Why is Labor defending Alex Hawke’s ‘bizarre’, ‘steering wheel’ visa decision in the high court?
On 14 April 2021 the then immigration minister, Alex Hawke, decided not to reinstate the visa of a father of seven and grandfather of three – who had spent 22 years in Australia – due to the man’s drug convictions.
With hundreds of visas cancelled or refused every year on character grounds, it can be easy to lose sight of the remarkable fact that ministers hold the fate of people’s lives in their hands.
But in a bizarre twist, Joseph Leon McQueen discovered his fate wasn’t so much in Hawke’s hands as in the lap of the gods.
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When McQueen challenged his visa cancellation in court, the record of Hawke’s decision was produced through a photo showing a signed page in a two-ring binder marked with “sign here” stickers sitting in an unidentified person’s lap by a steering wheel.
This “bizarre factual situation” – as three judges of the federal court described it – armed McQueen’s lawyers with another argument: that the decision had been made in haste and Hawke hadn’t taken the time to read his personal submissions in the 30 hours and 20 minutes he had the documents.
A judge of the federal court agreed, finding the minister “followed the instruction he was given”, circling options presented by his department and signing where directed.
The decision was upheld by the full federal court. McQueen was released from immigration detention with a temporary visa by the new immigration minister, Andrew Giles, but the Albanese government appealed to the high court.
That’s where we pick up the story, with a look at Giles’ submissions explaining just why it is so important for the new government to grab the wheel.
The minister does not challenge the finding that Hawke didn’t read the supporting documents, only a departmental summary.
Relying on a departmental “synthesis” is not itself an error, his lawyers argue. It only becomes an error if the summary missed something important. Ministers are entitled to rely on briefs that are “materially accurate and complete”, they say.
Letting the precedent stand would “consign the minister to a legal obligation to read every word on every page of every document”.
Fancy having to read every word of 230 pages (in McQueen’s case), everything from a handwritten letter to the Parole Board to this plea from one of his children: “My father is a smart, kind, loving man … Everyone deserves a chance in life.”
The government’s lawyers argue the department ably summarised all the material. As a fallback, they said McQueen could win the case but special leave should still be granted to help correct a “a wrong turning by the full court on an important question of executive decision-making”.
The submission doesn’t quite spell it out, but in describing this as a matter of “general significance” for the exercise of the God-like personal powers in the Migration Act, you can hear a note of alarm: the dozens to hundreds of cases lodged against the immigration minister every year should not become any harder to win.
McQueen’s lawyers countered that in parts the minister’s submissions are “a distraction”, composed of “random, unfounded criticisms” of the full court’s findings that personal representations packed more punch than dry summaries.
Perhaps it’s unsurprising the executive government objects to the courts whittling away at their wide discretions, in the same way they aren’t keen to tell the legislature in Senate estimates basic details about the 11 asylum seekers they’ve sent to Nauru, the first transfer in nine years.
Earlier in October the home affairs minister, Clare O’Neil, was challenged in question time about visa cancellations, and she said Albanese government ministers had cancelled more than in either of the last two years of the Coalition government.
Evidence in Senate estimates on Monday confirmed it: there were 24 cancellations by ministers in 2022-23, up from 12, 23, 19 and nine in the final four years of the Coalition government.
The rest of the several hundred cancellations a year were done by delegates of the minister, an avenue which McQueen’s lawyers have noted gives the applicant better appeal rights for a review on merits.
If the minister decides to take the plea on personally rather than push it down the chain of command then “the person’s opportunity should be to persuade the minister” and, yes, “that requires reading” their representations.
Given we’re only talking about a few dozen personal decisions a year, it doesn’t seem beyond a party that promises to be “tough on borders” without being “weak on humanity” for more conscientious ministers to read every word.