Nigel Scullion (NT, Country Liberal Party, Minister for Community Services) Share this | Hansard source

I present seven government responses to committee reports as listed at item 13 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—

REPORT OF THE SENATE FOREIGN AFFAIRS, DEFENCE AND TRADE REFER-ENCES COMMITTEE

GOVERNMENT RESPONSE

REPORT OF THE SENATE FOREIGN AFFAIRS, DEFENCE AND TRADE REFER-ENCES COMMITTEE

Mr Chen Yonglin’s Request for Political Asylum

May 2007

Recommendation 1

The committee recommends the Department formulate a protocol requiring that people claiming to be diplomats, employees or officials of foreign governments or people who possess knowledge or understanding of the foreign government in question, be dealt with by senior officers.

Government Response

Agreed.

The Department of Immigration and Citizenship (DIAC) issued guidance on 17 October 2005 to DIAC staff reminding them of their obligation to maintain strict confidentiality in relation to asylum seekers and protection visa applicants, and of the need not to take any action which might result in information about the existence of an asylum claim or protection visa application, or the substance of a person’s claims for protection, being made known to the authorities of the applicant’s home country.

DIAC is also preparing a more detailed instruction for all DIAC staff in Australia and overseas relating to handling possible requests, in person or verbally, for asylum in Australia from persons claiming to be foreign diplomats or consular officials and persons claiming to be employed by a foreign government. The instruction includes advice on the privacy and confidentiality obligations of all DIAC staff. The instruction will be finalised in consultation with the Department of Foreign Affairs and Trade. All DIAC staff in Australia and overseas will be provided with the instruction which will be incorporated into a new departmental instructions framework to be developed under the Instructions Reform Project.

Recommendation 2

The committee recommends that DIAC take immediate steps to ensure that all officers are made aware of their confidentiality obligations under relevant legislation and conventions. Furthermore, that they are aware of the need to exercise care when dealing with a foreign diplomat and that such important matters are dealt with expeditiously by a senior officer.

Government Response

Agreed.

DIAC already provides training to staff on confidentiality and their obligations under the Privacy Act. The Department has also issued an administrative circular on the disclosure of personal information to third parties under the Privacy Act (Administrative Circular 198) and officers’ confidentiality and privacy obligations are included in the DIAC Code of Conduct (Administrative Circular 1045). Further specific guidance has been sent to DIAC staff, as outlined in the response to Recommendation 1.

GOVERNMENT RESPONSE TO SENATE COMMITTEE REPORT

Legal and Constitutional References Committee, March 2006

“Administration and operation of the Migration Act 1958”

May 2007

GENERAL COMMENTS

The government welcomes the opportunity to provide a response to the Legal and Constitutional References Committee’s Report into the Administration and operation of the Migration Act 1958 (‘the Report’).

2.

In developing this response, the government is mindful of the extensive material provided to the committee in the course of its deliberations, including the then Department of Immigration and Multicultural Affairs’ (the department) submission of August 2005 (containing some 56 pages) and response to a request by the committee to address specific witness allegations arising out of the committee’s inquiry, forwarded to the committee secretariat on 5 December 2005 (111 pages). The government notes that in furnishing this earlier material, the department extensively covered the broad range of issues raised and provided clarification about its processes and operations.

3.

It is mindful too of the position taken by the government Senators on the committee, in that they were unable to agree with either the analysis or findings of the majority Report and expressed the view that the majority Report is substantially flawed by a biased and highly selective use of the evidence presented during the committee’s inquiry.

4.

The government Senators pointed out in their dissenting report that much of the material provided by the department on 5 December 2005 to deal with material critical of it was not included in the Report. They drew attention to the key elements of the government’s reform programme announced since the Palmer and Comrie reports as they felt that these had not been adequately addressed in the majority Report of the committee.

OVERVIEW OF REFORM INITIATIVES SINCE REPORT TABLED

5.

The government has made a significant investment in the department’s reform and improvement programme. Around $780 million in new and redirected funding has been committed. The new Budget measures announced on 9 May 2006 were informed by a number of departmental reviews that were recommended by Mr Palmer in his July 2005 report. These included reviews of business information requirements, IT platforms and governance, records management, the detention services contract, long term detention health services delivery, detention infrastructure and compliance activity. All of these reviews pointed to the need for further changes if the department is to meet the expectations placed on it.

