Thu Jan 13

Why one man with 'god-like' powers decides if Novak Djokovic can stay or go

Written by Mary Anne Kenny, Associate Professor, School of Law, Murdoch University

After Novak Djokovic’s visa was restored ^[1] by a Federal Court judge this week, the ultimate decision of whether he could stay in Australia rested with one person: Immigration Minister Alex Hawke.

The personal powers of the immigration minister to grant or cancel visas are so broad and powerful, they’ve been described as “god-like ^[2]” by none other than a former immigration minister himself, Chris Evans.

A 2017 report ^[3] by the Liberty Victoria Rights Advocacy Project noted the immigration minister is granted more personal discretion than any other minister by an “overwhelming margin”.

This is not a new concern, either. In 1989, the then-immigration minister, Robert Ray, tried to amend the Migration Act ^[4] to remove ministerial discretion from all immigration matters, saying ^[5]

The wide discretionary powers conferred by the Migration Act have long been a source of public criticism. Decision-making guidelines are perceived to be obscure, arbitrarily changed and applied, and subject to day-to-day political intervention in individual cases.

The move was blocked, however, and the minister’s extremely broad powers have remained ever since.

Ministerial powers have only grown stronger

Wide-ranging discretionary powers have been part of Australia’s immigration system since the Immigration Restriction Act ^[6] was passed in 1901 and the subsequent Migration Act came into effect in 1958. Both of these laws gave wide discretion to the minister to grant or refuse visas.

After the failed attempt to remove these powers in 1989, legislative reforms brought in a new system for the granting, refusal and cancellation of visas.

However, some statutory discretion remained with the minister to allow flexibility to intervene when it was in the “public interest ^[7]”. This kind of intervention was intended for compassionate or humane reasons.

And since 1989, the Migration Act has actually been amended several times to increase the personal power of the minister.

These powers are non-compellable (meaning the minister cannot be required by a court to exercise them). And if exercised correctly, the minister’s decisions are, in effect, unable to be reviewed by the courts.

This means, it will be very difficult for Djokovic’s lawyers to review Hawke’s decision if his visa is cancelled again.

Djokovic was cleared by a court this week, but the final decision on his visa rested with the immigration minister. James Ross/AAP

Controversial uses of power in the past

Not surprisingly, the Djokovic visa case is not the first time the minister’s decisions have courted controversy. In fact, there have been a number of parliamentary inquiries related to the use of these powers over the years.

Most recently ^[9], then-Immigration Minister Peter Dutton intervened to grant visas to two au pairs in 2015 who arrived on tourist visas and were facing deportation at the airport. A Senate committee recommended ^[10] censuring Dutton after the inquiry found he misled parliament.

In 2004, an inquiry ^[11] was held after then-Immigration Minister Philip Ruddock was involved in a so-called “cash for visas” scandal. Ruddock was accused of using his ministerial powers to grant visas to people represented by a travel agent who had donated money to the Liberal Party. He was eventually cleared of any criminal wrongdoing in the affair.

Concerns were raised in both inquiries about the use of such ministerial powers and the lack of adequate accountability mechanisms, which creates “both the possibility and perception of corruption”.

Asylum seekers and ministerial intervention

These ministerial powers have also been scrutinised when it comes to the plight of the refugees and asylum seekers who have been in various forms of detention since arriving by boat nearly a decade ago. Some of these people were held in the same Melbourne hotel where Djokovic was initially detained last week.

The Home Affairs Department has released data showing how many times the minister has used his power ^[13] under section 195A of the Migration Act ^[14] to release people from detention on temporary bridging visas. However, statistics are not available showing how many times refugees are granted more permanent visas by ministerial decree.

A parliamentary inquiry in 2018 heard evidence ^[15] that cases of “obvious merit” involving asylum seekers were “given little consideration” for ministerial interventions.

The Murugappan family from Biloela. @HomeToBilo/PR handout

Perhaps the most prominent case in Australia in recent years has involved a Sri Lankan Tamil family ^[16] who had been living in the town of Biloela, Queensland, until their visas expired in 2018.

The family then spent two years in detention under threat of removal before Hawke, facing considerable public pressure, finally used his powers ^[17] to allow them to move into community detention last year.

Their lives remain in limbo, however, as they are currently in community detention in Perth with no certainty ^[19] they’ll be able to stay in Australia permanently.

Asylum seekers should not be reliant on the minister to exercise unreviewable personal discretion in cases like this. As former Immigration Minister Ian MacPhee recently put it ^[20],

The 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.

Correction: an earlier version of this article said ministerial intervention was used in the case of a British family whose application for permanent residency was refused. This was incorrect and has been removed.