Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I present the final report of the Legal and Constitutional References Committee on the administration and operation of the Migration Act, together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

I seek leave to move a motion in relation to the report.

Leave granted.

I move:

That the Senate take note of the report.

I rise to speak to the tabling of the Senate Legal and Constitutional References Committee report on the administration and operation of the Migration Act 1958. Australia’s immigration policy has been the subject of a good deal of analysis and commentary over the last few years, particularly issues related to the treatment of refugees and more recently the cases of Cornelia Rau and Vivian Solon. This has been accompanied by severe and justified criticism of the Department of Immigration and Multicultural Affairs and the failures of successive ministers.

The references committee was given the task of reviewing the Migration Act. However, it became obvious from the substantial evidence we received that there was public disquiet related to Australia’s humanitarian program, particularly aspects of the onshore refugee program such as ministerial discretion, temporary protection visas, detention and removal policies and practices, the cumbersome nature of the act and the culture of the department. Our report obviously focuses on the issues about which we received most evidence. In consequence, there is limited coverage in this report of the non-humanitarian aspects of the act, although issues related to student visas are the subject of a chapter in this report.

The inquiry was advertised nationally on 29 June 2005 and we received 234 submissions. Public hearings were held in Adelaide, Melbourne, Sydney and Canberra at which the committee heard from 93 witnesses. Members of the committee were also able to visit Villawood detention centre. I want to place on record the committee’s thanks to all those who took the time to provide considered submissions and who appeared as witnesses. I also want to acknowledge the assistance provided to us by officers of the department throughout the inquiry and with our visit to Villawood.

At this early stage of my presentation of this report I would like to thank the committee secretariat for its assistance with the inquiry and the report. In particular, I want to thank the committee secretary, Owen Walsh, who has recently left the Senate and has been replaced by Jonathan Curtis. I think that the work that Owen undertook needs to be particularly mentioned. The secretariat staff who have supported and assisted Owen and more recently Jonathan and the committee as a whole deserve a mention for their diligent and meticulous work in relation not only to the inquiry, which produced the report tabled today, but also in relation to the overall and ongoing work of the committee.

This comprehensive report makes 61 recommendations covering a wide range of regulatory, legislative, accountability and operational issues. Let us remember that this inquiry was initiated because of the gross mistreatment and significant failings of the department in the exposure of the treatment of two Australian citizens and the failure of this government to recognise that instead of having a thorough and efficient immigration system we have had a turnstile of incompetence under the last two ministers.

Let me start with a comment on the state of the Migration Act itself. The committee agrees with the evidence we received that the Migration Act has become a complex and unwieldy monster. Recommendation 7 says:

... that the Migration Act and Regulations be reviewed as a matter of priority, with a view to establishing an immigration regime that is fair, transparent and legally defensible as well as more concise and comprehensible.

We believe that this task should be undertaken by the Australian Law Reform Commission

There is no doubt that the majority of changes in the immigration system in recent years have occurred by changing regulations rather than legislation. This has led to a minister that is now at arms length from the responsibility of the operation of the department and this has provided a shield and an excuse for a succession of ministers that have maintained that any problems lie within the department when they should be stepping up to the plate and taking ministerial responsibility. The roles, powers and corresponding accountabilities of ministers in relation to their departments have changed considerably over the past decade. In the context of the Migration Act there seems to have been a simultaneous growth in ministerial discretion and a decline in ministerial responsibility for the actions and administration of either their staff or the department.

We acknowledge that the complexity of public administration and the wide-ranging scope of departmental decision making do impact on the minister’s role. Nevertheless, the committee considers it important that accountability measures keep pace with these developments and that not only the department but in particular the minister—especially the minister—be held to account for actions and decisions that are made. Therefore it is not appropriate that terms of reference for inquiries, such as those given to Mr Comrie, would exclude the minister and his or her staff. If they are excluded, effective parliamentary scrutiny of public administration is severely curtailed, and we saw that in the Comrie report, which did not have in its terms of reference the authority to inquire into the related matters in the minister’s office.

That is the rationale behind recommendation No. 1 in the report, which reads:

The committee recommends that the terms of reference for any future independent inquiries into the administration of the Migration Act provide the authority for the investigation to include both the Minister and the Minister’s office.

The report reviews mandatory detention from a policy perspective and examines the operation of that policy in practice. The committee has made 14 recommendations for specific changes to the current policy and practice of detention which we believe would greatly improve the present system.

While there have been some changes recently, particularly in relation to women and children, the law still permits indefinite detention. There is a significant body of evidence that prolonged indefinite detention causes detainees an unacceptable level of mental distress and, in some cases, permanent mental illness, and many witnesses provided that evidence to us. This violates one of the most fundamental rights of all human beings: to be treated with respect and to be protected from mental and physical violation.

