By George Masri
Deputy Ombudsman, Commonwealth Ombudsman
Immigration law and policy is a complex, highly regulated and reviewed area of government administration which impacts significantly on people’s lives. It is a topic which receives much media and political coverage; too often in a polarised and not so accurate way. Most people seem to hold strong views about immigration - whether those views go to the composition of the migration program, the extent to which our boarders are being protected, the treatment of asylum seekers and detainees or whether migrants or temporary entrants are meeting Australia’s skill shortage or taking jobs away from Australians. Whilst clarity about the migration program and rules is often overlooked when the immigration debate takes place in a broader arena, clear immigration information is essential and sought after by applicants and their Australian sponsors, whether they are overseas or here temporarily wishing to remain longer or permanently.
This description not only captures key features of the immigration debate and administration today but also describes what things were like thirty years ago when the Interagency Migration Group (IMG), which later became the Immigration Advice and Rights Centre (IARC), was established. It is against this backdrop that key themes of providing accurate information and advice, educating community workers about the immigration program and campaigning for immigration law and policy reforms are as relevant back then as it is today. The founders of IMG, which involved the Macquarie Legal Centre and Marrickville Legal Centre as well as other community workers, lawyers and other interested individuals, saw the need for greater coordination and awareness of immigration policy, information and reform. IARC’s continued publication of the Immigration News and the Immigration Kit reinforce this broader commitment.
The 100th edition of Immigration News provides an opportunity to reflect on some of the early IARC (and IMG) days, some of the earlier editions of the publication and the enduring success and value of IARC as a leading community based organisation in this important area of administration. These reflections are predominately based on my time as a volunteer with IMG and later as IARC’s principal solicitor from 1988 until 1991. In reflecting on the past it is important to acknowledge the commitment and foresight of key IMG founders especially Betty Hounslow (Marrickville Legal Centre) and Steve Mark (Macquarie Legal Centre) as well as Anthea Lowe who was one of the early and active IMG members and importantly also worked on the early versions of Immigration News and the Immigration Kit.
Reflections on the foundation years
Back in 1982 I was in my fourth year of an Arts Law degree at Macquarie University. I had also been volunteering for a number of years at Macquarie Legal Centre - eg answering telephone calls, undertaking a range of administrative tasks and taking notes during advice sessions for the public. Whilst this experience enabled me to be part of a large group of volunteer students and workers who assisted with the running of the centre it also gave me an insight into the importance of ensuring that legal advice, information and services are accessible to the more disadvantaged in the community. However in 1982 with this connection to Macquarie Legal Centre I then joined the IMG as a volunteer soon after its formation. This gave me an opportunity to do more and be involved in and witness the evolution of something significant – not only improving the provision of advice and representation but also strengthening awareness of immigration law and policy and engaging in reform activity.
Following its establishment in 1982, for a few years the IMG met as a coalition of workers discussing and pursuing a range of immigration policy and legal issues, engaged in various community and government consultations, drafted submissions for reform, developed information publications aimed at demystifying immigration law and policy and making it more accessible to those working in the area. In the early years these activities were not specifically funded and it was not until 1985 that funding enabled the IMG to employ a solicitor to work within an autonomous unit of the Macquarie Legal Centre. Also in 1985 the IMG received limited funding from the Immigration Department to cover the costs of the first edition of the Immigration Kit. Such funding facilitated the setting up of a drop in immigration advice service as well as the provision of greater immigration information and assistance to community workers and individuals.
There were significant challenges in those early days in keeping up with changes in immigration law and policy. Back then immigration policy was not entirely transparent, nor was it readily publicly available, so it was a key focus for IMG and IARC. There was nothing to compare with the level of codification of immigration policy we now have with the Migration Act and Migration Regulations, there was no legal or policy database like LEGENDcom, nor was there anything like the level of material now available on the Immigration Department’s website such as information about visa categories and immigration policy and the visa assessment wizard to assist individuals assess their eligibility for appropriate visas. In the early IARC days the FOI process had to be utilised in order to access relevant immigration policy and changes. This meant that IARC staff would literally have to visit the FOI section of the Immigration Department on a regular (often monthly) basis and photocopy any changes to policy. This was not only a necessary process in ensuring accurate and contemporary information in preparation of the Immigration Kit and each edition of Immigration News but it was also a catalyst for assessing whether there needed to be a broader campaign to address any concerns there may be with implementation of such changes.
Early editions of Immigration News
The first Immigration News was published by IMG in May 1986, it went to four pages and contained handwritten headlines. An insight into the purpose behind the Immigration News can be gleaned from the following which appeared on the front page of that first edition under the handwritten heading of ‘Who we are?’
