Set This House In Order, Episode Two: Too Much Power — Transcript

G’day Australia.

I’m Loki Carbis, and welcome to Set This House In Order, a podcast in which I suggest the little ways we could make our system a lot better.

This week, I want to start with a quote regarding this episode’s topic. Here goes:

“I have formed the view that I have too much power. I think the Act is unlike any other act I have seen in terms of the power given to the minister to make decisions about individual cases. I am uncomfortable with that, not just because of concern about playing God, but also because of the lack of transparency and accountability for those decisions and the lack in some cases of any appeal rights against those decisions.”

The speaker of those words was Senator Chris Evans, Minister for Immigration from December 3, 2007 until September 14, 2010, and the Act that he singles out for this criticism is the Migration Act of 1958. As you might suspect from the name, this act is concerned with how those who’ve come across the seas can qualify to share our boundless plains. In a word, citizenship.

The act describes and defines the processes whereby a person can apply for and acquire citizenship, and what they must do in order to qualify for it. It sounds worse than it is – the act is mostly pretty fair, especially after it was amended in 1966 to kill off the White Australia Policy for good. It’s simply that the process needs to be one that has rules, for fairness’ sake.

However, this act created the power known as Ministerial Intervention – or sometimes, rather more accurately, as Ministerial Fiat. This is a particular power of the Minister for Immigration, arising from four particular sections of the act: 48B, 351, 417 and 501J, each of which enables the Minister to ignore or over-rule certain other provisions of the Act. It’s clear from reading the language of the act that the intention of these sections is to make up for any bureaucratic deficiencies that might get in the way of an application. To ensure fairness, by adding a human element to the process. In fact, the language of the Act specifies that the decision made by Minister in such a case must be one that is more favourable to the applicant.

Sounds pretty reasonable, really. But intent and outcome are rarely coincidant, and Ministerial Intervention is a sad example of that fact.

For instance, the words “more favourable” are not defined – which means that a Minister could, in theory, disallow an application on the grounds that they believed it was “more favourable” to the applicant not to become an Australian citizen.

The minister also has absolute discretion over when and where this power is exercised – which makes the whole process something of a lottery. It doesn’t stop people applying for Ministerial Intervention, but it does mean that the minister doesn’t have to even respond to any of these applications, and that no power on Earth has the legal force to compel them to do so – although it would be a courageous minister indeed who defied their PM on such a matter. There may not be any legal means, but there are political ones.

Finally, there is no mention of any evidentiary requirements, and no possibility of appeal to the decision. And while the department of immigration does provide fairly extensive notes on what you must do if applying for ministerial intervention, these be more guidelines than actual rules, because the minister can do basically whatever they want in this situation. The only formal accountability they have is to report to Parliament about any decisions they take while intervening in a timely fashion – and the only informal ones are party room discipline and the goodwill of the Prime Minister.

I am not accusing any minister, past or present, of having abused their powers under this act. I don’t have to, because the media has already done a great job of that, which I’ll link to in the show notes. The abuses of this power that we’ve seen are entirely predictable, if no less disappointing for it.

The simple fact is that no one – no matter who they are – should be this unaccountable. No one should have the right to decide the fate of another on a whim, to vary the requirements of the process without notice or appeal, or to place their decision beyond the reach of judicial oversight. But the Migration Act allows all these things.

Amending the act is a simple enough process – in fact, a different section of the Migration Act was amended just last month (the section regarding recognition of same sex marriages for immigrants). It simply takes a little political will, and the law can be amended without fuss to make this power more restricted and consistent in its use, and more subject to judicial review.

There is, so far as I can see, no downside to making the necessary changes to these four sections. They would make the immigration process easier to navigate, and more consistent in its outcomes. And if the loss of this power were to be an embarrassment to the incumbent minister of immigration or their successors, well, they probably needed a little more humility – it’s good for the soul.

That’s it for this week. Please feel free to get in touch on either the Facebook page or the website, and your response might get addressed in a future episode. In the meantime, I’d like to remind you that nature’s gifts of beauty rich and rare include an uncomfortably large number of poisonous snakes, so do be careful in the long grass. I’ll talk to you later.

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