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Reasonable Suspicion

with 50 comments

Vince McMahon, former head of border security with the Department of Immigration and Citizenship, has an article in the Weekend Australian talking about compensation for state wrongs. One of the issues he spends a great deal of time on is the Cornelia Rau affair.

The sad saga of Cornelia Rau is an example of a large payout made without recourse to the courts. She was paid $2.6m by the Rudd government in 2008, or about $8000 a day for the time she was in detention. The per-diem compensation for the time she was unlawfully detained could be many times that amount, perhaps even up to $50,000 a day. That period has never been, and cannot now be, established because of the private settlement.
To understand the Rau case it is necessary to first consider the operation of two sections of the Migration Act. Section 189 (1) provides that if an officer knows or reasonably suspects a person to be an unlawful non-citizen the officer must detain that person. Section 196 (1) provided that an unlawful non-citizen detained under section 189 (1) must be kept in immigration detention until removed from Australia, deported or granted a visa.
Rau claimed to have arrived recently from Germany and used identities that could not be matched with migration databases. She was one of more than 7000 people then in detention and one of about 20,000 people detained annually although most were quickly released with bridging visas once their identities were established. The Immigration Department followed through her changing stories and sought the assistance of the German government which, not surprisingly, also could not establish her identity even though she was a German, not Australian, citizen. One key problem in the handling of the case within the Immigration Department was not the failure to investigate, because there was a lot of that, but the repetitiveness of the investigations once dead-ends were reached.
The Palmer Inquiry in 2005 found that on the evidence then reasonably available, the immigration compliance officer had a proper and lawful basis for forming a “reasonable suspicion”: in other words former Australian Federal Police chief Mick Palmer believed she was lawfully taken into detention.
Palmer also had to bare his soul by admitting that “on the basis of its investigations and analysis, the inquiry cannot point to any thing that, had it been done in the circumstances, would immediately have led to Anna’s [Cornelia’s] identity being discovered”.
So in the absence of this matter ever having been determined by the courts, it is interesting to consider how her detention turned unlawful and from when. Palmer was very critical as to why the “reasonable suspicion” was not reviewed and accused management of not understanding the law. This assessment was correct but disingenuous because such legal advice was only available after the release of Rau.
The longstanding legal interpretation, which was well known in the legal community and had been repeatedly explained at Senate estimates hearings, was that once a person was detained under section 189 because of reasonable suspicion, further action was governed by s196. This required the department to remove, release or issue a visa and this effectively involved identification. The internal legal advice referred to in the Palmer report came as a shock to senior management.

To be fair to McMahon, he may have had a strict word limit and he is trying to make a broader point than simply explain or justify the Rau affair. There are, however, a number of troubling aspects to this version of events.

The biggest issue as I see it is the presumption that civil servants do not make errors. There is no need to reconsider the decision to detain an individual. Even more extraordinary is the notion that civil servants can have ‘reasonable suspicions’ without having to justify themselves. This reminds me of the Apartheid era state of emergency regulations. A police officer could detain any individual (indefinitely) if they had a ‘resaonable suspicion’ that this person was an enemy of state or a danger to public safety and so on. Many people were detained on this basis and the police simply said they had reasonable suspicions. Eventually a judge asked an arresting officer to outline the basis for his reasonable suspicions and on the basis of the garbled response ordered the release of a detainee.

McMahon refers to the Palmer Report. I haven’t read the whole thing but the bits and pieces I have read are very worrying (see pages 21 through 28). Palmer suggests that many immigration officers had little legal understanding of what ‘reasonable suspicion’ meant. Furthermore Palmer points to the view that the department thought that the operation of the act (s. 189) was not reviewable.

The fact that a person’s liberty had been taken seemed to be accepted simply as a ‘matter of fact’ and a result of the person’s own doing and circumstances brought about by their actions. These attitudes seem to be promoted by a culture in which detention of suspected unlawful non-citizens is the paramount consideration.

McMahon makes the claim (emphasis added)

Palmer … accused management of not understanding the law. This assessment was correct but disingenuous because such legal advice was only available after the release of Rau.

