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Opinion
Four reasons why the prime minister won’t sack Andrew Giles
David Crowe
Chief political correspondentThe sight of a minister under constant attack will always send Parliament House into a cycle of speculation about when he or she will be sacked. That is the cycle in federal politics this week as Immigration Minister Andrew Giles is badly exposed to Coalition claims that he has bungled his job.
Coalition frontbenchers Dan Tehan and James Paterson have run rampant with concerns about convicted criminals being freed by the Administrative Appeals Tribunal when they should instead be deported. The cases are real, horrific and complicated. So, Tehan and Paterson have tossed aside the complexities to convince many that Giles basically opened the door of the prison and let the criminals walk free.
The Coalition has been leading calls for Andrew Giles to be sacked.Credit: Alex Ellinghausen
The conventional wisdom is that Giles must go. The judgment in the government, however, is that he will stay. So it is time to cool the talk about an imminent reshuffle. There will be a time to overhaul the ministry, of course, but it is not right now.
This defies the assumptions of many observers, including some in the Canberra press gallery, who think the only rational decision is to dump the minister to ease the pressure on Labor over crime and migration. This seems logical. Yet, the government wants to tough out the Coalition attacks rather than show the world it is crumbling to pressure.
One reason is that Anthony Albanese is putting a premium on stability. The prime minister lived through the turmoil of the Kevin Rudd and Julia Gillard years in power, when dozens of people were promoted and sacked, and he wants continuity in his government.
A second reason is the risk of sudden change to the immigration portfolio. Right now, the minister must contend with last year’s High Court decision to release people from immigration detention, the rulings in the Administrative Appeals Tribunal to overturn deportations, the new measures to cap overseas students, the crackdown on dodgy education providers and the pledge to reduce net overseas migration. How does it help to gamble with a new minister?
The third reason, often remarked in media circles, is the personal link between Albanese and Giles, who are long-standing friends and allies from the Labor left. Personal loyalty does not always save ministers, of course, but it is a factor.
But the fourth reason is more important. What, exactly, is the sackable offence? Can a minister be removed because the High Court sets new law? Surely, it would set a bizarre precedent to sack a minister because the Administrative Appeals Tribunal overturns department decisions.
None of this means the government can cruise through the migration mess without making changes. Labor has been repeatedly bested by the Coalition on the politics of migration and crime since the High Court made its NZYQ decision in November. Time and again, the Coalition has moved at top speed to identify problems in the portfolio, while Labor has plodded to a response.
Giles and Home Affairs Minister Clare O’Neil are working with a vast department that shows no sign of the synergies and stronger co-ordination that were meant to come when agencies were merged to form the Department of Home Affairs several years ago.
When former Victorian police commissioner Christine Nixon finished her review of the visa system in March last year, she concluded the department had been run down over several years. When a “capability review” of the department was finished last week, it found there had been a period of “weak collective leadership” over many years.
That helps explain why the department secretary, Stephanie Foster, ended up admitting to an astonishing failure. Foster told Senate estimates on Wednesday that department officials did not tell Giles about all the tribunal rulings that overturned department decisions to try to deport criminals.
“We made a commitment to the minister to advise him on cases that should be brought to his attention because of a number of criteria, and we have failed to do that in a timely way,” she said. “So some cases had been brought to his attention, but not all.”
Giles had a protocol in place with the department to gain alerts about cases where convicted criminals could be released into the community. Foster told estimates she did not know that officials were “failing to meet our obligations” on this front.
Illustration: Andrew Dyson. Credit:
This sets up a predictable playbook for Canberra observers: that Foster takes the fall for the political mistakes on migration. Inside the government, however, Foster has genuine support. She was made department secretary on November 28 last year – coincidentally, the same day the High Court issued its full decision on NZYQ – after being an associate secretary from October 2022. The government wants her to lift the department’s performance, not make her a scapegoat.
Opposition Leader Peter Dutton, meanwhile, has been curiously brittle when he is clearly winning – perhaps because he thinks the argument must go his way every day. After several days of headlines about tribunal decisions that hurt the government, it was only a matter of time before someone in the media looked at Dutton’s time in the immigration and home affairs portfolio. This is the way the Parliament House press gallery operates – or, at least, the way it should operate. Both sides are subject to scrutiny.
Dutton, however, was furious. He took to social media to blame the media – to be precise, me – and acted as if it was an outrage that this masthead checked his record in office. Yet, the public records show that the tribunal chose to release scores of convicted criminals when Dutton was the minister, just as it is doing while Giles is the minister.
A random check of the cases in 2017, for instance, shows at least 20 tribunal decisions to let criminals stay in Australia on Dutton’s watch. Anyone can read these decisions online. Separately, government officials told Senate estimates that 102 sex offenders were released from immigration detention while Dutton was minister. Two men convicted of accessory to murder were also released.
Who on earth could be surprised? It turns out that what happens under one political party can also happen when the other is in charge. The immigration portfolio has thousands of grim cases of people who have come to Australia, fallen in with criminals and ended up in prison.
While it is true that Giles amended the visa regime under what is known as “direction 99”, putting a higher priority on factors that might keep an offender in Australia, this was not a revolution. His rule mirrored a lot of the language in similar directions under the Coalition, a point nobody in the government bothered to make until Tehan and Paterson had already convinced onlookers that every tribunal decision was somehow Labor’s fault.
At no point did the government change the Migration Act. It did not alter the provision in Section 501 that automatically cancels a visa if someone has been sentenced to 12 months or more in prison or has been guilty of sex offences involving a child.
But the government admits it got direction 99 wrong – and the proof is in the fact that Giles will replace it with tougher language that puts the greatest priority on community safety. Even so, this cannot force a tribunal member to agree every time with a decision to deport a criminal, so some cases will continue to defy community expectations.
The glaring problem in the government is that it does not have a working radar to identify emerging threats before ministers are suddenly engulfed in a crisis. The headlines about tribunal decisions began last week, yet Labor never mobilised to assert the facts on its side of the argument. The Coalition absolutely dominated the debate.
A single misstep can cost any minister their job. Who knows what news may emerge to put O’Neil and Giles under greater pressure on migration? It is up to the government to fix the policy and take control of the politics. For now, it will try to do that without a reshuffle.
David Crowe is chief political correspondent.
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