2.1 The fieldwork site

The government agency which took part in the fieldwork was the Refugee Review Tribunal of Australia (RRT). The RRT is responsible for hearing appeals from primary Department of Immigration and Citizenship (DIAC) refugee protection visa applications under the Migration Act 1958,Footnote ¹¹ functioning as a review-level body within the Australian bureaucracy. In doing so, they conduct an administrative reconsideration of the primary-level case and operate as a merits review body within the same legislative framework as DIAC. Decisions are heard by a single member, where the member conducts a hearing with the asylum seeker applicant and subsequently makes a decision to affirm, vary, set aside or remit the primary decision. The core policy mandate of the tribunal is to reach decisions that are ‘independent, fair, just, economical, informal and quick’ (Australian Government, 2012–2013), and RRT members are selected from both legal and non-legal backgrounds, and are usually of a mature age with professional experience, to attempt to achieve these goals. Forty open-ended unstructured interviews with former RRT members were conducted, where participants were allowed to talk freely about their attitudes and experiences on the tribunal to generate unbounded legal consciousness insights.Footnote ¹²

The involvement of retired RRT members in the research was serendipitous (see Halliday and Schmidt, Reference Halliday and Schmidt2009, p.6) rather than contrived. Because the research – at this stage at least – aims to innovate legal consciousness theory rather than provide policy directions or improve particular normative outcomes for public administration, the involvement of RRT members in the research is attributable to ease of access and the researchers’ pre-existing knowledge and network base rather than a priori necessity (in that, another government department could have operated as the fieldwork site and proved equally as telling). It might be retrospectively noted, however, that the RRT has provided a rich fieldwork site for bureaucratic legal consciousness theory-building as the social and political sensitivity of refugee claims in this particular government department, as well as the age, wisdom, qualifications and dedication of RRT officials, have combined to produce clear, coherent and highly articulate legal identification narratives. Additionally, a high level of dedication to the job on the part of bureaucrat interviewees may have contributed to facilitating the expressed connections between broader moral valuations and legal identification, where on the other hand an official disconnected from their decision-making tasks would presumably express little association between their broader ideals and legal attitudes. This therefore departs from traditional studies of front-line bureaucracy, which focus on the standardised routine of government officials (see Mashaw Reference Mashaw1983; Maynard-Moody and Musheno, Reference Maynard-Moody and Musheno2003; Hertogh Reference Hertogh2004a, Reference Hertogh, Van Der Burg and Taekema2004b) to provide a fresh consideration of how legal identification is constructed and expressed at higher levels of government.

This departure does raise an interesting question as to whether those areas of public administration that are essentially standardised and less demanding and politicised than RRT decision-making correspond with narrow, detailed and merely descriptive identification narratives (refraining from connecting decision-making tasks with broader moral values or ideals), whilst individuals possessing high levels of education, professional experience and dedication to the field and their careers, such as those studied here, uniquely express higher-level deductive reasoning in their forging of connections between moral values and legal identification. Whilst such questions fall outside the scope of this research, they may require further empirical research in the future.

4.1 Extending our empirical understandings: bottom-up enquiry into legal consciousness in government at the appeal level

Despite their rich findings, both Cooper's and Hertogh's studies leave us with further questions. In response to Hertogh's more recent study we may question whether legalists, loyalists, cynics and outsiders are accurate ideal typologies when the awareness component of the legal consciousness equation has been tenuously ascertained. Whilst Hertogh maps the legal awareness of the official as one factor influencing legal consciousness and the legal identification of the official as the other, he is not explicit about the methods he uses to chart this awareness. Whilst he reveals that he conducted a six-month evaluation study and secondary data analysis of the NITZ officials, we are left in the dark as to how the officials’ awareness was ascertained through these endeavours. He does discuss the various officials’ attitudes towards the legal concept of Reechsstaat, and presumably utilises a consistent method for charting their awareness of these laws despite not revealing it, but such silence does give cause to ponder the broader question of whether accurately ascertaining legal awareness of government bureaucrats is even a real possibility.

As Hertogh himself outlines, Knowledge and Opinion of Law (KOL) studies have largely been considered limited since the 1970s, and mostly replaced by broader studies which avoid many of the methodological problems that the earlier KOL studies had encountered (Hertogh, Reference Hertogh and Adler2009, p. 205). Large-scale survey and questionnaire data analysis that drove early legal consciousness research have been abandoned for a more qualitative enquiry into attitudes towards law. Such methodological concerns form an important basis of this research, where attempts to ascertain the actualFootnote ¹³ legal knowledge of the participants is explicitly abandoned and the conceptual focus is on legal identification only. A detailed study of bureaucratic legal identification through direct conversations with the bureaucrats themselves can tell us much about the ways government officials think about law and can begin to chart the unexplored connections between such officials’ legal identification and their broader ideals.

