Sharman Stone (Murray, Liberal Party, Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

This is a matter of immigration ministerial discretion. The key intervention elements of the migration framework that were put in place in 1989 under former Senator Robert Ray included making sure that, besides the actual departmental review processes, there was a case where a minister could intervene. The view at the time was one that is still held by the coalition; that is, it is a sovereign right of the elected government to decide who meets the criteria to come to the country and remain. However, in recognition of the rigidity of the regulations criteria, the coalition in opposition supported the inclusion of a capacity for the Minister for Immigration to exercise his or her personal discretion to make a favourable decision but only after the application had been through a review process. The power is recognised as an important element in delivering a fair outcome in circumstances where the Minister for Immigration and Citizenship is confronted with a very complex set of human circumstances.

Since his earliest days in the ministry, the Minister for Immigration and Citizenship, Senator Chris Evans, has made a big deal about his ambivalence in using the ministerial discretion which goes with his office. In a number of speeches he has talked about not wanting to play God. For example at the national members conference of the Immigration and Refugee Review Tribunals in February 2008 he said:

One of the first things that struck me when I took on this role was what extraordinary powers I had as minister. The range of powers from determining the character of a person—such as Dr Haneef—to the deportation of long term residents with criminal convictions—to whether or not a new born baby can be allowed to live with his mother in community detention.

He then went on to say:

Yet ministerial intervention offers no guarantee of fairness.

This is quite an extraordinary statement: an unelected bureaucrat would be fairer than a minister elected by the people and accountable to the people. That is what the minister appeared to be saying. He goes on to say:

Maybe it is because I am new to the portfolio but my inclination is to support independent, transparent and appealable decision making in the resolution of immigration matters.

He goes on to say:

And if we are to limit the ministerial propensity to intervene, it is essential that there be public confidence in the legal system’s ability to provide just and speedy outcomes in migration and refugee cases.

Quite clearly the minister is saying he has a better scheme in mind for cases which have been rejected by the tribunals, the Migration Review Tribunal and the Refugee Review Tribunal, and perhaps he is developing a long-term argument about there being a better way to deal with these cases. He asked Ms Elizabeth Proust to undertake a review, which she did, but that has now been languishing with the minister for 18 months without any response whatsoever.

Despite all this posturing and the endless words about a new regime, when it comes to exercising ministerial intervention, it has come to the coalition’s attention that Minister Evans has in fact used his interventionary powers a staggering 1,000 times in the 18 months since he took office. When I say ‘used his interventionary powers’, that means he has overturned decisions of the tribunals or the courts over 1,000 times in 18 months. In the 18 months from September 2007 to March 2009, Minister Evans exercised his discretion 647 times under section 417 of the act and 347 times under section 351 of the act. In total therefore the minister who ‘doesn’t want to play God,’ he says, ‘who doubts that he can deliver a fair outcome compared to others’ has overturned the decisions of the MRT and RRT over 1,000 times. Over 1,000 people who were found not to be refugees or who were to have their visas cancelled have had these decisions, made by the tribunals or by the courts, overturned by Minister Evans.

Let us compare this rate of intervention with others. Minister Ruddock intervened in 1,916 cases out of 27,000 between 1996-97 and 2003. Before that we had Labor ministers intervene much less. We call on this minister to tell us what is going on, what does he want to do and is he establishing an alternative system? If so, let us know so that it can be transparent and fair. We just do not know the how and why of his behaviour. This is the most extraordinary rate of interventions since any minister has been sworn in. (Time expired)

Sharryn Jackson (Hasluck, Australian Labor Party) Share this | Link to this | Hansard source

I find this an extraordinary proposition being promoted by the shadow minister for immigration tonight. It is quite an absurd motion that she has put forward. It is predicated on a number of falsehoods and completely disregards the facts. One could argue perhaps that this is not inconsistent with her past form in that it also offers no policy direction for the future and provides no clue as to the shadow minister’s own views about how ministerial intervention powers are and should be used.

At least she was accurate in the part where she quoted from the Hon. Chris Evans’ speech to members of the Migration Review Tribunal and Refugee Review Tribunal when he talked about his concerns regarding the use of section 147 ministerial intervention powers. He indicates that this is something that struck him very much when he first became the minister because of the extraordinary powers that he had. He raises a number of concerns about how much the minister’s involvement had become commonplace in individual cases and that there had been a substantial expansion in requests over the preceding decade. For example, he cited that in 2006-07 over 4,000 requests for ministerial interventions were received by the department, and contrasted that with earlier years: in a two-year period Minister Gerry Hand handled only 81 applications for the exercise of discretion. Senator Nick Bolkus, during his three years as minister, handled 311 and Philip Ruddock intervened on 2,513 occasions from 1996 to October 2003. The minister raised a couple of concerns. One was that it has become almost part-and-parcel of the immigration system—thanks to the previous government—that there is an expectation now that, as a matter of substance and form, there is an additional avenue for any individual to pursue their application for a visa and that is to make an individual complaint to the minister, which is quite a departure from what had previously existed. His other concern, which he clearly raised, was that there is no other minister with similar powers of intervention. Indeed, I am sure we would all be agreeing with him.

