Crikey Classic: could Scott Morrison’s refugee scheme amount to a criminal offence?

This article was originally published on January 31, 2018.

The revelation that in 2013, when he was Immigration Minister, Scott Morrison asked ASIO to slow down security checks on asylum seekers applying for refugee status so they would miss a deadline allowing permanent residency in Australia, is unethical and immoral. But did his actions amount to a criminal offence or is there some civil action that could be brought against Morrison?

It is not suggested Morrison is guilty of an offence but his actions and the motivation for them raise some questions about lawfulness.

Morrison, as the newly minted Immigration Minister after the Abbott government assumed office in 2013, was told there were around 700 asylum seekers who had arrived by boat, in respect of whom Morrison had a legal obligation to grant visas. His department advised him that under the Migration Act, “if a person has made a valid visa application and met all the relevant prescribed criteria for the visa, you or your delegate ‘must’ grant them the visa.” And, the department also advised this meant it was “required to grant a permanent protection visa to irregular maritime arrivals who have been found to be owed Australia’s protection and who have met all the other prescribed criteria of that visa if no temporary protection visa option exists at that time.”

The Abbott government intended to reintroduce a Howard government measure, the temporary protection visa. This visa of course means individuals live in a legal limbo for years not knowing whether their application for refugee status has been accepted by the government.

Given this advice Morrison decided to put politics before the rule of law and asked his department to devise strategies for slowing down the applications for this group of 700 so as to give him time to reintroduce TPVs and place time limits on applications for visas. While we don’t know if ASIO acted on Morrison’s instructions it is clear his purpose was to act to undermine the legal rights of the 700 asylum seekers and to block their chance of being able to stay permanently in Australia.

A section in the Commonwealth Criminal Code, section 142.2, creates an offence called “abuse of public office”. It is a crime punishable by imprisonment of up to five years.

So what is entailed in proving a charge of “abuse of public office? It applies to “Commonwealth public officials” and this includes ministers. The offence can be committed if a Commonwealth public official “exercises any influence that the official has in the official’s capacity as a Commonwealth public official”; or “engages in any conduct in the exercise of the official’s duties as a Commonwealth public official” with the intention office “dishonestly causing a detriment to another person.”

It is certainly arguable that if the revelations published yesterday by the ABC are correct, then Morrison’s conduct is worthy of investigation by the Australian Federal Police.

This is because in 2013 he was a Commonwealth public official exercising influence and engaging in conduct as the Minister for Immigration to cause harm to other people, namely asylum seekers.

As noted above it is clear that Morrison’s actions were designed to cause a detriment to 700 asylum seekers in a very material sense.

The question of course is whether Morrison acted “dishonestly” in his exercise of influence and conduct, namely devising a means of causing a detriment to the group of 700. This is a more difficult question to answer and it has to be said that the case law on this particular offence generally involves examples of public servants obtaining a financial advantage for themselves or others. There do not appear to be any cases dealing with a non financial detriment.

In addition to the criminal law is the possibility that Morrison is liable to be sued by those asylum seekers who were adversely impacted by his decision, if in fact ASIO did as it was requested to do.

There is a claim in tort law called misfeasance in public office. This occurs when a public office holder, like a minister, exercises his or her power intentionally or recklessly in bad faith. It also has to show they intentionally, or were recklessly indifferent, as to whether they caused harm to the persons impacted by their misuse of power.

Misfeasance in public office is not easy to show and a key issue would be proving Morrison acted beyond his power in instructing ASIO.

Morrison’s extraordinary conduct in 2013 needs very close examination because it is clear that his duty as a minister to apply the law fairly was compromised by his desire to play politics with the lives of 700 people.