Truth, Justice, and the UnAustralian Way: The Role of Immigration Lawyers

Truth, Justice and the UnAustralian Way: A Session on the Role of Immigration Lawyers in a Politically Charged System

Law Council of Australia Immigration Law Conference 2018

Truth, Justice and the UnAustralian Way:

A Session on the Role of Immigration Lawyers in a Politically Charged System

 

Chair: Ariel Brott, Partner, Global Mobility Immigration Lawyers

Speaker 1: Michael Koziol, Journalist, The Age and Sydney Morning Herald

Speaker 2: Emily Rutherford, Deputy Chairperson, Refugee Advocacy Services of South Australia

Speaker 3: Professor Alex Reilly, Director, Public Law and Policy Research Unit, University of Adelaide

Audio:

 

Ariel: Good afternoon. My name is Ariel Brott. I’m an accredited specialist immigration lawyer, Melbourne based. And today, I’m going to be speaking about a topic that’s fond to us all: immigration lawyers. But we’re not just going to talk about immigration lawyers. We’re also going to talk about immigration ministers and the sometimes fraught relationship that occurs between both parties.

Earlier this morning, Justice Charlesworth alluded to an interview where the Minister for Immigration endorsed the view that immigration lawyers who are acting for asylum seekers on a pro bono basis, are un-Australian. That didn’t happen in isolation. That was preceded by the demonisation of certain categories of visa applicants: queue-jumping asylum seekers, job-stealing 457 applicants and so on. And it was also followed more recently by attacks on the judiciary.

This phenomenon hasn’t been restricted to the present minister, the present government, or even to Australia itself. Fairly recently, US Attorney General Jeff Sessions made the following comment:

“We also have dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to make false claims of asylum, providing them some magic words needed to trigger the credible fear process.”

So what to make of all of this?

Do we have a rule of law issue?

Do we have a rule of media issue?

And what does this mean for us, as immigration lawyers?

To answer those questions, we’ve convened a panel of some of this country’s dirtiest, most un-Australian commentators. First up, among them, we have Michael Koziol from Sydney. Michael is the legal affairs reporter for the Sydney Morning Herald and The Age. He has covered immigration stories since 2016, including reporting on Manus Islands and Nauru. Michael has kindly agreed to share some of his insights from the press gallery on the Minister’s use of the media. So please welcome Michael Koziol.

Michael: Thanks, Ariel. It’s always, I guess, a bit dangerous for a journalist to talk to experts on something because obviously as a journalist you tend to know a little bit about everything and not a whole lot about any one particular thing. But I suppose what I’ve been asked to speak about is the Minister’s use of the media, specifically Peter Dutton’s use of the media while he’s the immigration minister now, as the minister responsible for the home affairs portfolio.

My focus, just for a bit of background, has been a lot obviously on Manus Island and Nauru over the last 12 months or so, seeing [UNCLEAR 04:00] of sorts finally get moving there. But also, obviously, there have been some very significant onshore domestic issues in the immigration space, that citizenship debate last year that proposed changes that ultimately didn’t go anywhere. [UNCLEAR 04:20] alluded about that later on, because obviously [UNCLEAR 04:24]. Our relationship with the Minister and his office at Fairfax which publishes the Sydney Morning Herald and The Age, let me be diplomatic… I will probably describe it as touch and go at best.

I think [UNCLEAR 04:47] in the immigration round there was no real relationship to speak of. And people have this kind of cynical view of journalists who work in Canberra as kind of co-dependent with ministers and with the government, or at least some people have that view. And I suppose to an extent that’s true, in that you need to be close enough to your minister that you can actually have a conversation with him and check information and even get their point of view on something which is important, but not close enough obviously that you’re just running what we call drops in the journalism gang which are stories that the minister wants to get out there, information [UNCLEAR 05:33] talk to anyone else about it.

I guess there are two main… so, our relationship is touch at go but not as bad as it could have been, and I suppose the way it’s done, we always try to be fair even when we were being somewhat critical or at least sceptical [UNCLEAR 05:53] what the minister was up to. I would say that he has two major ways of interacting with the media. One would be through drops to the News Corp tabloids. Mostly the Daily Telegraph, but I suppose they are  sort of one and the same. And secondly by using talk back radio, which has been a favoured method of various coalition politicians over the years. John Howard very famously used talk back radio.

Tony Abbott also uses talk back radio in his, he is twice a week on 2GB. Peter Dutton appears on Ray Hadley’s programme every Thursday morning about 9.15am. And for those of you who don’t sort of know, 2GB is kind of the big talk back radio station in Sydney. Ray Hadley, along with Alan Jones has held a stranglehold on that market since about 2003. He reckons that once you take syndication into account, he has between 500,000 and 700,000 listeners on any one morning, which I think would be extraordinary if that were true.

