Wednesday, 19 September 2018
Legal and Constitutional Affairs References Committee; Report
I present the report of the Legal and Constitutional Affairs References Committee on the allegations concerning the inappropriate exercise of ministerial powers with respect to the visa status of au pairs and related matters, together with the Hansard record of proceedings and documents presented to the committee. I move:
That the Senate take note of the report.
This afternoon, in tabling this report, I confirm that the evidence before the committee shows that Minister Dutton had both a personal connection with the intended employers of au pairs and misled the parliament in claiming otherwise. The report reads:
It is the view of the committee that Minister Dutton had a clear personal connection and existing relationship with the intended employer of the au pair in the Brisbane case. Given his definitive answer in the House of Representatives, it is the view of the committee the minister misled Parliament in relation to this matter.
Minister Dutton was asked in the other place to categorically rule out any personal connection or relationship between the intended employer of either au pair. He began his answer saying, 'The answer's yes. I haven't received any personal benefit. I don't know these people.' This was a categorical denial that Minister Dutton had a personal relationship when his public comments, since this evidence heard during this inquiry, prove otherwise.
If he had no personal connection, then this request for intervention would have gone through the same procedures as any other ministerial intervention, the majority of ministerial interventions which go through the email accounts that everyone else is directed to when they undertake a request for a ministerial intervention. There is no basis for the minister to be able to say that he had no personal connection when the very genesis for this request came through his office because of his personal connections, not through the normal procedures of the department that people are directed to in order to request a ministerial intervention.
On that basis, there are serious and very substantial concerns about Minister Dutton's use of his ministerial powers to grant tourist visas to au pairs. I believe, and the committee has found, this undermines the integrity of Australia's immigration program. The reason there has been so much public interest and public debate about this is Australians have a right to be alarmed and upset when someone with personal connections is treated differently in the kinds of decisions that they receive from government. The report says:
Minister Dutton appears to have failed to give consideration to the damage to public confidence in the integrity of the immigration system that his actions could cause and, at best, reflects very poor judgement on the part of the minister.
As chair of the committee, I want to highlight to the chamber today that we received outstanding questions on notice from the Department of Home Affairs mere hours ago, this morning. We had 169 pages of evidence provided to the committee today, the day we were required to adopt our final report, meaning we could not consider the evidence and include it in our final report. But if we look at the evidence that we received—and I encourage people who have taken a public interest in these matters to look at those answers on notice—it confirms substantially the level of personal connection and the high level of intervention and cooperation by the minister's office with the parties asking for intervention to see these extraordinary cases being intervened in by the minister.
This evidence includes explosive emails from Minister Dutton's own Department of Home Affairs, and it demonstrates the high level of personal service the minister and his office gave in these cases, and which goes, I find, above and beyond the realms of belief. The failure of the Department of Home Affairs to provide this evidence to the committee in a timely manner is unacceptable, and characteristic, I think, of the minister's dismissive approach to this entire inquiry. I would have thought that the minister's officers, representing him in this inquiry when we heard evidence from them last week, should and could have had this information at hand when we held our hearings. Instead, I thought they came to those hearings with a view that they did not want to look too hard for the evidence so that they could obfuscate answering those questions as much as possible.
The inconsistencies presented in the department's evidence, the multiple clarifications of errors or inconsistencies in that evidence and the department's own admission that it was required to search through deficit legacy systems, including paper based records, leaves the committee in significant doubt as to whether all the relevant ministerial interventions have been captured by this inquiry. So, given this haphazard evidence, we may never know the full story or the full intentions of the minister. On that note, I wonder if that is perhaps why the new Prime Minister has stripped responsibility for Australia's immigration program away from Minister Dutton.
We can see from the evidence before the committee that, despite Minister Dutton's categorical denial, he knew the intended employer in the June 2015 case. The new evidence received today shows that Mr Dutton's own office reached out to the host family of the au pair and let them know directly that the minister's personal intervention was successful. Of all of the extraordinary humanitarian cases that require ministerial intervention, I can't but think that this is an extraordinary level of personal service provided by the minister's office and that it underscores the personal nature of those connections. It's definitely not consistent with the testimony provided during the inquiry by other migration agents about how these things are done.
