Alternative Law Journal
The government’s approach to migration has harmed the national interest and devalued the national identity.
When seeking to understand the government’s approach to migration, it is instructive to consider the extent to which the building blocks of governmental power over migration law are based on themes of exclusion. Constitution s.51(xix), the ‘naturalisation and aliens’ power, provides for federal legislative competence over migration. As the High Court affirmed in Re Patterson; Ex parte Taylor  HCA 51, the aliens power is crucial to the Constitutional foundation of both the Migration Act 1958 (Cth) and the Australian Citizenship Act 1948 (Cth).
It seems curious that these two Acts, so influential over the content of Australian society, should be predicated on the regulation of aliens. The Acts create two opposed classes: naturalised, enfranchised Australians, and unnatural ‘alien’ others. Only by the exclusion of outsiders is the coherence of citizenship protected.
This emphasis on exclusion permeates the legislation. In many respects the default position of the Migration Act is to reject outsiders. For example, under s.91W of the Act, if a visa applicant is unable to produce documentation in support of their application, decision makers are encouraged to draw negative inferences from the lack of substantiation. An unproven story from a refugee is assumed to be false.
In Australia’s colonial past, the rationale behind this exclusion mentality was the discourse of racism and xenophobia. In the case of Chun Teeong Toy v Musgrove  VicLawRp 81; (1888) 14 VLR 349, Justice Williams of the Victorian Supreme Court lamented that Australia ‘was at present without legal means of preventing the scum or desperadoes of alien nationalities from landing on our territory, whenever it may suit them to come here’.
When formal racism became unsavoury to our allies, Australia delved into substantive racism. The first piece of legislation to greet our newly federated nation was the Immigration Restriction Act 1901 (Cth). This Act introduced the dictation test, which was selectively applied to exclude any undesirable who was not fluent in modern European languages — excluding Scottish Gaelic, as immigrant Egon Kisch established in R v Wilson ex parte Kisch  HCA 63; (1934) 52 CLR 234. It seems a strange entrance criterion for so monolingual a country as post-colonial Australia.
Substantive racism is now unsavoury also. Our identity, as the Joint Standing Committee on Migration declared in its 1994 report Australians All: Enhancing Australian Citizenship, is based on principles of equality and non-discrimination. The rationale for exclusion has therefore changed. Now our policy formers are concerned with the ‘national interest’, the deployment of migration legislation and executive powers in the pursuit of national objectives. The national interest is well served by economic productivity, so we promote skilled workers and established business people. It is not served by economic liability, so we discourage the unhealthy.
Claiming to pursue the national interest, the government jealously guards its control over migration matters. It fiercely resists the dissolution of its control among other domestic or international sources of moral or legal power. Thus the government defends its right to pursue control over migration to the detriment of international instruments, and its power to define its own international obligations. It fights other domestic influences, limiting the role of the courts (thus enhancing its legal influence) and closely regulating individual decision makers (enforcing its policy influence). It pursues the accretion of executive power with regard to aliens. It defends against the dissolution of the right to control migration even amongst the polity it represents, by preventing migrants from accessing democratic processes.
This article charts the incidents of governmental control to demonstrate the breadth of the government’s controlling vision. Its main focus is on the mechanisms through which the government exercises control in the domestic sphere. The extension of this control onto the international sphere is also discussed. Finally, the article suggests that by seeking to make its own control over migration the highest national interest, the government has damaged its own objectives and those of the Australian people.
In the domestic context, there are three fronts of governmental control over migration: control of the courts, control of decision makers, and, more subtly, control of the Australian ‘identity’. These shall be discussed in turn.
The vanguard of governmental control over migration has long been its restriction of judicial review. Judicial review is the mechanism through which courts comment, sometimes adversely, on the performance of executive functions. If executive decision makers are failing in the standards expected of them, applicants are entitled to seek judicial remedies. This right is guaranteed by s.75(v) of the Constitution, and cannot wholly be suppressed. The government has, however, done whatever it can to limit the scope of judicial review.
It is so common that a government should seek to minimise the interference of the judiciary in its executive duties, that this desire is almost axiomatic. Yet the judiciary need not necessarily act to hamper executive performance. Every form of review is designed, fundamentally, to enhance the standard of original decision making. The question of why the government should nonetheless seek so vehemently to restrict judicial review is therefore pertinent. There is no one answer to this question, but part of the antagonism between courts and the government arises from the ideological differences that have led each to different interpretations of the law.
