Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

I’ll stop at nothing. I will play this game… Liberty Victoria’s ‘Playing God’ report is not great

To some extent, very little of this is going to be surprising.  I think Liberty Victoria are a bunch of goofs and it was always going to be unlikely that I’d think any of their reports were worth reading.  Liberty Victoria is the face of the Victorian Council for Civil Liberties.  Their role in the advocacy ecosystem is to promote the perspectives of civil libertarians, regardless of how vapid.  This means writing reports like Playing God: the Immigration Minister’s unrestrained power and giving the ‘Voltaire Award’ to Gillian Triggs.  They trade in controversy because attention is their only tool for pushing an agenda.

That’s not necessarily pejorative.  Liberty Victoria sits in the swamp of liberalism along with libertarian groups like the Centre for Independent Studies and the Institute of Public Affairs.  Getting attention encourages to think about concepts like ‘liberty’, ‘freedom’ and ‘human rights’ in left wing terms.  But it also means that they are systemically incapable of engaging in serious discussion about the issues they worry about.  They’re after bombastic, flash-in-the-pan interventions that cause a bit of stir.

And that’s what we get with Playing God: a report that will, no doubt, fire up the core supporters and maybe get them to donate a bit more money to the cause.  But it’s not an intellectually serious report, in the same way that giving the Voltaire Award to Triggs was an intellectually serious decision.

Playing God tries to provide some context to what it calls the ‘God Powers’ of the Minister for Immigration, introduces a series of intuitions to use as concepts of justice, and then tries to demonstrate how the God Powers are inconsistent with the intuitions of justice.  The reasoning is poor and tortured, and often require folk intuitions about the justice system in order to yield the conclusions sought.

Consider the following from the executive summary:

In Australia, we can appeal all manner of decisions in a range of different contexts. Football players can appeal suspensions. People can challenge parking fines. Decisions made by Centrelink are contested and reconsidered every day. People bring appeals against government decisions all the way to the High Court of Australia to make sure they are getting a fair go.

Yet for many refugees and people seeking asylum in Australia, for whom the fight is not about money but can be about life and death, there is no way of challenging decisions against them.

Given that the Minister for Immigration is the most sued person in Australia, this should strike us as an odd claim.  It fits a certain type of view about the world: a view of refugees and asylum seekers as being completely stripped of legal rights, used as a political play thing for cynical politicians to stir up a racist electorate.  But this doesn’t match the truth and it doesn’t match the context of the report which are these ‘God Powers’: the discretionary powers conferred by the Migration Act in order to soften the hard application of the administrative framework.

The report jumps straight to concerns about ministerial discretion quickly in the report without giving the context on how they are used or why they are in the Act.  A brief mention of the Senate report which noted the need for ministerial discretion to act as a ‘safety net’ does not give the full picture.  Playing God then gives a half-cooked tabloid media account of an incident of ministerial discretion being used in favour of an applicant to claim that there’s a problem of corruption with the power.

Reading the first section of the report gives a very wonky view of the statutory framework.  For the key powers under question, there’s an administrative process that has to be completed before consideration of the discretionary powers.  Charles Xavier arrived in Australia on a valid visa, then a civil war breaks out in his home country of Genosha.  He applies for a protection visa but he doesn’t really meet any of the Convention criteria, nor does he fall under the complementary protection criteria.  He applies for merits review, but fails that.  He then applies to the AAT for review, but that also fails.  He then takes his case to the Federal Court because he believes there has been an error of law, but this fails as well.  So he appeals to the High Court but leave isn’t granted.  So it looks like an undesirable outcome will yield from the statutory framework, so the Minister is asked to use their discretion to grant a protection visa.  Xavier has already been able to appeal the decisions of the statutory framework and exercise his legal rights; he is now looking for discretion in the exceptional case.

Playing God also suggests an ‘explosion’ of these powers.  Between 2003 and 2016, the number of ‘problematic’ powers went up by about five.  Here’s how Playing God describes this:

The Migration Act is now littered with discretionary powers, many of which are non-delegable, non-compellable and non-reviewable.

There’s something like 700 sections of the Migration Act (let alone the sections of other legislation discussed).  Apparently twenty of them with ministerial discretion amounts to ‘littering’.

It becomes even more puzzling when Playing God turns to the content of these ‘God Powers’ and then dedicates substantial time to analysing a power that is not one of ministerial discretion (s 72(4) of the Maritime Powers Act).  After a baffling description of the power and its consequence, Playing God concludes:

What is at stake? For a person who is fleeing persecution, it is safety; it can be the difference between life and death.

Okay…?  But as there’s been no analysis of the legal framework and what the issues are, it seems that this emotive and inflammatory statement is being offered as a substitute.  Lots of things require life and death decision making, but might not reasonably be subject to judicial review.  But, even if we did agree with this statement, what does it tell us about ministerial discretion given that it’s not an example of ministerial discretion?

The discussion of detention powers is bedevilled by frequent inaccuracies that arise from not understanding Australia’s regime of mandatory detention.  A person who is in Australia without a valid visa must be detained.  Framed a different way, immigration officers do not have any discretion about whether or not they will detain a person that they reasonably suspect to be an unlawful non-citizen.  That’s it.  Mandatory detention says nothing about the mode of detention (sent to an immigration detention facility, moved to a prison, placed into a residence, &c., &c., &c.), only that they must be detained.

Playing God thinks that mandatory detention means that it is compulsory for a person to be put in an immigration detention centre.  They then get confused about s 197AB:

The power to make residence determinations is a power to release an individual from immigration detention, an enormously important decision to that person’s life. The exercise of this power will mean the difference between a family having their own home to live in instead of a shared room in a camp, the ability of parents to walk their children to school in the morning rather than them being accompanied by guards. It affects the right of a person to simply go for a walk through their community whenever they wish to, and so many other important freedoms that have an immense impact on people’s wellbeing and lives.

None of this is true.  They’re not ‘released’ from detention because they are still in detention under a residence determination.  Worryingly for our confidence in the accuracy of the report, the fact they are still in detention is explicitly stated in the Act: s 197AC(4).  There are no camps in Australia, so the power under s 197AB won’t move a person from ‘a shared room in a camp’ to a family home.  And so on and so forth.

But the report is really concerned about the fact that this power is discretionary.  Because they have described the power inaccurately, it becomes difficult to understand how their complaint is supposed to work.

And so on and so forth.  Near every page has an error or inaccuracy of some kind, and most of the examples used are sensationalist tabloid nonsense.  There is no critical engagement with their claims because they are not really interested in convincing anybody who knows what they are talking about.  There are also significant omissions from the report, most egregious was the question of entrenched constitutional review under s 75(v) of the Constitution.  As a result, the conclusions and recommendation of the report are feel-good fluff.

I continue to wonder what it will take before we have a genuinely good, engaging, and meaningful discussion about asylum seeker policy in Australia.  Reports like Playing God make me worried that there are too many incentives for people to seek attention with inflammatory assertions rather than spend the time to tackle big, difficult questions about our legal framework.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: