Concetta Fierravanti-Wells (NSW, Liberal Party) Share this | Hansard source

The majority report of the Senate Legal and Constitutional References Committee on the operation of the Migration Act was, in our view, substantially flawed. It suffers from a biased and highly selective use of the evidence presented during the inquiry. The dissenting report sets out criticisms of the majority report, but four stand out. Firstly, the majority report consistently fails to see the Department of Immigration and Multicultural Affairs in its wider context. DIMA is a department which makes in excess of four million decisions a year—yes, four million decisions. It administers large and complex migration and refugee programs.

In addition to the 43 per cent of Australians who were either born overseas or have at least one parent who was born overseas, Australia is host to a very large number of temporary entrants. In December 2005, for example, there were around three-quarters of a million people in the country on a temporary visa. In the 10 minutes or so that I speak today, the department has considered and granted around 90 visas and around 550 people have entered or left our country. That is almost one every second. This is a department with a very wide portfolio responsibility, which includes migration and settlement, multicultural issues, community harmony and citizenship objectives. As a consequence of these wide-ranging responsibilities, the department necessarily engages in legal activities. The costs of litigation to the Commonwealth in the immigration sphere are quite significant and have been significant for a number of years.

During my years of employment with the Australian Government Solicitor, I saw first-hand the nature of the legal work undertaken by the department. Indeed, my representation of the department has spanned across 20 years, from the time of judicial review of matters in the 1980s under Labor administrations to the more recent cases of alleged damage claims arising out of detention. Just in response to Senator Crossin, I have seen what this department has done, not just recently but over the last 20 years. The department’s litigation costs are due largely to the number of cases which are undertaken in any year.

I think it is important to note some telling statistics. Currently, the department has a litigation caseload of around 3,500 active cases before the courts and the Administrative Appeals Tribunal. It receives approximately 5,000 new cases each year, and this has been the trend in recent years. It resolves just over 5,000 cases each year. These are significant figures. For the last financial year, 2004-05, the department’s spending on litigation external to the department was in the order of $36.8 million and the internal cost of managing that litigation was somewhere in the order of $5½ million.

The department’s success rate in litigation is very high. The department takes great care to seek to defend only those cases where it has reasonable grounds for success. This indeed was my experience also, and I think that is reflected in its success rates before the courts and tribunals. In the financial year 2002-03 the department was successful in 92.5 per cent of the cases it defended; in 2003-04 that improved to 94 per cent; and in 2004-05 it was 95 per cent. Inevitably, in managing such a large number of matters, any agency will make a certain number of mistakes. While it is quite proper to examine these mistakes and take measures to address them, the majority report makes no attempt to see the department’s decision making in a wider context. Indeed, it arrives at general conclusions based on isolated specific examples.

The second major defect of the report is its resolute fixation on the past. Large tracts of text are devoted to a detailed rehashing of information and allegations contained in previous inquiries, blind to the quite extensive changes announced by the minister as a result of, among other things, the recent Palmer and Comrie inquiries. Consequently, many of the issues and criticisms presented in the report are out of date and no longer relevant. Thirdly, the majority report is characterised by what can only be described as a biased and uncritical approach to evidence. In particular, many allegations are passed off as evidence of fact without any attempt to test the accuracy of the claims being made or the motives of the individuals making them. This error is compounded by those allegations then being used to justify sweeping generalisations and recommendations. Fourthly, the majority report seems largely concerned with the management of asylum seekers and immigration detention to the exclusion of the wider operation of the act.

I remind those opposite that the system of mandatory detention was introduced in 1992 by the Keating Labor government. In one of the many classic examples of partisan myopia, the majority report fails to mention, much less objectively examine, detention statistics prior to 1996. The period 1992-1996 is conveniently left absent from discussion in the majority report—four years when the foundation of detention was established. I refer senators to the annual reports of the department—for example, the 1992-93 annual report, which reflected the increases in compliance activity then and the increase in the number of people passing through immigration detention centres.

The report has other failings. These include selective quoting, with unreasonable weight given to comments made by avowed critics of not only the policy of mandatory detention but also the Howard Government in general; selective quoting of statistics; and an unbalanced presentation of material, with chapters containing evidence that is overwhelmingly critical of the department but fails to include comprehensive material provided by the department in response to the hearings and subsequently in answers to questions on notice. The majority report contains paragraph upon paragraph of assertions and allegations on a range of matters and then little of the material provided in response. This gives an unbalanced and distorted view, as it does not put the evidence into proper context.

The majority report is written in an accusatory and negative tone, using over-the-top language rather than giving an unembellished account of the facts. It fails to give proper weight to the reasons why people stay in detention, often for lengthy periods, due to—for example—litigation commenced by them or delays due to applicants seeking adjournments. Indeed, in my years of representing the department, I saw matters prolonged for these very reasons, especially in relation to information the department was seeking to have verified by overseas sources. Another failing of the majority report is that, given that migration agents play an important role, it should have included information about the problems with unscrupulous agents and their impact on cases, as well as the exorbitant fees they charge.

One of the majority report’s main failings is its failure to highlight the key elements of the government’s reform program announced since the Palmer and Comrie inquiries. Indeed, yesterday we saw further announcements by the minister. An important starting point in this process was the minister’s referral to the Commonwealth Ombudsman of all cases of detention that might be in any way doubtful. In light of the Rau and Alvarez cases, this was a justifiable precaution. Supported by a commitment of $231 million, the department has implemented a road map for change which includes the creation of an open and accountable organisation with obligations to government and the community; fair and reasonable dealings with clients; and well-trained and supported staff.

I would remind the Senate of a series of changes, including a restructure of the national office of the department. There are improved and stronger governance arrangements, including a new values and standards committee working with the Ombudsman, the Privacy Commissioner and others. The Audit and Evaluation Committee has now been expanded, with an external chairman.

In addition to the staff training initiatives mentioned in the majority report, substantial improvements have been initiated for the immigration detention centres. These go well beyond the recommendations made in the Palmer report. There is an active case management framework and a community care pilot is also being developed for clients in exceptional circumstances. All detainees are now screened for mental health problems, and mental health plans are developed where appropriate. Vast physical improvements have also been made at Baxter and other immigration detention centres.

Independent reviews of the department’s information technology systems have been implemented, examining business information needs, governance and records management. To these should be added the wider groundbreaking work that the department is doing in developing computerised systems for visa applications. The department has also expressed an ongoing commitment to building on all its reforms, progressing projects and continuing to engage, listen and respond to community concerns.

In combination, these amount to a substantial and systematic response by the government to the flaws identified by the inquiry. The failure of the majority report to properly consider these changes casts serious doubts on the accuracy and relevance of the recommendations it makes. The majority report ignores the wider context of the essential, complex and difficult work that the department does in controlling Australia’s borders. This task is essential to Australia’s security. The dissenting report points out the many flaws in the majority report. Consequently, government senators are unable to agree with the analysis or findings of the majority report.