton intervened under section 195A
to grant a Visitor visa (subclass 600) on 22 occasions involving 32 people.
The committee notes its concern with the information provided by the
department which has been corrected on multiple occasions. The department has
not provided a break-down of the 22 intervention cases, but did provide further
information on the 18 intervention cases involving 24 visitor visas being
- Three involved persons who had their visa cancelled
upon arrival at the airport:
- These included the two non-citizens discussed at
the hearing (Brisbane and Adelaide cases) who had their visas cancelled.
- The other had a visa cancelled and sought
protection at the airport on arrival.
- 20 persons were overstayers in the community and
were granted Visitor (subclass 600) visas to enable them to lodge
substantive visa applications onshore to resolve their immigration
- One in the community was granted a Visitor (subclass
600) visa to give them lawful status, while their substantive visa application
was being assessed.
Based on the information available, there were two of the 24
Visitor visa (subclass 600) grants where there were indications that the visa
holders may have been engaged in work related activity as an au pair (being the
Brisbane and Adelaide cases).
Therefore, according to departmental records, the only two cases where
the minister intervened in relation to matters involving individuals who were
suspected of planning to work as au pairs in Australia, and where a subclass
600 visa was issued, were the Brisbane and Adelaide cases.
The department noted that in respect of the 18 interventions involving
24 visitor visas:
- 12 submissions, covering 17 persons, were requested by
Minister Dutton's office; and
- Six submissions, covering 7 persons, were initiated by the
The committee notes that, based on the above information, twice as many
ministerial intervention cases were initiated at the behest of the Minister or
his office, than by the department. Of the 18 intervention cases, the
department advised that the shortest turnaround time—from the time the
department provided a submission to the minister's office, to the time of the
visa grant—was 2 hours and 40 minutes. The longest turnaround time was five months. Additionally, the information provided by the department shows that Minister
Dutton first used his ministerial intervention powers under section 195A of the
Act to grant a visitor visa (subclass 600) in relation to the Brisbane case, on
17 June 2015.
The committee reiterates that the break-down of the above figures relates
to information provided by the department concerning 18 intervention cases
involving 24 visitor visas being granted and the department has not provided a
break-down of the 22 intervention cases relating to 32 visitor visas being
Process for requesting ministerial intervention
At the hearing the department explained that a 'visa may be considered
for cancellation at the border where information before a decision-maker
indicates that grounds may exist for considering cancellation.' The department noted that a person who has had their visa cancelled at the
border, and who is in immigration detention, can request that the Minister
intervene. The department went on to explain its administrative process for managing and
referring cases for potential ministerial intervention:
Cases may be referred to the minister following an assessment
by the department that the case meets the aforementioned guidelines. Anyone can
contact the minister's office directly, and the minister may request that the
case be referred to them for consideration, irrespective of whether an
assessment has been made against the aforementioned guidelines.
The department will then support the minister's consideration
for requests for intervention by providing intervention submissions. These
provide the minister with information on an applicant's biodata, immigration
history and any relevant health, identity, character and associated removal
issues. Intervention submissions to the minister also set out relevant
circumstances and information to support his or her consideration. The minister
may review a range of factors and evidence in deciding whether to intervene.
This decision to then intervene and grant a visa is entirely at the minister's
The committee notes that the Guidelines state that requests for
..may only be made and referred by the Department. Any
requests must be first assessed by the Department against these guidelines and
should only be referred to [the Minister] if the case is assessed as having met
these guidelines. That means that, as this power is non-compellable, [the
Minister] will not consider exercising it when requested directly by
individuals or their representatives. [Emphasis added]
However, the committee acknowledges that the Minister is not bound by
The Brisbane case
In the Brisbane case, the submission prepared by the department noted
that '[y]our office has requested that [redacted] case be referred to you for
consideration under section 195A of the Act.' Minister Dutton signed the
decision to intervene in the Brisbane case on 17 June 2015. The Minister's Statement
to Parliament confirmed that Minister Dutton decided to exercise his
powers under section 195A of the Act, stating that 'as a discretionary and
humanitarian act to an individual with ongoing needs, it is in the interests of
Australia as a humane and generous society to grant this person a Visitor visa
(subclass 600) for a period of three months.'
