Ursula Stephens (NSW, Australian Labor Party, Parliamentary Secretary Assisting the Prime Minister for Social Inclusion) Share this | Link to this | Hansard source

I present two government responses to committee reports as listed at item 12 on today’s Order of Business. In accordance with the usual practice, I seek leave to have the documents incorporated in Hansard.

Leave granted.

The documents read as follows—

The removal, search for and discovery of Ms Vivian Solon

Final Report (December 2005)

Government Response

Introduction

The events surrounding the removal of Ms Vivian Solon in 2001 have become symbolic of the problems that emerged in the immigration portfolio at that time.

This case was made public in 2005, and was investigated by both Mr Mick Palmer AO and Mr Neil Comrie AO.

The Committee and the investigation by Mr Comrie both highlighted the failure of DIMIA, as it then was, to more thoroughly investigate Ms Solon’s identity prior to her removal, given that at the time Ms Solon insisted she was an Australian citizen.

The most shocking element to this case was that when Commonwealth officials subsequently discovered that they had removed an Australian citizen, action was not immediately taken to remedy the situation.

In this context and in response to the earlier reports of Mr Palmer and Mr Comrie the Department has engaged in a process of business and cultural reform.

As part of this organisational transformation, DIAC has implemented improvements to training, data management and information systems, compliance activity, case management, detention services, client services, health services and identity verification. These improvements have been most profound in the areas of instruction and training on the initial decision to detain an unlawful non-citizen, structured reviews of detention decisions, and the case management of non-citizens in detention.

These reforms have been supported by strengthened governance, stakeholder engagement, risk management and quality assurance processes, to ensure high professional standards in decision-making, particularly in relation to decisions to detain and remove people. Many of the initiatives that DIAC has implemented are cited here in response to the recommendations of this Senate Committee Report.

Recommendation 1

The committee recommends that in relation to the interviewing of detainees, if a detainee is unable to sign the record, there must be certification by a third party that the record of interview is correct.

Response - Agree

Since the finalisation of the Senate Committee Report, considerable efforts have been made by the Department to ensure transparency and fairness for those people in immigration detention who are unable, for whatever reason, to sign and endorse the record of interview. Revised instructions require officers to consider whether the person may require a third party present during the interview and inquire whether the person wishes a friend, family member or other third party to be present for support.

Where an assessment has been made prior to interview that a person can be interviewed but is unable to sign the record of interview, a third party will be made available to attend the interview and provide certification of the record of interview.

Officers are also required to consider before an interview whether the person is well enough to be interviewed. Priority is given to addressing any health issues before an interview is conducted. As part of the case management of people in immigration detention, consideration is given to circumstances where the person appears to be in a confused or distressed state or experiencing a mental illness. In such circumstances, DIAC will seek expert advice from its detention health services’ provider about the best way to proceed.

Where the health services’ provider advises that a person in immigration detention is not competent to make decisions about his or her welfare or provide informed consent because of mental health issues or intellectual disabilities, the Department, the person’s family or a representative may apply to the relevant State Guardianship Board for the appointment of a Public Guardian to act in the person’s interests.

Finally, in the case of people in immigration detention who are unable to sign because of insufficient competence in English, DIAC’s procedures require the record of interview to be signed by the interpreter assisting in the interview as well as the person.

Recommendation 2

The committee recommends that DIAC staff are reminded that independent and accredited interpreters must be used and that the use of a departmental officer as an interpreter should only occur in exceptional circumstances.

Response - Agree

In relation to compliance and immigration detention activities, departmental instructions remind staff to use independent qualified interpreters, such as those available from TIS National (Translating and Interpreting Services), wherever the client has difficulties understanding or speaking English. This is consistent with DIAC’s commitment to the Charter of Public Service in a Culturally Diverse Society. In exceptional circumstances, such as where an independent and accredited interpreter is not available (for example, because interpreters for some emerging community groups are yet to achieve National Accreditation Authority for Translators and Interpreters (NAATI) accreditation), DIAC seeks to use people who it is satisfied are competent to interpret in the circumstances. This may include departmental officers.

DIAC’s College of Immigration also provides compliance officers with formal training sessions conducted by NAATI relating to the professional use of interpreters. This training reinforces and reminds these officers of existing departmental instructions that require them to seek the assistance of accredited interpreters.