He certainly has a very commanding audience share. Exactly how many people are listening to the Ray Hadley programme at any one time is I think disputable. Anyway, I’ll come back to that in one second. The stories that you read in the Daily Telegraph that appear by Peter Dutton are usually put in, I mean… I can understand that journalists would be opposing newspaper or he’d be able to tell his competitor why he chooses to do that in that way. There tend to be stories about cancelling visas, deporting criminals, cracking down on asylum seekers in various ways. And there are stories that naturally would appeal to a kind of conservative suburban tabloid audience.

So I can understand why those stories appear in the Daily Telegraph or in the advertiser here, rather than our newspapers or even in The Australian, which I think the minister may engage in when security issues, because that tends to be an interest of that newspaper. But he doesn’t tend to really get that involved in say The Australian or The Financial Review when it comes to stories about the asylum seekers.

What he tends to do, how he tends to use 2GB and his weekly appearance there is to engage in issues outside its portfolio, not directly involved in his portfolio. So that’s where you’ll get comments say about the judiciary more broadly, you’ll get his, there was that memorable remark he made for Christmas last year about how we’re going to rise up in defence of Christmas and save it from secularism.

The remarks last week about maybe we should elect judges or have quasi-elections for judges. These are all remarks that he will make on the Ray Hadley programme on a Thursday morning. And the reason he would do that is because however large Ray Hadley’s audience is, it will also include people in the press gallery in Canberra who will listen to that interview to get a sense of… one, we’ll pin it up if he says something outrageous that we should then report or something not outrageous but interesting. And also, we listen to that programme to get a taste of what the kind of conservative faction within the government is thinking about an issue that might be playing out that morning or that week.

Peter Dutton is regarded by, certainly at least people in the gallery and the government as the kind of standard bearer, the flag waver for the conservative faction within the government at the moment. He’s a bit [UNCLEAR 10:03]. Technically, Mathias Cormann is a more senior person within the government. There’s also Scott Morrison, but Peter Dutton is seen as the quote unquote leading conservative. Very powerful. Very influential with Malcolm Turnbull and a presumptive leader if Malcolm Turnbull should fall under a bus tomorrow or something like that. And so you see him generate headlines from those 2GB interviews two weeks in a row now.

Firstly, by calling for the public to be involved in selecting judges, which got a headline, and then just this week, for crying in an interview with Ray Hadley, when they were called up by the father of a victim of crime. I think they were trying to get the… I can’t remember the details but Peter Dutton [UNCLEAR 10:59] trying to deport the guy who did it back to New Zealand. And then the father called up and was very emotional. And there happened to be a camera in the radio studio to catch that which is very fortunate. Now, I try to get… I’ll just give you a quick example of how different ministers can engage with the media.

I thought it’s an excellent way. I thought Peter Dutton’s idea about electing judges was a [UNCLEAR 11:31] story. Everyone will want to click on that, want to read it. And so I tried to engage him on that by calling up and saying, hey, do you want to talk about this properly, flesh it out, what exactly do you mean by that? And he said, no, no, no. I’m not going to say anything more. Which, some ministers will call you up from their mobile.

George Brandis [UNCLEAR 12:03] from here, very good ministers like that. Happy to give you a ring and happy to give you their mobile number so that you can kind of do things like that. I have not had that experience with Mr Dutton, which is his prerogative. He’s able to talk to the media outlets that he wants to. I must say for that matter, Shayne Neumann whom you might have seen yesterday, is also very media shy, in my experience.

I tried to interview him yesterday. He declined that. His portfolio is somewhat [UNCLEAR 12:39] His presence at least is [UNCLEAR 12:43]. Everything he says or does has to be okayed by Bill Shorten’s office. And that’s obviously because for Labor, immigration and asylum seekers is an extremely sensitive issue on which they can’t afford to have someone out there freelancing.

So there are problems on the other side of the fence too. I now will say this about Peter Dutton, as someone who, I guess, when you are in that building you get to observe people up close and you get to talk to them on and off the record and I think there is a bit of a distinction between his reputation or the reputation that he cultivates and the reality. I think it’s certainly true that he’s very smart and ambitious and very switched on politically.

