The Novak Djokovic court case ended with a whimper. The Commonwealth government, part way through its submissions, effectively conceded that it couldn’t win. That was not because it recognised it was on the wrong side of a cranky judge’s favour, but because its defence was utterly hopeless.
Simply put, the Australian Border Force had fucked up the procedural steps it needed to take to give valid effect to the ultimately correct decision the government wanted it to make: to cancel Djokovic’s visa. Those steps are set out in simple detail by the Migration Act; a moderately competent counter clerk at the motor registry could have followed them and got them right. If Border Force had managed that, Djokovic would have had no case at all.
The direction to intercept Djokovic when he landed, put him in a holding cell and fast-track his deportation was undoubtedly a political one; you’d be a fool to think otherwise. The procedural handling, however, was left to the officers whose job it is to know and follow the simple rules of due process that the law stipulates.
We should be asking how they managed to stuff it up so badly. Anyone who has had to deal with the Department of Home Affairs knows the answer. It is rooted in the organisational principles embedded in that empire since it was created by Malcolm Turnbull as a sop to Peter Dutton’s ambitions. It remains a bureaucratic expression of Dutton’s peculiar worldview.
We are a billion miles from what “immigration” was traditionally meant to be: the facilitation of an orderly welcoming of arrivals, permanent and temporary, to our precious shores. Under this government, beginning with Scott Morrison’s reign as immigration minister and accelerated under Dutton when immigration was folded into the quasi-militarised Home Affairs super-ministry, the welcome sign was removed and “border protection” became our national stance.
The hotel in which Djokovic was held, the Park Hotel in Melbourne, is an “alternative place of detention” (APOD), of which there are many around the country. They are like black sites — not proper immigration detention facilities but off-grid holes in which refugees and asylum seekers are hidden in the system. Last year my firm filed a case in the Federal Court on behalf of one of the Park Hotel’s former inmates, arguing that the APOD system is entirely illegal because it is not authorised by the Migration Act at all. If we’re right, then everyone who has ever been held in an APOD will have a claim for substantial damages for unlawful imprisonment. Yes, including Djokovic. That case will be heard this year.
Why do they use APODs instead of providing fit-for-purpose accommodation for immigration detainees? For the same reason that, back when we and many other lawyers were running medivac cases to force Home Affairs to bring sick detainees back from Nauru for proper medical care, the government routinely fought every case and made it as hard as possible to achieve the logical and humane outcomes that saved people’s lives. It’s why they argued with a straight face that it would be better to send someone to Taiwan for medical care than bring them here.
It’s why Reza Barati’s murder on Manus Island was covered up and ignored. It’s why Hamid Khazaei died an entirely preventable death after Home Affairs bureaucrats blocked doctors’ desperate pleas for his medical evacuation from Manus.
In November, we took on the case of an asylum seeker who has been in the limbo of our detention system since he tried to come to Australia as an unaccompanied minor in 2013; he is a stateless Rohingya. On his uncontested account he has been the victim of several violent and sexual assaults inside immigration detention centres in Australia.
We became involved following a stabbing which nearly killed him, because Border Force’s proposed solution to the ongoing risk to his safety was a plan to move him from the centre in Perth, where he was then held, to the Alice Springs prison. There he was going to be held in the maximum-security wing and subject to the usual rules applicable to serious criminal offenders. He is not accused of committing any crime.
We spent several days trying to get Border Force, Home Affairs or the Australian Government Solicitor to answer our urgent calls, to not do this awful punitive thing to our innocent client. No response. So we filed an urgent application in the Federal Court and, would you believe it, miraculously the AGS turned up for the hearing a few hours later with a barrister fully briefed and clear instructions from the minister that our client would not be moved to Alice Springs without giving us 48 hours’ notice. They could have told us that any time earlier, to save the need for court proceedings and wastage of the court’s resources, but no. It had to be made as hard as possible.
