Address to the 2008 National Members' Conference of the Migration Review Tribunal and Refugee Review Tribunal
The Windsor Hotel, Melbourne, 29 February 2008
Thank you, Denis, for your kind words of introduction.
It is a pleasure to speak today at the 2008 members’ conference.
Noting that the theme of the conference is towards a better understanding, I thought it timely to share with you today my experiences as minister so far on my journey towards a better understanding.
We have now almost reached the milestone of the Rudd Labor Government’s first 100 days and a lot has happened. To be honest, it seems much longer.
While I arrived in the portfolio with little experience in broader migration policy I did have direct experience in pursuing the then minister, Amanda Vanstone, during Senate Estimates in 2005 over the Vivian Solon and Cornelia Rau cases.
It was probably one of the most chilling moments in my life when a departmental official told me at a Senate Estimates hearing that the department had deported an Australian citizen – Vivian Solon – and done nothing about it.
You can understand a mistake being made but to take no action to rectify it was incomprehensible.
I knew then that public administration in Australia had reached an obscene low water mark.
The Solon and Rau cases came to symbolise the problems that beset the Immigration Department under the policies of the previous government.
I don’t wish to be too political but just as it was clear that the Department of Immigration required root and branch cultural reform – but so too did the political leadership. The department’s culture had grown in an environment where people thought: that’s what the government wanted from them.
The challenge for the Rudd Labor Government – and me as Minister for Immigration – is to continue the cultural change that has begun in the department and provide the political leadership that restores integrity and public confidence in our immigration system.
Since being sworn in as minister, my 88 days in the job have been largely focussed on dealing with legacy issues – the many highly regrettable matters that remained unresolved.
The resolution of Dr Haneef’s visa status was one of my first acts and the inquiry into his case is important to restoring public confidence in our anti-terrorism laws.
I was pleased to announce last week that Cornelia Rau’s lawyers had accepted an increased offer of compensation on her behalf.
This was obviously a horrific and traumatic experience for Ms Rau and one that demanded a generous, compassionate and swift response from government.
The case of Tony Tran, who was wrongfully detained for five years and assaulted whilst in detention, was a priority on coming to Government and I moved swiftly to grant him permanent residency.
Just last weekend I granted a permanent resident visa to Robert Jovicic – the man who you might remember had lived in Australia since the age of two but was deported to Serbia where he became destitute. Although he was allowed to return to Australia, he was effectively stateless and could not accesss Medicare and other benefits.
While it is good to allow Cornelia Rau, Tony Tran and Robert Jovicic to get on with their lives, unfortunately their cases represent just the tip of the iceberg of the many regrettable immigration matters that were left unresolved due to the policies and politics of the day.
I am not just referring to the Commonwealth Ombudsman’s 247 cases, or over 2000 ministerial interventions awaiting resolution.
The major Labor policy commitment in my portfolio was to end the former Howard Government’s discredited Pacific Solution. That was a shameful and wasteful chapter in Australia’s immigration history. It was brought to an end earlier this month when the last of the six Burmese and 82 Sri Lankan refugees on Nauru were resettled in Australia. The centre on Nauru is scheduled to close by the end of March.
They had been classified as refugees but had been left languishing on Nauru, with no end to their ordeal in sight.
The Pacific Solution was rightly criticised for seeking to shift our international responsibilities onto developing countries – when we should have been standing up and shouldering those responsibilities ourselves.
It was also an egregious waste of taxpayers’ money. For six years, almost $300 million was spent by the department alone on supporting asylum seekers on Nauru and Manus island.
That works out to about $130 000 a year per detainee or $2 500 per person, per week.
Between September 2001 and June 2007, a total of 1637 people were detained, of whom 1153 (or 70 per cent) were ultimately resettled in Australia or other countries. Of those resettled, more than 60 per cent (705 people) were resettled here in Australia.
Not only was the policy morally wrong and outrageously expensive – it failed. Despite the rhetoric, the majority of people detained on Nauru and Manus were found to be refugees and resettled in Australia. So despite the rhetoric, those people eventually came here.
There remains much to be done in resolving immigration legacy cases – many are not easy and many will fall to you at the tribunals.
Dealing with these legacy issues is vital in allowing us to rebuild confidence in the integrity of our immigration system.
The 2005 reforms to detention practices have made a huge difference and those members of the previous government who instigated those changes deserve credit. I intend to continue that reform process.
There is, however, a new agenda to be pursued – one in which I hope we can all take great pride.
Immigration is central to the nation’s sense of identity: how Australia develops, manages and implements its immigration policies and citizenship program directly reflects what we value as a people, and how we think of ourselves as a nation.
