Andrew Bartlett (Queensland, Australian Democrats) Share this | Hansard source

I move amendment (10) on sheet 4868:

(10)  Clause 54, page 66 (after line 20), at the end of the clause, add;

        (2)    The regulations must include policy guidelines providing that the application of the ministerial discretions in section 22 in relation to significant hardship or disadvantage and activities beneficial to Australia are to be applied broadly to include:

             (a)    social and cultural factors; and

             (b)    economic considerations.

I will be brief. This amendment is to a part at the end of the legislation that deals with regulations. It provides a requirement that the regulations must include policy guidelines providing that the application of the ministerial discretions in section 22, which is the section we have just been talking about, in relation to significant hardship or disadvantage and activities beneficial to Australia are to be applied broadly to include social and cultural factors and economic considerations. It is really just to try to provide a bit more flesh around the exercise of ministerial discretion in this area.

I have spoken at great length about, and indeed we have had Senate inquiries into, the exercise of ministerial discretion in the Migration Act and some of the problems with regard to the opaque nature of that. This amendment would go part of the way to ensuring that there was just a little more flesh around how ministerial discretion is exercised. It creates clearer guidance for ministers—and I appreciate that sometimes ministers do not like being constrained by regulated guidance; they like to be able to have total freedom to decide—and it is to the benefit of the minister and government of the day in relation to the uncertainty that surrounds the reasons ministerial discretion is used in a range of areas in the Migration Act, and in the Citizenship Act where it applies. That can be problematic in that it is easy for people to draw unhelpful or very negative conclusions about the way the law operates when there is no real clear reason why discretion is exercised in one case and not in another case.

Obviously, some migrant communities come from countries where it is very clear what sorts of factors might help create a more favourable decision—they are not actions that are encouraged in Australia, such as money changing hands and various other inducements to get a better decision. I am not suggesting that happens here; I am suggesting that to reduce the prospects of people suspecting that that is the reason discretions get exercised in particular ways it can be quite helpful to have clearer and to some extent more enforceable guidelines. That is what this amendment goes to.