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Monday, 15 June 2009
Page: 6026


Dr STONE (6:55 PM) —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)