The Adelaide case
The submission prepared by the department in the Adelaide case also noted
that the submission was referred for Minister Dutton, as requested by his
office. The departmental submission also stated:
...there are clear indications that [redacted] is intending to
work in Australia and thus, the grant of a Visitor visa is of high risk.
... The [Australian Border Force] also notes that [redacted]
has been counselled previously with respect to work restrictions, when
suspicions with respect to her intentions were aroused on her previous arrival.
On 31OCT2015 she also advised [Australian Border Force] officers of her
intention to work during her intended stay in Australia on this occasion.
The tabled document shows that the decision instrument was signed by
Minister Dutton on 1 November 2015 and states that the Minister has determined
that it is 'in the public interest' to grant this person a visitor visa for
three months. The statement to Parliament confirms that Minister Dutton decided to exercise
his powers under section 195A of the Act and provides the reason—'as a discretionary and
humanitarian act to an individual with ongoing needs, it is in the interests of
Australia as a humane and generous society to grant this person a Visitor visa
(subclass 600) for a period of three months.'
Evidence from hearing
While it is open to people to request that the Minister use his
ministerial intervention powers, the departmental submissions clearly state
that they were produced at the request of Minister Dutton's office. At the
hearing, the department conceded that 'implicit in that tasking is the idea
that the minister is minded to intervene.'
The department confirmed that in both cases, and to the best of their
knowledge, the women concerned did not breach their visa conditions following
ministerial intervention, and left Australia within the three month time
period. However, the department also noted that where a visa has been granted for a
short period of time, such as these cases, the department would not normally
undertake compliance activity. The department confirmed that compliance activity was not undertaken in either
case, and that the department did not receive any reports of the two people
breaching their visa conditions. It should also be noted that the ABF's original decision to cancel the visas of
the two women on arrival was based on the investigation and assessment that the
two were not genuine in their claims for visitor visas.
The Committee has seen this evidence but has not publicly disclosed it
as to not reveal the methods of investigation undertaken by the ABF.
Relationship between Minister Dutton and individuals seeking intervention
At the centre of both cases is the question of Minister Dutton's relationship
to the individuals concerned and their potential employers. Minister Dutton has
himself moved to reassure the Parliament that he has no personal relationship
with the individuals who were granted visitor visas. However, the committee
notes that in both the Brisbane and Adelaide cases, there was a connection
between Minister Dutton's office and the alleged intended employers of the au
pairs. This points to a purposeful misleading of parliament by Minister Dutton,
which is a serious matter.
On 27 March 2018, Mr Adam Bandt MP asked Minister Dutton whether he
could 'categorically rule out any personal connection or any other relationship
between you and the intended employer of either of the au pairs?' In response, Minister Dutton did categorically rule out any personal relation
or other relationship, stating:
The answer is yes. I haven't received any personal benefit. I
don't know these people. They haven't worked for me. They haven't worked for my
wife. I repeated all of that yesterday, and I repeat it again today.
On 30 August 2018, it was reported that Australian Border Force
officials formed the view that the woman in the Brisbane case planned to work
as a babysitter for the family of a Queensland police officer. Reports indicated that the Queensland police officer worked in the Queensland
Police Service at the same time as Minister Dutton— including being
photographed together during their time of service.
Despite categorically ruling out any personal connection or any other
relationship between himself and the intended employer of either of the au
pairs, on 11 September 2018, Minister Dutton confirmed that he worked with
'that individual' in 1998–99, but that he had not spoken to him in 20 years.
I tabled that email yesterday because it indicated that, as
I've said all along, there is not one statement that I've made that the Labor
Party can point to that is factually incorrect. That's the reality. I worked
with that individual in 1998-99. I haven't spoken to him in 20 years. There were
5,500 police in the Queensland Police Force when I left in July of '99. He
doesn't have my personal mobile number. He doesn't have my personal email
address. He sent an email to my generic, publicly available email account. My
staffer came to me and said, 'I have this email.' My response was: 'Who? Who is
that?' That was my response to it.