It is hard to know if this statement is correct. Palmer does refer to government documentation and internal guidelines but these appear to be undated. Palmer, however, also refers to court decisions that predate the Rau affair. It seems (to me) that the behaviour of the department was inconsistent with those decisions. This is not the first time that government agencies and departments have ignored court decisions – the ATO was criticised last year for this very thing.

It seems to me that the department of immigration had an understanding that they could operate a system of detention without trial and have no review process in place to ensure that stuff-ups couldn’t or wouldn’t occur. The Palmer report indicates that many departmental officers had sincerely held views. That may even be true; yet we shouldn’t have to rely on sincerity – we should rely on a system of government that minimises government intervention, that minimises detention of individuals on suspicion of offences, that has a presumption of innocence and not guilt.


Written by Sinclair Davidson

January 3, 2010 at 12:05 pm

Posted in Uncategorized

50 Responses

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  1. “Palmer suggests that many immigration officers had little legal understanding of what ‘reasonable suspicion’ meant.”

    The issues are complex and legalistic and way beyond your average worker’s ability to compehend.

    These systems are inherently flawed – like border protection – and a new approach is needed.

    There are still more people killed by bee stings than terrorists yet terrorism grips the publics imagination.

    Around 22 people in Australia die each year due to aviation accidents, none of them due to acts of terror.


    January 3, 2010 at 1:01 pm

  2. Well done, Rog. A series of cliches that could have been written by the Doctors’ Wives Mutual Support Co-op.


    January 3, 2010 at 1:13 pm

  3. 17 people died of the cold in Europe.

    206 people died in Victorian car accidents.

    188 people died in the the bush fires.

    an estimated 10 kids died of Huntington disease last year.

    5 people had a heart attack and died during plane travel.

    2 people died as a result of shark bites on the South Florida coast line.

    Those are all good points, Rog. I just added to the list.


    January 3, 2010 at 1:17 pm

  4. You guys are so predictable; border protection, Islam, AGW and you snap at the bait and are off running.


    January 3, 2010 at 1:21 pm

  5. Rog:

    We’re just making fun of the “predictable” crap you scrawl on here now..

    nothing personal.


    January 3, 2010 at 1:23 pm

  6. Rog thinks this story

    is no different to a kid dying of Huntington disease and then wonders why he’s always getting bitch slapped.

    It’s all numbers…. o’s and 1’s according to Rog.


    January 3, 2010 at 1:28 pm

  7. Here’s another set of stats for Rog to use when reading about our immigration policies for comparison purposes such as people dying of bee stings vs terror attacks (and no pancreatic cancer rates in the US)

    “In 2006, the American Cancer Society (ACS) predicted that 33,730 Americans (17,150 men and 16,580 women) would be diagnosed with pancreatic cancer…”


    January 3, 2010 at 1:32 pm

  8. err fellahs he is echoing well known lefty John Humprey’s attack on the expenditure on the ‘war on terror’.

    but go ahead and again make fools of yourselves.

    Butterfield, Bloomfield & Bishop

    January 3, 2010 at 1:50 pm

  9. You guys are so predictable; border protection, Islam, AGW and you snap at the bait and are off running.

    That’s new doctor’s wife, Rog.

    Here’s old Rog:

    The facts of the matter are….the left completely stuffed up again, as usual.

    Couldnt organise a root in a brothel (well actually they have, but that was the ALP conference)

    Where’s my list…..

    health system fail
    economy fail
    foreign relations fail
    national security fail
    transport system fail
    water system fail
    credibilty fail (thats the BIG ONE)

    On it goes…

    Hey, what about Islam?

    Amazing how many think that now Hamas is in power the US and Israel should stop shooting terrorists.


    January 3, 2010 at 1:50 pm

  10. err fellahs he is echoing well known lefty John Humprey’s attack on the expenditure on the ‘war on terror’.

    This is coming from Homer who backs a Democrat deficit bigger than the price of the Iraq War.


