Senate debates

Wednesday, 19 September 2018

Committees

Legal and Constitutional Affairs References Committee; Report

5:50 pm

Photo of Kimberley KitchingKimberley Kitching (Victoria, Australian Labor Party) Share this | Hansard source

I welcome the opportunity to speak briefly on this report. Although the committee was required to conduct its inquiry and present this report in a very short period of time, I believe the committee has done an excellent job in marshalling all the available facts on this matter and in getting to the heart of the issue. I thank all the members of the committee and the staff who supported us in our work.

The question at issue here is whether Minister Dutton exercised the discretionary powers available to him under the act in a manner consistent with both the act and with the Statement of Ministerial Standards. It is not suggested that Mr Dutton acted illegally or unlawfully, or that he acted in a manner that was of benefit to himself. What is suggested, and what I think has been proved as a result of our inquiry, is that he used his discretionary powers in a way that gave preferential treatment to certain individuals who were known to him and who had privileged access to his office. One case was a favour to a family that is a donor to the Liberal Party, and another case benefitted a family that Mr Dutton had known for a long time.

Section 195A of the Migration Act gives the minister the discretion to grant a visa to a person who would not be entitled to one if the usual procedures were followed if the minister believes this to be in the public interest. The committee therefore asked: what public interest was served by granting three-month visas to the individuals concerned in the so-called Brisbane and Adelaide cases? These individuals came to Australia purportedly as tourists but with the intention of working as au pairs, in contravention of the terms of their visas. One of them had prior form in this regard. That was why the Australian Border Force denied them entry. The minister then intervened to overrule the ABF and grant these individuals visas. He said he had done this as some sort of a humanitarian act. The committee fails to see how the minister's actions were in the public interest or, for that matter, what humanitarian issue existed that the minister's action addressed.

Our scepticism about this was reinforced when we heard evidence from several witnesses of a number of cases in which the minister did not use his powers to grant a visa. These were cases of genuine humanitarian need, cases in which the public interest might well have been served by ministerial intervention. Yet in these cases there was no intervention. Why was this? We can only conclude that it was because these cases did not have the sponsorship of people known to the minister, people with influence with the minister or his office, or people who were Liberal Party donors. These were people who had privileged access.

There is a principle in the law known as mens rea, 'the guilty mind'. If the minister had a genuine belief that he had done nothing wrong, he would have accepted our invitation—and it was just an invitation—to come to the hearing and explain his actions. He didn't; he refused to do so. I think it's clear what the minister did, and why he did it. And I think he knows that his actions, while legal, were not in the public interest and were not in conformity with the Statement of Ministerial Standards. His subsequent bluster does not conceal that evidence of a guilty mind.

It's clear he misled the parliament, and in my opinion Minister Dutton should resign. And if he doesn't, the Prime Minister should sack him. Since it doesn't look as though either of those things will happen, the only course open to us is to censure the minister so that the Australian people can see for themselves the truth about his actions.

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