The decision to stand down Labour MP Shane Jones pending the Auditor-General’s inquiry into his 2008 decision – when Jones was associate Immigration Minister – to grant residency to Chinese businessman William Yan is pretty much a model of how these kind of accusations should be handled, and it stands in striking contrast to the way the John Banks affair has been managed. Banks continues to perform his Ministerial role, and can do so because the Prime Minister has made proven illegality the test of whether a Minister in his Cabinet can be stood down, or removed from their post. In the Jones case, within a week of the accusations of impropriety being made, Labour leader David Shearer has stood Jones down, to enable the accusation to be investigated.
Similarly, the claim by Key in Parliament that there was something fishy about Jones reaching a different conclusion in 2008 to that of his officials was pretty breath-taking:
Mr Key says Mr Jones now has to answer, why did he ignore his officials?
“I just can’t answer the question of why he said yes, when the officials told him to say no. He must have some rationale for that but that’s the interesting explanation isn’t it, that’s the $24 million question.”
Oh really? But official advice has a different ambit and – as the Ahmed Zaoui case made very clear – the Minister retains, for very good reasons, a great deal of discretion on immigration matters. As Key knows, those grounds for discretion include humanitarian ones – and they also include the government’s concrete obligations under the UN Refugee Convention, which require the government not to deport people back to situations where they are at genuine risk of torture and/or execution. As the Zaoui Supreme Court judgement made clear, those matters are to be considered by the Minister, and not by his or her officials. It was Jones decision, and his alone.
In this case, Jones made it very clear that he exercised his discretion because of his belief that a genuine risk of torture and execution existed. In sum, there is no doubt that ministerial discretion – which is informed by the recommendations of officials but is not limited by them – does exist. And Jones has said publically that he was acting on that discretion. There would seem to be no case to answer here, unless and until evidence emerges that Jones received some kind of corrupt reward or payment for his decision. It should also be clear that the Auditor –General’s inquiry is only about the process that was followed. It does not involve, and should not be expected to involve, a second guessing of the decision itself.
That doesn’t mean Jones is out of the woods. For the public to have faith in the exercise of ministerial discretion, that discretion has to be exercised consistently. In 2008, Jones was memorably involved in refusing to exercise his discretion on behalf of a 25 year old Iranian woman called Bahadeh Moradi. The details are here.
In Moradi’s case, there were conflicting claims about whether her conversion to Christianity was genuine. As an apostate, such a conversion would put her at risk of torture or even death back in Iran. In her case, Jones did not exercise his discretion – and the woman went underground to avoid deportation.
If Jones is interested in full disclosure, it would help if he indicated why he exercised his ministerial discretion for humanitarian reasons in one case, and not in the other. There is systemic risk here. Because the danger of ceding the considerable discretion available under the Immigration Act – and arguably this discretion is a necessary element of the job – is that it can be subjected to corrupt pressures. We need to be confident about why that discretion is, and isn’t used. Jones could provide a useful service by explaining how he performed that part of his job.