http://www.smh.com.au/text/articles/2006/03/03/1141191845933.html
Soft targets denied 'a fair go'
Sydney Morning Herald March 4 2006
By Alan Ramsey
BARNEY Cooney was old Labor. He was a Melbourne lawyer with a family who had his shingle up for a quarter of a century. Then he came into the nation's Parliament as a senator at the age of 50. That was in December 1984. He stayed in public life 18 years before retiring four years ago to his family and grandchildren.
The point of this history is that, unlike a lot of Labor MPs these days, Cooney actually worked for a living for a lot of years, whatever you think of lawyers. When he came to politics he brought half a century's experience of real life with him. He didn't just materialise as a hustling political careerist from university, the trade union movement or out of a politician's office.
Just how canny and careful was Cooney is part of what this story is about. Mostly, though, it's about Philip Ruddock, at the time our immigration minister, and the man who, very deliberately, took him on - Professor John McMillan, the bloke you take your complaints to if you think you've been done over by some arm or other of official authority.
To start at the start. Seven years ago, in November 1998 - the month after John Howard's second winning election, the one that gave us his "never, ever" GST - a piece of legislation came before the Senate called, somewhat ominously, the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998 (No. 2). It had been introduced in 1997. It never made it through the Parliament before the following year's election. Now it was back.
The junior minister who introduced the bill this day was another Victorian, Rod Kemp, at the time assistant treasurer. Kemp didn't even read the introductory speech prepared for him by Immigration bureaucrats. He simply tabled it and asked that it be "incorporated" in Hansard, the day-to-day parliamentary record. What the speech said, in part, was this: "The purpose of this bill is to ensure the Government can effectively discharge its fundamental responsibility to prevent the entry and stay in Australia of non-citizens who have a criminal background or criminal associations Š
"In a world of rapidly increasing people movements, our immigration arrangements must be designed to streamline the entry and stay of all genuine visitors, students, business people and permanent residents. However, a small proportion of non-citizens seeking to enter Australia do have substantial criminal backgrounds. Others commit crimes in Australia Š In broad terms, the bill seeks to enhance the Government's ability to deal with non-citizens who are not of good characterŠ"
To achieve this, what the legislation proposed, among other things, was to significantly increase the powers of the minister for immigration.
First, by "allowing the minister to give binding directions" to departmental bureaucrats, and second, "in exceptional and emergency circumstances", the minister, "acting personally", would be "given powers to act decisively on matters of visa refusal, cancellation and the removal of non-citizens". (My emphasis.) In other words, Philip Ruddock was to get personal authority to kick people out of Australia, purely on his say-so and often without review by the legal system.
And why?
The Kemp speech explained: "Over the past 12 months or so, the Administrative Appeals Tribunal has made a number of character decisions clearly at odds with community standards and expectations. The AAT has found a number of non-citizens, convicted of serious crimes, to be of good character, and ruled they should be given a visa. This has alarmed the community. And, I might say, when they are aware of these decisions, they hold the Government, and not the AAT, responsible."
The speech concluded: "In summary, this bill sends a clear and unequivocal message on behalf of the Australian community [which] expects non-citizens coming to Australia should be of good character. To discharge this expectation, the Government must have the ability to act quickly and decisively, whenever necessary, to remove non-citizens not of good character."
All this power, to decide a person's character, would go to one person alone - the Minister for Immigration.
Barney Cooney belled the dead cat 12 days later - November 23, 1998 - when the Senate began debating the bill for the second time. The legislation "troubled" him, he said. Section 501 allowed the minister to both refuse a visa and to cancel an existing visa if the individual did not "satisfy the minister" he or she "passes the character test". Said Cooney: "This gives the minister great power - a power not subject to judicial review."
He went on: "Parliament makes the laws, it pursues a policy. The courts should stay out of policy matters. But sub-section 501 (6) is not a policy matter. It is a matter of applying a set of criteria to identify whether a whole series of points of evidence are such as to exclude a person. That is very much a judicial exercise. Yet this proposed section excludes any judicial review of the minister's position."
Only the Democrats' seven senators and two independents - Tasmania's Bob Brown and Perth's Dee Margetts - agreed. Labor, under Kim Beazley's leadership, voted with the Government to endorse the legislation without amendment. The Senate passed it 43-9 two days after Cooney's speech. It went to the House which passed it, without a recorded vote, a week later, on December 2, 1998. It has been law ever since.
Seven years later, on February 9 this year, John McMillan, the Commonwealth Ombudsman appointed almost three years ago, brought down a scathing 46-page report, despite its careful language, which exposes how the Howard Government has manipulated the Section 501 powers to deport several hundred individuals it didn't want and how various people have abused their authority. This is no exaggeration. Read McMillan's report. Not too many have, it seems, including the media. The Herald, for instance, gave the report six paragraphs on February 10.
The whole thrust of the 1998 legislation, with its odorous Section 501, was to keep people with a criminal background out of Australia and to deport only new migrants guilty of serious or serial crime since their arrival. Kemp's 1998 speech, written for him by others, said so. This is not what the Government, in the main, was doing before immigration got Amanda Vanstone as its new minister after the last election.
McMillan's office reviewed three years of Section 501 deportations, from 2002-2003 to 2004-2005. What they showed was that those the Government had been targeting were people who had come here as children, as young as babies, and had never become Australian citizens, even though many did not realise they weren't citizens. These were soft targets. And in the past five years as many as 500 people - most being long-term migrants of 20 and 30 years standing, who had grown up in Australia and were married with families and with strong community ties - have been deported to the countries of their birth under Section 501 decisions. All decisions had been made on "character and conduct" grounds.
McMillan reported: "Over recent years, s501 has been used increasingly to cancel visas for long-term permanent residents. That is, people who have lived in Australia more than 10 years. This is a use not made explicit in [his 1998 parliamentary speech] by the then minister. Nor was it clear the majority of cancellation decisions of permanent residency would be made personally by the minister [Philip Ruddock].
"Decisions by delegates of the minister to cancel a visa on character grounds under s501 are reviewable by the Administrative Appeals Tribunal. Decisions made personally by the minister are not reviewable. They are also subject to the privative clause in the act [which] is final and conclusive and cannot be challenged in any court Š"
Since Ruddock ceased being minister after the last election, to be replaced by Vanstone, ministerial s501 decisions have dropped dramatically, thus the great majority of deportation orders can now be tested in court. Of his inquiry, McMillan said: "Interestingly, there is no reference [in advice by the Immigration Department] to that most Australian of expectations - that everyone should be given 'a fair go'. In none of the cases reviewed has the expectation of compassion in the Australian community for the visa holder's situation outweighed the expectation that [he or she be deported].
"I am concerned about the poor quality and lack of balance in [departmental] assessments in almost all the papers examined. There are significant gaps in relevant information, and inaccuracies in information. The implications for fair and reasonable decision-making are profound Š"
His report adds: "It was foreshadowed [by minister Ruddock] at the time the 1998 amendments were enacted that a broader review of the criminal deportation provisions would be undertaken. The broader review foreshadowed [seven years ago] has not occurred. Nor has there been any response from the Government to a report into criminal deportations [in June 1998, by a joint parliamentary committee]."
McMillan is to review the Government's response in six months' time.