Jack Waterford | The Home Affairs culture of getting things wrong

We were all shocked, and ministers and senior bureaucrats, themselves the source of most of the problems, declared that the culture had to change.

Evidence of the terrible culture had emerged in the cases of Cornelia Rau, an Australian citizen who had been wrongly held in immigration detention, and Vivian Alvarez, an Australian citizen of Filipina descent, who had been wrongly deported back to the Philippines under the false and negligently held belief that she was not an Australian citizen.

The cultural problems, of long standing, seemed to represent a deeply held hostility within the department to migrants and visa seekers, and their human rights.

Officers seemed to believe that this was official policy. In the two particular cases, for example, many of the line officers had appeared to believed that they would get into trouble, and be accused of acting against departmental policy, if they manifested any concern for or did anything to deal with the obvious physical and mental distress of the two women, dehumanised (as people like them still are) by being labelled "unlawful non-citizens".

They would be criticised, they said, for failing to focus on departmental key performance indicators. They were worried, they said, that superiors would see any effort to help the victims of this unfeeling system as abetting efforts to bypass the system.

Former Victorian Police Commissioner, Neil Comrie, thought it "difficult to form any conclusion other than that the culture of DIMIA was so motivated by imperatives associated with the removal of unlawful non-citizens that officers failed to consider the basic human rights obligations that characterise a democratic society. For some DIMIA officers, removing suspected unlawful non-citizens had become a dehumanised mechanical process."

The response of the system - senior and junior - to the discovery that they had got matters, even the basic facts, awfully wrong was attempted cover-up, rather than any attempt to undo the injustice and suffering in what had occurred. The collective of people responsible - the record could not show one person responsible - simply hoped that no-one would find out that they had dumped a mentally ill and distressed Australian without resources on to the streets of Manila without any ongoing efforts for her welfare.

(They were assuming, of course, that the only thing that could be shown to be wrong was that she was an Australian citizen. Dumping a mentally ill non-citizen without an Australian visa without any money was (and, apparently, still is perfectly OK.) Some of the department's indifference to human and procedural rights, or to getting the basic facts right was concealed by poor organisation, poor systems, a records system in which computers did not necessarily speak to each other, and ingrained habits of keeping minimal records, and often no records at all.

In one case, most of what had been done to the victim, apart from a record of her being taken into custody, was undocumented. There was simply no written record of any decisions made about her, including about the decision to deport her. Nor was it clear who made relevant decisions.

"The biggest deficiency found in the Alvarez file is the lack of adequate records," Comrie said.

"Vital information and crucial information were not recorded. There is evidence of irregularity in file dates. Original notes were 'lost in the system,' without copies having been made. Case details that were inaccurate and potentially misleading were forwarded to senior executive staff.

DIMIA staff told the inquiry that in some situations they deliberately left their actions unrecorded. They said they did this because of perceptions that they would be in breach of departmental policy if they tried to help suspected non-citizens with welfare-related matters."

Mick Palmer, a former AFP commissioner, whose report was on the Rau case, wrote of an "assumption culture - sometimes bordering on denial - that generally allows matters to go unquestioned when, on any examination, some of the assumptions are flawed."

In the particular case, officers had assumed that Section 189 of the Migration Act was a mandatory detention section and that, as such, there is no capacity and - perhaps more disturbingly - no need to review the validity of any "reasonable suspicion", or the basis of any detention.

Departmental officers were unimpressed about evidence of mental illness or depression. They knew detention caused depression: thus, it was simply "a normal part of detention life, which consequently normalises abnormal behaviour in the assessment of medical and mental health.

"They assumed too that any criticisms of the processes, or systems, or of the rules themselves were generally voiced by people who did not understand the complexity of the business or had their own agendas and thus did not need to be considered seriously.

The relevant minister, Amanda Vanstone, set the standard for this complacency and indifference, making a habit of calling any critics "advocates" as though that disqualified their right or capacity to have a view.

"Such perspectives reflect a culture of denial and self-justification that the inquiry found to be at the heart of the problem,'' Palmer said.

"Rigid, narrow thinking stymies initiative and limits the ability to deal successfully with new and complex situations. A wider, questioning and enabling culture is required."

Palmer commented that the negative attitudes and perspectives - the so-called culture - were not confined to the worker bees. They were pervasive in senior management. The department's middle management, which ought to have been leading and continually reviewing departmental policy were instead shackled by process-driven thinking and seemed unable or unwilling to question existing structures, processes and procedures.

Management, Palmer said, was sending out clear messages that process was paramount and should not be questioned. Achieving sensible and effective outcomes had become of secondary importance. Immigration had an entrenched process fixed on process and oblivious to outcomes.

In the 20 or so years since, there have been more secretaries, more ministers, a change of government which did not mean much, and, in more recent times, a marked reduction of many forms of permissible entry into or continuing residence in Australia.

The department, under Scott Morrison and with the help of General Angus Campbell and Operation Sovereign Borders, became officially mean and nasty, with would-be migrants saddled with heightened suspicions of being terrorists or people likely to abuse our hospitality.

Mike Pezzullo preached caution about migrants, and the desirability of being cruel to asylum seekers in overseas detention camps so as to discourage attempts to seek asylum.

Malcolm Turnbull, in an effort to keep his rival, Peter Dutton, at bay, made him more powerful, creating a super-department with police, security and migration functions. Dutton, a former policeman, enjoyed each of the powers given to him, and did not hesitate to harness them for political purposes.

This week the High Court handed down an important judgment which invited questions of whether anything has changed since Rau and Alvarez in how the immigration department does things.

One thing which certainly does not appear to have changed is carelessness with fact-finding, arrogance in the exercise of power (even on dodgy legislative bases) and resistance to any form of external examination and review.

