Ministerial Discretion: Are We Going Too Far Again?

The past few years have depicted a very worrying pattern of behavior from the Department of Immigration and Border Protection. Both direct and indirect consequences of recent changes introduced by the DIBP all appear to have a similar end result—a significant power shift, away from rights of the individual and towards increases in State authority.

Political dogmas in attempts to usurp the rule of law and natural justice have been frequently cited in Australia’s recent political landscape. The DIBP’s punitive and extremely harsh approaches to resolving issues of asylum seeker’s have come under domestic and international condemnation. On several occasions the United Nations have cited the DIBP’s behavior as contravening international law and basic human rights, investigations sparked by Australia’s Royal Commission into Institutional Responses to Child Sexual Abuse have also arisen around Government knowledge of continued abuses in off-shore detention centre’s and various other National Inquiry’s instigated by the Australian Human Rights Commission on the same issues continue to crop up.

Not only are we seeing a squabble over differing political ideologies, but a vested interest in undermining the public interest by compromising natural justice, excluding procedural fairness and furthering encroachment by the government .

Political bravado has been observed in failed "Operation Fortitude" and its attempts to authorize law enforcement to invade the privacy of individuals under weakened "reasonable suspicion" tests. Or through reductions in freedom of speech by virtue of the Australian Border Force 2015 (Cth) Act, which creates a prosecutable offence, and risk of a 2 year prison sentence, to be imposed against nurses, doctors, teachers, security detail or any other professional employed by the DIBP from commenting publicly about conditions on Manus Island or Nauru.

In the above instance free speech was restricted, treated as a hindrance against necessary border protection means. But when the concept is useful, it is venerated as an inalienable civil right, later used to champion the Government’s attempts of altering the Racial Discrimination Act 1975 (Cth). Doing so would widen the scope of harmful discrimination, by people and the law itself, without legislative reprieve for affected individuals.

Evidently, free speech is still considered negative by governments on the whole. The recent Slater & Gordon led class action suit against the Commonwealth rendered huge public applause. It anchored itself as a landmark human rights class action in Australia, resulting in the largest settlement of its kind, sum $70 million dollars plus costs. Despite some financial compensation for the harm suffered on Manus Island by asylum seekers being gained, the broader issues present still never got the chance to stand in-front of the public eye for scrutiny.

Should the class action have commenced trial, it would have been the first time ever that an Australian court had lifted the secrecy provisions of the Border Force Act, allowing some 71 witnesses (employed DIBP professionals) to have spoken openly about what they saw and did during their time on Manus island.

Of course, that would have been public relations suicide for the Government and implicit Parliamentary representatives, of both major parties.

This wasn’t the first time and out of court settlement had been reached on a claim made by a detained asylum seeker. Earlier in April 2017, a minor hold in Christmas Island brought another class action suit in negligence against the Minister for Immigration and Border Protection. The Victorian Supreme Court Justice decided the suit instead proceed as an individual claim, which settled out of court for an undisclosed amount.

Governments of the day have quite obviously tried their agenda’s in the Parliamentary arena and now have taken shot against the judicial system. Peter Dutton himself has openly questioned the independency of the AAT, a position now supported by the Turnbull Government as they introduce new citizenship laws into Parliament to allow the Minister the ability to override decisions of the AAT in relation to citizenship determinations. Such a move would wind back judicial review powers and confer absolute authority onto one person, the Minister, to dictate outcomes.

The Law Council of Australia president Ms Fiona McLeod recently cautioned against the Government’s new attempts to expand Ministerial discretionary powers beyond the rule of the courts. Ms McLeod described the behavior as one that should “be treated with concern.” Public concern, I hope, will be the driving force that wedges any new law seeking to expand Ministerial discretion even further from the chambers of Parliament.