In the same case, a senior departmental liaison officer in Minister Dutton's office stressed that the au pair should not be held in immigration detention. The email states, 'We also need to ensure that,' the redacted name, 'is not held in detention overnight.' Frankly, this is not a normal occurrence for someone who has had their visa cancelled at an Australian airport. If the Australian Border Force suspects you of defying the conditions of your visa, you are normally removed from the country on the next available flight.
The late released evidence shows that in the November 2015 Adelaide case the individual involved was in Australia to work as an au pair and to work for her host family at polo events. The Australian Border Force, the operational arm of the minister's own department, put forward evidence that showed that they disagreed with ministerial submissions, stating that they thought it was inappropriate for the minister to intervene. We had to fight very hard to get that evidence before the committee in terms of drilling down into those questions, and it was very clear that the government was very reluctant for that evidence to come to light. The duty inspector at the command centre emailed, stating:
The ABF does not agree with the content or think it appropriate that the minister intervene.
The individual in this case was already on a flight about to be deported from Australia and was offloaded from that flight before the actual ministerial intervention took place. How extraordinary is that?
I note Minister Dutton also missed signing the decision instrument for his ministerial intervention. So it's very clear today that this evidence, handed over—because the committee asked for it—by Minister Dutton's own department, further reinforces the view provided by the committee in this report that Minister Dutton acted to grant visas to au pairs at airports because he was helping out those with contacts—his mates. (Time expired)
Even in the short time I have been here in this place, there are times that I can recognise when this place operates as it should, when it operates in a way that the people expect. This is not one of those times. Use of the term 'explosive' in relation to evidence that has been put before this committee is totally unacceptable. There was no explosion; there was a damp squib.
The dissenting report finds this inquiry has been a shambolic witch-hunt. The inquiry's findings mirror the Labor Party's initial talking points and that's all, which actually fall outside the terms of reference of this inquiry. Labor senators were forced to constantly change the terms of debate in order to try and locate a smoking gun. After the extensive and expensive hearings not only were they unable to locate a smoking gun; they learned that there was absolutely no gun at all. Let me quickly point out the main points of the dissenting report:
The undisputed evidence provided to the Committee was very clear:
Continuing with the dissenting report:
- Migration Act1958
What does this tell us? I quote again from the dissenting report:
The evidence has disclosed no instances—
I repeat: no instances—
of inappropriate conduct by the Minister for Home Affairs as has been so recklessly alleged by Labor and Green Senators. The findings listed in the Committee Report are unsustainable.
It was highly irregular for Labor senators to seek to call Minister Dutton as a member of the other House. Members of all persuasions have long followed this convention.
If we needed more evidence of the shambolic nature of this inquiry—no explosion—I note the chair's draft of the committee report was provided to the committee an hour and a half after the Senate adjourned on 18 September 2018, the day before the report was scheduled to be tabled. It is of grave concern that material provided to the committee constantly found its way to the media before being provided to committee members. This included correspondence from Mr Roman Quaedvlieg, which was published in Fairfax Media ahead of even the secretariat receiving a copy. Much material was also sent directly to the chair of the committee instead of the committee secretariat, and this tainted the whole inquiry. I also note the committee did not seek to call and cross-examine Mr Roman Quaedvlieg after he made his allegations.
This inquiry was established by Labor and Greens senators in an effort to examine the provision of visas to au pairs by the Minister for Home Affairs. This came after several months of Labor senators and supporters, including Mr Quaedvlieg, seeking to generate suspicion and hype around allegations now shown to be completely false. This included the leaking of internal emails from the Department of Home Affairs, a matter which has been referred to the Australian Federal Police. Despite Labor senators trawling for evidence in the public hearing and correspondence back and forth with the department, there was no evidence to suggest that the minister acted inappropriately. It is now clear, in contrast to media reporting, that only two visas relating to au pairs were considered by the minister, and in both cases the Department of Home Affairs recommended to the minister that he should intervene to provide a short-term tourist visa.
I should address the evidence of Mr Quaedvlieg in some detail. After all, this is the Labor Party's Godwin Grech moment. It is clear that the evidence of the disgraced former Australian Border Force Commissioner was completely lacking credibility, given it was so easily disproved. By disgraced, I mean that Mr Quaedvlieg has been the subject of an investigation by the Australian Commission for Law Enforcement Integrity, resulting in his termination as commissioner for misconduct. I also note Mr Quaedvlieg remains under criminal investigation by that organisation, the ACLEI. As I said, this is Labor's Godwin Grech moment.