For the government, migration law is essentially black and white. The Migration Act creates a regime under which everybody is categorised according to their migration status: people are either lawful (s.13) or unlawful (s.14). The consequences for falling on the wrong side of this bleak legislative line are severe. Unlawfulness means mandatory detention (s.189) and expulsion (s.198). Every unlawful person is constructed as a threat to lawfulness itself, and therefore harmful to the nation.
In contrast, the courts have taken a more subtle approach. They have been prepared to recognise exceptions to the lawful/unlawful dichotomy, shades of grey between the two classes. In Re Patterson; Ex parte Taylor, the High Court found that the applicant was neither a citizen nor an alien, but an ‘absorbed non-alien’, in a special class of permanently resident British subjects. Courts have also recognised more subtle conceptions of the national interest than the stark governmental position, holding that considerations of human rights and Australia’s international reputation should properly influence the mind of a decision maker.
The government sees this ‘judicial activism’ as upsetting the certainty it pursues through the Migration Act.. It has embarked on a campaign to minimise the powers of the judiciary by narrowing avenues of judicial review. In 2001 a privative clause was enacted in s.474, providing that all decisions under the Act are final and conclusive, cannot be reviewed in any court, and are not subject to prohibition, mandamus, injunction, declaration or certiorari in any court.
Although this clause apparently precludes any judicial review of executive decisions under the Act, it was drafted in the light of the High Court’s ruling in R v Hickman; Ex parte Fox and Clinton  HCA 53; (1945) 70 CLR 598. The High Court held that such clauses must be interpreted to mean that no decision made under the clause may be reviewed, providing that the decision ‘is a bona fide attempt to exercise [the decision-maker’s] power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body’. These limits flow from s.75(v) of the Constitution and the fact that privative clauses only protect decisions made ‘under the Act’.
As well as imposing this restriction on their jurisdiction, the government has consistently criticised the courts’ ‘judicial activism’. Although political protests against judicial activism are not a new phenomenon, the current government has been particularly strident in its campaign to dissuade the courts from intervening in executive decision making. The Minister for Immigration and Multicultural and Indigenous Affairs, Mr Ruddock, has bitterly criticised courts for ‘dealing themselves back into the review game’, and for applying ‘too generous’ interpretations of the Convention Relating to the Status of Refugees (1951) 189 UNTS 150.
These comments suggest that the government perceives the role of the courts as being to assist the government in its application of the Migration Act.. This conception sits uncomfortably with the constitutional separation of powers.
In order to reap the full benefits of the privative clause, the government must first ensure that it has appropriate control over the extra-judicial decision-making process. That is, decisions made by a delegate of the Minister or by the Migration Review Tribunal must reflect the goals defined by the government. Otherwise there is no point in preserving these decisions from meddlesome judges. This aspect of control is maintained through two mechanisms: first, the governmental objectives are rigorously codified; second, administrative tribunals are compelled to follow governmental policy.
The government’s objectives with regard to migration law — that is, the sort of immigrants they seek — are constructed from the Migration Regulations 1994 (Cth) and the accompanying policy volumes. These regulations are extremely extensive and codify visa criteria ‘to an unusually specific degree’, such that it is usually not necessary for decision makers even to refer to policy.
Where the regulations allow some discretion, the Procedures Advice Manuals and Migration Series Instructions provide guidance. The High Court in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)  AATA 179; (1979) 2 ALD 634 held that decision makers must apply governmental policy ‘unless the policy is unlawful or its application tends to produce an unjust decision … cogent reasons will have to be shown against its application’. The Minister may also issue general policy directions under s.499 of the Migration Act, which are binding on officers.
There is little room for discretion left between these strictures. The hands of decision makers at both original and review tribunal stage are effectively tied. Still, successive governments have criticised tribunals for disregarding or reinventing government policy.
The most subtle form of governmental control in the domestic sphere is its control over the Australian identity. The linkages between migration law and the intangible ‘identity’ of our nation are complex. The Citizenship Act and Migration Act work together to construct a membership scheme for society, determining who constitutes an Australian citizen, what qualities the nation seeks in aspiring members, and the consequences for failing the application test (detention, removal, and perhaps a proscription on re-application).
These Acts are, in theory, expressions of the democratic voice of the Australian people: the people are represented by the Parliament which enacts the membership scheme. The democratic chain between public opinion and the substantive fleshing-out of the Migration Act under the Migration Regulations 1994 (Cth) is more tenuous, involving the extra step of delegated legislative authority. The people elect the Parliament which gives power to the Minister to regulate the membership scheme, creating visa classes and criteria.