6.

By far the largest portion of the funding provided to the department in this year’s Budget – nearly half a billion dollars - is for Systems for People. This substantial programme of work will deliver the kind of support departmental staff need to do their jobs properly. It will provide better data quality, a single view of a client’s dealings with the department, less fragmentation of information and data, more flexible systems all of which mean better decision making. There is also a commitment of $42.5 million over four years in the Budget to support risk based compliance strategies, including deterrence and prevention and quality assurance measures. $22.6 million of that sum will be used to increase case management resources and implement a national case management framework. The framework will ensure that cases involving vulnerable clients with exceptional circumstances are managed in a fair, lawful, reasonable and timely way.

7.

A major initiative to complement the case management approach is the implementation of the community care pilot in Sydney and Melbourne announced by the then Minister for Immigration and Multicultural Affairs in May 2006. The pilot, which is being delivered in partnership with the Australian Red Cross and the International Organization for Migration (IOM), will assist the department’s clients who are being case managed and who need either care in the community whilst awaiting their immigration outcomes and/or access to services to inform them of the immigration process, their likely outcomes and prepare them for their immigration outcomes.

8.

The Secretary has made it clear to departmental staff over the past year that their job is to implement change and improvement and deliver the government’s migration, multicultural and citizenship policies. This depends on careful planning, strong leadership and good administration. Also, longer term planning is being informed by comprehensive staff and client surveys. Much of that work has now occurred and the department is well advanced in developing a new planning framework for 2006-07 and beyond, underpinned by a strong framework of values and an articulation of the kind of behaviours expected of leaders in the department.

9.

The Secretary has regularly written to a large number of key external stakeholders to update them on progress and seek their views on issues. Formal feedback sessions have been held with groups of clients and the feedback shows that while it has a long way to go in achieving excellence in client service delivery, there are reports of more positive experiences in recent times. The Minister for Immigration and Multicultural Affairs recently launched a client service improvement programme in Parliament House. This brings together the many strands of work being undertaken to ensure much better client service is provided. This programme develops themes of “our commitment, our presentation, helping you and hearing you”. The Secretary reported earlier this year on the outcomes of the first all-staff survey in many years. The survey pointed to concerns about image, leadership and client service, all of which are being addressed.

10.

In his opening statement to the Senate Legal and Constitutional Committee at the Budget Estimates hearings on 22 May 2006, the Secretary stressed how the department is absolutely determined to perform professionally, lawfully and reasonably. Its key themes of being an open and accountable culture, having fair and reasonable dealings with clients and well trained and supported staff are crucial to its future. It has listened to criticism, is learning from mistakes and is very much focussed on improvement. A detailed document was tabled by the Secretary at the 22 May Hearing showing progress on implementing the Palmer programme.

OTHER ISSUES

11.   In providing a response to this Report, it is noted that the government has not finalised a response to the Senate Select Committee (SSC) on Ministerial Discretion in Migration Matters. There are five recommendations in the Report which overlap with the Report of the Senate Select Committee. These are cross-referenced at Attachment 1.

CHAPTER 1 – MINISTERIAL RESPONSIBILITY

Recommendation 1 (1.37)

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.

Government response

Not accepted.

CHAPTER 2 – PROCESSING OF PROTECTION VISA APPLICATIONS

Recommendation 2 (2.48)

The committee recommends that the Minister ensure all statements tabled in Parliament that relate to protection visa applications and review applications that take longer than 90 days to decide contain sufficient information to ensure effective parliamentary scrutiny of the visa and review determination process.

Government response

Accepted.

In accordance with the requirements of the Migration Act 1958 the reports include individual reasons for all applications not being finalised within the 90 day timeframe.

Recommendation 3 (2.63)

The committee recommends that the Migration Act be amended to require that onshore protection visa applicants be given at least two weeks notice of the intention to make a negative decision with respect to an application. In addition, it is recommended that DIMA provide a summary of its reasons for its intention to make a negative decision and the applicant be given the opportunity to respond.