DIAC’s intranet provides staff with contact details for TIS National. When contracting the services of an interpreter, TIS National gives preference to interpreters who are NAATI accredited or recognised.

DIAC staff with language skills are sometimes used to assist in a wide range of departmental services and activities which do not relate to compliance or immigration detention activities. These include citizenship and settlement activities, over-the-counter services, offshore services and services for refugee and humanitarian entrants.

Recommendation 3

The committee recommends that DIAC carefully consider the process to ensure that someone in a confused and distressed state has access to legal advice.

Response - Agree

During the reception process, people in immigration detention are informed that they can seek legal representation or contact a consular representative. This is done through a written notice which is available in a number of community languages.

As part of the case management of people in immigration detention, consideration is given to the particular circumstances of each individual, including their competence to make decisions about their welfare or to provide instructions to a legal representative. Where a person appears to lack mental competency, the Department will receive expert advice from its detention health services’ provider. Depending on the advice of the health services’ provider, the Department will then consider appropriate case management and where required will approach the State Guardianship Board for consideration of the case in respect of whether a guardian should be appointed under the relevant state or territory legislation.

Recommendation 4

The committee recommends DIAC review checklists regarding identity checking and the decision to detain and remove process to ensure that the actions outlined above regarding contact with the police and advice regarding legal assistance are captured so they are addressed by DIAC officers when effecting removal.

Response - Agree

DIAC has made major changes to policies and procedures relating to the detention of unlawful non-citizens. These focus on establishing correct identity and escalating matters where identity is not able to be confirmed at the outset, and are reinforced through the training program DIAC compliance staff now undertake.

DIAC will continue to review and refine these procedures to ensure that all reasonable lines of enquiry are pursued and embedded into our processes to ascertain a client’s true identity. DIAC will include specific references to include the requirement that local police be contacted where a possibility exists that a person of interest may have been subject to actions which could have affected their capacity to clearly establish their identity, such as assaults or motor vehicle accidents. The capture of this information will be supported with policy advice on how this information may be used to help establish a person’s identity. Responsibility for the investigation of alleged criminal action would remain a matter for the appropriate law enforcement authority.

DIAC has also implemented procedures that ensure that a person is not removed from Australia without a formal assessment of the case being done by a senior officer. This assessment includes satisfaction about confirmation of the person’s identity and immigration status as well as satisfaction that visa applications, litigation and other proceedings relating to immigration status have been finalised. The assessment may also involve assessment of whether proceedings with relevant authorities such as the police have been settled.

The measures in place for ensuring that people in immigration detention are afforded reasonable facilities for obtaining legal advice are discussed in response to recommendation three above.

Recommendation 5

The committee recommends that the Australian government review the adequacy of section 189 of the Migration Act 1958 and/or the introduction of a regulation that stipulates the evidence required for a person to be detained as an unlawful non-citizen.

Response - Agree

Since the Committee’s report and informed by both the Palmer and Comrie reports, the previous Government initiated considerable improvements to the policies and operational procedures around the power to detain at section 189 of the Act. These improvements are based on the proposition that immigration detention is a last resort, and many have been developed and implemented in consultation with the Commonwealth Ombudsman.

For example, current procedural instructions on the application of section 189 of the Act specify a list of objective indicators upon which officers must base their knowledge or reasonable suspicion that a person’s status is unlawful. These instructions are reinforced in the departmental College of Immigration training program.

In August 2007 the Ombudsman’s office commenced ad hoc inspection visits accompanying departmental compliance teams. These visits are being conducted under the preliminary inquiry powers at section 7A of the Ombudsman Act 1976. The Department also provides the Ombudsman with six-monthly reports on instances of people detained under s189 who were subsequently released having been determined to be lawful.

Further improvements to policy settings, training and quality assurance have been made to enhance sensitivity to the individual’s circumstances. These reforms include, amongst others:

• the development of improved training and instructions relating to the application of section 189, and what constitutes the formation of a reasonable suspicion;
• the establishment of a quality assurance framework, including mandatory managerial review of all decisions to detain people under the Act;
• the appointment of Detention Review Managers to provide independent assurance, removed from compliance activities, that decisions to detain are made lawfully and reasonably; and
• a Compliance, Case Management and Detention Integrated Business Model, developed to ensure the provision of coordinated services that achieve immigration outcomes in a timely, fair and reasonable manner.