He knows exactly what he’s doing, where he’s positioning himself with the public and with the coalition’s voter base and with its membership and pre-selectors. I think it’s definitely true when he says that he wants people off Manus Island and Nauru. And I think, I also recall him not long ago saying, to be fair, to be absolutely fair, we have to give him and Malcolm Turnbull credit for actually implementing a solution that has so far led some people to get off those islands and into the United States, which is a thing that you can’t say of Tony Abbott and Scott Morrison, who inherited that set-up, that offshore set-up, very happy to keep implementing it, but did absolutely nothing to find a solution that will take some people off those centres.

What is the role for lawyers in all of this? Which is, to come back to the broader topic. Look, I mean, I guess I can only speak from my role as a journalist is I suppose to stir up trouble on things, but to cover things that happen but to also make people care about particular issues and make people read stories about particular issues. And I think in this phase, it’s really difficult because these issues have been going on for so long, especially the refugee side of things. And it’s very hard to make people care, even our readers, who are say more predisposed to caring about what happens on those camps and what happens in this phase. Even it’s quite hard to make them read a story after all this time.

There are a lot of sad stories out there and people do get desensitised to these things. Yes, you can very easily make people read a story about Peter Dutton saying something outrageous. It’s much harder to make people read a story about a sick child on Nauru for the fourth or fifth time. So I think lawyers who are actually on coal face of these things or working in onshore immigration detention.

While you are in touch with the case studies that can really connect with people and make people understand an issue that often if we saw for example, with the big migration crisis in Europe, that picture of the dead child [UNCLEAR 16:08] which engaged people, and it’s obviously a tragic image. But it made people pay attention and it changed the way some people saw and understood the issue. And so it’s things like that, the individual stories, it’s case studies out there of things that have actually happened to people, that can make people sit up and pay attention to these things that otherwise they’ll sort of just gloss over.

So I think, we’ll talk about this a bit more and I’ll sit down. But lawyers who are at the coal face, engaged with real people with real stories can bring those stories to the public attention in order to try and shift perceptions in this incredibly difficult area. So that’s one way I think lawyers can contribute and I’m sure [UNCLEAR 16:55] hopefully think of a few more when we have questions. But I will cease taking up other people’s time.

Ariel: Thank you, Michael. Speaking of lawyers at the coal face, our next speaker is the epitome of the type of lawyer the minister and John Laws were referring to when they spoke of un-Australian. She is a senior associate at Camatta Lempens Lawyers; she is deputy chair person at the Refugee Advocacy Services of South Australia.; and she is very much in the firing line of the sort of comments that we’ve been discussing today. Here to give us a practitioner’s perspective, please welcome, Emily Rutherford.

Emily: Thank you, Ariel. I will definitely take that as a compliment that you see me as un-Australian in that context. And I can’t say that I’ve ever really been one for speaking about nationalism or patriotism. And so Ariel and Michael have obviously given some great examples of the types of things that have been said about lawyers. And I think this is a good opportunity for me to provide some rebuttal or at least some reflections on whether these comments have any justification in my view and perhaps what the practical effects might be for those of us working in the area. And I’ve noticed a few different ways in which this kind of comments or this kind of sentiments can play out.

For lawyers, it affects our relationship with the department. It affects our engagement with our clients. With the profession as a whole, and our duties according to our conduct rules and to the court. And in that respect, I feel both vindicated and slightly miffed that some of my comments that I’m going to talk about have already been raised today. I think they are very important comments and things that are worth airing. And I’ll do that from a different perspective than our first speaker did this morning.

I don’t want to profess to speak for everyone on my profession. But hopefully you would agree that I’ve worked in this area from a variety of angles. I’ve been in a legal aid organisation. I’ve experienced the pressure that comes on you at spending public money on certain matters. The pressure of being in private practice and trying to make important matters still be cost effective for your employer. And in my spare time I work for a community legal centre that has never had any funding, so I had a whole other set of issues.

So my first observation are on our dealings with the department. When I started migration law in 2010, there was a lovely slogan called, People: Our Business. And my colleagues would reminisce on even before that it was possible to call up the case officer, because your visa was being processed in Adelaide.

You could say, look, this person’s definitely experienced family violence and you could expect to able to speak on your client’s behalf with relatively good chances of convincing them. And certainly we’ve seen a huge deviation from that type of decision making. I understand the reasons for that, absolutely. But we’ve gotten to a point now where on a cancellation decision, you would get a decision made by an initial, J. He’s my most recent position number.

You really can’t expect your client to think that someone is really taking their human circumstances into consideration when they don’t even have a human face to the decision that they’ve made. My next comment on the specific things that we’re being accused of, other than, un-Australian is fairly nebulous, but there are specific things we’ve been accused of such as fabricating claims, encouraging meritless applications that clog up the courts and encouraging clients to harm themselves to seek attention in a detention environment for example.

