STUART REES Saudi Teenager and Australian Due Process

Jan 21, 2019


The human rights of Saudi Arabian teenager Rahaf Aqunun received fast recognition by Canadian Prime Minister Trudeau and subsequent welcome refuge in Canada. By contrast, Australian Ministers insisted that in assessing claims for asylum in Australia, the government would follow its usual adherence to due process.

Somewhat paradoxically, the invisibility of such process was in full view in the publicity surrounding Ms Aqunun’s appeals for asylum, and for her human rights to be taken seriously. Foreign Minister Marise Payne gave a press conference in Bangkok. She reflected her government’s attitude to the human rights of asylum seekers: a waffling yes/no, perhaps/may be, human rights probably/due process certainly. No surprise that a Canadian Prime Minister with a genuine conviction about human rights intervened.

Tens of thousands of people living in limbo in Australia have heard the due process arguments. They see them as at best as evidence of administrative incompetence, at worst as carefully crafted cruelty. Ministers’ reverence for due process has been used to camouflage policy ignorance, indifference, administrative bumbling and authoritarianism.

Individuals and families who have appealed to have their visa status assessed or who are applying for Australian residency may wait for years for due process to take its course. They live in the dark. Like anyone waiting for the verdict of unknown judges, they fear to complain in case they are pushed to the rear of a long queue and thereby lessen their chances of being heard. To compound the misery, such applicants will be paying substantial fees to mostly unaccountable immigration agents. Official response: ‘due process.’

Of bureaucratic due process arrangements, sociologist Max Weber wrote that these could represent an iron cage of government. The people caught in the cage would not know where to find the key to open the door. Czech novelist Franz Kafka told us that decisions by powerful but invisible officials guaranteed nightmares from which there was no escape. The suppressant drug: ‘due process.’

Claims about democracy stand or fall on evidence of transparency, accountability and commitment to universal human rights, but these principles are easily replaced by the notion that the best way to ration scarce resources and to avoid difficult decisions is to maintain the public in a state of ignorance. Ms Aqunun may have flown into a Bangkok bedroom, but along with tens of thousands of far less fortunate individuals, she also
flew into a high pressure ridge of Australian government claims about due process.

When speaking of the responsibilities of administrators from Home Affairs, but not at this point the staff from the woefully under resourced Administrative Appeals Tribunal (AAT), senior opposition politicians also say they are unsure what due process means. Both they and the public find it difficult if not impossible to know in which cities, in which buildings, in which offices a poorly supported staff operate. They cannot know of the qualifications held by invisible public servants who are poring over papers which represent the hopes for human rights of tens of thousands of powerless people.

In the case of the Saudi teenager, when government Ministers referred to processes involving step by step time, they appeared to be admitting that Australia cannot take human rights as seriously as Canada. How to explain this? Not simply administrative arthritis and overwhelming demand. Fear affects the Home Affairs public servants as well as the residency and visa applicants living a hand to mouth existence in Australian towns and cities.

Even when Home Affairs admits to making a wrong decision – as in rejecting an applicant without reviewing available evidence – they lack the discretionary entitlement, let alone the courage to review the decision. Administrative hierarchies threaten. Bullies at the top- a Minister or a Departmental Secretary – could affect the careers of junior employees. From case managers to their supervisors, from area officers to directors and assistant directors, bureaucratic inertia prevails. Even when asked to review an obvious mistake, the response sounds like a Soviet style refrain: ‘we cannot review a decision once it has been made.’

The Royal Commission’s revelations concerning the operations of banks and financial institutions have shown the arrogance and unaccountability of officials previously considered respectable if not beyond reproach. Banks’ advertising about their reliability and trustworthiness has proved to be false.

The Prime Minister, plus Ministers Dutton, Coleman and Payne do not directly advertise the merits of Home Affairs but their emphasis on due process is a lazy way to cover for an under resourced department and to disguise their reluctance to be open let alone enthusiastic about human rights.

Rahaf Aqunun’s courage and Justin Trudeau’s confidence about his country’s respect for human rights have exposed Australia’s deceit in parroting about due process, too often code for doing little or nothing.

The Banking Royal Commission has been a wake up call for politicians and the general public to know more about the conduct of powerful institutions, and to insist on far reaching reforms.

Australia also needs a Royal Commission into the conduct of Home Affairs, including the so called independent AAT. Due process mysteries need to be solved. Finding and building these solutions will be a priority task for a well informed, vigorous Minister for Home Affairs in a future Labor government.

Stuart Rees is Professor Emeritus ,University of Sydney

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