The document tabled in the House of Representatives on 10 September 2018
confirmed that an email was sent to Minister Dutton on Wednesday, 17 June 2015
at 4.02 pm by the police officer in question. The email stated:
Long-time between calls.
I need advice on a matter that has occurred today. An Italian
student...is being held after her visa has been cancelled. She was due to stay
with my family. There has been a mixup in the visa details. She is currently
being held in the detention centre.
Give me a call please if possible for advice re this matter.
The Minister's version of events is in contrast with the Prime Minister's
understanding of the events. On 2 September 2018, the Prime Minister stated
during a news interview the request came through 'the switchboard' and would
have been in a name other than that of the Queensland police officer Minister
Dutton had previously worked with. The Prime Minister stated:
How many people here worked with people twenty years ago? And
also on top of that if someone makes an application not even in the name of the
person you worked with twenty years ago and actually does it through basically
the switchboard, I mean, that’s what doesn't pass the pub test.
Given this contradiction, it is not clear to the Committee whether the
Prime Minister was not across the facts, deliberately misrepresented the facts,
or was provided with a false account from Minister Dutton of the facts. Regardless,
the impression is left that the Government has deliberately tried to obfuscate
the circumstances around the intervention decision to avoid proper scrutiny and
As stated above, Minister Dutton decided to intervene in this case on the
same day—17 June 2015—which was a Parliamentary sitting day. While the exact
time Minister Dutton decided to intervene in this case is not clear, the
intervention decision would have had to be made within eight hours for the
decision to be made on the same day.
The committee notes that it received information from the former
Commissioner of the Australian Border Force, Mr Roman Quaedvlieg, concerning a
phone call from Minister Dutton's former chief of staff, Mr Craig Maclachlan,
requesting the Minister's intervention for 'the boss's mate in Brisbane'. The veracity of Mr Quaedvlieg's claims was refuted by Minister Dutton who
noted that Mr Craig Maclachlan did not work for him until 7 October
2015, some months after the Brisbane case.
The committee notes that on 7 September 2018 it wrote to the department
and Mr Quaedvlieg seeking their comments. In response, Mr Quaedvlieg advised
the committee that he may have been 'honestly mistaken in anchoring that
conversation to a date in June 2015.' But Mr Quaedvlieg maintained that he had a conversation with Mr Craig
Maclachlan about the detention of an au pair in Brisbane, occurring between
October 2015 and December 2016. In a letter dated 13 September 2018, the department confirmed that they
were not able to find 'any evidence of another case between October 2015 and
the end of 2016 involving a young female from a Western or Southern European
country who had been detained at Brisbane airport due to evidence of an
intention to work as an 'au pair'.'
In lieu of further evidence, the Committee is unable to assure itself as
to whether or not an additional intervention occurred in line with the
clarifying evidence from Mr Quaedvlieg. This request for ministerial
intervention may not have resulted in an intervention being finalised or could
have resulted in a visa of a different subclass being granted.
The inconsistencies presented in the Department's evidence, multiple
clarifications to errors or inconsistencies in that evidence and the Department's
own admission that it was required to search through deficient legacy systems,
including paper-based records, leaves the Committee in significant doubt as to
whether all relevant ministerial interventions have been captured by this
inquiry. The Committee remains unconvinced that the Department has been able to
rule out that another intervention may exist that might align with the former
Commissioner's stated recollection.
The committee invited Minister Dutton to appear at the committee's
hearing but notes that Minister Dutton or his office did not provide a response
to the committee's invitation and subsequent follow ups. The committee
expresses its disappointment that Minister Dutton declined to engage with
the committee to provide clarity on this matter.
On 28 August 2018, it was reported that Minister Dutton intervened after
his Chief of Staff, Mr Craig Maclachlan, was contacted by the AFL's Chief
Executive Officer, Mr Gillon McLachlan.
At the hearing, the committee heard from Mr Gillon McLachlan and
Ms Jude Donnelly, Head of Government and Stakeholder Relations for
the AFL, who had contacted Mr Craig Maclachlan at Mr Gillon McLachlan's
request. Mr Gillon McLachlan described his relationship with Minister
Dutton as 'a normal relationship that I would have with a minister on either
side of politics', and that he had 'probably met Mr Dutton half a dozen
times.' Ms Donnelly noted that she used to be a 'former political staffer' and met Mr
Craig Maclachlan on possibly two occasions, but that they had never worked in
the same office.