Further, Cooper's and Hertogh's research provides only a very small picture of the scope of government officials’ legal consciousness in its confinement to one particular level of government: the front line. Whilst these studies undoubtedly provide an important starting point for legal consciousness in government research, they leave open the question of whether officials’ legal consciousness can be similarly understood when it comes to appeal-level decision-making, and at higher levels of government. Cooper's findings that front-line officials’ attitudes towards law did not mimic those of the ‘powerful’, but rather, those of the powerless and everyday citizens that formed the bulk of legal consciousness studies prior (Reference Cooper1995, p. 521), produces a series of questions, and paves the way for further analyses of legal consciousness in government beyond studies of front-line officials alone. If front-line officials reflect similar attitudes towards the law to those of powerless subjects, can the same be said of those at higher levels of government who may possess greater levels of power?

This is an important question, not just for revealing more information about this substratum of government, but also for clarifying our understandings of the conceptual relationship between notions of legal consciousness and individual power. As we know, legal consciousness studies emerged to address perceived issues of legal hegemony and understand the legal views of the ordinary and powerless (Silbey, Reference Silbey2005, pp. 324–335). If front-line government decision-makers, exercising small but at least greater amounts of power than those originally envisaged within the scope of such research, have been found to mimic the consciousnesses of the powerless (Cooper, Reference Cooper1995, p. 521), we might query whether these shared consciousnesses are a reflection of the relative powerlessness of front-line officials (in comparison to government officials at other levels of government), or in fact whether individuals at different levels of government and with greater power and influence reflect a similar range of consciousnesses towards law. Again, this motivation provides a departure point for the present study, which investigates the legal consciousness of government bureaucrats at the fresh appeal level – where decision-makers are typically educated and quasi-powerful professionals removed from the bulk of ordinary and mundane practices commonly attributed to the front line.

Empirical progress is also made in the present study in that, whilst Hertogh finds that his government officials do not value legality or equality, but responsiveness and material equality, discussing the ways that the ideal of the Rechtsstaat is constructivist, pluralist and pragmatic, he acknowledges that his case-study is by no means a thorough empirical analysis and outlines the importance of further enquiry on the topic (Hertogh, Reference Hertogh, Van Der Burg and Taekema2004b, p. 93). Given that Hertogh explicitly refrains from imposing his normative theorisations of the relationship between alternative values and the master ideal of the rule of law, explicitly attempting to remove his personal ideals from the study of the officials’ legal ideals, it seems paramount that Hertogh's study be based on sound empirical analysis. As such, this study continues Hertogh's affiliation with Donald Black's discussion of the empirical boundaries of legal sociology, where Black stated:

With this in mind, the study's clear and curtailed focus on that which is capable of empirical investigation (legal identification, but not knowledge)Footnote ¹⁴ through a means well known to provide the richest legal consciousness insights (the interview meeting)Footnote ¹⁵ tightens the empirical framework that Hertogh's earlier study falls short of, to improve the plausibility of later normative theorisations.

4.2 Extending our normative understandings: legal consciousness in government as a culmination of top-down values

This study also extends Ewick and Silbey's original legal consciousness typology that famously conceives of individuals as being either ‘before the law’, ‘with the law’ or ‘against the law’ (Ewick and Silbey, Reference Ewick and Silbey1998), which has thus far navigated the ambit of the legal consciousness enquiry (see Merry, Reference Merry1990; Cooper, Reference Cooper1995; Engel, Reference Engel, Garth and Sarat1998; Ewick and Silbey, Reference Ewick and Silbey1998; Cowan, Reference Cowan2004; Hertogh Reference Hertogh2004a, Reference Hertogh, Van Der Burg and Taekema2004b; Harding, Reference Harding2006; Hertogh, Reference Hertogh and Adler2009; Halliday and Morgan, Reference Halliday and Morgan2013), to include consideration not only of participants’ attitudes towards law, but also a fine-grained analysis of the moral values that structure these attitudes.