Australia is a country of migrants: at least four of the government’s 20 cabinet ministers and three of the leadership team are migrants.
It reflects the fact that in a population of almost 21 million, some 45 per cent were either born overseas or have at least one parent who was born overseas.
This means that nearly half of all Australians have been touched directly by the migration experience and have faced the challenges of building new lives; and, in that process, making our nation a richer place.
Over the coming years, answers to many of the great challenges facing Australia will be found in our immigration policies.
The Rudd Government is committed to developing world class, globally competitive migration and population policies that address key economic and social needs, as well as longer term demographic challenges.
Immigration policy is one of the key measures in the Rudd Government’s whole-of-government strategy to meet the skills needs of the Australian economy, and place downward pressure on inflation.
There are two main ways of bringing people with skills into Australia – the Permanent Migration Program and the Temporary Migration Program. I have recently introduced new measures in both programs to help ease skill shortages.
These include allocating an extra 6000 permanent skilled visas to the skill stream of the 2007/2008 migration program, which will bring to 108 500 the total number of permanent visas granted under the skill stream of the current migration program.
There are, however, concerns about the efficiency and integrity of the temporary skilled migration 457 visa system, which has experienced rapid growth in recent years in response to labour market needs.
We are in the process of reviewing the 457 visa system because the key to its success ultimately lies in ensuring there is public confidence in the integrity of the scheme.
I recently established a three-member external reference group to address the widespread concerns about our capacity to rapidly start up new and significant projects with skilled workers.
Domestic economic and demographic needs will not be the only major source of pressure on Australia’s immigration policies. Challenges of war, poverty and climate change will pose additional and urgent demands on our programs.
In this global age, the unprecedented scale of people movement poses significant challenges to government – in getting the balance right between the economic and social prosperity that immigration brings while making sure national borders are safe and secure from external threats.
The government is committed to strong border security, tough anti-people smuggling measures and the orderly processing of migration to our country.
Australians can feel confident that we have in place and will maintain strong border security measures.
People smuggling is a deplorable crime that puts lives at risk, undermines Australia’s border security and weakens our immigration system.
This Government will continue to look at ways to prevent, deter and enforce compliance to preserve the integrity of Australia’s migration program, while treating individuals humanely.
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 its mother in community detention.
All those things come to the minister.
When I expressed concern at how much power I am able to exercise and my discomfort at some of those powers by alluding to playing god, many were flabbergasted.
A politician complaining about having too much power – unbelievable!
On close examination, it became clear just how much the minister’s involvement in individual case decision-making had expanded over the past decade.
In 2006-07, over 4000 requests for ministerial interventions were received by the department.
This was a massive increase from previous times.
For example, over a two-year period, minister Gerry Hand handled just 81; Senator Nick Bolkus handled 311 in three years, and Philip Ruddock intervened on 2513 ocassions from 1996 to October 2003.
No other minister has such powers.
You would not expect the minister responsible for social security to make decisions on an individual’s pension or the Treasurer to decide on your tax return, nor would the public accept such intervention as appropriate.
The number of appeals to the minister has increased to the point that it has now become part of the process, rather than being a check on the system.
I am not afraid of hard work. But there are now more than 2000 appeals for ministerial intervention in the system. That is staggering.
Appeals to the minister have become institutionalised as part of the process. Many are using the process of ministerial intervention not only to overcome decisions taken elsewhere but also to delay their removal from Australia.
Yet ministerial intervention offers no guarantee of fairness.
While tribunal members and judicial officers make their decisions and judgments in accordance with appropriate guidelines – decisions and judgments that are, in turn, open to review – there are no strict guidelines for the exercise of ministerial discretion.
There is no way of really knowing what factors influence the minister’s decision in individual cases.
And there is no avenue of appeal from a bad decision, and no way to prevent an abuse of power.
There is no consistency in the decision making because different ministers have different personalities and different ways of thinking.
I’m sure that no one is more acutely aware of the minister’s powers than the members of the tribunals as it is your decisions that I am often asked to overturn.
I’m told that part of the reason for the enormous expansion in ministerial interventions was the frustration of previous ministers with the decisions of the tribunals and the courts. In order to better meet the demands of the community and address the concerns of the alleged “soft” attitude of the tribunals and courts, former ministers took decision making into their own hands.
Maybe it is because I am new to the portfolio but my inclination is to suppport independent, transparent and appealable decision making in the resolution of Immigration matters.
Such processes should provide better and more consistent outcomes.