Let us say the minister for social security had this power. If I was not happy with a Centrelink payment, the minister could intervene and grant a Centrelink payment—or, indeed, the Treasurer. If I did not like my Australian Taxation Office result, should the Treasurer have such extraordinary powers? These powers are part of a process to deal with exceptional circumstances such as in the nation’s security. The minister himself says that he appreciates that it is appropriate in circumstances for the minister for immigration to have those powers. It is one thing to be exercising them in terms of a national security matter—a check on the system in my opinion—it is quite another thing when it becomes just another avenue which an individual may pursue. To know that there are regularly some 2,000-odd appeals for ministerial intervention in the system is staggering. Frankly, I think the minister has done the right thing in putting in place a process to begin to address this very system.

The allegation of the shadow minister, who alleges that the government has not responded to the Proust report handed down in July 2008, is absolute nonsense. Indeed, the minister has, on a number of occasions, indicated what steps have been taken with respect to the six recommendations made by the report. Interestingly enough, the shadow minister may like to examine the minister’s media release of 9 July 2008 where it talks about the ministerial intervention powers under review and the steps he has taken since he commissioned the report to restore the integrity and transparency in the system of ministerial intervention after concerns were raised about the process. She may find that extremely instructive to her in her role as shadow minister. It is an absurd suggestion that the minister has taken no action on the Proust report. It is an absurd suggestion that the minister has been unclear. (Time expired)

Luke Simpkins (Cowan, Liberal Party) Share this | Link to this | Hansard source

This motion is about the exercising of the discretion of the Minister for Immigration and Citizenship in relation to individual immigration cases. This issue is very important because the exercising of ministerial discretion and intervention in the cases of individuals whose circumstances fall outside the letter of the law allows a minister to take a humane and compassionate approach in such cases. It is the reality, and a necessary reality at that, that it is up to the government to decide who comes to this country and not up to the unelected courts. That is why we have laws that allow the immigration minister to take action and allow a person to be granted a visa, even when the Migration Review Tribunal or the Refugee Review Tribunal has already decided otherwise.

As the member for Cowan, I see a lot of success stories that have arisen from the successful migration of those who have embraced the values and the institutions of our society. I see whole communities, such as the Vietnamese in Cowan, who greatly appreciate the freedoms and the opportunities that Australia allows them. Also in Cowan, the great heritage of Italian migration is evident across the electorate in the businesses, the history and even the resulting road signs that commemorate that heritage. The Italians and the Vietnamese are examples of the success of our immigration, yet it is the case that such immigration was achieved under a system of immigration whose integrity was maintained through the policies of the former coalition government. While I am concerned that the same systemic integrity is now being eroded by the Rudd government, this matter is about individual cases that fall outside the anticipations of law. This matter is about the ordinary men, women and children whose cases do not fit the template and guidelines that exist.

It is a good opportunity to raise one of these cases. It may just be a name on a form residing within the bureaucracy; it may just be a name and another case on a letter in the minister’s office. But this is a big issue for that person, their family and their friends. I speak on behalf of John Gagliardo, one such case where a man and his family and a lot of friends are in need of ministerial intervention and the granting of residency. John Gagliardo is a citizen of the United States. He first visited Australia in 1982 as a tourist. He returned in 1984, was employed on a mine site and chose not to leave Australia when his visa expired. Of course I do not condone that action, but the case of John Gagliardo is a case where one man, although doing the wrong thing almost 25 years ago, has nevertheless added great value to this country since then. John Gagliardo worked through till his 70s, when he retired to Fremantle. He paid taxes but did not claim through Medicare or other benefits. Since his retirement, he has lived from his savings and from the proceeds of a United States pension.

John has been a giver to this country and never a taker; economically, he has added value to Australia and never been a burden. Beyond the economics of his case, there has been a social side to John Gagliardo’s life. His younger sister Leona and her husband Edward are my constituents. Leona has told me how much John is part of not only her life, but also the lives of her children and grandchildren. I have seen the family photos and heard the accounts and strong endorsements from John’s friends about the part he plays in their lives. In 2006, after a doctor’s visit and being unable to provide a Medicare card, John Gagliardo came to the attention of the department of immigration. His application to stay was first rejected by the department and then rejected by the MRT. There is just one final chance for John, and that is the intervention of the minister. So here is a good example of where the minister can do the right thing and exercise his power for an individual, his family and a great many friends.