This is important in the sense that the study of bureaucratic legal consciousness can draw insights from the sociological jurisprudence of scholars who have emphasised the importance of ideals to understanding social reality (see Weber, Reference Weber, Shils and Finch1949; Taekema Reference Taekema2003; Selznick, Reference Selznick2008; Van der Burg and Taekema, Reference Van Der Burg and Taekema2004). How can one understand the world of bureaucrats without probing deeper into the ideals that drive their daily life? How can one understand the complex reasons why administrative decisions are made without understanding the sensitivities of those making those decisions? How can one say much about a bureaucrat's legal worldview without engaging further with the ideals that evoke and sustain it? Insights into what people value and strive towards can tell us much about how life is ordered. Any normative theory of what matters requires, at its core, a descriptive consideration of what people currently aspire to. We cannot know what to change without knowing what people consider important. A full account of bureaucracy requires a consideration of legal consciousness – broad attitudes towards law – as well as a breakdown of the ideals associated with these attitudes. Whilst previous studies have concentrated on attitudes towards law, the consideration of the way that moral values structure these legal attitudes is entirely new and, as the present study reveals, provides a telling explanatory framework of the broader ideals in which these legal identification narratives are embroiled.

6.1 Weak identification with law and strong regard for personal experience

Interview conversations revealed that participants expressed a weak identification with law in conjunction with expressions of a strong regard for personal experience. They expressed conjoined cynicism in the capacity of law to guide good decision-making and optimism in the notion that personal experience would instead guide good decision-making; discussing the possession of personal experience as a desirable state of affairs inversely proportional with the importance of the law.

Participant A expressed a consistently weak identification with law, and a correspondingly consistently strong idealisation of the personal experience of the decision-maker. He asserted:

When asked about an influential and well-known case, Chan Yee Kin ((1989) 169 CLR 379)Footnote ¹⁹ and the effect that it had on his decision-making, he responded:

For this participant, personal experience equipped one to be a good decision-maker, above a correct understanding of the law. Personal experience of the context in which the applicant lived or fled was the most desirable attribute for understanding the rule that was to be applied. The participant viewed the legal case discussed as a ‘handy cluster of considerations’ that could be illuminated through the ‘eccentric [presumably meaning concentric] circles’ of the decision-maker's life experience. His statement that ‘we were absolved from the rules of evidence – whatever they are’ encapsulates this decision-makers’ apathy towards unearthing the legal rules and, when read alongside the previous excerpts, attests to his simultaneous belief in the importance of applying one's own personal experience to the role.

But it was not only those from legal backgrounds who conceptualised the role of law in decision-making as distinct from the role of personal experience, and who demonstrated weak legal identification and high regard for personal experience in union. Individuals from both legal and non-legal backgrounds constructed a dichotomy between law on the one hand and life experience on the other, and continually referred back to the role of decision-maker experience when either the decision-maker's ability to reason the law, or the reason inherent in the law itself, (allegedly) ceased.

Participant F, coming from a legal background, asserted that:

Similarly, Participant D reflected on the desirability of life experience to guiding good decision-making, commenting that:

For Participant E, this limitation of law was reflected in court decisions, which ‘don't really know how the system really works from the inside’:

Like these participants, Participant F reflected that what was often more desirable to influence good decision-making than an understanding of the law was personal experience; placing this ideal of experience on a pedestal. When asked whether legal understandings were sufficient to equip decision-makers to make good decisions, Participant F responded:

Such experience was also paramount for Participant G, who demonstrated consistently low identification with law and consistently strong regard for personal experience simultaneously. When asked generally about the ideal composition of the tribunal, Participant G responded:

When asked how RRT decision-making could be improved, Participant G, who was not a lawyer but described himself as ‘if anything, a historian and an economist’ (recounting that he told the head of staff when he began his appointment: ‘I hope the department doesn't think that I'm a lawyer’), responded that:

Participant T, whose background was in the medical field rather than law, spoke about issues of bias confrontation that she had previously learnt in the medical field, that she believed were lacking in practice in the ‘legalistic’ RRT environment, which she said obscured the practice and outcome of refugee credibility assessments. She reflected on her former experiences in the sexual health field, where she was taught values clarification and to confront her biases when it came to better understanding HIV patients from illicit sexual backgrounds – whom she was initially unable to understand or respect – and identified the development of values through these experiences as central to conducting refugee status determinations.

Likewise, when asked what skills were important to conducting a credibility assessment – and how she herself conducted her assessments on the tribunal – Participant A2, again from a non-legal background, discussed the centrality of acquiring detailed understandings of various countries and situations and the way personal experiences facilitate this understanding, claiming ‘The really good people, their experience of country is really important. So I think that experience of country is as important: more important than anything else’.

As with Participant T having acquired knowledge of different cultures in the medical field, Participant A2 drew on her past experience on charity boards in facilitating her understanding of other countries to inform good decision-making in conjunction with expressions of little regard for the role of law in the area.