Government response

Not accepted.

The Migration Act 1958 already sets out comprehensive requirements for the disclosure of personal and adverse information for comment and response by the applicant and the appropriate timeframes within which applicants are to respond.

Recommendation 4 (2.64)

The committee recommends that DIMA conduct an interview with all onshore applicants unless they are to be approved on the papers.

Government response

Not accepted.

In their dealings with the department prospective protection visa applicants are advised when completing the application form that a decision may be made based on the application and information they have provided. Because of the nature of claims made, the country of nationality concerned and the country information relevant to these claims, it is possible in many cases to reach decisions without an interview. In other circumstances an interview may be necessary.

Recommendation 5 (2.65)

The committee recommends that DIMA review the application forms and information sheets provided to offshore humanitarian visa applicants to ensure that they provide applicants with comprehensive and detailed information on the relevant visa criteria and assessment process.

Government response

Accepted.

The application form for an offshore refugee and humanitarian visa provides basic information relating to core visa requirements, family reunion provisions, the entry of minors under the offshore programme and the lodgement and processing of visa applications. There are also fact sheets and other information sheets that provide further details on the programme.

All publicly available information is regularly updated and new information sheets developed, where appropriate, to reflect policy and procedural changes. The department is also reviewing the way information is communicated to proposers under the Special Humanitarian Programme.

Also, the department is exploring ways of improving methods of communicating detailed information on offshore humanitarian visa criteria and assessment processes.

Recommendation 6 (2.73)

The committee recommends that the Government make training of interpreters a priority and establish a planned, comprehensive training programme to address the development and ongoing needs of interpreting services provided by or on behalf of DIMA.

Government response

Noted.

As part of their contractual agreement with the Department of Education, Science and Training (DEST) the Service Industries Skills Council has undertaken a review of career paths and training for interpreters and translators. The resulting report gives a profile of the industry and its stakeholders, describes the current training situation and investigates further training needs for interpreters and translators in Australia.

The report shows that there are currently no nationally consistent competency standards and no consistent approach to training for interpreters and translators. Whilst more discussion needs to occur among stakeholders around areas of debate including levels of proposed qualifications, nomenclature, and other issues regarding the development of competency standards, stakeholders consulted generally supported the development of a nationally endorsed qualifications framework for the interpreting and translating profession.

DEST will ensure that national competency standards and qualifications for interpreters and translators are developed. This work will involve consultation with all stakeholders on issues that need to be addressed, as described in the report of the Service Industries Skills Council.

Recommendation 7 (2.74)

The committee recommends that a quality assurance process be developed and implemented to monitor and to report to Parliament through the department’s Annual Report on the quality of interpreting services provided by or on behalf of the department (including the RRT and MRT).

Government response

Accepted in principle.

TIS National already has a number of quality measures presented in the Portfolio Budget Statement and reported against in the department’s Annual Report. The quality measures cover aspects such as processing times for example providing an interpreter in a major community language within three minutes (telephone), or interpreter competence eg 90% of interpreter jobs to be done by a NAATI accredited/recognised interpreter (telephone).

In addition to these quality features, TIS National conducts an annual client satisfaction survey, which provides the opportunity for client organisations and individuals (including the department’s staff) to provide comment on the capacity of TIS to meet language needs, service quality, conduct and professionalism of interpreters, satisfaction levels with TIS services and confidence levels of clients about its performance. The results of the survey will also be reported in the Annual Report.

Recommendation 8 (2.109)

The committee recommends 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.

Government response

See comments under recommendation 9.

Recommendation 9 (2.110)

The committee recommends that the review of the Migration Act and Regulations be undertaken by the Australian Law Reform Commission.

Government response

Noted.

The government notes the committee’s comments regarding the Migration Act and Regulations. The committee’s recommendation has been forwarded to the ALRC for further consideration as to any future work program.

Recommendation 10 (2.111)

The committee recommends that the review of the Migration Series Instructions, announced as part of the Government’s response to the Palmer report, ensure that the Instructions accurately and clearly reflect and comply with the Migration Act and Regulations.

