Unreasonable suspicion

The automation of denationalisation ... Victims of official "suspicion" include Cornelia Rau and Dr Muhamed Haneef ... Transferring a phrase from the criminal law to the Migration Act ... Procrustes cites Cicero 

Cicero: Salus Populi, Suprema est Lex

Vox Populi, Suprema est Lex: thus spake the Tribune to the Representatives of the People assembled. 

Well, actually, he said that the safety of the people was the supreme law, and cited Cicero as his source: Salus Populi, Suprema est Lex, as he introduced yet more draconian legislation to give wider executive discretion in manhandling the populace (but that's OK because the part of the populace being manhandled won't be us, it'll be some of the unwashed).

That notorious leftie (these days the man wouldn't be allowed on Q&A) the late Tom Bingham, senior Law Lord of the House of Lords before it transmogrified into the UK Supreme Court, signalled his concern on this matter in his 2010 manual The Rule of Law. 

Bingham noted that the legal historian and jurisprude John Selden, who died in 1654 having lived through the English Civil War, wrote of the Ciceronian statement that: "There is not anything more abused than this sentence", and that Benjamin Franklin said that "he who would put security before liberty deserved neither". 

Seldon: parsed Cicero's statement

Ah, the primrose path to ever expanding executive power.

Recently I wrote of the ministerial discretion vested in base grade Immigration Department clerks to suspect that travel documents are sus, and so to be declared bogus, with the result that some poor schmuck (no doubt, not one of us) gets to spend a holiday (payable at $125 per day) in Baxter.  

Procrustes wondered how the incoming legislation on automatic citizenship removal would look in practice. Would El Chummy turn up at Perth Airport incoming from Syria, to be met by an immigration official telling him that his passport had just been taken away, as it had been (automatically?) cancelled weeks earlier, and he could now get back on the plane he came in on? 

This of course just begs the question of how the "automatic" decision is to be made. 

A recent survey of the un-nationalising power, as used by the UK, shows a very different pattern. 

The UK security services who serve up the information on which the stripping of citizenship is based, also pass on the information to their US counterparts, who then scoop up El Chummy from wherever, and take him back to the US to be dealt with as part of the War on Terror - perhaps a trial, perhaps not, but most certainly to a very deep hole in the ground, now unprotected by British citizenship.

Meanwhile, Procrustes shook the wool from his admittedly very aged memory, and looked up the story of Cornelia Rau, the German with permanent Australian citizenship status and a severe mental health issue, who in 2005 copped 10 months of special Australian government custodial care in a Queensland prison and then Baxter. 

No one tells that story better than Robert Manne in The Unknown Story of Cornelia Rau September 2005 Monthly Essay. On her imprisonment, he wrote: 

"In order for her to be incarcerated, in theory for the remainder of her life, all the law required was that a junior official with authority under the Migration Act form a reasonable suspicion that Cornelia had no right to be on Australian soil. Even though the officer might be ignorant of the law or generally untrained, there was no system or process for the decision to be overseen by a court or ever to be reviewed ... 

The most important political consequence of the Cornelia Rau affair was the report of the Palmer inquiry [retired AFP Commissioner Mick Palmer] itself. According to Palmer, the two main sections of the immigration department that had been responsible in recent years for depriving thousands of people of their liberty - detention and compliance - were staffed by basically untrained officers ignorant even of their own department's instructions and rules. The detention and compliance sections were dominated by what Palmer called an 'assumption culture'. If someone was locked up it was assumed their incarceration remained legal. If someone showed signs of deep depression it was assumed that was normal. If someone criticised policies or practices it was assumed they were driven by political agendas and ought to be ignored. 

Even though the department deprived people of their liberty it had no sense of urgency. Officers were not encouraged to use 'common sense'. Routinised procedures had in all circumstances to be obeyed. The department was, as a consequence, 'process rich and outcome poor'. 

No one took responsibility for individual cases. Everyone saw themselves as a 'bit player'. In the face of criticism, the instinct was to be 'self-protective and defensive'. The department was incapable of 'self-criticism'. Its culture was one of 'denial and self-justification'. Such problems were by no means found only in the lower ranks. The rot began at the top."

Then I remembered that hard on the heels of the Rau (and Solon) incidents, Dr Haneef was locked up for 25 days, all based on a ministerial "reasonable suspicion" (matched by AFP Commissioner Keelty's wild assertions about Haneef). 

Haneef: Howard era poster boy for terror

Read the Federal Court judgment Spender J at first instance and then the full court sending this lot off. 

This illustrates the danger of migrating a phrase from one part of the law to another. 

In crime, a copper nicks an alleged offender on reasonable suspicion, and within a strict time limit (24 hours, until the terror laws came along) the alleged miscreant had to be before a beak to see if the suspicion added up to at least a row of beans. 

However, when the phrase "reasonable suspicion" is moved to the Migration Act, it is shorn, as Robert Manne noted, of judicial supervision as part of its modus operandi. 

Its operation becomes exactly as Manne observed, marked by routine, an assumption that incarceration is the norm, and personal irresponsibility among departmental officers. 

My point: "reasonable suspicion" as a legal tool removed from its common law roots and necessary swift judicial supervision is the stuff of a culture that, God bless it, makes the trains run on time and, yes, the first one to introduce World War II into the argument loses, but this is the legal framework that allows for an Eichmann to run those trains punctually to Auschwitz. 

The time has come to remove "reasonable suspicion" from the toolbox of immigration department officials, and that includes ministers, whether detaining or removing citizenship.

The exercise of punitive powers by the executive based on flimsy states of mind screams the likelihood of political input in the decision making process, with a resultant witch-hunt mentality as community feeling is provoked against an individual.  

One of the reasons that we abolished the death penalty (and keep it abolished, pace Barnaby Joyce's dog-whistling on the topic), was that the ultimate decision on life or death was left to cabinet. 

Bolte:executioner

Who in your grizzled sage's age group can forget Premier Henry Bolte of Victoria saying of the last man to hang from the gallows in Australia, Ronald Ryan: "How many votes are there in not hanging Ronald Ryan?"