The case was important because it affirmed that the minister for home affairs (who was in this case Peter Dutton) could not delegate a power given to him to review and, if he thought it in the public interest, to override decisions by the Administrative Appeals Tribunal denying non-citizens continuing residency rights.

The minister was never under any obligation to consider an application that he reverse such a decision, but what decision he made (whether to review it, and to grant an application) had to be done by him personally.

Dutton had, presumably, tired of reading the hundreds of applications he received each year.

His power did not allow him to over-rule the AAT when it rejected his, or the department's attempts to throw people out or deny a visa. He could only make a decision "more favourable" to the applicant than the AAT had made.

Dutton told his department that he wanted matters referred to him only if they involved "unique or exceptional circumstances." If they didn't the department should "finalise" the cases, without referring them to the minister.

With "repeat" applications, he only wanted to be considering cases where "the department was satisfied of a significant change in circumstances raising new substantive issues and then only if the department assessed these new issues to have unique or exceptional circumstances."

The High Court had no problem whatsoever with the department preparing briefs for the minister summarising the salient facts of applications coming before him.

These could, of course, contain recommendations, or observations about whether they raised any new matter or exceptional circumstances. The minister could even give general instructions about what types of applications were ones he would reject and those he could consider.

But it was for the minister to make the decision, not for some bureaucrat to decide that an application did not meet his threshold, thus not bothering even to bring the application to the minister's attention.

In the course of their decision, High Court judges made some new points about executive government, the prerogative and the general principle that government is a creature of law, able to do only what the law permitted, rather than (as the Solicitor-General was forced in effect to argue) able to do anything not expressly forbidden by the constitution or statute.

Implicitly, it rejected the Michaelia Cash and Scott Morrison notion that anything was allowed if it's not specifically against the law.

The wider significance of the decision, including possibly on the Voice, is for another day.

But what struck me was that in each of the two cases before the courts, departmental officials had, in writing short descriptions of what was involved, made two significant errors in outlining the facts of the case.

The officials had concluded brusquely that neither of the two applications had described any material change in circumstances, or fresh matter justifying a change of decision in the public interest.

In fact, in each case there had been an important change of circumstance. Had the minister ever sighted this conclusion, he would have been seriously misled.

Of course, the minister did not see it, because of the instructions he had issued. Although the application had been made to the minister, the department considered it, decided (wrongly) that it raised nothing new, and thus "finalised" it without bothering to let the minister know.

The case was also noteworthy for the fact that the High Court again decided to ignore the latest version of Home Affairs attempts to put virtually all of its Migration Act decisions beyond judicial appeal by what is known as a privative clause.

Peter Dutton, and successive departmental secretaries, have always bristled at the idea that they could be second-guessed by "unelected" judges.

READ MORE:

That's one of the reasons the Morrison government began stacking the AAT with cronies and party members.

The High Court does not like attempts to circumvent judicial review and will always read them down if it can. Put simply, it does not trust the unexamined opinions of a Peter Dutton, or of a Mike Pezzullo or one of his minions, about where the public interest lies. Or for that matter which way the wind is blowing on foreign espionage or war with China. I don't either.

The minister and the department have been given extraordinary powers, including significant power to hurt and oppress others. The mere fact that some are not citizens, or have been convicted of crimes, does not by itself deprive them of human rights, or a right to decent and fair treatment, whatever either may think.

If they must have such powers - despite their manifest want of judgment, detachment and decency, it should be subject to some external review. For good or ill, the legislature has authorised and permitted their determined cruelty to asylum seekers over many years, their beliefs about stripping citizenship from our nationals, deporting our home-grown criminals and establishing the need for a national surveillance system that would make a Chinese dictator blush.

Parliament - the people most Australians elected - is responsible for the framework of powers they exercise. But those given the powers are responsible for the way they are exercised. They are also responsible for being able to manage their own system efficiently, responsibly and accountably. It's their fault if they run systems - at enormous expense - that cannot even get the basic facts right. Or spend $700 million on computers that do not work and must be replaced.

Home Affairs, under the old regime, or the present one, has not suffered from a lack of budget dollars. Indeed, it has just been given fresh money and powers for cyber warfare, at a time when any examination of what the Auditor-General has said about how Home Affairs has handled its duties in the areas would suggest it would be the last place to go.

It's a department which has lost billions from departmental waste, mismanagement and incompetence, but without any form of accountability for ministers or bureaucrats.

The current minister, Clare O'Neil, ought not be a captive of the way that some of her bureaucrats, including her security bureaucrats, see the world. Nearly everything they say is contestable, and some fresh, better management, and some different experience would do the world of good. It might even help create that better culture to which we were invited to aspire.

My weekly diet of reading includes the reports of the US Congressional Research Service, and the British and Australian parliamentary libraries, the latter two, these days alas, somewhat diminished for want of resources. All three are written by independent and expert professionals. March 31 brought a 51-page report titled Navy: Virginia (SSN-774) Class Attack Submarine procurement: background and issues for Congress. I read every word for guidance on our new defence policies.

Alas, the word "Australia" does not appear once. AUKUS is mentioned twice, but not in relation to the March 14 announcement of the sale, sometime in the early 2030s of up to five Virginia Class subs.

It's obviously already a bit out of date. But the report underlines how the US will be flat out expanding its current rate of producing subs - its present configurations, up to 2052 see it making between 1.76 and 3.24 subs a year.

It presently has 38 and has a target of having between 66 and 72 by 2052. As things stand, with present production capacity, it hopes to have 46 by 2028, 50 by 2032 (when we hope to get out first) and between 60 and 69 in 30 years' time. The calculations make no allowance for Australia. Or Britain, which will supposedly be developing with Australia, submarines based on the Virginia class due to come into production by about then. Mostly at Australian expense.