If the media coverage was any guide, Andrew Giles was the big loser when Anthony Albanese reshuffled his cabinet last weekend. Though he was moved sideways rather than demoted, he was widely seen as a victim of his own performance as immigration minister.
Abetted by many in the media, the Coalition had for months been targeting Giles as the government’s weakest link, particularly over his response to the unanimous November 2023 High Court decision that indefinite detention is unconstitutional. That “revolutionary” ruling forced the federal government to release around 150 non-citizens, many of whom had served criminal sentences or who had been denied visas on character grounds.
The court found that the government could not keep those migrants locked up when there was no reasonable prospect of removing them from Australia in the foreseeable future. Administrative immigration detention must have an administrative purpose — namely, the removal or deportation of non-citizens from Australia — without that purpose, it becomes arbitrary punishment.
Giles stressed after the ruling that community safety was the government’s “number one priority” but his attempts to explain its complexities proved to be poor politics. He tried to point out, for example, that imposing conditions on people released after serving a custodial sentence is generally a matter of state and territory law rather than a Commonwealth responsibility. His earnestness came across as vacillation, especially when released detainees committed fresh and sometimes violent crimes.
The opposition’s hammering forced the government to amend its legislative response. Released detainees were subjected to mandatory reporting requirements, with curfews and electronic monitoring via ankle bracelets imposed by default rather than at ministerial discretion, as Giles had intended. Lawyers say these measures, like indefinite detention, are punitive and therefore unconstitutional too: since courts, not governments, have the authority to punish, they breach separation of powers between the judiciary and the executive. An imminent High Court ruling will decide the issue and could provide the first big political test for new minister Tony Burke.
Andrew Giles and home affairs minister Clare O’Neil also struggled to spin the politics of another immigration challenge: the massive spike in post-Covid immigration that coincided with, and contributed to, a steep rise in rents and a sharp fall in vacancies. Labor was vulnerable to claims that it had “lost control” of the borders and worsened the housing crisis. In his budget reply, Peter Dutton gave the impression that the government could fix the problem simply by cutting the annual permanent migration intake.
It’s not so simple. Migration numbers are no longer set by government fiat. Australia has become a country of demand-driven, temporary migration. We have transformed education into an international industry, turned backpackers into fruit-pickers and allowed business to fill skills gaps with temporary migrants. When the labour market is strong, as it has been, more migrants come. If unemployment goes up, arrivals slow and more people leave.
Policy settings do shape demand, but their impact is often delayed. So, the spike in migration after borders reopened was amplified by measures introduced towards the end of the pandemic by the Morrison government, which was worried migrant numbers might not rebound fast enough to meet labour market needs.
Morrison extended a Covid visa beyond critical industries and beyond what was needed to keep temporary migrants working through the pandemic. Visa holders who would otherwise have left, stayed on. Morrison also made Australia more attractive to students by allowing them to work forty hours each week rather than twenty. Both measures contributed to the blow-out in migration numbers. But blaming Coalition-era policies for the issue was never going to wash, any more than Giles could sheet responsibility home to Dutton for the longstanding, unlawful and unsustainable detention regime scrapped by the High Court.
Not that he doesn’t deserve it, at least in the view of former immigration department deputy secretary Peter Hughes. He thinks it was Dutton’s “dramatic overuse of the visa cancellation and detention power” that led to the High Court decision. With Dutton’s hardline approach generating increasingly lengthy stays in immigration detention, the system was “always going to reach the High Court’s red line at some point.”
That’s cold comfort to Giles. When you are the responsible minister, seeking to lay blame at others’ feet, no matter how justifiably, generally comes across as shirking responsibility.
In February, the government closed the Covid visa and in May it cut students’ weekly work limit back to twenty-four hours. While it probably should have done both those things sooner, it also introduced a range of other measures to moderate temporary migration, especially student arrivals. It twice jacked up the level of savings international students need to qualify for a visa, from $21,041 to $24,505 and then to $29,710, pegging it at 75 per cent of national minimum wage. It more than doubled student visa fees from $710 to $1,600. It has increased the pass mark in the IELTS English language test for undergraduate student visas from 5.5 to 6.0 and for graduate visas from 6.0 to 6.5. It has tightened eligibility for post-study work visas and is making it harder for students and other temporary migrants to “visa hop” from one category to another to extend their stay. It is belatedly cracking down on dodgy education outfits accused of operating as visa shopfronts.
In case these combined measures fail to rein in enrolments, the government is also seeking the power to cap international student numbers by education provider and course.
Andrew Giles and Clare O’Neil shouldn’t be judged only in the light of the two most controversial developments during their tenure — the response to the High Court decision and the sudden spike in temporary migration. During Labor’s first year in office they significantly improved how the migration system works.
First, they set up a pathway for refugees on temporary protection visas to become permanent residents, ending the corrosive uncertainty experienced by thousands of people who arrived in Australia by boat more than ten years ago.
Second, they enabled long-term New Zealand residents to become citizens, ending their permanently temporary status as migrants who had the right to live and work in Australia indefinitely but not to vote or use key government payments and services.
Third, they significantly increased the temporary skilled migration income threshold, or TSMIT, the minimum pay rate for a migrant worker in Australia on a temporary skilled visa.