These approaches have halved the rate at which unlawful non-citizens located by departmental compliance work are taken into immigration detention. Thirty per cent of compliance locations resulted in detention in 2004-05, but for the 2007-08 year to date this figure is down to under 15 per cent. The overall number of people in detention has also been reduced from 862 in June 2005 to 456 at 14 March 2008.

This Government proposes to continue and extend these changes where necessary and to provide humane, fair, reasonable and timely outcomes for people who are detained as unlawful non-citizens.

Recommendation 6

The committee recommends that the development of appropriate standards for health and care needs for detainees in transitional detention – identified in Recommendation 9 in the Ombudsman’s report – specify mental health as an area to be addressed.

Response - Agree

The Detention Health Framework articulates the broad principle that fair and reasonable standards of health care, including mental health care, be provided to people in all forms of immigration detention within the immigration detention network. Fair and reasonable health care means a comparable standard of health care in terms of quality and timeliness that is available to members of the Australian community.

The Detention Health Advisory Group (DeHAG) advises DIAC on policy and procedural matters related to immigration detention health issues. Following a DeHAG recommendation, DIAC has worked with the Royal Australian College of General Practitioners (RACGP) to develop health standards for immigration detention centres. Where people are immigration detained in a community setting, DIAC’s health service management organisation prefers to engage health care services which are accredited against the RACGP Standards for General Practice.

Recommendation 7

The committee recommends that the explanation of rights regarding the medical examination be included in a relevant checklist as discussed in recommendation 4 above.

Response - Agree

People in immigration detention are provided a standard of health care commensurate with that available to the Australian community. Consistent with this, all people in detention who are offered medical examinations are informed of the purpose of the examination and have the right to refuse (i.e. consent is sought). The requirement for consent to a medical examination is part of the Department’s health induction assessment and discharge health assessment protocols.

A refusal to agree to a medical examination is recorded in the client’s health file. Advice is provided as to any health risks associated with such a refusal. Advice to the Department on the health status of a person is based on the best available health information when so requested.

Where clients are medically examined as part of a removal process they are advised of the purpose of such an examination unless clinical advice to the contrary is given by the health service manager. In this unlikely event, the information would be recorded in the Removal Availability Assessment, a document which is provided to the responsible SES Band 1 Officer, seeking approval for the removal to proceed.

The requirement for consent to medical examination is contained in the RACGP Standards for health services in Australian immigration detention centres (June 2007) which is the Department’s policy document regarding this issue.

Recommendation 8

The committee recommends that DFAT review internal processes regarding the treatment of concerns expressed by other governments that have the potential to affect bilateral relationships, with a view to ensuring that appropriate senior officers in Canberra and in relevant posts are made aware of these concerns.

Response - Agree

DFAT has looked closely and critically at its involvement in Ms Solon’s case. A number of steps have been taken to ensure effective checks are in place and that any similar cases in the future are exhaustively followed up. The steps include tightening DFAT’s rules requiring reporting and tasking of overseas posts to be communicated through the cable system, thereby ensuring significant developments – which would include expressions of concern by other governments – are brought to the attention of senior staff.

Recommendation 9

The committee recommends that DIAC review its procedures to ensure that formal procedures are in place for the reception of people being removed from Australia in circumstances similar to Ms Solon and that their final destination is recorded on file.

Response - Agree

DIAC notes that the responsibility for citizens of a country to which they are returned lies with the authorities of that country. The Australian Government can only have a limited role in the initial reception of non-citizens upon return to their home.

In keeping with DIAC’s case management approach, individuals’ needs for post-removal support or reception arrangements in their country of destination are assessed on a case by case basis. Depending on the needs identified in a person’s specialised case management plan, the post-removal care provided by DIAC may, for example, involve arranging:

• for individuals to be transported to or met by medical and/or welfare staff;
• short term accommodation or clothing;
• contacts for post-removal health support and continuation of treatment regimes, where possible; and
• a small allowance and provision of information on welfare organisations.

Reception arrangements for individuals are detailed in the removal planning documentation, and escorts are required to complete a post-removal report which is retained on the person’s file.

In some cases DIAC may not be informed of a person’s final destination within the country of removal. However, where there are contact details available for the removed person in the country of removal, these will be recorded by DIAC officers and retained on file.