‘The newsletter is produced by the Interagency Migration Group. We are a Sydney group of community workers, lawyers and others interested in immigration law, policy and reform. We have been meeting monthly for over 3 years – usually on the Thursday in every month, at Cleveland St Community Centre, Surry Hills.
One of our main aims is to set up an immigration resource centre (like the Welfare Rights Centre, but for immigration issues). So far we have two workers Doreen Muirhead a solicitor, funded by the Legal Aid Commission and Anthea Lowe, a community worker, funded for 12 months by the Law Foundation. Doreen does casework, training, funding and policy reform submissions. Anthea has been finalising our Immigration Kit … and will be conducing training sessions and trying to evaluate whether the Kit is useful.
We hope to produce this newsletter regularly – hopefully monthly. It will contain general updates on immigration law and policy and information on what other groups are doing in this area, and anything else of interest. Please contact us if you want to put anything into a future issue – for example, you might like to include information on particular cases you have dealt with, or tactical information, or updates on changes you’ve picked up, or campaign suggestions, or just clarification on particular aspects of immigration law and policy.’
A month later the front page of the second edition of Immigration News pronounced a ‘Bigger and better newsletter!’ - this time it went to six pages and the headlines were no longer handwritten. The second edition also heralded the birth of IARC; it informed the reader that IMG had changed its name to IARC and that Immigration News was being jointly published by IARC and the Immigration Reform Council of NSW. By November 1986 (ie the sixth edition) IARC became and continues to be the sole producer of the newsletter.
1986 was a big year with the first six editions of Immigration News produced in a little over six months. However it soon became evident that the intention of having monthly editions of the newsletter was not going to be sustainable with the limited funding and staffing and significant demand on IARC’s services. In 1987 Immigration News became a bi-monthly newsletter and later evolved into a quarterly publication it is today.
The early editions of Immigration News had the characteristic mix of information about recent and proposed changes in immigration law and policy, reviews, editorials and analysis, information about community advice services and campaigns… and of course cartoons were prominent. Examination of these editions not only provide a window to the approach IARC took with the publication but also a window to the nature of immigration policy and administration at the time which also shaped IARC’s services and approach during the early years of operation. Below are just some of the topics and issues covered in the first year’s editions of Immigration News.
· Changes to immigration law and policy – from the start Immigration News contained clear summary updates of changes to immigration law and policy. By way of example, in the early editions information was provided about changes to the Citizenship Act impacting eligibility and fees, new Independent and Concessional Migration category, changes to the resident return visas, changes to the special benefit entitlements for certain immigration applicants and expansion to the change of status on occupational grounds. Each Immigration News also had a do it yourself update to the Immigration Kit which summarised more specific policy changes.
· Proposed changes and reviews into immigration law and policy - Alerting people to proposed changes and reforms foreshadowed by government was a feature in the early editions. For example there were number of articles over a few editions about proposed and more restrictive changes to the immigration appeals system and entitlements. These articles not only outlined what was being proposed but also included commentary on the likely impact on implementation or potential risks. IARC was part of a broader coalition of organisations that successfully lobbied Cabinet members and other parliamentarians to reject the more restrictive proposals and to advocate for a fairer appeal system. An article, which was published in the 3rd edition, boasted about some successful lobbying strategies IARC and the other organisations used - ie ‘telegrams, telexes” as well as letters and phone calls that flooded Cabinet ministers. Getting a coordinated campaign to bring about change was a little more challenging in the 1980s than it is now with email and social media.
· Community engagement – articles about various community groups and forums such as the Immigration Reform Council, the Migration Law Group, the Refugee Council of Australia and a refugee women’s forum, which not only informed the reader of their existence and purpose but also encouraged participation in their activities. By way of example in the 2nd edition of Immigration News there was a short article by Peter Shergold, the then convenor of the Immigration sub-committee of the Ethnic Communities Council (ECC) and yes, the former Secretary of the Department of Prime Minister and Cabinet, calling for interested people to be involved in the work of the ECC’s Immigration sub-committee. He explained in the article that the sub-committee was interested in pursuing matters such as consultations over the immigration intake and developing policy papers on such topics as an emergency family reunion category. In another example an article in the first edition introducing the Migration Law Group, described how the group was discussing problems with areas of the Department’s procedure including ‘getting enough supplies of forms, getting regular information about any changes to policies and procedures.’ It is a reminder how much things have changed. Today we take for granted much more accessible and codified law, policy and procedures for not only the practitioner such as migration agents but also prospective applicants and their sponsors.