Mr Gillon McLachlan gave evidence that on Sunday, 1 November 2015
he received a phone call from his cousin asking whether Mr Gillon McLachlan
knew someone who could help him on a visa issue:
My recollection is that on a Sunday in November I got a call
from my second cousin Callum MacLachlan, who was agitated and concerned. He
said to me that he had been trying to get hold of the relevant office, but
because it was Sunday he wasn't able to get hold of anyone. He wanted to make a
representation, because he felt there'd been a mistake on a visa issue of
someone who had previously worked for him, who had become a friend of the
family. He wanted to make a representation because he felt there'd been an
error. He'd been ringing or trying to get hold of the office and had not been
able to do so, and asked did I have any way of helping? My response was I
thought that I had a work colleague and a friend who could help him get in
contact, and I thought the best way to do that was for him to send me an email,
which I then could get forwarded.
Mr Gillon McLachlan stated that following the phone call, he contacted
Ms Donnelly, explained the conversation with his cousin, and asked Ms
Donnelly to contact Minister's Dutton's office. Ms Donnelly stated that she contacted Minister Dutton's then chief of
staff, Mr Craig Maclachlan, and forwarded the email to Mr Craig
Mr Gillon McLachlan stated his connection with Minister Dutton's office
is one of the reasons as to why he facilitated the request:
He [Callum MacLachlan] was trying to get hold of Minister
Dutton's office to make a representation, and my suggestion was to put his
representation in an email and I would help facilitate getting that to his
office—and that's what happened... I imagine that he [Callum MacLachlan] had an
instinct that I would potentially have some contact that could help him get in
touch with the office.
Confidential documents provided to the committee confirm that Ms
Donnelly forwarded Mr Gillon McLachlan's email to Mr Craig Maclachlan on Sunday,
1 November 2015. The email trail also shows that the department reiterated that the individual
had previously been counselled about her work rights on a tourist visa and that
the department had evidence that she intended to work during her stay on this
The same email trail shows that the Minister's Chief of Staff
Craig Maclachlan was emailed by Ms Donnelly at 11.41am on Sunday, 1
November 2015 and the ministerial intervention was signed by the Minister no
later than 8.20 pm Brisbane time the same day; 9.20 pm Canberra time.
The Minister was departing Australia from Brisbane airport at 8.45 pm
Brisbane time (9.45 pm Canberra time).
Answers to Questions on Notice show that the Hon Michael Keenan MP was
acting for Minister Dutton from 8 pm on 1 November 2015. Despite this, Minister Dutton signed the Ministerial intervention no later than
8.20pm Brisbane time the same day (9.20 pm Canberra time). There is no
process or logical reason why Minister Keenan could not have authorised the
intervention, if he was so minded, in his acting capacity. The rush to have
Minister Dutton intervene prior to his departure further reinforces perceptions
that the decision was based more on personal contacts, rather than on good
immigration outcomes, or actual benefit to the Australian community.
Mr Gillon McLachlan provided evidence that apart from Adelaide case,
there was one other occasion where he asked Ms Donnelly to inquire about the
status of someone who had applied for a visa:
I was contacted by someone who was awaiting a business visa,
a friend of a friend, who was wanting to come into the country and waiting for
the visa to be processed. They had language issues. I asked Ms Donnelly to ask
whether the visa had been approved or not. So I asked her to find out the
status of the application.
Mr Gillon McLachlan noted that he believed this occurred in March 2014
when the Hon Scott Morrison MP was the Minister for Immigration and the Hon Tony Abbott MP
was the Prime Minister. Ms Donnelly confirmed that she called an adviser in Prime Minister Abbott's
office to inquire about the status of this person's visa and that she 'heard
back some time later that it had already been processed.'
