The first was about a nameless Chinese citizen given the moniker "NK". He entered Australia on a student visa not long after the Tiananmen Square massacre in 1989, but in 1992 was convicted of murder and sentenced to 20 years in jail. In 2006 the parole authorities judged him suitable for release. However, as a convicted murderer he is no longer eligible for an Australian visa because he fails the "character test". He should have been deported immediately. However, he is at risk of being retried for the same offence in China and being executed, and the Australian government is prevented by law from returning him to that kind of danger. Unable to resolve the dilemma, the Immigration Department has been holding him in the Villawood immigration detention centre for the last five years.
The second is the ongoing saga of cyclist Alberto Contador's positive drug test. Contador was found to have a small amount of the anabolic steroid clenbuterol in his system during last year's Tour de France, which he won. He claims he didn't take it deliberately and got it from eating a contaminated steak. Leaving aside the question of how he knows that, the Spanish cycling federation accepted his defence, but the International Cycling Federation and the World Anti-Doping Agency appealed the decision in the Court of Arbitration for Sport. Now we hear that the case will not be heard until August, after the end of this year's Tour and more than 12 months after the positive test.
What struck me about both these cases is that the questions in view, and the options for resolving them, are not that complicated. For "NK" there are basically four options.
- Waive the character test and allow him to stay in Australia.
- Negotiate a guarantee from the Chinese Government that it will not prosecute him, and then return him there.
- Negotiate with a third country to accept him.
- Return him to China despite the risk of execution.
The question in the Contador case is even simpler. Are the authorities prepared to give him the benefit of the doubt, or not? It's fairly easy to identify the possibility of his telling the truth. There are only two questions.
- Is it medically possible that the amount of clenbuterol in his system got there through a contaminated steak?
- Do European countries import meat from farmers who use such substances to speed animal growth?
These are not isolated cases. I've been involved in a couple of rather less glamorous but equally frustrating government decision-making processes in the last couple of years. In each case, all the parties have been agreed about the final outcome, and the issues at stake have not been very large, but the administrative processes have been stiflingly slow, so much so that they put the project at risk as partners start to look for other alternatives.
Why is it that our governments and legal bodies are not able to make decisions? Why do so many issues sit in limbo, with no apparent action, while the people most affected wait in frustration and often (as with "NK") in detention or poverty?
When I studied social work, all those years ago, we read the writings of Richard Titmuss, an English social policy thinker and champion of the welfare state. Titmuss talked about the idea of discretion. Resources would be made available through the welfare state and there would be broad guidelines as to how these resources should be applied. However, it is impossible to foresee all the individual circumstances of the people who will be applying for help, so frontline officials needed to be given a lot of discretion in how they applied these policies in particular cases.
Titmuss was a generous man, and expected that the officials would use their discretion generously to promote the wellbeing of the people who came looking for help. However, human nature being what it is things didn't always work out that way. Often officials were mean and arbitrary, acting as gatekeepers and making unfair judgements about "deserving" and "undeserving" applicants.
As a result, a lot of secondary structures developed to right these wrongs - review panels, appeal tribunals, grievance and complaints mechanisms, judicial review for extreme cases. These gave applicants a better chance of getting bad decisions reviewed, but a sad side effect is that they made officers cautious in the use of their discretion. Public servants knew people were looking over their shoulders, and this made them careful. They made a list, they checked it twice, they got their superior to check it too.
Then something else happened. That superior, up until the end of the 1980s, was a carreer public servant. Through the 1990s all the senior ranks of the public service were effectively converted into political appointees, on short-term contracts and with their jobs under threat with each change of government. Their focus shifted from service delivery to political management. The Minister had to be protected, kept out of trouble. Your job might depend on it.
Everyone got super-cautious. Now every decision is subject to endless review, multiple sections of an official's own Department and other departments have to be consulted. If they disagree with each other, they have to be consulted again. Every letter has to be checked. I once asked a State official if he could let me have a copy of a form that is sent out regularly to over 400 organisations. He told me I would have to write to the "Access to Information Officer" who would consider my request and may or may not then send me a copy of the form within three weeks. I asked a friend in one of the 400 organisations for a copy and got it the next day.
The result of all this timidity is that major decisions do not get made. "NK", having served his sentence, is imprisoned for a further five years for the crime of creating a dilemma for immigration officials. Alberto Contador, if he tries hard enough, could stretch out his case until after his retirement. The wheels grind slowly, but they grind exceeding small.