    January 3, 2010 at 1:53 pm

  11. That’s before he went to the Doctor’s Wife Academy and Health Spa where he was taught spiritual yoga exercises (called mind body and soul), introspection and gender equality in the building trade.


    January 3, 2010 at 1:54 pm

  12. I see CL is stil ltelling fibs about how the deficit is made up.

    I also see neither person understnds John’s point nor Rog’s.

    What they do want is more Government expenditure

    Butterfield, Bloomfield & Bishop

    January 3, 2010 at 1:57 pm

  13. we really arrive at a full circle in the parallel universe when Homer is defending Rog’s (‘ note) ‘cliche” ridden crapola that compares bee stings to mountain climbing accidents and terror attacks.


    January 3, 2010 at 1:58 pm

  14. Homer:

    You’re wrong again. Rog’s crap had nothing to do with the thread. It was like (you)… he just wanted to get those cliches (taught at the Doctors wives academy and health spa) off his chest.


    January 3, 2010 at 2:02 pm

  15. At the expense of sounding draconian – most of the comments here are OT.

    Sinclair Davidson

    January 3, 2010 at 2:03 pm

  16. weird that the article doesn’t mention compensation for innocent people who are incorrectly found guilty and then later exonerated. it seems kind of unfair that the cost of these mistakes is concentrated on individuals rather than spread over everyone.


    January 3, 2010 at 2:04 pm

  17. The Immigration department’s culture went backwards under Gerry Hand and has got worst with each minister.

    It will be interesting to see whether Chris Evans can change it for the better.

    It is this change in culture that is needed to get ordinary employees to view episodes such as this with the correct perspective.

    Butterfield, Bloomfield & Bishop

    January 3, 2010 at 2:09 pm

  18. The argument, as I see it, is that government policy is not easily enacted and may be self defeating.

    JC and CL are barking at passing cars


    January 3, 2010 at 2:14 pm

  19. It’s not a change in the culture that is the pertinent point , homer.

    The real point of the piece (you missed) is that the laws and regulations (with some being contradictory) almost makes it impossible for any reasonably intelligent person to understand what’s going on and how to interpret the rules.

    Without making deep changes to the laws and regs Evans has no chance of changing anything.

    Furthermore in his attempt to cover his arse, Rudd has made the entire game no longer just complex but also totally incoherent and far more open to whimsical interpretation than before.

    So Evans has Buckley’s chance of improving things. In fact he’s part of the problem rather than the solution. If he was 1/2 way any good he should have resigned rather than accept what Rudd has done.


    January 3, 2010 at 2:18 pm

  20. Homer, a person (like you) who sings the praises of Nazi labour camps is not in a position to accuse others of lying. Obama has tripled the deficit and the CBO has even raised the danger of it being quadrupled under this incompetent and unpopular clown. (A clown you hailed as a master manager last year).

    Sinclair, I tend to agree with you on this subject. It was a cock-up of large and worrying proportions. Clearly, there need to be accountable procedures in place to protect the liberty of citizens. It’s possible too that Miss Rau and her guardians must also accept responsibility for what transpires when she is abroad in society. She was arrested in Jordan for erratic behaviour in February 2009.


    January 3, 2010 at 2:19 pm

  21. The heart of this for me is not the very doctrine of ‘reasonable suspicion’, which could be given more flesh in particular circumstances, with decent training, and produce excellent results most of the time.

    Rather the problems are firstly, as Sinclair said, that training about how to apply the doctrine was inadequate, and even at upper departmental levels it was not well understood.

    Secondly, there’s the problem of what an operative is expected, or allowed, or encouraged, to be reasonably suspicious about. For instance, someone at some stage must have had reasonable suspicion that Rau was a fruitcake, and that her primary problems (and Australia’s, and Germany’s) were not to do with immigration status, but mental health.

    An investigation into her identity via Australian mental health services would, I gather, have solved the matter sooner, more compassionately, and more cheaply.


    January 3, 2010 at 2:28 pm

  22. I’m not really comfortable with Joe Q. Bureaucrat making judgements about “reasonable suspicion’ at all and if he does, I expect a decision involving the detention of persons to be reviewed juridically (and independently) in very short order.