These delegations are not, of course, confined to migration law. However, migration law is unique in that the Australian identity it purports to reflect and preserve is itself defined by the application of the law. Migration law is a circular reinforcement of identity formation: the law defines the parameters of the identity, and the identity determines (through democratic processes) what the laws are.
While this circularity is an inescapable consequence of migration legislation, the current government has taken tangible steps to promote the circularity and thus preserve the control it wields under the current law. It has sought to minimise the impact of outside voices, the voices of non-citizens, on the democratic system.
Onshore voices are far more powerfully heard than the voices of people applying offshore. Onshore applicants and overstayers therefore represent a particular challenge to the government’s control. They have the potential to intrude on the reinforcement of our national identity by altering the political opinions of currently active participants in the democratic process, or by becoming active participants (therefore ‘inside voices’) themselves. These avenues of influence are restricted, however, in several ways.
First, the Constitution itself minimises the impact of non-Australian voices on our democratic system through s.44(i), which provides that persons owing allegiance to foreign powers are disqualified from membership of Parliament. Recent reforms to the Citizenship Act have taken a more permissive approach towards dual citizenship, removing a provision that automatically cancelled the Australian citizenship of persons acquiring citizenship of another country. To extend the same permissiveness to members of parliament would require a Constitutional referendum.
Second, non-citizens are denied rights implied under the Constitution which enable citizens to participate in the political process. Specifically, the freedom of political communication implied in Nationwide News Ltd v Wills  HCA 46; (1992) 177 CLR 1 is not extended to aliens. The High Court (Mason CJ dissenting) held in Cunliffe v Cth  HCA 44; (1994) 182 CLR 272 that non-citizens were not entitled to this freedom: aliens have ‘no constitutional right to participate in or to be consulted on matters of government’.
Only Chief Justice Mason gave credence to the argument that aliens seeking community membership, or to establish a claim against the government, should be entitled to freedom of political communication. The majority’s reasoning reflects a disingenuous view of the democratic process, ignoring the interrelationships between aliens, citizens and the Parliament, such that free communication between the three groups may enhance Parliament’s capacity to make decisions appropriate to its representative function.
The decision in Cunliffe impairs aliens’ participation in political processes. Of course, if a migrant could obtain Australian citizenship they would be fully enfranchised. The government has taken steps to limit those posing most challenge to their control, onshore refugee applicants, from becoming Australian citizens. This point is exemplified by the government’s treatment of the Kosovar refugees given safe haven in Australia during the 1999 NATO-Serbia conflict.
After publicly welcoming some 3924 refugees, the Parliament (with bipartisan support) quietly introduced the Migration Legislation Amendment (Temporary Safe Haven Visas) Act 1999 (Cth). This Act amended the Migration Act to preclude recipients of temporary safe haven visas (including the Kosovar refugees, and later refugees from East Timor) from applying for a visa other than another temporary safe haven visa. In order to obtain any other form of visa, the visa-holder must leave Australia and re-apply. Any onshore application for a visa other than another safe haven visa is invalid. This prohibition can only be waived by the Minister acting personally, if it is in the ‘public interest to do so’.
Of course, onshore applicants may still raise their voices in political protest, perhaps with effective results. But the government has taken steps to mute these voices: utilising its powers of executive detention to isolate applicants in remote locations, prohibiting press and public access, and dehumanising refugees with strategies of objectification and ‘identity-stripping’.
By restricting the political communication and participation of refugees, their power to affect the Australian polity is also restricted. This reinforcement of identity consolidates governmental control over migration law, for if refugees are unable to make their concerns heard, the governmental line goes unchallenged.
The government has sought to maintain control in the international context in two ways: by minimising its obligations under international conventions, and by deploying domestic legislation to control the behaviour of potential immigrants in foreign states.
The ‘fundamental legal principle, accepted in Australian law and in international law, [is] that, as a natural incidence of Australia’s national sovereignty’, the state is entitled to exclude all aliens from its territory. As well as conferring on states the right to exclude, this principle allows the executive to detain non-citizens for the purposes of expulsion, or to determine the merits of their migration application, as held in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1.
James Nafziger has argued that states should not regard the right to exclude aliens as ‘untrammelled’. The ‘international significance of migration and the interdependence of states’, in conjunction with concern for human rights and the right of freedom of movement, suggest that states must only exercise their powers of exclusion where necessary to defend the state from some threat.