I don’t profess to speak for migration agents. I know that some of those comments are, dealt with different areas of the profession at different times. But I think to our clients it’s actually very difficult to see the difference. And I think that the word lawyer probably is something that is used in interpreting that maybe doesn’t need to be or shouldn’t have been. But to our clients, those are, I think the same thing in this context.

When you compare those types of accusations to our conduct rules, I think that it’s very clear that there is no basis to them. We have a duty to act at all times in the best interest of our clients, to provide clear and timely advice, and to follow our clients’ lawful, proper and competent instructions.

So in the example of fabricating asylum claims, we can clearly say that it’s a criminal offence to make a false statement in relation to a visa application.

None of us would risk our professional abilities and our livelihoods to advice a client not to, to drop such a course if that’s what they were considering. And I don’t see that anything conflicts there when we advice a client that their case appears inconsistent or fabricated. We are acting in their best duties to point those things out to them. And if, I’m sure it’s the case occasionally that somebody then changes their instructions, we haven’t acted at all in an unprofessional manner in that sense.

Our reputations are just too valuable to have risked the types of conduct issues that could come from trying to be a party to such behaviour. I think some lawyers can practice what I would say is self censorship and in fact then go to additional lengths to really test their clients and become a quasi decision maker themselves. And I can absolutely understand where that comes from. But I’ve always taken a view that unless there is clear evidence in the contrary I am entitled to rely on my client’s instructions. And we clearly know from decisions of the court and from personal experience that there can be so many reasons why our client might change their instructions or might find it difficult to provide a clear and coherent account, that we can’t automatically assume that therefore it is fabricated and say that we are unable to act.

So in that instance where if we’re bound to act in our client’s best interest, and tell them if there are inconsistencies in their case, it’s little wonder that the department hasn’t wanted lawyers to be involved in for example the entry interview procedure when people arrived in the country by boat.

Claire O’Connor SC’s presentation yesterday also reminded me of another area where lawyers are seen as  being fairly pesky creatures. And I think that the Manus Island compensation case elicited some of these comments that Ariel and Michael spoke of. And these slights against lawyers are not new. And this is where I bring up our interaction with the courts. I looked up when Part 8B, which is the section of the act headed ‘Costs orders where proceedings have no reasonable prospect of success’. And that was brought in in 2005. Philip Ruddock’s second reading speech said, “It is grossly irresponsible to encourage the institution of unmeritorious cases as a means simply to prolong an unsuccessful visa applicant’s stay in Australia.

It is equally irresponsible for advisers  to frustrate the system by lodging mass produced applications without considering the actual circumstances of each case”. I can’t specifically remember, I wasn’t a member of the profession in 2005, but I’m sure that those amendments where similarly driven by comments in the media about the role of lawyers. But if you look at the practical effect of that legislation, I can’t imagine that those aims were actually met.

The difficulty facing unrepresented litigants doesn’t dissuade them from lodging an application in the court if that is the only option available to them. And I suspect that those judicial officers as has been said by a couple of judges this morning, they would much prefer those litigants to be represented even if there are little prospects of success, at least the issues can be identified and dealt with swiftly.

But despite this, the profession has maintained a really admirable willingness to undertake pro bono work and to demonstrate this, I contacted my colleagues at JusticeNet, which is our South Australian pro bono clearinghouse. They have a specific project for refugee and asylum seeker cases. And they told me that in 2017, 195 inquiries were reached, 83 referrals to the pro bono assistance were made.

That during the 2016/17 financial year, approximately 60 pro bono lawyers performed 2,681 hours of pro bono legal work. And the value of that commercially would have been $758,694. And there are plenty of us in the profession who receive too many pro bono requests directly to even go through an organisation like JusticeNet so the actual hours would be much higher. In South Australia, we’ve had an additional barrier to doing pro bono work in migration litigation, which has been that we have been prohibited from having contingent costs agreement.

Another piece of legislation that may have historically had some reason, but it’s a real barrier to us being upfront and candid with our clients about costs. And JusticeNet has similarly advocated on that issue, and happily told me this week that by proclamation just on 6 February, that as of 1 March, that won’t prohibit us from entering into those agreements in future.

Now, none of us do migration litigation to get rich. But this is an incentive to private law firms that by undertaking this work, there is a potential that if they are successful, they’ll be able to recover their costs of having done so. I’d like to finish with a great example from South Australia about a local lawyer who faced immense pressure from the immigration department. Abby Hamdan is known in Adelaide as somebody who’s assisted a lot of protection visa applicants in her time.