In looking at the guidelines for the exercising of ministerial powers, I clearly see the strong compassionate circumstances of damaging a close-knit Australian family. I also see grounds were allowing John Gagliardo to stay based upon the time he spent in Australia and, by all reports, adding great value with his presence. Finally, I see the circumstances of where repatriating him after 25 years to the United States, a country he rejected in favour of Australia, would not be compassionate based upon the harm and hardship it would cause to him. I reiterate that the exercising of these powers by the minister is important, and, in my view, he should do so in the case of John Gagliardo. The minister has acted a great many times in the last 18 months—over a thousand times—and, although the manner in which ministerial intervention occurred in certain cases under the former Labor government is questionable, this is a great example of where it should be exercised for the right sort of person who has always had the right sort of values but has made just one mistake.

Michael Danby (Melbourne Ports, Australian Labor Party) Share this | Link to this | Hansard source

In light of the member for Murray’s motion, it is important to make clear the government’s position on section 417 ministerial intervention powers. The Minister for Immigration and Citizenship has said openly he believes section 417, and other ministerial powers in the act like it, give him too much power. He argues that you would not expect a minister for social security to make decisions on an individual’s pension, or a Treasurer to make a decision on your tax return and nor would the public accept such interventions as appropriate. That is an entirely legitimate political view of the whole issue of ministerial intervention and immigration. The member for Murray charges the minister with ambivalence in relation to his powers of ministerial intervention. However, it should be pointed out that on February 26 this year the minister stated:

Let us be clear on this. There is no question that as long as those powers in the act are available to the minister I will exercise them in accordance with my responsibilities.

In that regard the figures speak for themselves. In 2008 the minister finalised 2,241 ministerial intervention cases. That exceeds the numbers finalised in 2007, which was 1,840, and in 2006, which was 2,113. These statistics show that the minister has been getting on with making decisions, while ministerial intervention powers remain available, and in parallel pursuing appropriate reforms.

It is just a political discussion, Member for Murray; I do not know why you are so agitated about a minister having open views about exercising his discretion. The member for Murray in her motion seeks to request the minister to respond to the Proust report. The short answer to this is that the minister has responded to it by taking appropriate action, and this work is ongoing. This may be an unfamiliar approach for those opposite, who over 3½ years ignored the Senate select committee, as Ms Proust observed:

It is surprising that so little use has been made of the report …

By way of contrast, aspects of some of the recommendations in the Proust report had already been acted on by the time the report was released. For example, the minister noted in his media release, as the member for Hasluck said, that he had already taken steps to delegate some of the powers that he was able to delegate to the department in line with recommendation 3 in the Proust report. Other recommendations have been fully implemented since the report was released. For example, recommendation 1 of the Proust report, ‘that the department commence immediately the practice of providing a recommendation on each file going to the minister for a decision’, was fully implemented some time ago. Aspects of recommendation 2, which relates to improving transparency and confidence in current arrangements, have also been implemented. The minister has also acted upon recommendation 5, which recommends that almost all discretions currently exercised personally by the minister be delegated either to the department or to the Refugee Review Tribunal for appropriate review and oversight.

The Rudd Labor government expects to introduce legislation to bring in complementary protection later this year. Ms Proust noted that a system of complementary protection:

… has the advantage of transparency, efficiency, accountability and, for the applicant, gives more certainty and reduces the time involved in the processing.

If the member for Murray were serious in her concerns about the consequences of delay for individuals and families seeking ministerial intervention, she would get on board and support these government complementary protection decisions. Instead we heard from the member for Murray, as soon as parliament rose after the budget was announced, that the sky would fall in if we allowed people who faced the risk of torture or death to apply for a visa and have any decision to refuse the visa reviewed. However, we should not be surprised at the opposition’s actions on this at that time. We have seen the opposition playing politics with the tragic events that claimed the lives of five people in April near Ashmore Reef. The member for Murray has continuously made claims in relation to the government’s change in policy on asylum seekers and made claims that are patently not correct about Labor cutting resources for border protection. In fact, the figures on government expenditure show a slight increase, and they are published on my website.

As a member of the Joint Standing Committee on Migration, the member for Murray endorsed the reforms announced in our first report in December. She also criticised the abolition of the temporary protection visas but could not say whether she would reintroduce them. She supported the closure of the Nauru and Manus Island detention centres, yet her colleagues have left open the possibility of reopening the Pacific solution. As opposition spokesman, the only policy she has announced in 18 months is that she will hold an inquiry.

I can only endorse the paeans of praise made by the member for Cowan and the member for Murray about Greek, Italian, Vietnamese and other immigrants in Australia. But you cannot condemn the minister for being ambivalent and then question him for making all these interventions. (Time expired)

Arch Bevis (Brisbane, Australian Labor Party) Share this | Link to this | Hansard source

Order! The time allotted for this debate has expired. The debate is adjourned and the resumption of the debate will be made an order of the day for the next sitting.