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Report: Allegations Concerning The The Senate Legal and Constitutional Affairs References Committee Allegations concerning the inappropriate exercise of ministerial powers, with respect to the visa status of au pairs, and related matters September 2018 Commonwealth of Australia 2018 ISBN 978-1-76010-829-8 This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License. The details of this licence are available on the Creative Commons website: http://creativecommons.org/licenses/by-nc-nd/3.0/au/. This document was produced by the Senate Legal and Constitutional Affairs Committee secretariat and printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra. ii Members of the committee Members Senator Louise Pratt (ALP, WA) (Chair) Senator the Hon Ian Macdonald (LNP, QLD) (Deputy Chair) Senator Kimberley Kitching (ALP, VIC) Senator Nick McKim (AG, TAS) Senator Jim Molan AO, DSC (LP, NSW) Senator Murray Watt (ALP, QLD) Participating members Senator the Hon Eric Abetz (LP, TAS) Senator Barry O'Sullivan (NATS, QLD) Secretariat Dr Sean Turner, Committee Secretary Ms Pothida Youhorn, Principal Research Officer Mr Antony Paul, Senior Research Officer Ms Ophelia Tynan, Research Officer Ms Alexandria Moore, Administrative Officer Suite S1.61 Telephone: (02) 6277 3560 Parliament House Fax: (02) 6277 5794 CANBERRA ACT 2600 Email: [email protected] iii Table of contents Members of the committee ............................................................................... iii Recommendations .............................................................................................vii Chapter 1.............................................................................................................. 1 Introduction and background ................................................................................. 1 Background ............................................................................................................. 1 First instance ('the Brisbane case') ...................................................................... 2 Second instance ('the Adelaide case') .................................................................. 2 Conduct of the inquiry ............................................................................................ 3 Summary of the Minister's power .......................................................................... 4 Ministerial powers under the Act ........................................................................ 5 Ministerial Guidelines ......................................................................................... 6 Public interest test................................................................................................ 7 Purpose of the Minister's power .......................................................................... 7 Concerns regarding the Minister's power ............................................................ 8 Statement of Ministerial Standards ........................................................................ 9 Structure of this report ............................................................................................ 9 Note on terminology ............................................................................................... 9 Chapter 2............................................................................................................ 11 Key issues................................................................................................................. 11 Number of Ministerial interventions .................................................................... 11 Process for requesting ministerial intervention .................................................... 13 The Brisbane case .............................................................................................. 14 The Adelaide case .............................................................................................. 14 Evidence from hearing ...................................................................................... 15 Relationship between Minister Dutton and individuals seeking intervention...... 16 Brisbane case ..................................................................................................... 16 Adelaide case ..................................................................................................... 19 Were the ministerial interventions based on 'public interest'? ............................. 21 Access to the Minister an unfair advantage? ..................................................... 24 Committee view .................................................................................................. 25 The facts established.......................................................................................... 26 Ministerial interventions .................................................................................... 27 Committee findings .............................................................................................. 28 Appendix 1 ......................................................................................................... 39 Submissions ............................................................................................................. 39 Additional information, answers to questions on notice and tabled documents .................................................................................................................................. 39 Appendix 2 ......................................................................................................... 41 Public hearings and witnesses ............................................................................... 41 vi Recommendations Recommendation 1 2.76 That the Government strengthen the minister's tabling statements to Parliament on ministerial interventions, by requiring the minister's statements to declare whether or not each ministerial intervention was made in accordance with the Ministerial Guidelines. Recommendation 2 2.77 The committee recommends that the Senate consider censuring the Minister for Home Affairs (the Hon Peter Dutton MP) for the actions examined in this report, when he was the Minister for Immigration and Border Protection, for failing to observe fairness in making official decisions as required by the Statement of Ministerial Standards. Recommendation 3 2.78 That the Minister representing the Minister for Home Affairs provide, within three sitting days, an explanation to the Senate responding to the matters raised in this report. Chapter 1 Introduction and background 1.1 On 23 August 2018, the Senate referred allegations concerning the inappropriate exercise of ministerial powers, with respect to the visa status of au pairs, and related matters to the Legal and Constitutional Affairs References Committee (the committee) for inquiry and report by 11 September 2018.1 On 11 September 2018, the Senate agreed to extend the reporting date to 19 September 2018.2 Background 1.2 The inquiry relates, in the first instance, to two interventions by the then Minister for Immigration and Border Protection, the Hon Peter Dutton MP, under section 195A of the Migration Act 1958 (the Act). The interventions occurred in two separate cases where an individual had been detained under section 189 of the Act, after Australian Border Force officers formed the view that those individuals intended to work as au pairs while in Australia. 1.3 Following the publication of media reports on 26 March 2018, the intervention by Minister Dutton, in what was later referred to as 'the Brisbane case', became a matter of public comment.3 On the same day during Question Time in the House of Representatives, Minister Dutton revealed that there was a separate matter where a person had entered Australia on a tourist visa and he had intervened.4 There were two young tourists who had come in on a tourist visa and declared in an interview with the Border Force officers at the airport—I was advised—they were here on a tourist visa but intended to perform babysitting duties while here. The decision that was taken, I was advised, was that the tourist visas would be cancelled, that those two young tourists would be detained and that they would be deported. I looked into the circumstances of those two cases and I thought that inappropriate. I thought if they gave an undertaking they wouldn't work while they were here, I would grant the tourist visas and they would stay, which they did. They didn't overstay; they returned back home.5 1.4 Further questions relating to these respective matters were pursued during the Budget Estimates and spillover hearings of the Legal and Constitutional Affairs 1 Proof Journals of the Senate, No. 113, 23 August 2018, p. 3609. 2 Proof Journals of the Senate, No. 115, 11 September 2018, p. 3684. 3 Ms Lisa Martin, 'Peter Dutton defends his decision to grant visa to detained au pair', Australian Associated Press, 26 March 2018, https://www.theguardian.com/australia- news/2018/mar/26/peter-dutton-defends-decision-to-intervene-and-grant-visa-to-detained-au- pair, (accessed 7 September 2018). 4 The Hon Peter Dutton MP, House of Representatives Hansard, 26 March 2018, p.2680. 5 The Hon Peter Dutton MP, House of Representatives Hansard, 26 March 2018, p.2680. 2 Legislation Committee (Legislation Committee) on 21 May 2018, 22 May 2018 and 3 August 2018, respectively.6 During the Legislation Committee's Budget Estimates hearings,
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