The committee notes that this account, as relayed by Mr Gillon McLachlan,
would appear to demonstrate a common practice where people with a connection to
the minister's office are in a position to seek a ministerial intervention in
relation to their family, friends and acquaintances. Most ordinary Australians,
of course, do not enjoy such easy access to the Minister or his office. This
raises obvious issues in relation to the fairness and equity surrounding the
exercise of the Minister's intervention power.
Were the ministerial interventions based on 'public interest'?
As discussed earlier in this report, section 195A grants the Minister
the power to intervene in cases where there is a 'public interest'.
Minister Dutton has sought to defend his interventions on the basis that
they were 'discretionary and humanitarian acts', and that the decisions to
grant visas in both the Brisbane case and the Adelaide case were made in the
'interests of Australia as a humane and generous society'.
However, the committee received evidence from a number of migration
agents and lawyers suggesting that cases of obvious merit are given little
consideration. These witnesses suggested that, in their experience, ministerial
interventions were extremely difficult to obtain. This was contrasted with the
two cases under consideration by the committee, which appear to have received
preferential treatment when compared to the experiences described by migration
lawyers and agents who participated in the inquiry.
One example provided by Ms Eve Watts of Inclusive Migration Australia,
described a case of a Romanian visa holder living and working in Port Hedland,
She's a remarkable
woman and has found herself in this position as she was a dependant on a 457
visa to an abusive partner. She's since made a further partner visa application
with her current partner of over three years. But, as she didn't hold a
substantive visa at the time of the application, she's been deemed ineligible.
Therefore, the minister has been asked to intervene to enable her legitimate
partner visa application to be valid. This woman has worked for the department
of families. State and federal governments have spent significant money in
employing and training her, and we have presented statutory declarations from
Indigenous leaders in the community and local, state and federal members of
parliament outlining the contribution, love and commitment she has given to the
region and its people. Yet the minister has also deemed that she's not worthy
of his consideration.
Ms Sarah Dale, Principal Solicitor, Refugee Advice and Casework Service,
also provided the committee with examples of her experiences in attempting to
seek ministerial intervention on behalf of her clients, particularly noting
that the decision not to intervene appeared to be contrary to the Guidelines:
Recently, we've seen
a Tamil father who, under the guidelines, warranted ministerial intervention
and who, under the guidelines, ought not to be removed from Australia. But,
indeed, he was separated from his wife and child. RACS, too, has made
applications for consideration for people who have been found to have a prima
facie case warranting Australia's examination of protection obligations and who
were unable to apply for protection before an arbitrary deadline was set for
them to do so. We wrote, we evidenced and we made our requests, which met the
guidelines for referral to the minister, and we were told again that they
wouldn't even reach his desk.
A number of witnesses noted that the Guidelines were often not followed
in relation to cases that appear to warrant ministerial intervention, which
created uncertainty and frustration. For example, Ms Dale stated:
We do have very clear
guidelines on when the minister should intervene and for what kinds of cases
intervention should occur. I referred to in my opening statement, and I'll
refer to it again, the removal of the Tamil father within the past two months.
The guidelines were very clear that intervention was warranted. The guidelines
were very clear that he should not be removed given he has a child here in
Australia with protection obligations. So, indeed, it is alarming for us that
guidelines aren't being followed, particularly in that case and, further, that
we don't get reasons. We don't get justification as to when and why things are
referred to the minister or not. As I stated before, we've assisted a number of
people who missed the arbitrary deadline to make an application for protection
visas. They missed that deadline, and we've written to the minister asking for
his ministerial intervention unit to consider referring it to the minister to
allow them to make that application. Again, as I stated, we are told, 'It
doesn't meet the guidelines,' but we're not told how or why. So the ability for
us to assess the ministerial intervention process is difficult without that
Witnesses highlighted the length of time required to formulate and
submit applications for ministerial intervention on behalf of clients, often
requiring large amounts of supporting documentation. One witness noted that she
had never prepared a ministerial intervention application 'that hasn't had
anything less than at least 20 [statutory declarations] attached to it from
relevant community members and that hasn't moved through the guidelines in
great detail to demonstrate how people have met them'. Witnesses put it to the
committee that many applications which had been prepared in accordance with the
Guidelines had not been successful, and they had been advised as such with only
a short statement that the Guidelines had not been satisfied.