In 2004, Ms Hamdan was served a notice requiring her to provide a telephone number. Her client had been in detention, had been released pending a decision of the court on an injunction, and in the mean time hadn’t complied with the conditions of his release and had gone into the community. And despite the immense pressure that Ms Hamdan lived up to, she was successful in arguing that she didn’t need to release that telephone number.

We only hope that for any of us in such pressured environments, we would similarly hold up to that. So clearly my conclusion is that these things that have been about the legal profession are unfounded. I think we have strong grounds to hold our heads high and to continue doing a really important area of work. Thank you.

Ariel: Thank you, Emily. Our next speaker is the Director of the Public Law and Policy Research Unit at the University of Adelaide. He is widely recognised as a leading academic, author and commentator on immigration issues. Today, he will be sharing his insights on what Justice Charlesworth referred to this morning as an outright attack on the rule of law. Please welcome Professor Alex Reilly.

Alex: Thanks, Ariel. And thanks to Michael and Emily for their speeches. So I’ll be taking a broader perspective on this, looking at the rule of law questions. And that was [UNCLEAR 30:11]. This week, we discovered that immigration minister Scott Morrison had delayed finalising permanent protection visa applications until new legislation had been introduced, changing the rights of asylum seekers.

This is big news coming out of the locked Cabinet documents that were revealed [UNCLEAR 30:31]. My first reaction was that for lawyers, these revelations were not at all surprising. Everyone working in the area was aware that there’s been an effective freeze on processing of asylum seekers who arrived by boat since 2014. And that the government has been pushing the boundaries of executive power under migration law to prevent the growth in permanent protection visas.

And we’ve seen in the last few years the government amending the law in new and startling ways to increase the power to the government in the migration space. And in doing so, it’s pushed the boundaries of what is acceptable under the rule of law. It’s hard to imagine a time of greater hostility to a group in the community that the government is displaying towards asylum seekers arriving in Australia by boat.

The government uses the media to maintain a perception of people of being undeserving of rights, and as we’ve seen, it also uses the media to criticise those supporting those… so it’s criticising lawyers and judges as well, to the extent that they are involved in a legal process involving asylum seekers arriving by boat.

We face an environment of bipartisanship on these hardline policy settings. The government and opposition are of one and a simple narrative that is a response to all criticism. It’s so familiar to us now since really Kevin [UNCLEAR 32:10] and Tony Abbott took it to new heights.

The harsh policies are necessary to stop the boats, to stop the evil people smuggling trade, and to prevent drownings at sea. Just yesterday, this narrative was rolled out unashamedly by the prime minister in the face of criticisms of delays in processing [UNCLEAR 32:32] of immigration [UNCLEAR 32:34] off the boats, the prime minister said.

As if this is the answer to all alleged wrongdoing. In this environment, facing a government hostile to the rights of a particular group, the rule of law becomes more important than ever. And the role of lawyers in upholding those rights is the last bastion against unbridled executive power.

Once your Parliament is no longer very useful to you because you’ve got bipartisan support, it comes down to lawyers and it comes down to an independent legal system, for the judiciary, to uphold people’s rights.

So we need to ask ourselves, are we lawyers doing all we can? And I think this conference is a fantastic opportunity to ask that question. Are we using all avenues in the law to protect the rights of asylum seekers and refugees.

In light of the revelation that the government unreasonably delay finalising claims for protection visas, so this revelation that just came out, I immediately thought, was there anything else that lawyers could have been doing to enforce those rights? Have we done everything? Couldn’t action have been brought to hold the government to account for the delays that have come to light recently. And when I think about that, I think of some of the big cases, I think of the [UNCLEAR 34:05] litigation, and how it took a lawyer sitting in their lounge room, going, come on, isn’t there an action we can bring here and habeas corpus to get those people on the [UNCLEAR 34:14].

It took, and a measure to thought that was that as not just a thought, but was followed through. The phone calls were made. Attempts were made to get in contact with asylum seekers on the Tampa, through the captain of the Tampa.

It’s an extraordinary story. But it’s those stories of lawyers taking responsibility for upholding the rule of law in most cases, that is the last bastion against excessive executive power. One of the dangers of the executive criticising lawyers is that it breaks their resolve to do just that.

If you face the criticism of your own Australian, does it make it harder pick up the phone and to start those actions? I actually think our legal profession is pretty robust, and that we roll our eyes to that kind of comment, rather than taking it seriously. And I think the same for judges.

I think our judiciary is very robust, and when they are called un-Australian, or are thought that they are making good decisions, that we have a strong separation, partly based on the way we elect our judges, but partly because we do have places where the judiciary is ultimately protected, partly through the Attorney General, but also through security of tenure [UNCLEAR 35:44]. But how do we counter this narrative?

