Grattan on Friday: The rift between Brandis and Dutton deepens as the behemoth of Home Affairs rises

Immigration minister Peter Dutton got a towelling from the Senate this week when he couldn’t reach a deal with the crossbench on his legislation to toughen requirements for people seeking Australian citizenship.

The bill was to impose a harder – many would say a ridiculously difficult – English test on those wanting to become Australians, and to require a longer waiting period.

The Senate gave Dutton a Wednesday night deadline to muster support or lose the bill from the notice paper. He offered some concessions but without success, and the bill dropped off - to return only if and when the numbers change. The minister says he’ll fight on.

Dutton had been sent a fresh message about the limits on his power. He doesn’t like such reminders. We know this from his attacks on court and tribunal rulings against his ministerial decisions, and his vitriol about lawyers who represent refugees and asylum seekers.

After he agreed with broadcaster Alan Jones about the “un-Australian” behaviour of lawyers who frustrate government efforts to return people to Manus and Nauru following medical treatment, the ongoing deep rift between Dutton and Attorney-General George Brandis flared publicly earlier this month.

In a speech to the International Bar Association Brandis said pointedly that “those who exercise executive power must always accept that they are subject to, and must always be respectful of, the supremacy of the law. And in that process, as the custodians of the rule of law, the role of lawyers is essential”.

Brandis didn’t name Dutton, but his target was clear.

Colleagues observe the palpable hostility between the two ministers, both from Queensland, as Brandis has recently been increasingly willing to assert small-l liberal positions (slapping down Pauline Hanson and Tony Abbott as well as Dutton), and has in turn been the object of apparently antagonistic briefings to the tabloids.

As the new Home Affairs department that Dutton will head is being sewn together – including immigration and bringing under its umbrella ASIO, the Australian Federal Police, Border Force, the Criminal Intelligence Commission and AUSTRAC – it’s an open secret that Brandis (who loses ASIO but retains the power to sign its warrants), his department and some officials within the agencies are deeply apprehensive about it.

Some of their concerns may be reinforced by the picture painted a week ago by the new department’s secretary-designate, and current immigration secretary, Mike Pezzullo who, like Dutton, is seen as an empire builder who takes no prisoners.

Pezzullo, speaking to the Trans-Tasman Business Circle, spelled out Home Affairs’ “philosophical context”, and sent the message that it would be activist, intrusive (often secretly) and have long tentacles.

Pezzullo’s starting point was the “duality of good and evil” at the heart of globalisation.

On the “evil” side - the “dark universe” - “terror has become de-territorialised”, and global networks of crime and exploitation are becoming more apparent.

“There are global dark markets for hacking, money laundering, cryptocurrency movement, assumed identities for criminals, terrorists, child exploitation perpetrators and others,” he said.

In this context the security power, designed to protect the home front, “is being organised into a single enterprise to deal with the interconnected and globalised threats that we face at home”, in an era when “home” and “outside” blur.

“To protect and secure home, we have to be prepared to act globally and to develop networks with like-minded actors, including industry.”

The task requires wide and deep reach, with the department’s “facilitation” functions (migration, passenger services and the like) and security being the flip sides of the one coin.

“The state has to increasingly embed itself – not majestically, sitting at the apex of society dispensing justice – but the state has to embed itself invisibly into global networks and supply chains, and the virtual realm, in a seamless and largely invisible fashion, intervening on the basis of intelligence and risk settings. Increasingly, at super scale and at very high volumes”, Pezzullo said.

“Sometimes we’ll embed in a way that will be invisible to you [in business], because we’ll take data and we’ll put it with other data sources and then see, we’ll wash it and then we’ll come back with an intervention decision which might be ‘no one on that plane needs to be questioned’ or maybe ‘everyone does’, and you’ll go ‘yep, OK, whichever we have to do, we do’”.

The facilitation model requires “a public-private partnership model between Home Affairs and its component agencies and virtually every sector … whether it’s the banking system and talking to them about the active defence of their networks, whether it’s the infrastructure sector … utilities, power, water, etc, the air traffic control system,” he said.

“Home Affairs is going to be sort of the centre of excellence of figuring out how does Australia work. And we have to be careful about how we write this down, because when you then write the manual, how you take Australia down, there’ll be like one copy of that, and I’m not going to tell you where I’m going to keep that, because that’s going to be a very dangerous book!”

When the Home Affairs department was announced Malcolm Turnbull emphasised the checks on its power, which will be located especially in the Attorney-General’s department.

But in government and administration, culture and attitudes can often be an important as formal restraints and oversight, and Pezzullo’s critics point to what happened to the culture after the integration of customs and immigration.

The old immigration department used to focus on the nation building aspects of the people flow to Australia. Now, the dominant culture of the Immigration and Border Protection department is one focused on security, with a very disciplined, somewhat military overlay. (Pezzullo has an intense interest in things military and was disappointed to miss out on the job of secretary of defence, for which he was well qualified, when it was recently up for grabs.)

As the Home Affairs behemoth looms, sharpening questions about what should be the limits on state intrusions, this week saw a paradoxical juxtaposition in relation to Australia’s role in and performance on human rights.

Australia was elected to the United Nations Human Rights Council, a body to protect and promote human rights globally. At the same time, it was robustly criticised by the UN Human Rights Committee, a group of experts monitoring implementation of the International Covenant on Civil and Political Rights.

As the year’s end approaches, the speculation continues to be strong that Brandis will depart parliament in Turnbull’s summer reshuffle. There is no doubt that Turnbull - who is thick as thieves with Dutton - wants him out, not least to promote Mathias Cormann to Senate leader and (probably) Christian Porter to attorney-general.

The exit of Brandis would be one less frustration for Dutton. It’s ironic, but true, that the man who was lambasted for asserting the right for people to be bigots is at present the strongest voice in the cabinet for the protections of the rule of law.