Government response

Accepted.

The department is progressively reviewing all compliance-related Migration Series Instructions (MSIs) to make sure they accurately and clearly state the law (as set out in both the Migration Act and the Regulations), make sense, are consistent with each other and are written in plain English.

This review will ensure that compliance-related MSIs are up-to-date and provide strong guidance to the department’s compliance staff.

The revised MSIs will be made available to Senators by the department via the committee office.

Recommendation 11 (2.112 )

The committee recommends that DIMA’s approach to case management of protection visa applications be reviewed.

Government response

Accepted.

The Australian National Audit Office (ANAO) completed an audit report on the management of the processing of asylum seekers, which was published on 23 June 2004. The report concluded, inter alia, that:

“…the Onshore Processing of asylum seekers is managed well. The overall standard of record keeping, including the documentation of the reasons for decisions was high. This reflects DIMIA’s decision to use higher level and more experienced officers to make decisions in processing PV applications. These officers are also supported with appropriate training and guidelines” (Exec Summary at paragraph 18, page 5 refers).

Nevertheless, the department is continually re-evaluating and refining its approach to the case management of protection visa application processing.

The department commenced implementing a new case management service delivery approach from the end of January 2006. The new approach provides for the needs of vulnerable clients and/or those with exceptional circumstances to be managed in a more holistic and coordinated way. Following the 2006-07 Budget measure to increase the department’s case management resources, its capacity to manage further clients under this approach will grow significantly as a further 37 case management staff are recruited and trained.

Recommendation 12 (2.113)

The committee recommends that, as part of its new National Training Strategy, DIMA review the training methods and approaches for officers responsible for the processing and assessment of protection visa applications, with a view to establishing a planned and structured comprehensive training programme.

Government response

Accepted.

The department has had a comprehensive and formal training programme in place for protection visa decision makers since 1991. This programme is continually reviewed and developed to ensure that it continues to have a practical focus, reflects the learning needs of decision-makers on the job and provides a pathway for ongoing learning and development.

The review and development of the established training programme for protection visa decision makers is now being undertaken in the context of the department’s new training strategy. The department’s National Training Branch is providing an internal consulting service to the Onshore Protection area in this work.

Recommendation 13 (2.114)

The committee recommends that the Government expand the responsibilities of its recently established College of Immigration Border Security and Compliance to include provision of training for officials responsible for the processing and assessment of protection visa applications.

Government response

Accepted.

The College of Immigration, which commenced on 1 July 2006, is initially focusing on developing training for compliance, detention, border security, immigration intelligence, investigations and case management. When these streams are complete it will commence work on other priorities including protection visas.

Recommendation 14 (2.115)

The committee recommends that the ANAO commit to a series of rolling audits to provide assurance that humanitarian and non-humanitarian visa applications are being correctly processed and assessed.

Government response

Noted.

The committee’s recommendation has been forwarded to ANAO to assist in their deliberations.

Recommendation 15 (2.140)

The committee recommends that the Migration Series Instructions include a requirement that case officers treat ‘dob-in’ information with the upmost caution, particularly if the information is provided anonymously, and ensure that such information is provided to applicants and their legal representatives.

Government response

Accepted.

As explained below, the concept ‘dob in’ usually refers to persons alerting migration officials to overstayers or illegal workers. Given that the recommendation is in the context of people who are seeking protection visas it is noted that protection visa decision makers have clear instructional guidance, in the Protection Visa Procedures Manual, on the identification and assessment of evidence which is relevant to the protection visa decision, including on the need to assess credibility of sources. The Procedures Manual also sets out the arrangements to be followed in disclosing personal adverse information to the applicant to enable them to respond.

The existing National Compliance Operational Guidelines advise departmental officers who have collected dob-in information that regardless of the source, all information received must be verified. The guidelines instruct officers to verify information received by checking departmental databases, locating client files and previous applications, contacting overseas posts, conducting checks under section 18 of the Migration Act, conducting police checks, and conducting observations of an address of interest in order to ascertain the resource requirements of the operation, to verify the accuracy of the information and to assess access and containment issues.