Recommendation 10

The committee recommends that DIAC review and advise staff when their responsibilities for a detainee begin and end, noting there may be circumstances like that of Ms Solon where there may not be a strict legal obligation but a moral obligation to ensure their welfare.

Response - Agree

The Government recognises that sometimes the welfare of people can initially be affected by their removal from Australia. Extensive training has been, and is being, delivered to DIAC staff to ensure any removal arrangements appropriately reflect the needs of the individual.

In addition, initial post-removal support can be, and is, arranged for clients who are identified by their departmental case managers as having special needs. Under the revised procedures, before any person is removed from Australia a formal assessment of the case is done by a senior officer. This assessment includes satisfaction about confirmation of the person’s identity and immigration status, and satisfaction that visa applications, litigation and other proceedings relating to immigration status have been finalised, and that arrangements for the removal including any on-arrival arrangements are appropriate.

These arrangements provide clarity for DIAC staff on the extent of their responsibilities for immigration detainees. However, once a person has been properly and lawfully removed or deported from Australia, Australia’s obligations in relation to that person have been substantially discharged.

There are limits on what Australia can do in other countries’ jurisdictions.

Recommendation 11

The committee recommends that the independent investigation into whether the actions of individual officers breached the APS Code of Conduct include consideration of any systemic issues that may have contributed to the lack of action. Furthermore, if the investigation identifies any systemic issues that it make recommendations to address them.

Response - Agree

Mr Dale Boucher, the former Chief Executive Officer of the Australian Government Solicitor, finalised his independent investigation into possible breaches of the APS Code of Conduct arising from the recommendations of the Comrie inquiry report in September 2006.

The Terms of Reference for this investigation required that Mr Boucher investigate allegations of staff misconduct. Mr Boucher was not required to consider potential systemic issues that may have contributed to the lack of action in this matter. As a consequence, Mr Boucher did not undertake a review that focused on these potential issues.

The report, however, does make comment on the need for DIAC to provide advice to staff on how to deal with and escalate difficult client service related issues associated with people in immigration detention. This has been addressed through DIAC’s approach to individual case management of people in immigration detention who have particular needs. The issue was discovered in the course of undertaking the investigation inquiries specified in the Terms of Reference, and not as part of a broader review of potential systemic issues.

Systemic issues have been addressed throughout the Department in a broader reform process which includes the implementation of the Palmer, Comrie and Ombudsman reports’ recommendations.

Recommendation 12

The committee recommends that DIAC and DFAT remind staff of the correct procedures to be followed when making requests for passport information.

Response - Agree

DFAT has ensured that staff are reminded through regular passports and consular training that they are required to bring to the attention of senior departmental staff any requests from other agencies for passport information.

DIAC has issued an instruction for compliance staff which clarifies the procedures for obtaining Australian passport information, including the procedures for making formal requests for passport information from DFAT.

Government response to the report on Australia’s aid program in the Pacific September 2007

Pacific Partnerships for Development

The Prime Minister announced an intention to commit Australia to a new and elevated engagement with Pacific island nations in the Port Moresby Declaration in March 2008.  A central focus of this new engagement with the Pacific is the Government’s commitment to pursue Pacific Partnerships for Development which will provide a new framework for Australia and our Pacific neighbours to commit jointly to making more rapid progress towards the Millennium Development Goals (MDGs) and partner countries’ achievement of their own development objectives.

In line with the Port Moresby Declaration, the Partnership will respond to individual circumstances of our respective partners, reflecting the fundamental underlying principles of mutual respect and mutual responsibility. These principles are given effect in the following ways:

• Mutual respect: through commitments which underline Australia’s recognition of Pacific partner country leadership and ownership of development strategies. The Partnerships also provide for acknowledgement by partner governments of the Australian Government’s responsibilities to its own citizens to ensure Australian development assistance is used appropriately and effectively to promote economic and social development; and
• Mutual responsibility: the partnerships are explicitly based on mutual, long-term and measurable commitments. The Partnerships will provide a framework for mutual commitments by Australia and Pacific island nations to achieve shared goals, noting Australia’s willingness to provide increased development assistance over time in return for commitments by partner governments, including; to improve governance, increased investment in economic infrastructure, better outcomes in health and education, and to undertake agreed measures to achieve this. The Partnerships also commit Australia and Pacific island countries to strive for better development results and good practice in aid effectiveness through a sharper focus on shared accountability based on regular, joint reviews of progress and evidence-based decision making.