Questions were raised by witnesses about whether the Guidelines were
being appropriately used in assessing applications for ministerial
intervention. Ms Helen Duncan expressed the view that the
intervention powers should be used in a way that ensures that they are 'robust
and applied with integrity'. She submitted that the Guidelines were in place to assist in assessing
applications for ministerial intervention but that this did not appear to be
occurring. Ms Duncan further noted in her submission that she was unable to identify how
the Guidelines would have been satisfied in relation to the au pair cases.
Witnesses questioned whether the Guidelines or the public interest test
had been applied in the case of the two au pair decisions being considered by
the committee. When the committee queried whether the public interest test appeared to be made
out in the ministerial intervention cases of the au pairs, many of the
migration agents and lawyers expressed scepticism that there was any public
interest in granting visas:
From what I have seen
[in the media], I would find it very difficult to find any public interest in
granting [the au pairs] a visa, whereas I know with the cases that I've
presented, similar to what my colleagues have also presented, it's people who
have made significant contributions to the Australian community and have the
support of large sectors of the public rather than just an individual person
wanting that person to stay.
The duration of time between the Minister's consideration of the two au
pair cases and the Minister's exercise of his intervention power was also
commented upon by witnesses as a departure from usual practice. Migration
agents and lawyers told the committee that the decision to intervene within a
matter of hours was highly unusual, and had never heard in their experience of
a previous instance where a similar situation had occurred. Ms Dale stated:
That certainly hasn't
been our experience, even for really administrative processes such as a
bridging visa, when someone's unlawful in the community and just needs the
administrative function of having that visa renewed. Often people are left in
the community for weeks unlawfully because the minister is not accessible.
The duration of time in detention was similarly marked out as a point of
contrast with the usual experience of applicants seeking ministerial
intervention. Ms Dale informed the committee that many applicants in
detention await a response from the department for 'months on end'.
It was also noted by witnesses that it was unusual to grant visas under
section 195A to persons on tourist visas in particular, and that it was
'difficult to say that, for someone on a tourist visa, it's in the interests of
the Australian community that that person enters Australia'.
Access to the Minister an unfair
The committee received evidence that some migration agents and lawyers
were of the view that certain people may be able to obtain successful outcomes
due to a close connection with the Minister. Ms Helen Duncan, a Registered Migration
Agent, stated in her submission that:
...in my experience I
believe that it is often a case of who the applicant knows that decides the
outcome, rather than the merits of the application. This appears to be the case
with the au pairs who were granted visitor visas despite an assessment by the
immigration official at the airport, that they intended to work in breach of
the conditions on their visa.
Ms Duncan further noted that the ability for those with close
connections to the Minister to receive more favourable outcomes 'is unfair and
means that what I consider to be genuine cases are not considered'. The facts
surrounding both the Brisbane case and the Adelaide case appear to confirm this
The migration agents and lawyers also submitted to the committee that
they had difficulty in accessing information or contact details in relation to
ministerial interventions. Many of the witnesses stated that they did not have
telephone numbers to access the relevant part of the department for information
regarding interventions, and had been advised that all correspondence must be
directed via email and often took many days to receive a response. Witnesses
stated they never were able to obtain ministerial intervention through phone
Senator WATT: Have any of you been able to obtain ministerial
intervention by making a couple of phone calls rather than putting in written
Ms Watts: Never.
Ms Duncan: Never, that would never happen.
Ms Dale: No. It has never been RACS's experience that phone calls
would amount to ministerial intervention.
Ms Watts: In fact, to even have a line to call in to the
ministerial intervention section is—I no longer have a number that I can even
get there. All communication has to be via email and takes days to come and go.
This was the case even in situations where a person was at risk of
imminent removal with ongoing claims seeking asylum and were at risk of being
returned to a country where they had genuine fears for their safety.
The scope of ministerial intervention powers is extremely broad—they are
non-delegable, non-compellable, and are not subject to judicial or merits review.
