Michael Pezzullo's uncivil war with the public erodes immigration's impartiality

One recent symptom is an unusual statement by the department's secretary, Michael Pezzullo, in which he reacted strongly to public criticism of the government's detention of children, particularly those on Nauru and Manus Island. The issue came to a head over the case of a Bangladeshi detainee on Nauru who was flown to Brisbane for medical treatment and later gave birth to a child in the hospital. Hospital staff refused initially to release the mother and baby for fear they would be returned forcibly to Nauru. Although the High Court eventually ruled that detention on Nauru was not contrary to Australian law, the case stimulated wide public protest against the detention of children. Several state and territory premiers, backed by churches and refugee advocacy groups, offered support for settling refugee children and their families in Australia.

As usual on this issue, feelings ran high. The government was accused of being cruel and heartless. Comparisons were made with Hitler and the Nazi concentration camps. In the end, Pezzullo could take no more. In early March, he issued a personal media statement, a message titled "Immigration detention and children: separating fact from fiction". Its purpose was to "set the record straight" to safeguard the reputation of the department and its officers. Contrary to critics' claims, Pezzullo argued, the department and the Border Force did not operate beyond the law as an immoral "rogue agency". Government policy of detaining and transferring boat arrivals was within the law, as confirmed by the High Court. The government had a policy of eventually removing all children from detention. At the time of writing, the number of children in detention was down to 58, from a peak of almost 2000 back in 2013. The statement then listed many of the various programs of support – material, physical and psychological – that the government provided for those detained offshore.

Pezzullo took particular offence at the comparisons with Nazi Germany, which he said were "outrageous slurs" based on bad history. Unfortunately, the careless placing of the term "allegedly", in the sentence "detention involves a 'public numbing and difference' similar to that allegedly experienced in Nazi Germany", started a few mischievous hares running and required a further clarification from his media staff. Pezzullo had certainly not meant that Nazi atrocities were no more than allegations!

One can understand Pezzullo's frustrations with some of the more exaggerated criticism made of his department and officers. But his statement was an extraordinary intervention into contentious policy debate coming from a department secretary. Conventions of ministerial responsibility require ministers to take public responsibility for government policy. As a corollary, public servants generally avoid public comment on policy issues, particularly issues of political controversy and partisan debate. Secretaries are expected to confine their public comments to administrative or factual matters that are politically uncontroversial.

Pezzullo was clearly trying to respect this convention by saying he was merely "setting the record straight" by listing relevant facts. But this claim itself is either naive or deceitful. Much of his statement is highly tendentious, designed to defend government policy and its implementation, not just describe them.

For example, Pezzullo says the treatment of detainees and transferees is carried out according to "the law of the land". In the light of the High Court's recent judgment, one could reasonably ask "which law?" of "which land?". The court accepted the government's argument that some aspects of how offshore asylum seekers are treated are matters for the local governments and their legal systems, not Australia's. In the current context, to refer to the "law of land" without qualification appears wilfully misleading.

Another example. According to Pezzullo, the critics' argument that offshore detention represents "indifference and calculated cruelty" fails "even the most basic fact check". Why? Because the number of children in detention would not be falling if that were so. That is, the falling numbers in detention prove that the policy is not cruel. But whether offshore detention and resettlement are "cruel" or "indifferent" is a matter of interpretation and judgment, not fact.

Pezzullo says the department shares the same goal as its critics: to have no children in detention. But this overlooks the key point, as Pezzullo and his colleagues openly conceded during February's Senate estimates heatings, that detention of children is based on the need to prevent parents from gaining entry. Once sick or damaged children with their families are allowed to stay, desperate parents will start gaming the system through their children. Certainly, the long-term goal is to have no detained children, but not at the risk of providing a loophole for asylum seekers.

Pezzullo has certainly given an eloquent and persuasive defence of government policy. Many government critics can be rightly accused of exaggeration and partiality. For instance, the refugee lobby has always been reluctant to admit that asylum seekers are likely to game any migration system to their own advantage.

But, surely, this was a speech to draft for the minister, not one for Pezzullo himself. In such situations, there is always a simple test: does making the public statement undermine the public servant's capacity to be seen as a loyal servant of an alternative minister, and with an alternative policy? If not, the statement is incompatible with the values of a career public service.

Pezzullo's statement appears to fail this test. Certainly, asylum-seeker policy is becoming "bi-partisan" in the sense that both sides of politics support it. But with continuing restiveness in sections of the Labor Party and vigorous opposition from the Greens, the policy is hardly a matter of consensus. A new government could well call for significant adjustments, if not major change. In such circumstances, a prudent secretary would normally hold his or her tongue. Admittedly, under the current Coalition government, some senior secretaries have more willingly entered into public debate. Pezzullo could point to Martin Parkinson and John Fraser as exemplars. But he is still an outlier.

This incident illustrates the broader need to integrate the new Immigration Department and Border Force within the general framework of the APS. The new structure was erected at great speed and within the over-hyped climate of crisis and secrecy generated by Tony Abbott and Scott Morrison, as prime minister and immigration minister respectively. Many issues remain to be sorted out, not least the Border Force's role in relation to other departmental officials and the accountability and transparency of offshore detention. Judging from Senate estimates, the relationship of the secretary to the border force commissioner is very fluid. Within the immigration portfolio, there appears to be no clear demarcation between departmental officials and uniformed officers, such as occurs, say, with police or the Defence Force. Indeed, to what extent does the Border Force really need to ape the powers and trappings of the military and police? Does it really need to be called a "force"?

These are questions for a future government and minister. But we should expect administrative fine-tuning rather than radical restructuring or a return to previous arrangements. The current policy regime, of preventing boat arrivals and carefully vetting all refugees, seems set to continue. Malcolm Turnbull may have softened the language but not the practice. Labor would probably do the same.

The Syrian refugee crisis and the flood of asylum seekers into Europe have strengthened the case for responsible governments to keep some control over the numbers of new arrivals they accept. The premise behind the United Nations Refugee Convention – that governments (in practice, wealthy Western governments) can give asylum to all genuine refugees who arrive at their borders – is becoming unsustainable. Refugee advocates can no longer rely on the comfortable assumption that the number of potential asylum seekers is small and poses no genuine threat to national welfare and cohesion.

At the same time, a policy of strict controls can still be implemented in a civil and low-key manner, without undue militarising or pandering to racist prejudice. Normalising the immigration portfolio within the APS will be an important part of that civilising process.

Richard Mulgan is an emeritus professor at the ANU's Crawford School of Public Policy. richard.mulgan@anu.edu.au