As initial countries to be offered Partnerships for Development, PNG and Samoa have welcomed the initiative. The Government intends to pursue similar agreements with other Pacific partners who share Australia’s ambition for better development results in the region over the coming years.

Australia’s commitment to the Pacific is demonstrated through the recently released 2008-09 Budget for Australia’s International Development Assistance Program, which foreshadows development assistance for PNG and the Pacific estimated at $999 million in 2008-09, a substantial increase on the amount budgeted in 2007-08 of $872 million.

Recommendation 1

The Committee notes the importance of financial services in the development of Pacific Island economies, and recommends that the Australian Government develop a focused strategy to encourage financial services development, including microfinance.

The Australian Government agrees that it is important to increase access by the poor to financial services. Achieving this at scale and on a sustainable basis requires a broad focus on the financial sector, including but not limited to support for microfinance services.

The Australian aid program has provided an average of $10 million a year in direct support to microfinance initiatives around the world over the last 8 years. Recent projects in the Pacific include support for the Bougainville Microfinance Association; the establishment of Microfinance Pasifika, the regional microfinance network; the Foundation for Rural Integrated Enterprises ‘N’ Development, (FRIEND) in Fiji; and volunteer support placements with microfinance provider Vanuatu Women’s Development Scheme (VanWODS). Australia’s support for programs such as the Asian Development Bank’s Pacific Private Sector Development Initiative goes, in part, to improving access to finance through the introduction of new technologies and by extending financial services to outlets such as schools and shops.

AusAID is currently exploring a range of programming options to increase the number of poor people accessing financial services in the Pacific, and to give them more choice in products and providers. These options include strengthened support for regional and multilateral organizations that support Pacific microfinance providers, and an examination of ways to encourage private lenders, not-for-profit financial providers and NGOs.

Recommendation 2:

The Committee recommends that the Australian Tax Office, in conjunction with AusAID, consider and report on the merits and practicalities of Mr Roland Rich’s proposal to amend the Australian tax rules to encourage companies to become directly involved in building private sector capacities in developing countries in the Pacific by allowing them to deduct from their taxable income the full costs incurred in providing such assistance.

The Government does not support this recommendation.

The Government already provides tax concessions for organisations undertaking charitable development programmes in developing countries under the Overseas Aid Gift Deduction Scheme (OAGDS). The OAGDS provides a tax deduction for public donations collected by organisations that are considered under the scheme to be overseas relief funds, to assist with their overseas aid and development activities.

Moreover, an outlay to assist Australians directly involved in building private sector capacities in developing countries would be preferable to government providing additional tax concessions. Direct delivery programs are more transparent and can be better targeted to achieve desired outcomes.

For example, the Enterprise Challenge Fund awards grants of $100,000 to $1.5 million to business projects that will have pro-poor outcomes, and that could not obtain financing from commercial sources. At least 50 per cent of the project costs must be met by the partner business, and all projects must be commercially self-sustaining within three years. This program encourages business activity in areas where the private sector may be reluctant to undertake projects or have difficulty obtaining finance because of perceived risks, lack of information or the high costs of creating new markets.

Recommendation 3

The Committee notes the evidence of the importance to Pacific Island economies of access to developed economies for seasonal workers, and recommends an active and serious evaluation by the Australian Government of the possibility of such a scheme.

The Australian Government understands the importance of labour mobility to many of the economies in the Pacific and the desire of Pacific island states to pursue greater access to the Australian labour market for unskilled and semi-skilled workers.

On 17 August 2008, the Government announced a three-year Australia - Pacific Seasonal Worker Pilot Scheme. The pilot aims to enable workers to contribute to economic development in home countries through employment experience, training and remittances. It will also examine the benefits to the Australian economy and to employers who can demonstrate they cannot source local labour.

The pilot scheme will focus initially on the horticulture industry, which claims up to $700 million of fresh produce is left to rot because of a lack of reliable workers. The details of the pilot scheme are subject to further consultation with Pacific island countries and Australian employers and industry groups.

It is anticipated that the pilot could begin as soon as the end of 2008 with a small group of workers. The pilot will provide opportunities for up to 2500 workers over a three year period, subject to labour market demand.

Recommendation 4

The Committee