How to go about achieving better immigration policy and decision-making

Apr 20, 2023
Australian passport on the flag of the Australia. Getting an Australian passport.

It helps to apply all the lessons of the past correctly when considering learnings from a recent High Court decision about the use of personal Ministerial intervention powers under the Migration Act

It saddens me to have to comment negatively on an article by one of my favourite national commentators.

Jack Waterford’s article “The Home Affairs Culture of Getting Things Wrong” published in Pearls and Irritations on 18 April, attempts to make sense of a recent High Court decision on use of personal ministerial intervention powers in the Migration Act.

In that case (Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors; DCM20 v Secretary of Department of Home Affairs & Anor.) the majority found that Ministerial Guidelines approved in 2016 for handling intervention requests were not valid because they purported to give powers of assessment to departmental officers in the Department of Home Affairs that could only be exercised by the Minister. It was also found that in their assessment of the cases in question, departmental officers had made two serious errors.

The decision should not have been too much of a surprise to those with experience in the field. The troublesome guidelines introduced in 2016 apparently sought to reduce Peter Dutton’s ministerial workload. They replaced guidelines that had been operating since 2009 which, without doubt, more closely reflected the intention of the Migration Act about the respective roles of the Minister and officials. In some respects, it is surprising they were not successfully challenged earlier.

However, in order to make points about what all of this tells us about the Department of Home Affairs, the article seems to roll 20 years of immigration administration into one un-differentiated mass. It draws heavily on the enquiries into the Cornelia Rau and Vivian Alvarez scandals which were investigated by former AFP Commissioner Mick Palmer in 2005 at the request of the then Coalition government. It implies that nothing much changed at the time and similar issues persist now. One could come away with the impression that there had been little change in leadership and staff or any departmental practices in two decades.

Apart from the fact that the analysis does not help to solve current problems, it’s also wrong.

The then Department of Immigration Multicultural and Indigenous Affairs (DIMIA) accepted that the cases had been wrongly handled. It also accepted Palmer’s analysis that there were cultural problems in the detention and compliance areas and that computer recording systems were not adequate for the job.

A huge program of change was implemented from 2005 as a result of the Palmer (and later Comrie) reports, initially by the Coalition government and then a Labor Government. The changes included turnover of leadership, cultural change, changes to detention policy, availability of less prison- like detention facilities, legislative change to make it easier to get people out of detention, case management of people in detention and a more client friendly environment. IT systems were also improved to deal with the identified deficiencies. Client service was emphasised not only for visa applicants, but also people in detention.

From 2007, when the Rudd Labor government was elected , Labor Minister Chris Evans worked extremely hard to reduce the use of immigration detention for all purposes in the portfolio, recognising the potential damage to clients. Sadly, resumption of maritime asylum seeker arrivals limited his options.

The election of a Coalition government in 2013 brought an end to this approach.

The construction of the Department of Immigration and Border protection (2014-2017) and Department of Home Affairs (2017-) and Australian Border Force (2015) was based on the explicit message that immigration was no longer a nation-building operation, but a junior part of a threat mitigation organisation. The cult of the border and Operation Sovereign Borders ruled supreme. There was more talk about the importance of guns for Australian Border Force members than client service.

Perhaps the best proof of how successful reforms to Department of Immigration and Citizenship practices had been in the period 2005–2013 was the fact that the Department was clearly regarded as too “soft” by the incoming Coalition government and its newly appointed bureaucratic leadership. When Immigration was securitised it was made clear that “care bears” in the senior staff were not welcome.

Mass departure of senior Immigration staff to other departments soon followed because, after years of reform, they did not want to work in this negative environment. They were replaced by people who had no expertise in the field. Elected Governments get the immigration administrations they want. A securitised, risk averse culture replaced a client service culture. Resources for case processing were slashed across the board resulting in massive backlogs. Ministerial intervention clients just suffered along with the rest.

This massive turnaround produced the current system described by incoming Labor Minister as Minister Clare O’Neil as “broken”.

The article could have made a better contribution if it emphasised more opportunities for better policies, administrative culture and decision-making right now.

The Labor government has made significant progress since its election last year with the establishment of the Parkinson immigration review, the appointment of an Associate Secretary to focus exclusively on immigration functions, infusion of resources to clear backlogs, a resolution of status initiative to provide permanent stay to temporary protection visa holders and many other advances. Perhaps more staff have even gone into processing Ministerial intervention requests.

These and other progressive initiatives should be backed to ensure that all clients, including those seeking Ministerial intervention, get swifter and fairer treatment. It is open to the Minister to issue new and more generous guidelines for Ministerial intervention at any time. The article could have also supported the desirability of moving the immigration administration out of the security environment into a new freestanding Department of Immigration, Citizenship and Multicultural Affairs with a program of cultural change. There will be no enduring change to culture and performance if this doesn’t happen.

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