Let me highlight the lack of credibility in Mr Quaedvlieg's evidence. In his 5 September correspondence to the committee, he claimed:
In mid-June 2015 I received a call from the Chief of Staff for the Minister for Immigration and Border Protection, Craig MacLachlan. He told me that he was ringing me on behalf of Minister Dutton, whom he referred to as 'the boss'. He told me that the Minister's friend, whom he referred to as 'the boss's mate in Brisbane', had encountered a problem with his prospective au pair who had been detained at Brisbane Airport by immigration officials due to an anomaly with her visa.
Contrary to this, in a public statement the minister noted:
Mr Maclachlan was not employed by me at that time and didn't join my staff until 7 October 2015.
Equally, it is impossible for Mr Maclachlan to have had any knowledge of the matter, at that time, because he was not even employed by the Department of Immigration and Border Protection.
This is not in dispute. There are other false assertions in Mr Quaedvlieg's 5 September letter, including the assertion he was the Australian Border Force Commissioner. This is false, given he was not appointed as ABF Commissioner until July 2015, as was Also, on the assertion he returned Mr Maclachlan's phone call to advise him of the outcome, there were no emails or other evidence to support Mr Quaedvlieg's version of events.
Following the complete dismantling of Mr Quaedvlieg's claims, he wrote to the committee and desperately sought to create a new straw man:
I concede that I may have been honestly mistaken in anchoring that conversation to a date in June 2015 however in light of the remarkably coincidental information I will provide to you below I contend that not only is it an understandable error, but moreover renders the only logical conclusion that a second Brisbane ministerial intervention case may merit the Committee's further inquiry.
Following these assertions, the Department of Home Affairs was then asked to provide all intervention briefs signed by the minister. The department was clear in its response. The only two cases considered by the minister relating to au pairs were the Brisbane and Adelaide cases, and there were no additional cases involving a person being stopped at Brisbane Airport.
Given the shambolic nature of this witch-hunt, coalition senators recommend:
1.The Minister for Home Affairs be commended for his prudent and diligent work as a Minister;
2.Mr Quaedvlieg's correspondence be referred to the Privileges Committee and be considered as to whether Privilege should apply to these documents; and
3.The Minister for Home Affairs ignore the Majority Report's findings.
As I said, there are times when this place operates as it should and in a way the Australian people understand and appreciate. This politically and personally motivated witch-hunt is not one of them. I seek leave to continue my remarks later.
Leave not granted.
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.
I would just assure Senator Kitching that the minister won't be resigning and he won't be sacked by the Prime Minister. If it will stop her worrying about whether either of those things will happen, let me put her mind at rest: they never will happen.
Sometimes Senate committees can do very good things for the parliament and for Australians. But sometimes, and, regrettably, all too often these days, they simply become political witch-hunts against individual ministers, and they are always promoted by the Labor Party and the Greens political party. This is a classic case in point. I remember this committee had three attempts, that I can recall, to pillory former Senator Brandis. Why? He was a very effective minister, he was Leader of the Government in the Senate, he ran his portfolio impeccably and he did it in a way that benefited Australia. Notwithstanding that, the Labor Party and the Greens got together and had inquiries with took the resources of the Senate—which are the resources of the taxpayer—on wild political witch-hunts. If they were political processes that were funded by the Labor Party, the unions, the Greens political party and their substantial corporate donors, that's fair enough. But when these purely political activities happen, using the resources of the parliament for political purposes, that really diminishes the whole Senate committee process.
This particular inquiry got off to a bad start. There is, as Senator Molan has said, no smoking gun. In fact, there's not even a gun in this. The minister, as the sensible evidence in this inquiry showed, had done nothing wrong. In fact, ministers are paid to make decisions. Can I say to Senator Kitching: perhaps I don't fit into the category of people she says Mr Dutton bends over to, but I have known Mr Dutton for a while and I am a member of his political party, and I can tell you that I have asked him to do things in this same area and he hasn't done them. He hasn't done them.
I have to say that other immigration ministers over the years, both Labor and Liberal, have used the discretionary power they're given to override the decisions of bureaucrats—and that's what they're paid to do. In fact, I think ministers should indeed do that more often, because ministers are actually accountable to the parliament and, eventually, to the electors. I am one who would urge ministers to take on more and more areas where they make the decisions and don't simply tick off on something the bureaucracy has recommended.