The cruelty, as is so often said, is the point.
If you read the transcript of how the ABF officers dealt with Djokovic, polite as they were in deference to his VIP status, the cruelty is still obvious. Absent is humanity, no surprise, but also absent is basic competence.
It is embarrassing to say, but the agency charged with protecting Australia’s borders is not competent to do the job. It is a Potemkin battleship, sparkling uniforms and all. Its focus is on prevention, and it has been taught that deterrence requires cruelty. It has become mindless in that pursuit.
Consequently, when for once the spotlight was turned on — solely because the victim in this instance was a celebrity — and Border Force needed to follow a procedure no more challenging than the recipe for boiling an egg, it wasn’t up to it.
The person for all of this is Mike Pezzullo AO. He has been the dept secretary since 2014 and is the rod of iron in Dutton’s spine.
He sits in his office and takes potshots at who ever he dislikes. The politicians are too scared of him including Morrison. His level of competence is a direct measure of the department in general. I would hope if there is a different government in a few months that they direct a royal commission into his running of the department.
Spot-on Bloggs. Even in the realm of financial mismanagement, corrupt tendering and waste Pezzullo’s and Dutton’s pet ministry leads the field, but in the intermixture of ineptitude and brutality it’s in a world of its own.
Not really, I’d suggest they took lessons from the US that charges people through laws that didn’t exist when the person was there at a previous time so should not have been applied – like being fined for running a red light months before there were traffic lights at the crossing.
Part of the ‘hostile environment’ promoted in both Australia and UK, but imported from the US white nationalist immigration restriction movement, advised the Trump White House.
Oh Yes, add gross financial mismanagement to the cruelty. I want Home Affairs disbanded.
As Adam Serwer has pointed out in his articles and book: “The cruelty is the point.”
https://www.theatlantic.com/ideas/archive/2018/10/the-cruelty-is-the-point/572104/
Pezullo appears to be a weird case, highly qualified but ego driven with a head full of weird ideas…he will need to be sacked immediately, but probably will need a psychiatrist before fronting a royal commission.
He came sideways, from Defence ‘ti said, into Customs in the late 90s and rose without trace to be the CEO by the early Naughties.
Noted for his lack of any concept of the esprit de which once prevailed, having never opened a bag nor patrolled a wharf.
He moved sideways into Customs in the early 2000s, from ATO/Defence originally.
Within 2-3yrs he had risen without trace to be anointed CEO so someone saw a useful tool for future purposes.
He was not popular having no experience of, and less interest in, the esprit de of Customs, having never opened a bag, unpacked a container or patrolled a wharf.
It’s par for the course if you joun the Lib/Nats; your ego must be several sizes bigger than your hat.
His letter to his staff told you what he was a sentimental brutalist on a mission nobody else understands or appreciates. His is a dangerous psychology, as revealed in that letter.
Morrison had to pull this thug into line when he tried to bully Senator Rex Patrick.
Bully a old submariner?
Not likely, esp Sen. Patrick who chewed him up and spat him out.
I forget the year and can’t find the link but I recall when Pezzullo took over at Immigration he told staff that their role had changed from nation-building to gatekeeping. This coincided with the Department dropping “Multicultural Affairs” from its name. No longer interested in welcoming and helping migrants integrate into a welcoming community, the focus was now on keeping people out of Australia.
All about votes and the scramble to a new level of cruelty in the liberal’s descent into the gutter.
And always staggering to me how much the hoi polloi think this cruelty is macho and thoroughly warranted!!!!! The LNP have done a great sell job on it since the ‘Stop the Boats” mantra . . . .
Where could they have descended from? Do gutters have their own gutters?
To paraphrase Swift – “Great fleas have little fleas upon their backs to bite ’em, And little fleas have lesser fleas, and so ad infinitum” – perhaps it’s the same with whatever gutter or sewer tories use to breed?
Pondscum.
Gutters lead to sewers.