It’s easy to make allegations. We’ve talked about allegations that were made on lawyers creating claims that were unmeritorious. And they are easy claims to make and they are very difficult to counter. And I think the way to counter them is exactly what the legal profession does. It stays professional.

It stays on message that our role is to bring a client’s case before the court and to do that within the rules of our profession, which tell us to stay impartial, and we have an obligation to the court put the case and so on. That is the response. As well as having the courage to make arguments based on fundamental rule of law principles, in times hostile to the rule of law, it is important that we speak out in its defence.

So I do think that there is a role for lawyers, perhaps through the media, but certainly through our professional organisations, to articulate why the rule of law matters. And to this end, two days ago, George Brandis found his voice in defending the rule of law in his final speech to the Parliament before heading to London as High Commissioner. In some ways, it was a surprising intervention.

It would have been easy for George Brandis to go quietly, simply trumpeting his successes and moving on. And it suggests to me a level of disquiet in the government as just what lengths the government is going to, that Attorney General would actually bother to make those remarks. It highlights the importance of all of us speaking out in defence of legality in these times of inadequately accountable executive power. When the opposition stays silent for political reasons, it falls to the legal profession to defend the moral and legal [UNCLEAR 37:59].

Without having to have a view on government policy, we can and must have a view on what the rule of law requires. It requires equality of all before the law. It requires procedural fairness. It requires the executive only acting within the limits of a statutory and common law powers, and those powers being subject to the principle of legality, subject to fundamental common law rights and freedoms.

Lawyers must be courageous in bringing actions that challenge the legality of laws and executive action which are contrary to the basic principles of legality. I want to suggest, to finish, that comments by the minister for immigration criticising judges and lawyers are a good sign.

They mean that lawyers are doing their job. They suggest that lawyers are managing to cut through and frustrate the government and its actions which are questionable in law. And as long as we are not silenced by these attacks, they could serve to galvanise our resolve to hold the government to account. Thank you.

Ariel: Thank you, Alex. I’d just like to give the speakers a few minutes, an opportunity to comment further on each other’s talks. Would you like to…?

Michael: I was only going to say that, I think I can say without betraying [UNCLEAR 39:42] confidences that the, Alex has commented about George and Dutton. The hatred between Dutton and Brandis in Cabinet was genuine and longstanding. And it’s certainly not the first time in his valedictory that George had a go pretty unveiled at Dutton.

And in fact we had a lunch that was on the record where he essentially said the same thing, that he has found himself being forced to advocate and remind his colleagues about the rule of law in Cabinet discussions at numerous times. And obviously part of that whole animosity is the fact that while they were at war in Cabinet, it was Dutton that basically won the war, and then he ended up stealing half of George’s portfolio by the end of it. So obviously that played a role in the tension between the two. But in the course of those discussions basically, he found himself having to remind people that the rule of law numerous times.

Particularly, he’s very proud, he always goes on about, this is George, he always goes on about how he insisted that the power to sign [UNCLEAR 41:14] warrants remained with the Attorney General.

I think he said in his valedictory that this must remain, or must remain sacrosanct or something, sort of a bit of an ominous kind of warning. So I think we’ll miss George in that role. Don’t know what would happen from here. Anyway, I was only going to add that little observation.

Emily: Oh, I’ve got a comment on something that both Michael and Alex talked about, which is the use of the media, and lawyers using the media. And I think that this is something that lawyers maybe need to change their thinking on or could develop in new ways.

I remember another good South Australian example, is the Bakhtiari family who 10 years, almost 20 years ago now got a lot of tension. Now I know a lot of lawyers who worked at that time who said, if only the media hadn’t been used, that at that time, it was very possible that immigration would just make a decision and people would have their matters resolved behind the scenes and no one would know about it and there wouldn’t be a fuss. And that’s a prime example of when that didn’t happen.

Whereas in recent times, we’ve had the example of Baby Asha in Queensland and it’s only through the use of media and mass amount of activism and things like that there’s a baby who didn’t get deported to Nauru who could have otherwise.

So in a time when I think our immigration department is so disinclined to let things slide and go into the shadows that maybe coming to grips with using the media might be something that we do for our clients. But I’m certainly of the old school where I’ve never even contemplated going to the media about a client’s case.

And I can’t yet imagine a time when I would. But it’s an interesting comment that a journalist and academic suggest that maybe lawyers should start thinking about it.

Michael: We got nothing to lose.

