Senator Andrew Bartlett
Friday, July 15, 2005
 
Do You Really Want to Hurt Me? It's the Government giving the tunes to the Immigration Culture Club
"Change the institutions and, over time, you change the culture” – so said John Howard this week. However, he was not talking about the Immigration Department, but about his plans for workplace relations. And how does he plan to change that culture? By dramatically overhauling the law.

I’m strongly opposed to what the Prime Minister plans to do with workplace relations, but he is right about one thing –to change institutional culture, you need to significantly change the law.

It seems that key fact is being missed in the barrage of commentary following the release of the Palmer Report into the Cornelia Rau case. Everyone is talking about the bad culture within the Department of Immigration, Multicultural & Indigenous Affairs (DIMIA) (perhaps understandable, as on my count the Report uses the word "culture" 43 times). But most people (encouraged by the Government) seem to be ignoring the obvious fact that this culture is a direct consequence of the law (i.e. the Migration Act 1958) and the Government policies which inform and direct the Department in how to administer that law.

The notion that you can overhaul the culture of an entire Department without reforming the laws and policies which are the air that Department has breathed for the last decade (and more) is farcical. It is also a convenient way of blaming the public servants, who have basically just delivered the system the Government has demanded.

Who can forget the biggest ‘cultural message’ of all from the Prime Minster – at polling booths all over the country on election day 2001? “We will decide who comes into this country and the circumstances under which they come!” That is basically what has informed DIMIA decision making – they will decide and that’s that. Immigration matters are all about so-called ‘border control’ and that meant normal niceties such as due process, the rule of law and natural justice - let alone more general notions such as decency and a fair go - do not apply.

The Migration Act reinforces this. The most obvious case is mandatory detention. If a Migration officer has a suspicion that a person is unlawfully in Australia, then, as the name of the policy says, it is mandatory for that person to be locked up. Our legal and democratic system and traditions normally requires some form of testing of evidence before a person can be jailed for any significant length of time, but not under the Migration Act. As the Palmer Report showed, jailing people and keeping them there is done as a matter of ‘administrative convenience’.

Even just this week, reports appeared of a pregnant New Zealand woman in a Queensland jail awaiting deportation because her visa had been cancelled. Following media coverage, Minister Vanstone decided to allow her to be released back in the community where she had previously been serving parole. Leaving aside whether or not cancelling her visa was a fair and reasonable thing to do (Section 501 of the Act gives the Minister personal powers to cancel visas on character grounds and specifically precludes the rules of natural justice from such decisions, which is a topic worthy of a separate post of its own), the Minister's own statement about this case said the woman currently has an appeal against her deportation before the Administrative Appeals Tribunal. This is another clear case where someone was stuck in jail because it was administratively convenient (and arguably required under the Act), even though there was no significant risk if she remains in the community while her appeal is heard. Not to mention it being another case where media publicity gets a different result, which is hardly a good sign of decisions being made on their merits.

The Palmer Report was based predominantly on just one case, yet there are many many more examples of gross injustices perpetrated by DIMIA. I could list over 100 cases I am personally familiar with over the last few years that have involved huge suffering, major injustices, massive inefficiency, pigheaded inflexibility or what appeared to be arbitrary factors determining decisions. Many of these have not been asylum seeker cases; many have involved Australian citizens or families. Some have been hard cases; some seemed to be the result of nothing but bureaucratic pettiness. But I have no doubt that every single one of them occurred in part because the law, backed up in a big way by Government policy and regular Ministerial statements, reinforced the notion that this was how our migration system is meant to operate.

To blame the public servants for doing what they were clearly required to do is just buck passing on a massive scale. The Palmer Report was as scathing as you could get, yet it had very narrow terms of reference and as it stated itself, its comments were “not intended to call the policy into question.”

It is up to the community to call the policy into question and insist that the Government and the Labor Party recognise the need to substantially reform the policy and the law that underpins it. Whilst the Prime Minister and his government must bear primary responsibility, the law, and therefore this culture, is very much a joint creation of the two major parties over the past decade and a half. Until it is substantially changed, continuing injustices are inevitable, and the Immigration culture club will continue to sing pretty much the same tune.

posted by Andrew Bartlett @ Friday, July 15, 2005 Permalink
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