Somewhere there, Roman Quaedvlieg was replaced as BF Commissioner, under mysterious circumstances, and I think is still seeking procedural justice. Was he too capable to be tolerated in Dutton’s little fiefdom?
I disagree. If his aim is to keep people out of Australia then he and the Dept by inference has dramatically failed in that objective. People are flooding into the country and the cruelty is reserved for asylum seekers which is still deplorable by the way. There is no need for multicultural affairs to be included in any portfolio really in that Australia is home to all the nationalities, people and languages of the world. Favouritism and inconsistency is the norm across all levels of Home Affairs. Obviously at the top with Dutton and his mate’s au pairs (when ABF were doing their job and querying and refusing a visitor visa’s entry to work in violation of their visa conditions, which was overridden by said Minister). It can’t display brutality widespread because only powerless people like asylum seekers can’t fight back and when they do they are fighting with one arm behind their back. Not so with other visa categories. It simply doesn’t have the resources and the problem really in most cases is the policy. The Djokovic case is an outlier. Many people lie on their ATDs or IPCs and visa applications. It sounds sexy from the trendy set that populate the Crikey pages to imagine Home Affairs as universally draconian and fascist and all its employees with horns on their heads and the numbers “666” tatooed there but it is a typical bureaucratic creation inspired by USA and moreso the UK for more economy than efficiency.
It was 2014, and he’s let a lot of people in all right.
And the threatened visa checking sweep in 2015 of the AFP black shirts through the Melbourne CBD (where else for meda nativist agitprop directed at QLD/NSW?), and warning everyone (anyone looking foreign, i.e. not ‘white’?) that they could be asked to show evidence of their status; implying all Australians would need to carry ID, but our media said nothing? (Canberra Times in ‘Department of Immigration and Border Protection boss rejects claims of militarisation‘ 19 Oct. 2015).
Another metaphor for how white nativism has overtaken part of the PS, again promoting border control and hostile environment, the Maribyrnong Migrant Hostel in inner Melbourne which was seen as a welcoming centre for ‘New Australians’, eventually became ‘Maribyrnong Immigration Detention Centre’; another affirmation that in a nation of mostly immigrants, post 1970’s immigration has negative connotations in Australia……
Makes all Australians look like a bunch of losers…… or worse, we are as threatened by authority as any ‘immigrant’, unless they are tennis player….
Immigration has a long history of stuff-ups – eg Cornelia Rau and Vivian Solon.
Can I wish Marque Lawyers good luck with the APOD case in the Federal Court?
I am sure you will have a strong case, and Home Affairs richly deserve a thorough legal caning for their relentless treachery..
Albanese will have quite a task to untangle Turnbull’s mess and restore competence and decency to many departments (and sacking a conga-line of blood-sucking consultancy leeches).
“Welcome to Australia”. Passengers arriving at our international airports are confronted by Border Force goons (I estimate most are ex cops) who mostly have an intimidating demeanour. The assumption appears that all arrivals are criminals. The incoming Albanese government should immediately disband ABF.
yep
yep
And yet as suggested by Michael it’s a load of Ptomkinism, all for show, even with a TV show. Yet the system is quite incompetent, perhaps deliberately so, with thousands of illegal arrivals coming in by plane. But the culture on show is cruelty as a virtue combined with callousness. While it didn’t start with Morrison it fits his style, all about the show.
Yeah! And replace it with…..??? The old Customs and Border Protection?! Give you another nomenclature to whinge about. To be sure there are a lot of ordinary passengers out there and most of them are Australians. Remember the Bali crowd, tats, mullets, alcohol and steroid rage, braided hair. Don’t get me started on the Thailand and Philippines tourists. I maintain that if you are a traveller on an overseas flight into or out of Australia then you are by definition privileged. Many countries have average annual GDP or per capita income on par with the air fares. It is not the job of ABF Officers to occupy the role of shrinking violet or tour guide but it is the role of the ABF to provide an efficient and effective service but like every arm of a government they perform a role and are short of resources.