· Advice services and training workshops – Each edition of Immigration News contained information about free immigration advice services not only ones which IARC ran in Sydney but also other services provided in other states. It also promoted the immigration training workshops which IARC and other organisations were conducting. Often Immigration News was used as a vehicle to advocate the need for appropriate funding for free advice services. For example in an early edition of Immigration News an article appeared about a new group that had been set up to try to establish a refugee advisory service in NSW – the Refugee Advisory Service was formed to campaign for the funding of a properly funded refugee advisory service in NSW. This ultimately became a successful campaign and in 1988 the Refugee Advice and Casework Service was established following ongoing government funding.
· Mix of information and critique – even when IARC was progressing a broader policy issue or campaign it recognised the need to also inform people of existing law and policy before critiquing particular policy proposals or reviews. For example in a number of the early editions of Immigration News there were several editorials and commentaries about possible consequences of a proposed amnesty in relation to illegal immigrants which was foreshadowed by the government at the time. To supplement this broader commentary and campaign the 3rd edition of Immigration News contained bland yet informative outline of the search, seizure, arrest, detention and interrogation powers under the Migration Act and there was also an international perspective of amnesties for illegal immigrants in the US and New Zealand in the 9th edition. These more factual articles were not only a timely reminder of existing laws but were also important in enhancing awareness of the legal and comparative context of a significant immigration policy pronouncement.
· Headlines tell a story - The more things change the more they stay the same. Replicating some of the headlines and topics in the early editions reinforces this point. ‘Huge delays in processing change of status applications in Sydney’, ‘Freedom of Information delays in NSW’, ‘Freedom of Information Change’, ‘Why Australia should increase its refugee intake’, ‘Points test under review’, ‘Problems in Getting Special Benefit’, ‘People who claim refugee status here should be treated better’, ‘Overcrowding at Villawood’, ‘More fees go up’. These headlines (with some minor adjustments) could easily reflect many contemporary issues which I assume are on IARC’s radar today.
Campaigning for immigration law, policy and administration improvements and reforms
IARC’s role in keeping pace with changes and proposed changes to immigration law, policy reforms and administration as well as its commitment to informing people of their implication was demonstrated by its approach to a major review of immigration policy in 1988 by the Committee to Advise on Australia’s Immigration Policies (CAAIP) and the subsequent government response in 1989 which not only included certain policy refinements but significant legislative reforms. The CAAIP review stimulated much debate within the community – whether Australia’s immigration program was the right mix, whether a non-discriminatory migration program was going to receive bipartisan political support and what the changes would mean for those wishing to migrate to Australia. In such an environment it was important to clarify the facts and enable people to be informed of the issues and the implications of suggested reforms.
IARC used the July 1988 edition of Immigration News as a special supplement on the CAAIP review to provide a factual outline of some of their key findings and recommendations and to also provide an analysis and commentary of the implications. That edition of Immigration News was also used as a tool to inform lawyers and community workers of the ways in which they could become involved in various campaigns that were taking place at the time, including involvement in a National Conference on the Future of Immigration and an ongoing National Immigration Forum to input and monitor Australia’s Immigration policy, make submissions to the Immigration Minister, contacting members of parliament and raising awareness of the report and its recommendations. IARC’s active involvement with this broader CAAIP Review and the government’s response included linking with key community groups and engaging with the Minister and key departmental and parliamentary stakeholders. It was a key focus for IARC during 1988 and 1989 and it positioned the centre well to then take an active and leadership role in responding to the legislative changes that were introduced in December 1989.
19 December 1989 is a date that is still firmly entrenched in my memory (as it may also be with immigration lawyers and others working in this area at the time) as a significant day in immigration administration history and in IARC’s history. One could look back at that day as being the introduction of a new immigration legislative package which included substantial amendments to the Migration Act and a new set of Migration Regulations. This was significant because eligibility criteria and other key immigration rules were no longer just in departmental policy guidelines, publicly accessible under FOI, but they were set out and codified in immigration legislation. The intention was for the Migration Regulations to initially codify the existing immigration policies and not any changes in criteria, unless these had been previously announced by the government as part of its reform response to the CAAIP review. The legislative package followed a major CAAIP recommendation for such legislative reforms to be made. This legislative scheme effectively formed the basis of the present immigration legislative and policy framework we have today. The then Immigration Minister heralded the new legislative package as removing the ‘guesswork from decision-making about who could and could not enter and stay in Australia’. Clarity and transparency are good public administration principles and in theory at least this was what was behind these legislative changes.