Participants O, C2 and D2 similarly reflected on their personal experiences and the primary role that these played in making good credibility assessments. They referred to their previous work as foreign affairs officers and the impact of this work on better understanding the situation in non-Western cultures, from which the vast majority of applicants flee. They continually reiterated the importance of personal travel; personal exposure to Third-World living conditions, including political instability, non-Western approaches to narrative reconstruction (which they identified as much less formalised than those commonly understood by Western decision-makers and in mainstream Australian culture), and understanding non-Western approaches to place and space across a range of cultural contexts. The emphasis throughout these interviews on the participants’ notions of good decision-making amounts to more than descriptive summaries of the way that their personal experiences played a role in their decision-making: they explicitly reflect on the desirable nature of utilising personal experiences to come to good credibility assessments, and in doing so conceptualise wide personal experience as a normative ideal for good decision-making.

Likewise, Participant L, having practised as a lawyer for many decades before taking up the position with the tribunal, was explicitly asked whether knowledge of law equipped the individual to be a good decision-maker. She responded:

Participant P, who had practised as a barrister for many years and performed a number of senior legal and political roles within Australia and internationally, when asked whether knowledge of the law was sufficient for good decision-making responded:

Participant B2, also with extensive legal experience, and having worked in numerous other legal and human rights positions, repeatedly conceptualised the limitations of law as connected to its inability to fully capture those things gained from personal experience. He outlines that:

Participant B2's contention that ‘it's a very difficult situation to explain and the law doesn't show that’ epitomises the conjoined scepticism of participants towards the law and a strong regard for personal experience. For the participant bureaucrats, law cannot fully capture the complexities of life that are learnt through ones ‘background [which] equips you better’.

6.2 Strong identification with law and strong regard for intellect

Whilst individuals expressed weak identification with law with strong appreciation for personal experience simultaneously, they conversely expressed strong appreciation for intellect with strong identification with law.

When asked what the crux of making a refugee credibility assessment involved and what the core skills to conduct this assessment were, Participant C responded:

Through connecting reason with the ability to make a decision that can stand the ‘scrutiny of the courts’, Participant C identifies the ability to possess and apply distinct intellectual traits as the core feature of conducting a refugee status assessment, simultaneously revelling in the intellectual complexity of the law.

Like Participant C, Participant D identified the possession and application of personal intellect and analytical skills as a crucial factor impacting refugee credibility assessments, and expressed strong identification with law simultaneously, claiming that:

This statement again reflects a strong identification with law – discussing its importance in refugee tribunal decision-making – but acknowledges that whilst such skills might be learnt through a legal or non-legal background, such a background is not necessarily crucial for the possession of the broader reasoning skills that are embodied, for this participant, in the legal training that lawyers obtain.

A strong regard and appreciation for law was also recurrently expressed by Participant F, who, in her expressions of strong identification with law, again expressed a broader valuing of intellect simultaneously. Whilst discussion in the previous section revealed that at many points of the interview conversation Participant F expressed low legal identification in conjunction with a strong regard for personal experience,Footnote ²⁰ here the same individual expresses strong legal identification in conjunction with a broad idealisation of intellect, priding herself in her legal skills by claiming:

When asked what it was that assisted in getting ‘the law right’, Participant F responded that it was partially her legal background, but not exclusively so, and discussed the way in which individuals could also get ‘the law right’ even if they were not legally trained:

For Participant F, as for each of the thirty participants interviewed, legal training was not crucial to conducting the refugee status determination,Footnote ²¹ but it tended to provide a solid basis for the provision of broader intellectual skills required to understand and apply the law.

When asked to elaborate on the role that a legal background played in shaping decision-making, Participant F responded:

For Participant F, going back to ‘first principles’ was associated with constructing a legal case and applying the law to arrive at a correct decision. People without a legal background generally struggled because they could not suspend judgment and return to the first principles that, according to F, the law inherently recognised.

Participant H, who did not come from a legal background, expresses this correlation between strong legal identification with strong regard for intellect when she discusses:

Participant H's illustration of the elliptical circles of legal reasoning that one understood when they ‘started being smart about it’, as opposed to the everyday chronology of story-telling, again reflects the correlation between strong legal identification and an inherent idealisation of intellect, where law is perceived as containing a logical circle of tricks that will lead the decision-maker to a correct decision. As with the other interview conversations, it is the perception of this connection between intellect and the law, rather than the reality, that is captured here; and contained within this perception is the concurrently expressed high regard for the individual who taught the participant (the ‘deputy senior member’) to adopt the former to understand the latter. A clear idealisation of intellect marked this participant's reflections, as they spoke not of the neutral descriptive manner in which intellect and the law were correlated but made normative reflections of the way in which ‘logic’, ‘being smart’ and understanding the ‘legal framework’ assisted their decision-making.