As I said, this inquiry got off to a bad start. I had indicated to the inquiry that, as deputy chairman of this committee, there was one date that I was not available to do committee hearings on because I had a longstanding medical procedure—a minor medical procedure—planned. It had been planned for three or four months, so I wasn't going to change it. I know my friends opposite will be pleased to know when I say as an aside that the medical procedure went well and there were no dramas with it. But I'd set the procedure down for a particular day, and that was the day, would you believe, that the Labor-Greens majority on the inquiry decided to have the first hearing. At that stage, it was to be the only hearing. I'm grateful that my friend and colleague Senator Abetz was able to fill in at short notice and to represent the other government senator on this inquiry. But that's the way the whole inquiry went, to the extent where last night at 8 pm we got the final draft of the chair's report of the committee hearings.
I know we're pretty good on our side; I know we work hard and we work all hours of the day and night. But getting the chair's report, which all of the committee are supposed to read, assess, suggest amendments to or, if they don't agree, draft a dissenting report on is very difficult to do between 8 pm and nine o'clock the next morning, when the committee were to meet. It showed all the way through that there was a lack of good faith in this inquiry. It was an inquiry that wasn't interested in the facts and wasn't interested in fairness but simply sought to attack a very effective minister.
The Labor Party and their mates in the Greens political party and in GetUp! and the radical conservation movement—some of the usual suspects, I call them, in the boat people debate, the illegal maritime arrivals debate—are determined to get rid of Mr Dutton. Why? Because he has administered so well what the Australian people want—that is, protecting our borders. He has taken on from the previous minister, who I'm proud to say is now the Prime Minister, the Operation Sovereign Borders that stopped the 50,000 people coming into Australia illegally and that stopped what we know were some 1,200 people, would-be entrants, who drowned at sea because of Labor's policy. And it was Labor's policy, I might say, and it was totally supported by the Greens political party at the time. Mr Dutton has effectively administered that and because of that he's become the target of the Labor Party, the Greens political party, GetUp! and all the other associated radical ridiculous groups that try to have an influence on Australia. And they're determined to try and get rid of Mr Dutton electorally.
As I've said to the media, I don't think Mr Dutton is in any trouble at all at the next election. It was never an easy seat. It was a seat that was held by the Labor Party and then by Cheryl Kernot, who was once a Democrat and then switched over to the Labor Party and became friendly with different Labor Party politicians. Mr Dutton won that seat from her and he's held it ever since. It was never an easy seat, but he is such a good local member that I'm quite confident that he will easily hold it at the next election. More than that, he is a very effective minister and one who does his job very well. He's clear, he's concise and he's not one who can be bullied. But when the need arises he is one who is very compassionate and can and does make decisions to help other people.
I must say, I've grown to like my colleagues on the committee, even though I don't like their political approach and the fact that they use the Senate's money to investigate purely political activities. The evidence has shown in this hearing, and by any fair assessment of the facts, that Mr Dutton has nothing to answer for. He was criticised for not accepting the majority Senate invitation to appear before the committee. Why would he bother to waste his time? He has got far more serious things to do as a very busy minister and, quite frankly, he knew, as I knew, that the report had been written before the first word of evidence had been taken. We all knew what the majority committee would end up finding, and Mr Dutton, as I say, has far more worthwhile things to do with his time than add to the media circus by appearing before this committee.
Regrettably, this report puts Senate committees backwards a couple of decades and is one that very few people will bother reading and even fewer people will bother taking any notice of.
This report tells a sad and sordid story of a rampant abuse of power by the Minister for Home Affairs, Mr Dutton. It reveals how personal relationships and political donations can influence ministerial decisions in this country. It shows how Minister Dutton was prepared to overrule his own department and intervene to ensure that people who his department believed would be likely to breach their visa conditions if they were allowed to enter the country in fact could enter the country.
It ended up revealing far more than just the privilege of access, the power of political donations and the way that Minister Dutton handles his portfolio. It revealed Minister Peter Dutton to be someone who is prepared to lie to the House of Representatives. That lie occurred on 27 March this year when Mr Adam Bandt, the Greens member for Melbourne, asked Minister Dutton in question time—and I'll quote directly from Mr Bandt's question:
Can you categorically rule out any personal connection or any other relationship between you—
that is, Mr Dutton—
and the intended employer of either of the au pairs?
In response, Minister Dutton did categorically rule out any personal connection or any other relationship to either of the intended employers of the au pairs, by saying:
The answer is yes.