To some extent this is already the case. State parties to the Refugees Convention are obliged not to return applicants to their home countries, if they fit the definition of a refugee in article 1A: a person ‘outside the country of his [sic] nationality’, ‘owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’, and unwilling or unable to return to their country of nationality.
This obligation is binding on Australia under international law. In this sense, the Australian government has surrendered some control over migration law in the international sphere. It has, however, vigorously fought to strictly contain the application of the convention in domestic courts, thereby minimising its loss of control.
As noted, the government has been harshly critical of courts applying ‘too generous’ interpretations of the convention terms. The origin of this perceived generosity is Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, in which the High Court applied a mixed subjective and objective test to determine if the applicant was a refugee. The Court held that the applicant’s genuine fear, founded on a ‘real chance’ of persecution for a convention reason (political opinion), brought him under the convention terms. This decision caused the Parliament much disquiet; the subjective element and the ‘real chance’ threshold were more favourable to applicants than the (then Labor) government desired.
The High Court has also demonstrated flexibility with regard to what constitutes a ‘convention reason’. For example, in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 55 the Court held that the claimant, born in contravention of China’s one-child policy, fell within an identifiable social group and would be persecuted if deported to China. The case of Minister for Immigration and Multicultural Affairs v Khawar  HCA 14 concerned a Pakistani woman denied effective police protection against domestic abuse from her husband. The Court held that systematic discrimination by Pakistan in failing to protect women against domestic abuse constituted persecution of a particular social group.
Yet Australia’s jurisprudence on the convention has been described as very much ‘middle-of-the-road in terms of [first world] jurisprudence’. In the case of Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331, the High Court held that the parent of a second child in contravention of the one-child policy did not fall within a recognised class of refugee. Although all five members of the bench accepted that the applicant faced an abuse of her human rights if returned to China (forced sterilisation), the majority considered that the applicant lacked any inherent characteristic which attracted the protection of the convention. In other cases, the courts have upheld the government’s power to deny migrants the protection of international instruments. This conservative approach is far from the rampant activism Mr Ruddock’s comments suggest.
Nevertheless, the government has sought to rein in the courts by statutorily confining the definitions of convention terms. After the Tampa affair, Parliament passed the Migration Legislation Amendment Act (No 6) 2001 (Cth). Under this amendment ‘persecution’ is statutorily confined to circumstances involving serious and systematic harm, excluding any harm which may arise owing to the applicant’s conduct in Australia. ‘Membership of a particular social group’ is confined to narrow the circumstances under which a family may be considered a persecuted group. Through confining the scope of the convention, the government minimises its exposure to convention obligations. Thus it maintains the broadest control possible short of withdrawing from the treaty.
The behaviour of potential migrants in foreign countries is a major determinant of the level of control capable of being exercised by the government. International affairs directly affect the number of migrants seeking entry into Australia. If an international disaster compels high numbers of migrants to flee their own countries, the government is correspondingly less able to control the number of migrants coming to Australia.
The government employs several mechanisms in its attempt to reclaim some of this lost control. The main mechanism is deterrence: refugees are deterred through a wide variety of means from choosing Australia as their sanctuary. The Department of Immigration and Multicultural and Indigenous Affairs has commented that ‘the universal visa system is the principal mechanism for deterring unauthorised arrivals to Australia’. Mandatory detention is obviously also a crucial element of the deterrent system.
However, people fleeing international disasters are not much susceptible to deterrence. Recognising that not all potential migrants may be deterred, the government employs two mechanisms of redistributing the impact of heightened migration back onto the international community. The first is through its strict maintenance of the immigration quota under s.39(2) of the Migration Act. Target numbers cannot be exceeded, and excess applications will be ‘taken not to have been made’. An increase in onshore applications means a decrease in acceptable offshore applications, the ‘queue-jumping’ concept. Thus the impact of international affairs leading to high numbers of onshore applications is redistributed onto those international communities which would ordinarily be able to make offshore applications.
The second mechanism is through the government’s rejection of protection visa applicants passing through ‘safe third countries’ on their way to Australia, under s.36 of the Migration Act. In general, applicants must go to any potential safe countries other than Australia. If they are able to safely remain in a third country en route, they are unable to procure Australian visas. This means that migrants are encouraged to impose themselves on any country in the world other than Australia. Australia is constructed as a refuge of absolute last resort, the very end of the migration chain. Again, this system minimises the government’s surrender of control in the international arena. Rather than accept a greater incursion on our borders, the government prefers to redirect migration onto all other nations.
