Framed by legal rationalism: refugees and the Howard Government's selective use of legal rationality, 1999-2003
Creators: name: Rogalla, Barbara
Publisher: name: RMIT University
Year: 2024

description: This thesis investigated the power of framing practices in the context of Australian refugee policies between 1999 and 2003. The analysis identified legal rationalism as an ideological projection by which the Howard government justified its refugee policies to the electorate. That is, legal rationalism manifested itself as an overriding concern with the rules and procedures of the law, without necessarily having concern for consistency or continuity. In its first form, legal rationalism emerged as a 'misuse' of legal rationality, whilst actually masking other rationales behind refugee policies. In its second form of the ideological projection, legal rationalism manifested itself as fetishism with legal rationality as an end in itself.<br><br>This assertion counters the government's claim that the principles of its refugee policies consisted of four broad parameters: humanitarian outcomes for refugees, maintaining an orderly process, observing the tenets of legal rationality, and assertively acting on sovereignty issues. By using three case-studies to investigate three defining moments in Australia's refugee policies, the government's claims were analysed against Weberian 'ideal types' of each of the four policy parameters. Legal rationalism emerged as the dominant, though unstated, ideology behind the official policy justifications. Legal rationalism, however, went beyond language claims and policy justifications, but also manifested itself at the level of state structure. An analysis of institutional practices within parliament, the bureaucracy, and the control of public discourse traced a process where legal rationalism at times generated, at other times overcame, systemic contradictions.<br><br>Legal rationalism, more consistent with political framing practices than legal rationality, assisted the Howard government to utilise the law to frame refugees as an undesirable 'other'. Legal rationalism, driven by political process, permeated every layer of interaction from on-the-ground policy practices to the public institutions. This political process enabled the Howard government to tightly control government accountability to the electorate, micro-manage the release of information into the public domain, and influence the way in which the judiciary exercised its powers of interpretation in the courts.<br><br>A unique version of case-study methodology, followed by an analysis of institutional practices based on the findings of the case-studies, provided an analytical tool to examine the workings of government within state structure. Such methodology may be useful for other analyses that seek to scrutinise the complex matrix of interaction between government rhetoric, public accountability and those framed as outsiders. The detailed analysis of language claims that served as justifications for public policies, the comparison of these language claims with actual delivery of the policies, and the resulting tensions within institutional practices all depict a concrete example of changing social structure. This analysis also generates insight into which aspects of refugee policy have worked and which should be discarded.<br>