Once, an ABF passport officer told me ‘welcome home’, almost fell over with shock; they were generally serious and not very warm wannabe authoritarian facade, bit like our media. Again, this is very much an Anglosphere nativist border obsession that UK and US also apply i.e. authoritarian, hostile environment etc. vs. most EU and other nations which are far more relaxed…..
The ABF and its predecessors have a long history of incompetence. Much of it is structural and a result of competing priorities and attracting and promoting the wrong people.
Back before the early 1980s, the then Customs agency had two divisions of staff right up to SES levels – those involved in border enforcement and those involved in revenue collection. The enforcement people were uniformed, ranked, often ex-military, only required year 10 education, and were generally street-smart in dealing with people on the wharves, bag searches at airports and cargo searches. The revenue people were public service, matriculated, plain-clothed and good with paperwork.
In the mid-1980s, these two divisions were merged and a policy of “rotation” was introduced, under which all staff had to rotate out of their existing jobs every 2-3 years. So the best drug-detecter at the airport could find him- or herself next week stamping documents at the excise counter, and vice-versa. The result was a general dumbing-down of the organisation as people were forcibly moved out of their areas of experience and competence. That policy effectively still exists today.
The organisation also faced a fundamental conflict between the goals of “enforcement” and “facilitation” (of trade and people across the border). The industry-focussed facilitators won the day in the late 1980s / early 1990s after the Midford Paramount debacle and the resulting Kelly inquiry (headed by the CEO of Westpac – the enforcement goal never stood a chance). This led to a lot of enforcement activities being curtailed (e.g. time limits were placed on how long cargo and passengers could be delayed to conduct searches; random searches were outlawed, so there was no way to check how much illicit activity was being missed; and targeted searches of cargo and passengers only were permitted where there was intelligence or very suspicious indicators). As a result, most of the good enforcement people left the organisation in frustration, and there was no one competent to train the new starters.
Then, with the merger with Immigration, a whole new level of incompetence was added. Most Immigration staff were at higher APS levels than the Customs people. So when the agencies merged and the Immigration people were rotated into enforcement positions, they became the middle managers supervising the enforcement activities with absolutely no idea what they were doing.
And on top of that, since the 1990s influx of refugee boats, the whole agency has been highly politicised, and those who can play the political game have succeeded over those who are actually good at their jobs.
It’s all a real, and irremediable, CF.
A minor quibble or two but otherwise spot on.
Almost as if you were once proud to carry the light blue uniform.
The change in aim & ethos to 99% Facilitation, 1% Interdiction ‘policy’ was the death knell.
Crucifixion? First door on the left, one cross per person.
“….NISUS: Good. Out of the door. Line on the left. One cross each. Next. Crucifixion?
MR. CHEEKY: Ah, no. Freedom.
JAILER: Hmm?
NISUS: What?
MR. CHEEKY: Eh, freedom for me. They said I hadn’t done anything, so I could go free and live on an island somewhere.
NISUS: Oh. Oh, well, that’s jolly good. Well, off you go, then.
MR. CHEEKY: Naa, I’m only pulling your leg. It’s crucifixion, really.
NISUS: Oh, ho ho.
MR. CHEEKY: Heh heh heh hehh.
NISUS: I see. Uh, very good. Very good. Well, out of the door. One–
MR. CHEEKY: Yeah. I know the way. Out of the door.”
….. Somethings are worse than Border Farce island detention?
[Apologies to M. Python.]
And that’s “…. Anything’s better than Borders Farce …..” of course.
Will never forget or forgive what this national government did to Hamid Khazaei. Pure ‘Black-shirt’ behaviour, vindictive, evil and unaccountable. The outcome comparable to worst examples of human behaviour. Maybe one day, those responsible will, be held to account . . .