The Migration Act stipulates that its objective is to regulate migration in the ‘national interest’. The government’s remarkable degree of control over migration processes is justified by reference to this concept. The government believes that the nation is best served by its own unilateral control, and thus strives to exclude the courts, the international community, and the migrants themselves from exerting any influence over the system.
The ‘Australian identity’, we are told, comprises ideas of tolerance, equality, diversity, the rule of law, and freedom of speech. By seeking exclusive control over migration, the government purports to promote this identity and defend Australian values. Paradoxically, however, these values cannot flourish in a unilateral environment. Australia is a pluralist culture; being Australian is a pluralist concept; and yet to promote Australia’s interests, the government employs unilateralism. The rule of law is undermined by restrictions on judicial review. Equality is lost when non-citizens are denied rights given to citizens. Freedom of speech is lost when migrants are isolated and silenced. Tolerance is threatened by political strategies to dehumanise refugees.
The consequence of this ‘culture of control’ is not only that the government may have given up the chance to do justice to individual applicants. It has also harmed the national interest and devalued the national identity. The national interest is a complex concept which cannot be served by adherence to one objective. Contrary to its apparent belief, the government is not capable of pursuing the national interest in relation to migration on its own. In order to reinstate those qualities prized highly within the Australian identity, the government must surrender its stranglehold over migration law, and restore balance to the migration system.
[*] Jonathan Faulkner is a law graduate working at the University of Melbourne.email: jon firstname.lastname@example.org© 2002 Jonathan Faulkner
 Dauvergne, Catherine, Border Law: Migration and Identity in Immigrant Nations, PhD thesis presented at the Annual Meeting of the American Law and Society Association, Chicago, May 1993, p.83.
 For example, Migration Regulations 1994 (Cth) sch 1, regs 1104, 1104A.
 For example, Migration Regulations 1994 (Cth) sch 4, regs 4005, 4006A, 4007.
 O’Neil, Pamela, ‘Can Review Bodies Lead to Better Decision- Making?’, (1991) 66 Canberra Bulletin of Public Administration 123 at 124.
 See Fuduche v Minister for Immigration, Local Government and Ethnic Affairs  FCA 503; (1993) 117 ALR 418 at 426; Chaudhary v Minister for Immigration and Ethnic Affairs  FCA 994; (1994) 121 ALR 315 at 318.
 See Farrant, Darrin, ‘Judges hit back at Ruddock’, Age, 4 June 2002, p.1; Saunders, Megan, ‘Court system too generous to boatpeople, says Ruddock’, Australian, 26 April 2001, p.5; Saunders, Megan, ‘Refugee status under fire: Ruddock to rein in “too generous” judges’, Australian, 7 May 2001.
 Fleming, Gabriel, ‘Review of Migration Decision-Making: Rival Goals and Values’ (1999) 10 PLR 131 at 143.
 Dauvergne, above, ref 1, p.81.
 Cronin, Kathryn, ‘A Culture of Control: An Overview of Immigration Policy-making’ in James Jupp and Marie Kabala (eds), The Politics of Australian Immigration, Australian Government Publishing Service, Canberra, 1993, p.93.
 See Head, Michael, ‘The High Court and the Removal of Kosovar Refugees’ MacarthurLawRw 8; , (2000) 4 Macarthur LR 197.
 For example, Gray, Darren, and Crabb, Annabel, ‘Ruddock unveils law to strip-search detainees’, Age, 6 April 2001, pp.1-2.
 Joint Parliamentary Committee 1994, Asylum Border Control and Detention, Australian Government Publishing Service, p.11.
 Nafziger, James, ‘The General Admission of Aliens Under International Law,’ (1983) 77 AmJIL 804, pp. 817-8, 846.
 Crock, Mary, ‘A Legal Perspective on the Evolution of Mandatory Detention’ in Mary Crock (ed.), Protection or Punishment: The Detention of Asylum Seekers in Australia, Federation Press, Sydney, 1993, p. 32.
 For example, Morato v Minister for Immigration, Local Government and Ethnic Affairs  FCA 74; (1992) 106 ALR 367; Fang v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 583.
 Joint Parliamentary Committee, p.13.
 Joint Standing Committee on Migration 1994, Australians All: Enhancing Australian Citizenship, Australian Government Publishing Service, Canberra, p. xxv; Australian Law Reform Commission 1992, Multiculturalism and the Law, Report No 57, p.15.
 Cronin, above, ref 9, p.104.