The minister does need to retain the ability to make some decisions: clearly, decisions need to be taken to protect the national interest and offer some resolution in extraordinary circumstances but I am not sure there are 4000 of those each year.
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.
That means government must ensure that the tribunals and courts are properly supported and operate under clear principles laid down by Parliament.
We must deal with the problem of endemic delays that currently plague the system – we must develop more streamlined, efficient processes.
We must ensure procedural fairness and access to the appropriate representation.
We must ensure that decisions are not prevented from being carried out because of excessive appeal processes. I was amazed to find myself dealing with cases of people who have been in the system for years and years.
For me, the first step in addressing issues of integrity, confidence and efficiency in our immigration system is to get a good understanding of how the current arrangements work, or don’t work.
I want to understand the system before I start tinkering with it. I like to know what is actually happening and understand what the problems are before I attempt to fix them.
It is easy to become fixated on preconceptions and anecdotes, which may bear no resemblance to reality.
That is why I asked the department to prepare an analysis of how people move through various stages of the immigration system.
What is surprising is that so little analysis has been done previously.
Some initial findings from the department’s analysis are interesting.
Looking at a cohort of 1000 protection visa applicants from 1999-2000, the department found:
- 122 were ultimately granted a protection visa;
- Seven remain unresolved (8-9 years later);
- 58 per cent of the remaining 871 unsuccessful applicants had departed Australian within 12 months of their application;
- Almost 9 per cent of unsuccessful applicants had taken four or more years to depart, presumably after seeking various reviews of their initial decision;
- Approximately 10 per cent of unsuccessful applicants simply disappear and become unlawful in the community.
This is only one snapshot from the initial findings and more work needs to be done in further breaking these figures down and looking at later cohorts and at different visa categories.
But the preliminary figures I have just mentioned do suggest that the system does become focused on a relatively small proportion of applicants who are very resource intensive, while the majority (almost 60 per cent) of unsuccessful applicants depart relatively quickly in less than 12 months.
The final report will form part of the basis for future initiatives to cut red tape and develop the most efficient processes possible to ensure that the Immigration system produces good quality, fair decisions that stand up to external scrutiny.
You may be aware of Labor’s platform commitment to establishing a refugee determination tribunal.
This is a long-standing commitment, introduced several years ago when unauthorised boat arrivals, refugee processes and detention of asylum seekers was very much front-page news.
The ALP platform provides broad guidance to government; however, decisions regarding implementation are ones for the government and the minister.
It is early days yet, but I want to assure you that the government will want to consult widely before any changes are made, and I would welcome any suggestions tribunal members might want to put forward.
In conclusion, I want to say that the government is appreciative of the work of the tribunals, which are vital to Australia’s refugee determination program and to its migration program.
The tribunals play a vital role in ensuring Australia attracts international regard for its refugee and migration processes and continues to deliver on its international responsibilities.
I would like to say to the members, you each carry a significant responsibility for ensuring that correct and preferable decisions are made in respect of people's lives – in the case of the RRT, the lives of some of the most vulnerable and desperate people in this world.
Yours is not an easy job, and I am aware that you work in an extremely difficult decision-making environment.
Not only do your decisions face intense public interest and regular judicial and ministerial scrutiny, but you must also come to terms with ongoing developments in the legal and policy frameworks in which you operate.
I am aware that the tribunals have been implementing some very positive changes in recent years to your organisational culture and work practices.
In particular, I was pleased to note from the principal members’ latest 90 day report that you have made strong efforts to meet the statutory 90 day time limit for RRT reviews. I also note that the MRT’s timeliness in conducting reviews has improved.
We must continue to strive to reduce the number of cases on hand at both tribunals.
Successful organisational change is not an easy thing to implement, and I congratulate you on your efforts to embrace change, and the new efficiencies that you have achieved.
I certainly hope that you can keep up this energy for reform in the coming years.
As a nation, we have grown through successive waves of migration. People who were ultimately accepted have now become part of who we are.
Moving into the 21st century, we again face the need for migration policies that meet the needs of the Australian economy, while maintaining the support of the community.
It is my hope and responsibility that Australia can put behind it the divisiveness that has characterised the immigration debate in recent years and rebuild a political consensus.
The divisiveness in recent times has been to the detriment of the migrants and refugees as they are the people who ultimately lose out.
I hope that we can put some of the divisiveness behind us and take the politics out of immigration. There are many challenges ahead for all of us and I look forward to your help.
See:
Index of speeches and articles
URL: http://www.minister.immi.gov.au
/media/speeches/2008/ce08-29022008.htm
Last update: 13 August 2008 at 17:14 AEST