[Note the parallels with what Dawn Rowan is asking of the Finance Minister. See http://dawnrowansaga.blogspot.com/ ].

Mary Aldred

March 3, 2008

The Immigration Minister should retain his powers of discretion.

IMMIGRATION Minister Chris Evans thinks he is playing God by performing the role he has been elected to do. Evans recently told a Senate estimates committee he has too much power and had asked former Victorian public servant Elizabeth Proust to report back on the extent of it.

The role of immigration minister does, indeed, carry great power. The minister’s decisions have a profound impact on the lives of vulnerable people in dire circumstances.

Evans says he is uncomfortable with that, not just because of concern about playing God, but also because of the lack of transparency and accountability for those decisions.

Evans is suggesting that unelected public servants are better placed to make a final judgement, but does not provide any example of how that would lead to greater transparency. This is not demonstrative of Kevin Rudd’s declaration that the buck stops at the top.

Among the discretionary powers mooted for review are section 501 of the Migration Act, under which the minister may refuse or cancel a visa on character grounds, and section 417, under which the minister may overrule the migration tribunal in favour of an applicant.

These are not minor tasks to handball. At the heart of this issue is who gets the final say on who can stay in Australia and who cannot. For some, these decisions have life and death consequences.

Ministerial interventions are not made straight off the bat. They are a final avenue of appeal after all tribunal and court hearings have been exhausted. To use a cricketing analogy, the minister acts as a match referee only once the field umpires make their ruling. Requests are regarded seriously, and require detailed submissions from the applicant along with advice from the department.

In many cases, ministerial intervention has proved timely and necessary, notably for the seven young Afghan men granted asylum in 2001 and the Kosovo refugees in 1999.

The Galbally (1978) and FitzGerald (1988) reports on the immigration system struck a balance between a rules-based structure which had enough compassionate flexibility to accommodate discretion in exceptional circumstances. The Fraser and Hawke governments understood this, with all of the Galbally recommendations implemented by the Fraser government, and FitzGerald’s key points adopted by Hawke. Mostly, this has worked well.

But ministers are not immune to the odds of human error and there is also the potential for misuse of this discretionary power. (And distinguishing between the right to representation and a “migration industry” which feeds false hope and chokes the system with fruitless appeals has been a challenge for successive governments.) But when they get it wrong, ministers are publicly scrutinised and should be held to a higher level of accountability than public servants.

The 2004 Flood report on national security agencies noted the difficulties bureaucracies face in “talking” to one another. Assigning them additional powers of subjective interpretation would not improve a system already drowning in a quagmire of bureaucracy.

Leading Australian immigration academic James Jupp argues that where there is ministerial interest in immigration, intervention may ensue.

It follows that ministers are open to legitimate community representations and media scrutiny. While public servants are held to a degree of accountability, it is the minister who has overall carriage for the department and the consequences of its decisions.

Say Evans got his wish and abdicated his responsibility. Applicants would still have their cases heard by the migration and refugee review tribunals. The panels aim to provide correct and consistent decisions, and if applicants are not satisfied they have 28 days to appeal to the Federal Court.

But as any year 12 legal studies student knows, judges are there to interpret and apply the rules, and unfortunately the full extent of human devastation cannot always be captured within the black letter of the law. Unlike bureaucracies’ apparatuses, ministers have a mandate for empathy while weighing often unique circumstances that were not anticipated when sections of acts were drafted.

It seems the motivating factor Evans has for abrogating responsibility is that he is uncomfortable about having to make decisions that may not please all people at all times. But that’s what happens when voters choose your team to make decisions in government for them.

The process should remain open to accountability and as the PM says, the buck should stop at the top.

Mary Aldred recently completed her BA honours thesis at Monash University on the history of the Migration Act.

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