One of our key recommendations is that the policy of indefinite mandatory detention should cease. We make this recommendation with the full awareness that it was an ALP government that introduced the mandatory detention policy. However the committee believes that circumstances have now changed. It is time this policy changed too. The committee fully understands that there is a need to detain an unlawful arrival while security and health checks are undertaken, but we believe that 90 days should be more than sufficient for that purpose. Any further deprivation of liberty should be subject to judicial supervision and only permitted on specific identifiable grounds such as where the person poses a danger to the community.

I also draw attention to the way in which Australia manages claims for asylum that go outside the definitions under the refugee convention. Australia has human rights obligations not to return a person to a country where there is a serious risk of a violation of human rights or substantial grounds for believing that the individual will be subject to torture. However, under the current system, the only way this protection is available is by a non-reviewable ministerial discretion to grant protection. This only happens after a person has pursued their claims for asylum under the refugee convention. This approach causes significant delays and results in unnecessary and lengthy periods of detention for people with legitimate protection claims who do not fall within the strict definition of the refugee convention. The discretionary approach to this issue also lacks the elements of transparency and accountability. Recommendation 33 therefore recommends that ‘complementary protection’ be put on a proper statutory footing so that all claims can be dealt with simultaneously.

A related issue is management of immigration detention centres. We received evidence on many aspects of the management of detention centres, but for me the bottom line is an abiding belief that there is a fundamental conflict in a private company, whose prime consideration is profit, managing such establishments. Recommendation 48 therefore suggests:

... that, as a fundamental overarching principle, direct responsibility for the management and provision of services at immigration detention centres in Australia should revert to the Commonwealth.

In concluding my comments, I say that it is only today that I have seen the dissenting report from the government members on this committee and I want to make a few comments very quickly. For the government members on this committee this has been a missed opportunity to provide some meaningful and practical changes to the management of the immigration system. There is only one witness who can actually defend the department, and if you look at the government senators’ contribution to their report you will see that DIMIA says, ‘Everything’s okay.’ So if you want to know that everything happening is all right in the immigration department, ask the department themselves. It is a classic case of Yes Minister. The government’s dissenting report fails to quote any of the 233 other witnesses that we heard from; they only quote from the department to defend their stance. It is unfortunate that most of the members of the committee missed the hearings in Adelaide and Sydney and, of course, the trip to Villawood. (Time expired)

Concetta Fierravanti-Wells (NSW, Liberal Party) Share this | Link to 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.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

The scandalous treatment of Cornelia Rau and the discovery that Vivian Solon had been detained and deported continue to raise serious questions in the minds of the public about the competence and the humanity of Australia’s immigration system. The almost universal call for a royal commission to investigate a department that has been described as being out of control and that seriously damages the lives of so many Australians was ignored by the government. Instead, two private inquiries with limited terms of reference were set up. But even these two inquiries, the Palmer inquiry and the Comrie inquiry, indicated there were ‘systemic failures’ and ‘cultural problems’ within the department of immigration.

Due to the government’s refusal to establish a royal commission, the Senate inquiry was set up. The evidence that came before the Senate inquiry, including over 200 submissions, was a litany of disasters—disasters and tragedies where lives were significantly impacted on or destroyed by the actions of this government and this department. The evidence indicated that the cases of Cornelia Rau and Vivian Solon were not isolated incidents. Throughout the inquiry, we heard of widespread instances where such behaviour had gone almost unnoticed and unreported because it was occurring in remote or offshore detention centres. The evidence indicated that the department of immigration was failing to administer the Migration Act in a way that afforded people fairness, justice and proper process. More disturbingly, it was failing in its duty of care to the people in its custody. Indeed, there was compelling evidence that the department and the private companies administering the immigration detention centres were administering the act in a way that was hostile to people and that in some instances led to their abuse.

The evidence also indicated that parts of the Migration Act itself contribute to the failures of the department, particularly the failure of some sections of the department to ensure that officials can use appropriate discretion and commonsense in making the decisions that they make. Parts of the Migration Act that contribute to these failures by the department are section 189, which deals with reasonable suspicion in requiring people to be detained; section 501, which requires people to be deported; and the provisions in the act that deal with temporary protection visas. A further failure of the act is that there is no proper complementary protection scheme in place.

The evidence to the Senate inquiry came under two broad themes. The first relates to the cultural attitudes within the department. We were told of the culture of suspicion and hostility towards asylum seekers—of attempts by department officials to try to catch people out, to look and probe for inconsistencies and to search for reasons to reject applications.