Of course, what this inquiry and other processes in this parliament revealed was that in fact an email was sent to Minister Dutton on Wednesday, 17 June 2015 just after 4 pm by a person whom Mr Dutton worked with in the Queensland police force that began like this:
Long-time between calls.
So here's Mr Dutton, on one hand, categorically ruling out any personal connection or any other relationship and then we have someone he worked with on the Queensland police force starting an email to Mr Dutton with the words:
Long-time between calls.
Even if we put aside the preponderance of all of the other evidence that has emerged through this parliament, through the Senate inquiry, through the media, as this saga has unfolded, that email right there puts a lie to Mr Dutton's claim that he did not have any personal connection or any other relationship with the intended employer of either of the relevant au pairs. Of course, what that means is that he's lied to the House of Representatives. What that means is that that is technically a misleading of the House of Representatives and, given that he has not at the first available opportunity come into the House of Representatives and corrected the record, he should no longer have the confidence of the House of Representatives as a minister. He should either resign or, if he fails to do that, he should be sacked by the Prime Minister. That's what should happen here.
Nobody in the country, I reckon, is going to expect Mr Dutton to do the right thing here, because he's built a political career on doing the wrong thing. This is actually a test for Mr Morrison, our new Prime Minister—for whatever reason he ascended to that position—who has to decide if the standard set by Minister Dutton is one that he, Mr Morrison, is prepared to walk past, because the standard you're prepared to walk past is the standard that you accept. If he doesn't sack Minister Dutton, he's sending a message to all of his other ministers that the longstanding Westminster convention—if you're caught out misleading the House you have to go—is not going to apply on Prime Minister Morrison's watch. Let's be clear: Minister Dutton lied to the House and he has to go. And, if he won't resign and do the right thing, the Prime Minister has to sack him. If Mr Morrison fails to sack Mr Dutton for lying to the House of Representatives—and by extension therefore lying to every single man, woman and child in this country—then it is Mr Morrison's reputation that is on the line.
It is true that this committee conducted this inquiry within a very short period of time. In fact, it was the view of the Australian Greens, which we expressed in our dissenting report, that the committee should in fact have requested a further extension to its reporting date from the Senate to give the committee the capacity and time to resolve discrepancies in evidence between the evidence given by the Department of Home Affairs and the evidence given by former Australian Border Force Commissioner Mr Roman Quaedvlieg. We also believe that an extension would have given the committee time to conduct an audit of documents and communications relevant to the inquiry that were generated and held by the Department of Home Affairs, which of course includes the Australian Border Force and the Minister for Home Affairs' office. We believe that, had the committee had an opportunity to do that rigorous audit of relevant documents, it would then have been in a place to invite Mr Quaedvlieg to attend a committee hearing to give evidence. Unfortunately, that wasn't ultimately the view of the committee.
What this committee did recommend in its majority report is particularly important and relevant. Firstly, it recommended 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 ministerial guidelines'. I think that's a small but important step. Secondly, the committee recommended in its majority report that the Senate consider censuring the Minister for Home Affairs, the Hon. Peter Dutton MP, 'for the actions examined in the report, for failing to observe fairness in making official decisions as required by the Statement of Ministerial Standards'. I'll put on the record now that the Australian Greens absolutely believe the Senate should censure the minister for that. Thirdly, the majority report recommended 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'. I genuinely hope that the minister in this place representing the Minister for Home Affairs acknowledges that recommendation from the majority report and is prepared to come in and make the relevant statement—that is, make an explanation to the Senate responding to the matters raised in this report.
I only have a short time left, but it does give me an opportunity to address one more matter that's emerged through this sad saga, and that is Minister Dutton's beyond-belief claim that he in fact intervened and overrode his department to allow au pairs into Australia because he believed it was a humanitarian act. Give us all a break, Minister Dutton! He is the minister who has overseen a rampant abuse of human rights on Manus Island and Nauru. He is the minister who caused humanitarian calamity after humanitarian calamity on Manus Island and Nauru. He is the minister who fights tooth and nail in the Australian legal system to keep children who are dying away from the medical help and support they so desperately need. He is the minister who colluded with the Papua New Guinean government to order the cutting off of drinking water, food, electricity and much-needed medications for over 600 people in the Lorengau detention centre on 1 November last year. He is the minister who has overseen an offshore detention regime and an onshore detention regime based on cruel— (Time expired)
Question agreed to.