Alex: My response immediately to that. Certainly my suggestion was not really about cases, but more generally using the media to promote the rule of law. But I do think that in fact even if it’s not lawyers, what we do need is people in the media who understand principles like the rule of law. Because a comment like Dutton’s about electing judges, I don’t think he’s serious, is he?

Why would Dutton want to elect judges when at the moment, it’s an executive control process. Like they get to choose. He’s purely using that as a way of just doing an off-hand criticism of judges because they’re not making the decisions he’d like them to make. So I’m not surprised he didn’t answer your invitation for an interview on that.

He doesn’t have anything else to say. It’s not a serious response. But what frustrates me is that he can get away with getting on to 2GB and be able to just make that comment, and the journalists are just going to go, yeah, that’s great, let’s allow the media to be a platform for him to put comments in like that.

There’s nothing we can do. But it does, I guess it reminds me that there’s a real danger of using the media, [UNCLEAR 44:40] for the lawyers to go out there. Because what you don’t want is trial by media. Because it’s so unwieldy. Who’s going to win that battle? You probably won’t. It’s a very sophisticated game as Michael will know, trying to win a battle over popularity in the media. And one last comment.

I did have a comment on Michael’s paper, which was… oh no, I did it, the election of judges. That was what.

Ariel: I’ll open it up to the audience, are there any questions, please?

Audience member: Thank you. Thanks to all three of you for some really interesting perspectives. I guess this really complex issue, I think one thing that sort of struck through is, we’ve talked a lot about the negativity, and certainly, Michael [UNCLEAR 45:37] around negativity in terms of some of the stories with what’s happening in Manus and Nauru.

And we know that the government currently plays off negativity and so do certain outlets in the media. What role is there for positive news when it comes to migration? And is it naive to think that the more we share positivity, the more that might cut through.

I mean, Alex yesterday, you spoke about the Hugo report, which is a brilliant piece of work around the contributions that migrants make. Just around [UNCLEAR 46:12] ACGU released a report about migrants in business, and a fantastic ad, I don’t know how many people have seen the ad that they paid for and then put on TV on Australia Day about, I think the hash tag was, Australian as it gets or something.

It’s these migrants who fight against adversity to really become contributing members of our society. Wouldn’t it be great if that was what the media discourse was rather than all of the relentless negativity, but am I sort of wearing rosy-eyed glasses here?

Michael: No. I mean, look, there’s a school of thought in journalism, especially in the gallery where I work, like a negative story is someone doing something wrong, or something being corrupted, is a yarn, is a story, whereas a sob story, picture story about someone doing something nice is not a story.

But we do run those kind of stories. It’s usually on a Sunday with like a nice big picture of someone, a migrant doing something great. And they get a good run. I’m only really speaking from a newspaper [UNCLEAR 47:25], that’s what I know best. But they get a good run, probably not online, because people sort of… It depends.

It depends. A story that people will share and want to talk about, will share on Facebook, will share on Twitter, will want to talk about to their friends will do well, and is a good story, regardless of whether it’s a sappy [UNCLEAR 47:47] about someone doing something great or whether it’s a really hard news story about someone doing something bad.

So I think there’s definitely room for both. It just depends on, just requires someone to pose for a photo and be willing to share what they’re doing. Like that migrant succeeding in business thing.

For us, it’s got like Sunday picture story written all over it. Kind of wish I would have done it. So anyway, I see what you’re saying. Like the negative stuff tends to cut through a bit more. But there are spaces for other types of stories and they do run sometimes.

Ariel: Speaking of that, I noticed that Alex at the end of his talk mentioned a silver lining that all these attacks on the profession might actually be a positive thing and galvanise the profession and so, and what I was wondering was, these attacks that we’ve been getting, they seem to be working for the politicians, you see Peter Dutton’s rising star.

Do you think these attacks are just symptomatic of a healthy functioning system of checks and balances where we keep them in check, they keep us in check and so on, or do you think the level of tension between the government and ministers, and the profession might be symptomatic of a system that’s broken?

Alex: Just to clarify, I think that the attacks suggest that lawyers are doing a good job. I don’t think the attacks themselves are a positive thing. I think it’s… I really, thank you for your comment, I think the idea of positive stories is absolutely what we need.

It’s so frustrating that they’re not the ones [UNCLEAR 49:31]. I sort of feel like, could we strategically put Donald Trump in a story, and then have a positive asylum seeker story. Because what seems to cut through, and I know there’s been someone in the Guardian, or the New York Times, I think, did an analysis of their articles for the year, and if it had Donald Trump in it, then it was read 10 times as often as an article that they’d write on a really important topic that didn’t have Donald Trump in it. So it’s partly the attention span of people.