    January 3, 2010 at 2:43 pm

  23. Of course I agree CL, but in practice any job, especially one involving the removal of liberty, will on the front line involve some discretion.

    Just like policing – it isn’t practical or desirable to have every law enforced to the fullest all the time. It would be absurd.


    January 3, 2010 at 2:46 pm

  24. That’s a crap example, as it inverts the relationship of guilt/innocence.

    The police analogy should have been that we have in place guidelines (properly codified) for what constitutes reasonable grounds for an arrest or search warrant, and the burden falls well short of that for a conviction.

    Of course the next step MUST be a speedy and full investigation, with grounds for appeal to an independent body.


    January 3, 2010 at 2:49 pm

  25. CL you confuse Labour camps with labour services programs. This is understndable because you do not know the difference.
    Your knowledge is the same as Forrest’s!

    the Immigration dapartment under Ian McPhee was fine ans stil lokay before Hand came on board.

    The culture is all important as Palmer showed. It is the attitude shown by the employees.

    Butterfield, Bloomfield & Bishop

    January 3, 2010 at 3:14 pm

  26. Sinclair defines the problem as: the department of immigration had an understanding that they could operate a system of detention without trial and have no review process in place to ensure that stuff-ups couldn’t or wouldn’t occur.

    His solution: a system of government that minimises government intervention, that minimises detention of individuals on suspicion of offences, that has a presumption of innocence and not guilt.

    I don’t doubt his solution would help, but it’s not enough. Even with smaller government you will still get public servant misbehaviour. There must be individual accountability.

    In the case of Cornelia Rau, you can absolutely guarantee the public servants involved would have been better informed about the law if they knew they might be personally liable if they got it wrong.

    I’m sure a lot of police misbehaviour would cease as well if they could be individually sued when they seriously stuffed up.

    Libertarians are strong on individual choice and personal responsibility, but it has to apply to employees too. Hiding behind the employer’s legal skirts is just a form of collectivism, particularly when it’s the government’s skirts.


    January 3, 2010 at 10:42 pm

  27. David,

    There is a big problem with the law in Australia: you can’t sue a public servant, it devolves to the department. Needs to be changed.

    John H.

    January 3, 2010 at 10:46 pm

  28. I don’t agree with that. There is a certain type of constituent that has a hobby called ‘abuse the public servant’. The ability to sue a public servant because a decision was made a person didn’t like for some would be all too tempting.

    Don’t like that building approval next door? Sue the building inspector!
    Some shiny arsed bureaucrat declined your application for a handout (sorry, helping hand)? Sue the bastard!

    There is a certain class of citizen that likes nothing more than to be vexacious in their dealings with the public service. The public servant is quite limited in how they respond, and the vexacious client knows this. I have seen people vomiting from the stress of dealing with what are essentially bullies. A man like that would use the ability to sue as an opportunity to harrass, regardless of the lack of rightness.

    I can’t think of a mechanism that would allow the capture of illegal immigrants, that would avoid problems like Rau. She was the one insisting she was a German. And she had no visa. The preferred presumption of innocence certainly appears to be quite strained here. But it could be (would be) exploited by overstayers. In Rau’s case, is the alternative the assumption she is a mental case? How would that be reasonable?


    January 4, 2010 at 7:16 am

  29. David – I agree with that point and have often argued that not enough public servants go to jail. The balance between public servants being prosecuted for their unlawful and criminal behaviour must be balanced against the point Entropy raises. Vexatious claims must be avoided so people can do their jobs – that often involve ‘annoying’ decisions. As some people have pointed out Rau didn’t help herself for various reasons, yet her case highlights the problem of inadequate systems it isn’t necessarily the problem itself.

    Sinclair Davidson

    January 4, 2010 at 7:52 am

  30. Considering the way the AAT bogs down business and soaks up money with vexatious claims and delaying tactics across several departments, the ability to pick and sue a public servant would create an administrative nightmare as well as acting as a deterrent to courageous decision making.

