This post has been contributed by Emma Robinson, Lecturer in the Griffith Law School and a member of the Law Futures Centre.
The recent Djokovic visa cancellation case has shone a spotlight on the Minister for Immigration’s broad personal powers under the Migration Act, powers that a former Immigration Minister described as allowing him to “play God”.
Public reaction to the Minister successfully exercising his personal power to cancel Djokovic’s visa has included a fair degree of surprise or unease over the sheer breadth and quantity of these powers, the absence of any merits review and the seeming futility of judicial review. Yet only 30 odd years ago, “playing God” was a full-time job for the Minister and officials in the Immigration Department, as indeed it had been since Australia’s first Federal migration legislation was passed in 1901.
The 1901 Immigration Restriction Act used the infamous dictation test to execute its White Australia Policy, replacing various pieces of colonial legislation that restricted immigration based on race. While there was no explicit mention of race in the implementation of the dictation test, immigration officers had wide discretionary powers to choose the European language in which the test was to be taken. The dictation test was also used as a mechanism to remove those already in Australia, the equivalent of today’s visa cancellation powers. If a person failed the dictation test (a predictable outcome given the power of the immigration officer to choose the language), they became a “prohibited immigrant” and were removed from Australia. The test well and truly embodied the intention of the emigration and immigration power in the Constitution, as expressed by Samuel Griffith at the 1891 Federation Conference debates to “enable (Parliament) to keep out Chinese, Hindoos, or other aliens – even English, if necessary… to prevent pauper and other undesirable immigration. It may under some circumstances be a very useful provision.”
While the Migration Bill 1958 finally removed the dictation test as the overt mechanism for controlling the entry of migrants into Australia, the second reading speeches at the time clearly show that it was business as usual in the control tower of immigration. Indeed, in his speech, the Member for Forrest, Gordon Freeth (appointed Minister for the Interior only months later), suggests that the dictation test was merely a dress rehearsal for the real show:
“This is a technical measure and does not affect our overall policy to any great degree…We have now arrived at a point where we are prepared to do away with a lot of fictitious procedures and to say quite bluntly whom we want to come to Australia and whom we do not want… in abolishing this dictation test we do not do anything that will weaken the power of the Government, as it exists at present, either to exclude people or to deport people…”
The result was the new Migration Act 1958, described by the Human Rights Commission in 1985 as giving “the Minister and DIEA officers a level of discretion unknown in other legislation”. The Minister’s cancellation power in s7 of the new Act, for example, was clear, unambiguous, and devoid of any natural justice procedures: “The Minister may, in his absolute discretion, cancel a temporary entry permit at any time by writing under his hand.”
In 1989 however, the Minister and his delegates were relieved of their full-time God-like positions and stripped of the vast majority of their discretionary powers. The introduction of the amending legislation and new Migration Regulations marked the unequivocal rejection of unfettered Ministerial and departmental power to grant or cancel visas according to internal departmental policy and lobbying by interested parties. The amendments created a system in which visas were to be granted or refused according to objective and transparent legislative criteria and cancelled only once natural justice procedures gave the visa holder an opportunity to respond.
A small number of Ministerial discretionary powers were retained to allow the Minister to personally intervene in the public interest to avoid unintended outcomes in compelling and compassionate circumstances. For those of us practising in this space, the Minister’s personal intervention powers were a hopeful mechanism that we turned to as a last resort attempt to secure visas for clients who had unique and exceptional circumstances for needing to stay in Australia but did not fit within the narrow criteria for a refugee or humanitarian visa.
These original personal powers have been subjected to scrutiny on a number of occasions as the number Ministerial interventions increased over the years. On each occasion the retention of these positive personal powers was recommended. In 2004, the Senate Select Committee on Ministerial Discretion in Migration Matters stated that “the ministerial intervention powers should be retained as the ultimate safety net in the migration system”.
Despite the removal of Ministerial discretion with respect to visa cancellation in 1989 and the introduction of natural justice procedures and merits review, there has been an inexorable growth in the number of personal powers allowing the Minister to cancel visas. These powers have devastating consequences and the need for them is questionable, given the many alternative grounds for visa cancellation under the legislation that are transparent, afford the visa holder the opportunity to respond and are merits reviewable. A well-known example of these relatively new powers is the Minister’s personal power to cancel on character grounds in the national interest, used to cancel Dr Haneef’s visa, a decision that was ultimately overturned by the Federal Court. The 2008 Clarke Inquiry Report described the Minister’s cancellation of Dr Haneef’s visa, in the absence of an adverse ASIO assessment, as “mystifying”.
This brings us to Djokovic’s case. The government conceded that its first attempt to cancel the top seed’s visa was procedurally unfair and the first decision to cancel was set aside. At this point, the Minister proceeded to exercise his personal power to cancel Djokovic’s visa. Perversely, by its very design, this personal power provides no procedural fairness.
In his submissions, the Minister conceded that Djokovic, in his unvaccinated state, posed a “negligible” risk of infection to others but argued that it was in the public interest to cancel his visa because he nevertheless posed a risk to the health of the Australian community: “his behaviour may encourage or influence others to emulate his prior conduct and fail to comply with appropriate public health measures following a positive COVID-19 test result”. The Full Court of the Federal Court ultimately found that the Minister reached a “state of satisfaction (of this risk) on grounds that cannot be said to be irrational or illogical or not based on relevant material”. The Court noted that another Minister may not have cancelled his visa but this did not mean that the Minister’s personal decision to cancel in this case was unlawful. The appeal was dismissed, and Djokovic was removed from the country.
Post-1989, the Minister’s personal powers were radically reduced and only a fraction retained for humanitarian reasons. And yet the desire for more Ministerial discretion and personal power grows. Given the questionable ways in which discretionary power was used from 1901 to 1989, the use of it today to cancel visas or to intervene in any situation where rights are taken away or purely political ends achieved, should be cause for grave concern. Perhaps Dr Jim Cairns, Member for Yarra put it best when he made the following observation in his second reading speech for the Migration Bill 1958:
“We have also been concerned – and let us be quite frank about it – with social and political suitability. There has been political screening used here and abroad which, I think, has allowed people with, shall we say, very narrow concepts of political conformity, to have their say. It seems to me that conformity is a greater danger in this country than radicalism is. It seems to me that in some of those respects we have rather overdone it, so to speak…”
There were many sound reasons why broad discretionary powers were stripped from the migration legislation in 1989 and objective and transparent legislative mechanisms to control entry and removal inserted. The Minister’s personal powers to cancel are no longer faint echoes from our past, their use today an insistent alarm, which we should not ignore.