Section 18 specifically provides:

‘Section 18.      Power to obtain information and documents about unlawful non-citizens:

18.(1)      If the Minister has reason to believe that a person (in this subsection called the first person) is capable of giving information which the Minister has reason to believe is, or producing documents (including documents that are copies of other documents) which the Minister has reason to believe are, relevant to ascertaining the identity or whereabouts of another person whom the Minister has reason to believe is an unlawful non-citizen, the Minister may, by notice in writing served on the first person, require the first person:

(a)   to give to the Minister, within the period and in the manner specified in the notice, any such information; or

(b)   to produce to the Minister, within the period and in the manner specified in the notice, any such documents; or

(c)   to make copies of any such documents and to produce to the Minister, within the period and in the manner specified in the notice, those copies.’

The revised MSI on Visa Cancellation under sections 109, 116,128 and 140 of the Migration Act will instruct officers that they are required under section 120(2) and 121(1) to put all relevant information to a visa holder and invite the visa holder to comment on that information prior to cancelling the visa.

The MSI states that while generally a visa holder is entitled to know the substance of allegations or claims about them and have the opportunity to respond to them, sometimes information provided to the department by a person such as a dob-in caller may be non-disclosable information if the person asks the department that the information be treated in confidence and the delegate agrees that the information should be treated ‘in confidence’ or it can be inferred from the circumstances that the information should remain confidential. A breach of confidence may lead to legal proceedings against the department.

This instruction also advises officers that if information cannot be disclosed to a visa holder because it contains non-disclosable information, the delegate may give little or no weight to the information, release part of the information, or use the non-disclosable information to obtain other evidence which can then be put to the visa holder.

Under all of these disclosure arrangements the identity of the person providing the information would normally be treated as confidential. Our clients are entitled to know the content of the information, but not details of the person providing information unless that person has agreed to the information being disclosed.

Recommendation 16 (2.160)

The committee recommends that the quality indicators for DIMA’s offshore humanitarian programme and onshore protection visa processing be amended to include qualitative performance measures other than timeliness (such as the number and outcome of review applications and appeals).

Government response

Accepted in principle.

The department is already exploring the potential for broadening existing performance measures to include additional qualitative measures in the humanitarian programme. The onshore quality assurance process is currently under review to ensure consistency with the department’s national quality assurance framework. This review will include the appropriateness of other qualitative performance measures.

Recommendation 17 (2.219)

The committee recommends that visa applicants’ legal representatives be accorded the right to participate in primary interviews conducted by DIMA.

Government response

Not accepted.

Applicants may request that their legal representatives be present at primary interview.  However, these requests are considered on a case-by-case basis by the case manager. Attendance of another person may not be possible due to constraints on time and resources, or the case manager may decide that the presence of another person will actually hinder the interview.  The representative does not have a right of veto over questions to be asked of an applicant or to respond on the applicant’s behalf.

In order to decide an application, case managers may need to be able to discuss the applicant’s claims directly with them and be able to hear the applicant clarify, in their own words, any issues that arise. The purpose of conducting an interview with a visa applicant is to provide the applicant with an opportunity to provide further information in support of their application.

If a legal representative is present at the primary interview, they also need to be a registered migration agent in order for them to lawfully provide immigration assistance to help someone apply to enter or to remain.   It is against the law for a person who is not a registered migration agent to give immigration assistance.

Recommendation 18 (2.220)

The committee recommends that the government institute and fund a duty solicitor scheme for all persons held in immigration detention (not solely protection visa applicants).

Government response

Not accepted.

The government is of the view that a duty lawyer scheme for all persons in immigration detention (not solely protection visa applicants) is not required. The government reiterates the evidence placed by it before the committee in relation to the access by persons in immigration detention to lawyers and their access to reasonable facilities.  The department is piloting limited access to IAAAS services to certain clients in detention who are being case managed.

Recommendation 19 (2.221)

The committee recommends that DIMA cease its practice of interpreting section 256 of the Migration Act narrowly which, in practice, limits access to lawyers. Detainees should be advised of their right to access lawyers, and lawyers should have ready access to detainees with the minimum possible restrictions.

Government response

Partially accepted.

The government agrees that people in immigration detention should