While the power under section 195A of the Act can only be exercised 'if the
Minister thinks that it is in the public interest', neither the Act nor the
Regulations define 'public interest'. Guidelines have been developed to provide
a degree of transparency and accountability. However, the minister is not in
any way bound by these Guidelines. Nevertheless, underpinning ministerial
decisions and actions is the requirement to adhere to the Ministerial
The purpose of this inquiry was not to determine whether Minister Dutton
acted illegally in granting the tourist visas with respect to the Brisbane and
Adelaide cases. Rather, the committee has been tasked with determining whether
Minister Dutton's actions were appropriate in these cases.
In employing such broad powers, it is vitally important that the
Minister do so in cases of well-assessed and determined need, and that
decisions in no way reflect or are seen to reflect favour based on personal
interest or connection. To do so is to erode confidence within the community
that the Minister will act and apply the rules to all in an equal, impartial
and fair manner. This is not a matter to be taken lightly and risks reflecting
poorly on our system of government more broadly. On the evidence heard by the committee,
Minister Dutton failed this critical test.
The facts established
The evidence before the committee shows that on 17 June 2015, a woman
entered Brisbane airport on a tourist visa, and was questioned by Australian
Border Force officers, who formed the view that she was intending to work in
breach of her tourist visa. The visa was subsequently cancelled and the woman
was placed in immigration detention. Her alleged prospective employer, who had
worked with Minister Dutton in the Queensland Police Service in 1998–99,
emailed Minister Dutton about the matter. This resulted in the minister,
on the same day, exercising his ministerial intervention powers to grant the
woman a three-month tourist visa.
A similar incident occurred on 31 October 2015, where a woman entered
Adelaide airport on a tourist visa and was questioned by Australian Border
Force officers about her possible intention to work. Documents obtained by the
committee stated that the woman was previously counselled regarding her work
rights on a tourist visa, which warned her against 'undertaking any form of
work, including child minding.' The departmental submission to Minister Dutton clearly indicated that the woman
had 'advised [Australian Border Force] officers of her intention to work during
her intended stay in Australia on this occasion.' Minister Dutton's statement in the House of Representatives confirms that he
was advised of their intention to work:
There were two young tourists who had come in on a tourist
visa and declared in an interview with the Border Force officers at the
airport—I was advised—they were here on a tourist visa but intended to perform
babysitting duties while here.
The committee is aware that the woman was to stay with the cousin of
AFL Chief Executive Officer, Mr Gillon McLachlan, who admitted to having
met with Minister Dutton about half a dozen times. On Sunday, 1
November 2015, Mr Gillon McLachlan asked Ms Donnelly, Head of
Government and Stakeholder Relations for the AFL, to contact Minister Dutton's
chief of staff, Mr gill Maclachlan about this matter. Mr Craig
Maclachlan made inquiries with the department about the woman's situation, and
asked the department to prepare a ministerial submission under section 195A of
the Act for Minister Dutton's signature. The formal ministerial submission was
sent to the minister who decided on 1 November 2015 to exercise his powers
under section 195A of the Act to grant the woman a three-month tourist visa.
The Brisbane and Adelaide cases stand in contrast to the evidence heard
by the committee in relation to other requests for a ministerial intervention,
which, on the face of it, appear more worthy of intervention. While 'public
interest' is not defined, the committee notes that it is difficult to see how
the granting of a tourist visa to people who officers had determined were
intending to breach their visa, would be in the public interest. The committee
considers it difficult to reconcile the situation and decisions relating to the
Brisbane and Adelaide cases, with the situation and decisions of the Romanian
visa holder or the Tamil father, as described by witnesses.
Submitters raised concern that 'it is often a case of who the applicant
knows that decides the outcome, rather than the merits of the application'. Indeed, the figures provided by the department show that twice as many
ministerial interventions under section 195A, involving a tourist visa, were
granted when the request for a ministerial submission came at the behest of the
minister's office, as opposed to being initiated through the department.
