The Minister for Immigration and Border Protection holds numerous discretionary powers that allow him or her to make substantial and lifelong decisions about the lives of vulnerable people. These powers lack transparency, accountability and are not amenable to review by the courts.
In a general sense I have formed the view that I have too much power. The [Migration Act] is unlike any 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 a concern about playing God but also because of the lack of transparency and accountability for those ministerial decisions, the lack in some cases of any appeal rights against those decisions and the fact that what I thought was to be a power that was to be used in rare cases has become very much the norm.
These words, spoken by former Minister for Immigration and Citizenship Chris Evans, foreshadowed the explosion of personal ministerial power in one of the most contentious and life-altering portfolios in government.
The personal powers of the Immigration Minister are broad and substantial. A recent report by Liberty Victoria’s Rights Advocacy Project, which outlines the extraordinary power currently given to the Minister, refers to these powers as ‘problematic ministerial powers’ or ‘the God powers’. They merit this description because of the significance of the Minister’s decisions to people’s lives coupled with the limited review options, if any, with respect to these decisions.
In Australia, we can appeal all manner of decisions in a range of different contexts. Football players can appeal suspensions. People can challenge parking fines. Decisions made by Centrelink are contested and reconsidered every day. People bring appeals against government decisions all the way to the High Court of Australia to make sure they are getting a fair go.
Yet for many refugees and people seeking asylum in Australia, for whom the fight is not about money but can be about life and death, there is no way of challenging decisions against them. Whether they are barred for years from applying for a visa, in immigration detention and unexpectedly moved in the middle of the night to an offshore detention centre, or aboard a boat headed to our shores which is turned around at sea by the Australian navy, these people do not have the same rights or legal second chances as the rest of us.
The God powers are mostly non-compellable (meaning the decision-maker cannot be required by a court to exercise them) and not subject to the rules of natural justice. Often, the Minister must exercise these powers personally, not through a delegate. Many of these decisions, made by one authorised person, are not amenable to any review. The same checks and balances don’t exist to ensure decisions affecting them are fair and reasonable and increasingly they are being denied access to processes to correct mistakes.
The dilemma for the Australian public is this: we do not know what our government is doing in our name. People’s rights and interests are being harmed and inadequate, unfair decision-making processes that lead to that harm are being kept secret.
Ian Macphee AO, Minister for Immigration and Ethnic Affairs from 1979 to 1982, has echoed these concerns. In comments introducing Rights Advocacy Project’s report, he said ‘[t]he sheer breadth of the Minister’s discretionary power ensures that unfair decisions will be made in haste and rarely subject to objective review. The law and its practice is now unjust. It is un-Australian’.
‘As one who held the portfolio from 1979-82, when the Fraser Government and Labor opposition welcomed thousands of Vietnamese, Cambodians and others fleeing tyranny, I am disgusted by the power accorded to current ministers regarding the lives of people fleeing persecution’, said the former Minister.
The report published by Rights Advocacy Project examines these expanding powers found within three key pieces of Australian legislation that affect people seeking asylum: the Migration Act 1958 (Cth), the Australian Security Intelligence Organisation Act 1979 (Cth) and the Maritime Powers Act 2013 (Cth).
The passage of the Maritime Powers Act in 2013 and numerous recent amendments to the Migration Act, most notably the introduction of the Immigration Assessment Authority, show that the use of these powers is expanding at a disturbing pace. The Minister is playing God more and more of the time.
Who, other than the Minister, is comfortable with this.
Lauren Bull, Elizabeth Colliver, Emily Fischer, Shawn Rajanayagam and Edmund Simpson are members of Liberty Victoria’s Rights Advocacy Project. This post is based on the report ‘Playing God: The Immigration Minister’s Unrestrained Power’ published by Rights Advocacy Project in May 2017. The report can be accessed here.