The second theme in the evidence brought before the inquiry was the failure of the policy of mandatory detention and the impact that it has on people’s lives, particularly on their mental health. What was meant to be detention for purely administrative purposes has turned into a system of punitive detention without any of the same safeguards that exist within the criminal justice system. The power to detain unlawful noncitizens has meant that cultural hostility towards asylum seekers has manifested itself in cruel behaviour toward detainees behind razor wire in remote immigration detention centres. Instead of the department making impartial, unbiased and well-considered decisions and treating the individuals in its care with dignity and respect, the policies of this government have led to a virtual criminalisation of asylum seekers.

The Australian Greens lay the blame for the criminalisation of asylum seekers directly on this government. The Prime Minister, the former minister, Mr Ruddock, and the current minister, Minister Vanstone, all bear responsibility for the current cultural and policy problems of the department of immigration. The trails from Cornelia Rau suffering untreated schizophrenia in the Baxter isolation cell and Vivian Solon enduring her injuries in a hospice in the Philippines lead directly to the Prime Minister’s door.

The exploitation of xenophobia by this government and the demonisation of asylum seekers and refugees has led to the culture of hostility that exists within the department of immigration. Continual public comments, some of which have been found to be untrue, from the Prime Minister and the ministers about the security threat posed by boat people and the need to repel and deter asylum seekers, and the discrediting of asylum seekers as non-genuine or queue jumpers, have directly led to the culture problems evident in the recent actions of departmental officials in the department of immigration. It should be no surprise that the bureaucracy have taken on cultural attitudes that have been so vehemently and stridently expressed through government ministers and have subsequently administered the act in the way in which they thought the government desired.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

I welcome the tabling of this report. The inquiry was the result of a motion that I moved on behalf of the Democrats, and it is an inquiry that almost certainly would not have been established under the current Senate arrangements. It was initiated in June, before the government took control of the Senate. Judging by the government’s record since then, it is precisely the sort of inquiry that would have been blocked.

I am a bit disappointed in the final results. I think the government senators’ approach from day one has been quite defensive, and that is disappointing with all of the talk from the government about culture change, acknowledging past problems and the reforms that are under way. I would have thought it would be a good opportunity to be more open to examining the problems that still exist.

One comment of Senator Fierravanti-Wells that I do agree with a little bit was that there was a very heavy focus on the asylum seeker and refugee area. Despite that being the area of biggest public controversy, it is actually one of the smaller areas in the operations of the immigration department. That focus in large part was because that is an area a lot of the submissions went to and where the biggest injustices occur. But it is not the only area where there are problems, and it is certainly not the only area where people suffer as a result of the department’s administration of the Migration Act and, indeed, the content of the Migration Act.

Some of those other matters did come up. The inquiry examined issues like the deportation of long-term Australian residents to countries overseas on character grounds and some of the terrible human situations that occur as part of that. We examined and heard some useful evidence about student visa cancellations, the way those are being run and the impact that has on people, and about a few other matters as well.

I think we have to continually make the point that, if we are genuinely going to change the culture of the department, we have to look at the act and the policies that the department has to administer. It is simply not possible and not credible to suggest that a culture is not heavily influenced by the laws and policies that a department has to administer. We have had continual complaints about the number of people that appeal to the courts and the tying up of resources in court action. The fact is that there have been many pieces of legislation put through this chamber supposedly aimed at reducing court action in the migration area and none of them have worked. In fact, I think they have had the opposite effect.

If you make the law deliver unjust outcomes, people will appeal them, because people have an underlying assumption that the law and the system will produce justice and fairness. I know that is a nice, utopian sounding concept, and we all recognise that there are limitations in the justice you can get from the law. But, when you have situations that are clearly fundamentally unfair, unreasonable and unjust, of course people are going to appeal them. The attempts to try and narrow the grounds of appeal to restrict the opportunities for appeal have all failed because the outcomes the government is trying to deliver through its legislation are fundamentally unjust.

There have been warnings time after time. As the Ombudsman himself made clear, there has been report after report, year after year, into all sorts of problems and injustices in the migration area that have been ignored. That has changed with the Cornelia Rau incident, but clearly not enough. We are seeing through this that there is still no recognition from the government. It is time to go back and look at all of the changes that were made over the last 15 years or so and see which ones were really counterproductive. They were all, of course, supported by the Labor Party. They would not have passed into law otherwise, because the Democrats certainly did not support them. There is valuable information from this inquiry that builds on work that has been done before. Unfortunately the government has ignored a lot of that work. I hope they do not ignore this work. I seek leave to continue my remarks later.

Leave granted; debate adjourned.