However what might have been the theory or intention behind these changes did not immediately eventuate and a different reality took place. Uncertainty, trial and error approach, constant legislative changes, unintended consequences and inadequate support and information were more characteristic of the reality we saw at IARC back then. The promise that the Migration Regulations were initially only going to reflect what had been existing policy had not entirely eventuated. Even subtle changes in policy which occurred in the transition to regulations, of which there were many, led to confusion, greater complexity and unintended consequences. Draft versions of the Migration Regulations were provided to some stakeholders, including IARC, only a matter of a few days before they were due to come into force. In reviewing them at the time we identified what we saw as shifts in policy, omissions which were previously covered in policy but were not replicated in the regulations and many seemingly unintended consequences in the transition to legislation. Not only was more work required to get the detail in the legislation right but it was also clear that implementation issues existed – eg inadequate staff training and a lack of clear and comprehensive information to applicants, community workers and migration practitioners. From IARC’s perspective it was evident that the regulations were not ready to be introduced.
Notwithstanding widespread criticism from those who reviewed the draft regulations and calls for a delay in their introduction, the Minister was determined to go ahead with the 19 December implementation date and allow subsequent amendments to the regulations to deal with any issues that might arise. This getting it right process took some time with 15 separate sets of amending regulations introduced in 1990 and 21 sets in 1991 - most of the issues were in many ways dealing with the consequences of the original December 1989 regulations. There is a lesson here… a good policy idea which introduces substantial changes and has such widespread implications (such as codification and transparency of immigration policy into legislation) should be backed up with a well thought through introduction and implementation strategy. It should certainly not be rushed and introduced when it was clear that significant problems and issues with the legislation existed and that its very introduction would lead to greater uncertainty, at least in the short to medium term. Delaying its introduction by a month or two may have made the world of difference.
From 19 December 1989, and for many months beyond, IARC’s telephone advice line was inundated with the public, community workers, lawyers, migration agents and even departmental staff seeking information and clarification about a whole range of immigration policies and laws. Requests for information and training sessions, articles, involvement in various policy and consultative forums also reached an all-time high. During this period IARC as a key and active member of the National Immigration Taskforce (a coalition of community groups set up at the time to respond to the December 1989 changes and which included the Federation of Ethnic Communities Council of Australia, the Refugee Council, the Public Interest Advocacy Centre) played a leading role in advising, informing and advocating for improvements in how the immigration program was being administered. During this period and into the early 1990s, IARC (often in partnership with other groups and utilising forums such as the National Immigration Taskforce) were successful in lobbying for key areas of immigration reform. Many of these reforms are now well established areas in immigration law and policy and include independent merits review of certain decisions, appropriate consideration of spouse applicants subject to domestic violence, enabling gay and lesbians to be sponsored by their Australian partners and greater consumer protection and regulation of migration agents.
IARC and Immigration News today
IARC can be held up as a longstanding and successful community legal centre specialising in immigration law and policy. Its success is in large part due to pursuing an integrated approach to its services and work. Through its extensive advice and casework service, IARC has been well positioned to understand how immigration policy and law is being administered and what it means for people on the ground. In many ways the advice and casework service has been an important tool for understanding and identifying issues and trends. IARC understood the impact immigration rules had on applicants and their sponsors. This was often against the backdrop of much confusion and misinformation within the community about immigration policy – as was especially the case in the earlier period. IARC used this sound understanding of these issues as well as its detailed knowledge of immigration law and policy to make the most of its connection with key community stakeholders and its active engagement with the department, the Minister and the Parliament (members, senators and committees) to pursue improvements and reforms.
Today IARC continues this integrated approach. In addition to the advice and casework service it continues to be active in information and education as well as policy reform and consultation. IARC continues to publish the Immigration Kit, Immigration News and has an extensive range of plain English information sheets regarding immigration processes and visas. IARC continues to conduct general community information sessions for community workers and members of the public. IARC continues to be active in reform work, including membership of a range of community and government policy and consultative forums, making submissions to parliamentary and departmental inquiries and liaison with key departmental and other stakeholders regarding policy concerns.
This integrated approach IARC takes continues to be reflected in the more recent editions of Immigration News. There are the familiar articles that clearly inform the reader about key changes in immigration law and policy, proposed changes and reviews and the impact of recent court decisions on the immigration program. This is mixed with commentary expressing some concerns about aspects of the immigration program or the way it is administered and commentary calling for further reforms. In another familiar and integrated theme to the early years, we even have the principal solicitor contributing not only to the written content but also to visual graphics. This time photography, rather than cartoons, is the artistic median of choice.
Congratulations IARC on reaching the 100th edition of Immigration News. It is a significant milestone not only for the publication but also for IARC and both are worthy of recognition and reflection. Immigration News remains an important publication and I look forward to IARC producing the next 100 editions...with a bit of luck we may even see the re-emergence of cartoons!
Thank you for the opportunity to reflect, it brought back some fond memories of what we were able to achieve in partnership with others.