The committee acknowledges that the minister is not obliged to consider
the Guidelines. However, the committee notes that this has effectively resulted
in two different rules being applied to applicants, which is dependent on access
to the minister's office. Applicants without direct access to the minister's
office must meet the Guidelines, and only after it has been accessed by
departmental staff as meeting these Guidelines, is it referred to the minister
for his consideration. Applicants with direct access to the minister's office
may potentially by-pass the initial departmental vetting against these
Guidelines and have a ministerial submission considered by the minister,
regardless of whether their circumstances meets the criteria set out in the
Guidelines. The committee is of the view that, in relation to the Brisbane and
Adelaide cases, had the request for ministerial intervention been received by
the department in the first instance, neither case would meet the Guidelines
and therefore would not have been referred to the Minister for his
However, the minister is required to adhere to the Ministerial Standards
which requires ministers to act with 'due regard for integrity, fairness,
accountability, responsibility, and the public interest' particularly in light
of the 'privilege and wide discretionary power' provided to ministers. The Ministerial Standards also refers to the requirement for ministers to 'observe
fairness in making official decisions...taking proper account of the merits of
Given the unfettered discretionary power provided to the minister, it is
essential that the minister adheres to the Ministerial Standards. The committee
fails to understand how the minister's decision to exercise his ministerial
intervention powers in relation to two individuals visiting Australia on a
tourist visa, whom, according to his department, admitted to intending to work
in breach of their visas, could amount to a fair decision when 'taking proper
account of the merits of the matter.' While the decision by Minister Dutton was
within the scope of the law due to the unfettered discretion provided to him,
the committee is of the view that the decisions in both the Brisbane and
Adelaide cases falls short of meeting the Ministerial Standards.
It is the view of the committee that Minister Dutton had a clear
personal connection and existing relationship with the intended employer of the
au pair in the Brisbane case. Given his definitive answer in the House of
Representatives, it is the view of the committee the minister misled Parliament
in relation to this matter.
It is the view of the committee that Minister Dutton acted expeditiously
in using his ministerial intervention powers to grant a tourist visa to the au
pair in the Adelaide case. Whilst the use of these powers is within his rights
as the relevant minister, the committee recognises this request for
intervention may not have come to the attention of Minister Dutton prior to the
individual's removal from Australia if it was not for the fact it was raised
through personal connections. Minister Dutton appears to have failed to give
consideration to the damage to public confidence in the integrity of the
immigration system that his actions could cause and, at best, reflects very poor
judgement on the part of the minister.
In the Adelaide case, Minister Dutton signed the intervention documents
despite acting ministerial arrangements being in place. No evidence presented
assured the committee that there were any reasons why Minister Dutton signed
the ministerial intervention in the Adelaide case rather than acting Minister
Keenan, heightening perceptions that Minister Dutton acted due to a personal
It is the view of the committee that substantial inconsistencies in
evidence provided by the department during the course of the inquiry leaves
significant doubt as to whether all relevant ministerial interventions have
been captured by the inquiry.
Given the broad powers of the Immigration Minister, any perception of
conflict of interest or corruption in relation to the use of ministerial
intervention powers is detrimental to the integrity of Australia's immigration
system. While these powers are intended to ensure legitimate cases of
humanitarian need or public interest can be addressed, Minister Dutton's
interventions in these au pair cases do not reflect community expectations of
how such powers should be used.
At best, Minister Dutton's actions have resulted in a perception, if not
an actual, conflict of interest. To ensure transparent and accountable
decisions, the Government should give serious consideration to strengthening
the minister's Statement to Parliament, requiring the minister's Statement to
declare that the ministerial intervention was made in accordance with the
Ministerial Guidelines, thereby maintaining community confidence in the
integrity of Australia's immigration system.
That the Government strengthen the minister's tabling statements to
Parliament on ministerial interventions, by requiring the minister's statements
to declare whether or not each ministerial intervention was made in accordance
with the Ministerial Guidelines.
The committee recommends that the Senate consider censuring the Minister
for Home Affairs (the Hon Peter Dutton MP) for the actions examined in this
report, when he was the Minister for Immigration and Border Protection, for
failing to observe fairness in making official decisions as required by the
Statement of Ministerial Standards.
That the Minister representing the Minister for Home Affairs provide,
within three sitting days, an explanation to the Senate responding to the
matters raised in this report.
Senator Louise Pratt
Navigation: Previous Page | Contents | Next Page