    If a public servant acts unlawfully, you better believe the department will ensure they are punished.

    In any case, how many public servants going to jail would be enough Sinclair? What’s the figure you’ve been arguing for? We already have a government that pretends it wants fearless advice from public servants but actually bullies them back and forth. What the hell is it you people want of us?

    This is just parochial honking from people who don’t understand the on the ground realities of public service at the sharp end. It’s the us and them BS about “Canberra” the faceless entity versus the chippie working man (white collar in this case!) who’d know how to run the government “if I were PM”.

    Abu Chowdah

    January 4, 2010 at 8:15 am

  31. A number greater than zero. It is not appropriate for departments to punish people who have acted unlawfully. The constitution specifies that jury trials must be held if a crime has been committed.

    Sinclair Davidson

    January 4, 2010 at 8:57 am

  32. Of course, I meant such cases are passed to the appropriate authorities. My bad for typing while ticked off.

    Nonetheless, I think this refrain about public servants is the Internet pundit’s version of grabbing a bunch of pitchfork toting yokels and heading down for a lynching.

    Abu Chowdah

    January 4, 2010 at 12:20 pm

  33. If they were properly trained you wouldn’t need to sack or jail them, because they’d do their job properly.


    January 4, 2010 at 12:32 pm

  34. This statement is not a defence of immigration, they made to many stuff ups where citizens/visa holders have been detained unlawfuly for that.

    However it is important to point out a couple of things which have gone on in detention (at least while I was there).

    Lawfare, sheer unremitting abuse of the legal process by crusaders trying to make the system unworkable. There are a number of high profile people who are celebrated for doing so, some have been awarded OA’s for doing so. But their thrust hasnt been to correct minor injustices, or improve the system, instead they want to break the system alltogether.

    An example. We had a certain high profile lawyer who coached 3 or 4 of our detainees at Port Hedland to feign mental illness. When they were sent to Greylands in Perth (psych ward) she would immediately sign on as thier lawyer and file an injunction preventing them from returning to detention. They would then be released on a bridging visa (after less than a fortnight at greylands). She did this about 4 times before immigration changed the rules and made her accountable for the people released.

    Thats an example of a lawyer trying to break the system, for every high profile case such as Rau there were hundreds of “try ons”. Id also add that Rau happened after this lawyer ran this little trick, how much do you think that raised the suspicion level of DIMIA staffers presented with reports of a mentaly ill detainee??

    DIMIA operated under a seige mentality, their job should be reasonably simple, ID non citizens and hold them pending a bridging visa or removal from Australia. The legal system has been in some cases abused to prevent this.

    As I said this is not a defence of DIMIA, but asking for a bit of recognition that the departments behaviour was very much a product of unceasing “lawfare” with an aim to break the system.


    January 4, 2010 at 12:38 pm

  35. If they were properly trained you wouldn’t need to sack or jail them, because they’d do their job properly.

    If Bernie Madoff was properly trained as a trader, he wouldn’t have committed his $50 billion fraud and the East and Hudson rivers would be flowing with chocolate.

    That’s the silliest comment you’ve made for a while, FDB. In fact it’s right up there in dumb and dumber territory.


    January 4, 2010 at 12:40 pm

  36. Abu Chowdah – we are probably in broad agreement.

    Sinclair Davidson

    January 4, 2010 at 12:48 pm

  37. “If they were properly trained you wouldn’t need to sack or jail them, because they’d do their job properly.”

    Properly trained people never makes misjudgements? Are Supreme Court judges not properly trained because we have Courts of Appeal? This is not to suggest that those that misjudge a situation of fact or law should be sacked or jailed.


    January 4, 2010 at 12:50 pm

  38. Actually JC, I don’t believe anyone did anything deliberately wrong in Rau’s case, so your analogy is worthless.

    The fact that nobody can clearly say exactly what went wrong and who was responsible, points to a systemic problem (probably with individual incompetence in the mix).

    But I return to what I said at the outset here – anyone could tell she was freaking nuts, so perhaps a chat to mental health services here and in Chermany would have been in order. And perhaps training in dealing with mentally ill “customers” would be a good idea for immigration officers.