So easy messages cut through. One thing that frustrated me last year was the dual citizenship debate. I was getting lots of calls to speak to the media about that. What a circus! It’s a circus that we like to about it as opposed to, at the same time, indigenous recognition just went off the front page in about one day.

So there is, it’s a really, I think we got to think strategically. I think we need those stories out there because I do think that they are the things that will ultimately change public perception, if you can have those stories out there. How you do it, I don’t know.

Audience member: Just one point about public perception. Michael, you said, I’m not quite sure if you literally meant this, my role as a journalist is to stir up trouble. I hope it’s a throwaway line, but what role, I know the role of lawyers [UNCLEAR 51:04] all the time about journalists and the media.

What’s the role of the fourth estate, even providing leadership and changing public perception so that social cohesion is maintained in this country, I mean, not constantly bombarded with rubbish that’s meant to excite the masses?

Michael: I suppose what I meant by stirring up trouble… I mean heard the line about, or no one else seemed to react to Dutton’s line about electing judges in that interview until I wrote it up. So I suppose that’s kind of what I meant by stirring up trouble.

Just because you know there are some things that people will love to read, especially our readers, love to see something controversial that he says. That is in a sense a throwaway line but also a throwaway story. I think you’re right, Alex. I don’t think he meant that seriously. So is that something that I should have written?

Well, I don’t think it’s that consequential one way or the other in the big scheme of things. What is probably one of the… I mean, you’re right, we need to, and I guess what you’re getting at is, we need to elevate truth and truth on the substantive issues more than anything else. And no, I’d be the first to say, I probably don’t always get that right. It’s hard, tough, and I don’t want to blame a lack of resources or anything, but it’s difficult.

I would have like to been over at Manus Island when things were at their worst in November last year, but we weren’t able, I was covering the same sex debate at the same time, so that was just not possible, and we didn’t have anyone else to do it.

So those things become more difficult. I don’t know what the big picture answer to that is, other than we need to do a better job.

Audience member: Thank you. One of the recurring themes in all of this is, and the attacks on the legal profession is, obviously a broader attack on the rule of law [UNCLEAR 53:30] or is castigated effectively for standing up for their clients’ rights by reference to [UNCLEAR 53:38] their statutory entitlements.

The reference to Hamdan’s cases is [UNCLEAR 53:42] one too in terms of what [UNCLEAR 53:47] Hamdan there was really the common law doctrine of legal professional privilege, which precluded the [UNCLEAR 53:56] providing any information the department wanted concerning the mobile number of the legal client. And it’s according to that too that privilege of that nature, it can’t be removed, it’s a common law right.

A client has an obligation, or the lawyer has, and so it can’t be statutorily abdicated or removed, and as such the cases from Hamdan’s [UNCLEAR 54:22] doesn’t apply to migration [UNCLEAR 54:23] those powers. [UNCLEAR 54:28]

Ariel: Thank you. One last question.

Audience member: I’d just like to mention that lawyers can run media events. I remember we’ve had three really major successes. Going back to the first one, a journalist said to me when I explained what we were trying to do, he said, look, the media is a bit like a tiger.

You get on it and you got to stay on it, because it just might eat you if you fall off. So I remember that because we had this [UNCLEAR 55:13] with the Kosovo refugees in Tasmania, which was very successful.

We had another two separate ones, separated by a couple of years, where there were child visas, where a child didn’t actually fit the criteria, so we had a ministerial intervention. And we also had another one, a classical example where we did do media, and I think it would have worked.

And that was a case of a health worker in Hobart who had applied for a 186 visa instead of a 187. And she had a child who was mildly autistic. And of course it was refused on 4005 grounds instead of having the privilege of 4007 under the 187 visa. So I said to her that, look, it’s ministerial intervention, we really need to get some petitions going or some media coverage on this. And she talked about it with her husband, decided that, no we don’t want to cause a lot of trouble.

Now the minister refused it, refused to accept it. But about a week later, there was almost another identical case, this is with Dutton, almost an identical case of a nurse in Brisbane who had a slightly autistic child, where the minister intervened and granted stay, another 186 visa. So it just goes to show you that, I keep on thinking to myself, I should have tried harder with my client, because in Tasmania, it’s easy to get coverage.

And with the cases are mentioned. Front pages, television coverage. It really is very easy. But I’ve never forgotten that journalist’s advice. Just be careful, it just might eat you as well.

Ariel: Agreed, lawyers aren’t necessarily experts in the media. [UNCLEAR 57:24] it can be a double edged sword. Look, I think that’s all we have time for this afternoon. But thank you so much for coming and please join me in thanking Michael, Emily and Alex.

[End of Recording 58:18]

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