All three issues had been left to fester by the Coalition government. The TSMIT, for example, had been frozen at $53,900 since July 2013. By 2022, it had fallen below the wages earned by eight out of ten full-time workers. Given the strong correlation between low wages and worker exploitation, O’Neil argued that freezing the TSMIT had turned the temporary skills scheme into a “guest worker program.” She and Giles lifted the TSMIT to $70,000, and under annual indexation it has since risen to $73,150. This makes it more likely that employers will use temporary migration only to fill pressing gaps in their labour force rather than to avoid offering better pay and conditions to recruit local staff.
Reducing the exploitation of migrant workers was a key focus for Giles, though not one that generated many headlines. A year ago, he introduced legislation to penalise employers who coerce migrants into breaching their visa conditions by, for example, forcing a student to work more than their allowable hours and threatening to report them for overworking if they refused. The bill, which became law in February, also banned exploitative employers from hiring more temporary migrant workers in future.
Just last month, Giles launched a two-year pilot of a new workplace justice visa that allows temporary migrants to stay in Australia and keep working while they pursue claims against their employer. The hope is that it will bolster visa-holders’ confidence to initiate action when they are underpaid, bullied, harassed, injured or discriminated against at work. Until now, temporary migrants taking on their bosses risked getting sacked or dobbed in to Home Affairs for breaching visa conditions. Trusted third parties, like community legal services and trade unions, can help temporary migrants access the justice visa by certifying that their claims are genuine.
“This is without precedent anywhere else in the world.,” according to legal scholars Laurie Berg and Bassina Farbenblum, co-directors the Migrant Justice Institute. “This sets the new global best practice for countries seeking to realise migrant workers’ access to justice and business’ accountability for labour exploitation.”
Within months of taking office, Labor commissioned an expert review of the migration system by former prime minister’s department secretary Martin Parkinson and migration experts Joanna Howe and John Azarias. Its report was damning, declaring that Australia’s migration program was “not fit for purpose” and lacked clear objectives. It said key aspects of the system were broken and needed major reform that could not be achieved “further tinkering and incrementalism.”
A second, rapid review, led by former Victorian police commissioner Christine Nixon, found Australia’s visa system to be vulnerable to “grotesque abuses.”
In response to both reports, Giles and O’Neil set to work on the mammoth task of overhauling the system. Significant work is in train, including a review of the points-based system for selecting permanent skilled migrants and a review of existing rules to attract skilled migrants to rural and regional areas.
One of Andrew Giles’s final acts as immigration minister was to launch the final report of a review of Australia’s multicultural framework; the government has committed $100 million dollars to supporting its findings. This is another long neglected issue in the Home Affairs era, particularly under the national security mindset of Peter Dutton and disgraced former secretary Mike Pezzullo, who framed immigration as a matter of border control rather nation building.
Under their stewardship, Home Affairs was the most demoralised Commonwealth department, with official surveys reporting the lowest levels of engagement and satisfaction of any public sector agency.
Some of Giles’s less public work as minister aimed to rebuild the confidence and purpose of immigration staff. He spent many hours meeting officers at all levels, talking with them about the challenges of their role and seeking their ideas on how to make the system operate more efficiently and effectively. Few had clapped eyes on an immigration minister, let alone spoken to one, since the energetic Philip Ruddock left the portfolio more than two decades ago.
Giles’s other achievement was to increase Australia’s humanitarian program to 20,000 places in 2023–24 and to keep it at that level in 2024–25. This is the highest intake since Malcolm Fraser was resettling Vietnamese and Cambodian refugees from camps in Southeast Asia in the early 1980s. It’s also in line with the Labor’s pre-election aspiration to “progressively increase” Australia’s humanitarian intake to 27,000 places per year.
Still, the increase was fiercely resisted, not least because of the multimillion-dollar cost to the budget bottom line. When Giles first put the measure forward, he was knocked back, and he expended considerable political capital to put it up a second time and push it through. Peter Dutton has vowed to cut the program back to its previous 13,750 places if the Coalition wins office.
As another former immigration department deputy secretary, Abul Rizvi, has repeatedly pointed out, Giles has also had to work through the consequences of Dutton’s failure to deal with abuses of the onshore asylum system — the claims made by people who have arrived not by boat but by plane. In 2015, when Dutton oversaw immigration, refugee claims by Malaysian nationals surged. Soon after, claims by Chinese nationals surged too. While most of the applications were weak and easily rejected, appeals then clogged up the review system. Since the applicants arrived in Australia lawfully — as tourists, for example — they are allowed to work while their cases were determined. Delays therefore serve as a benefit, rather than a penalty. Rizvi calls it “the biggest labour-trafficking scam” in Australian history. It will take years to fix.
Rebuilding Australia’s migration system has a long way to go, and much planned work was delayed or derailed by the High Court controversy. Still, Peter Hughes reckons that Labor made reasonable progress with Giles and O’Neil in charge, after inheriting “a complete immigration catastrophe from Scott Morrison and Peter Dutton.” Registered migration agent Heather Marr described Giles as “the first minister for immigration in over a decade who actually understands this incredibly complex portfolio” and says he has worked “quietly and effectively to untangle many of the serious messes left behind by the previous four ministers.”
Let’s hope new home affairs minister Tony Burke can pick up where Giles and O’Neil left off. •