    January 4, 2010 at 12:53 pm

  39. I doubt we disagree DB. A mistake or a misjudgement by a well-trained individual operating in a well-designed system is not going to be jailed.

    They should of course be sacked if their fuckups are serious or frequent enough.


    January 4, 2010 at 12:56 pm

  40. Who is anyone, FDB? Neither you or I are able to determine if the woman was a nutjob, so don’t come out with that excuse. Only properly trained medical staff are able to do that.

    You’re then talking about the freaking immigration services being “properly trained” to spot nutjobs”? WTF?

    So you want to see the equivalent of a psyche ward attached to the dept in the order to avoid another Rau? That’s sure is coast effective.

    The fact that nobody can clearly say exactly what went wrong and who was responsible, points to a systemic problem (probably with individual incompetence in the mix).

    Junior, the entire government apparatus is a huge cover your arse racket. the reason no one takes any responsibility is because its the state and people that work for the state won’t accept cold hard responisibility and are offered much more protection than executives in the private sphere.


    January 4, 2010 at 1:05 pm

  41. Wow, what a pile of complete nonsense.


    January 4, 2010 at 1:23 pm

  42. FDB, if that is complete nonsense, why is there so much immunity to being sued etc for Departmental decisions that private individuals or organisations simply don’t have the power to legislate over others?

    Semi Regular Libertarian

    January 4, 2010 at 1:30 pm

  43. No FDB, You pile was complete nonsense, such as this crap:

    If they were properly trained you wouldn’t need to sack or jail them, because they’d do their job properly.

    The world is just perfect isn’t isn’t. I go outside my home and the kids in the neighborhood are singing in the park, the birds are all mating and the rives flow with chocolate.

    Enron didn’t happen, Bernie madoff is still returning 12% per year and everyone’s having a great old time. Oh, i forgot.. all public servants are properly trained to spot nutcases a mile off and when they are the nutcases are simply returned to their previous country of citizenship like Afghanistan or Somalia where the psyche wards there are properly accredited by US health officials.

    Stop posting nonsense.


    January 4, 2010 at 1:30 pm

  44. Sinclair, I suspect we are.

    Abu Chowdah

    January 4, 2010 at 5:37 pm

  45. FDB,

    It’s almost like you want to create the six million dollar bureaucrat.

    “Director of the Department, Dr Steve Austin…”

    You can almost hear the hi-speed sound effects as he shuffles papers…

    Semi Regular Libertarian

    January 4, 2010 at 6:31 pm

  46. O/T

    hey Semi-regular libertarian AKA ABL

    your previous pseudonym worked better you know. Now you sound like someone who’s not getting enough fibre 🙂


    January 4, 2010 at 8:16 pm

  47. I think ABL worked better than ‘semi-regular’ too.

    Sinclair Davidson

    January 4, 2010 at 8:41 pm

  48. No, I’m just suggesting that when someone is in custody (and not just immigration custody) and they can’t even stick to one name, keep switching from German to English without regard for the listener, cry and shake uncontrollably for hours on end, &c &c, it might be time to

    a) bring in a clinical psychologist, and

    b) try to trace her identity through the public health system.

    It ain’t rocket surgery spotting a loony if they’re as raving as Rau was at the time. It’s not like I’m expecting immigration to diagnose and treat her.

    And the whole malarky about charging officers with criminal offenses – it’s silly. If someone has acted more or less according to their training, what possible charge could be laid? Incompetence is not a crime.

    That’s why the Department was found guilty – it was not possible to establish that anyone did anything illegal, just that the whole system failed royally.


    January 4, 2010 at 10:39 pm

  49. Let’s roll back – isn’t the origin of the problem the law that allows someone to be detained and deported without any form of judicial decision?
    Do we need an overriding principle of “due process” to catch all this stuff?

    ken nielsen

    January 5, 2010 at 4:37 pm

  50. Yes.

    Sinclair Davidson

    January 5, 2010 at 4:45 pm

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