Mary Fisher (SA, Liberal Party) Share this | Hansard source

In accordance with the usual practice and with the concurrence of the Senate I ask that the government responses be incorporated in Hansard.

The documents read as follows—

JOINT STANDING COMMITTEE ON FOREIGN AFFAIRS, DEFENCE AND TRADE

Report into Defence Annual Report 2008-09

Minority Report — Mr Robert Oakeshott

Government Response

Recommendation 1

I recommend that the Defence Department remove the reference to Ms Wolfe's employment having 'ended' from their Annual Report.

Government Response

Agreed.

The statement in Volume 2 of the 2008-09 Defence Annual Report - Defence Materiel Organisation (DMO) correctly reflected the understanding of the DMO at the time the report was printed. In light of the orders made by the Federal Court the statement is no longer accurate. In accordance with the Requirements for Departmental Annual Reports—Document as approved by the Joint Committee of Public Accounts and Audit, approved by the Joint Committee of Public Accounts and Audit and issued by the Department of the Prime Minister and Cabinet on 17 June 2009. information to correct the record was included in the 2009-10 Defence Annual Report.

Recommendation 2

I recommend that a Code of Conduct inquiry he held into the action of Dr Stephen Gumley and any other party who failed to act in accordance with the Public Service Act and the Financial Management and Accountability Act in relation to this very costly, and very avoidable matter of the termination of Ms Jane Wolfe.

Government Response

Disagreed.

It would be a breach of the Parliamentary Privileges Act 1987 to find that an Australian Public Service employee had breached the Australian Public Service Code of Conduct in relation to evidence that the Australian Public Service employee had given a Parliamentary committee. Further, as indicated below, the issue is still under consideration.

The Government guidelines for official witnesses before Parliamentary committees and related matters - November 1989 make clear the need for official witnesses to ensure the accuracy of their evidence. In accordance with the guidelines the Secretary requested that DMO employees review evidence provided to the Defence sub-committee and, as a result, minor corrections to the Hansard were made.

On 8 April 2010, with the consent of all parties, the Federal Court ordered that the decision terminating Ms Wolfe's employment be set aside and that the matter be referred to the Secretary, for further consideration, in accordance with law. The Secretary subsequently identified a suitable delegate, and provided Ms Wolfe with an opportunity to raise any objections in relation to the proposed delegate, the proposed tasking and the proposed documents to he provided to the delegate. The delegate has been appointed and is currently considering the matter.

Recommendation 3

I recommend that the policy and strategy options contained in my minority report at paragraphs 1.43 and 1.44 of my minority report be deeply considered by Government, and done so with recognition that the most 'controversial' of these is the inclusion of the Taliban in discussions about the future of Afghanistan as a democratic country.

1.43 And the key strategic considerations include:

1.44 I recommend that both these policy and strategy options be deeply considered by Government, and done so with recognition that the most 'controversial' of these is the inclusion of the Taliban in discussions about the future of Afghanistan as a democratic country.

Government Response

Agreed in part.

The Australian Government agrees, in the main, with the recommendations in the minority report, with the bulk of them already being addressed by existing government policies on, and approaches to, our Afghanistan contribution.

Afghanistan's current system of government has been decided by Afghans, initially at a meeting in Bonn, Germany, in November 2001. The resulting Bonn Agreement installed a new government, the Afghan Interim Authority, in Kabul under President Hamid Karzai. Following a Loya Jirga (Grand Council of Afghans representing tribal and ethnic groups) in June 2002, this was replaced by the Afghan Transitional Administration. Afghanistan adopted a new constitution at a further Loya Jirga in January 2004. The constitution provides for a presidential system of government, with a parliament, within the framework of an Islamic republic.

Transition to Afghan responsibility is a key element of the International Security Assistance Force (ISAF) strategy for Afghanistan. The strategy involves building the capabilities of the Afghan National Security Forces (ANSF) and improving the Afghan Government's ability to deliver government services. US President Obama has said that the US intends to commence a drawdown of American troops in Afghanistan in mid 2011. The US Administration has made it clear, however, that July 2011 is not a deadline for withdrawal, but the beginning of a conditions-based transition to Afghan-led security responsibility.

At the International Conference on Afghan­istan in July 2010, Afghanistan's international partners, including Australia, supported Afghan­istan's objective that the ANSF lead and conduct military operations in all provinces by the end of 2014. Australia will continue to support efforts to create the conditions necessary to allow for this transition, where Afghan security forces are capable of maintaining security.

The primary focus of Australia's military mission in Afghanistan is to train the Afghan National Army (ANA) 4th Brigade in Uruzgan Province to the level where it is able to take responsibility for the security of the Province. the Australian Defence Force also conducts security operations throughout the Province to provide safe, secure spaces for development work in Uruzgan. While much work remains with our mission to train and mentor the ANA 4th Brigade, this mission is on track. The Australian Defence Force (ADF) assesses the task of training the ANA 4th Brigade will take a further two to four years, and this is in line with the 2014 timetable agreed at the International Conference on Afghanistan. To support ISAF-led programs to sustain and develop the Afghan National Army, both in Uruzgan Province and more broadly across the country, the Australian Government has pledged US$200 million over five years to the ANA Trust Fund,

The Australian Government recently announced an enhancement to our civilian effort to complement our military mission, in line with broader ISAF strategy. The Government announ­ced an expansion of our diplomatic, development assistance and police contribution to around 50 personnel. The enhanced civilian component of Australia's efforts in Afghanistan is designed to provide more effective basic services for the people of Uruzgan, improve livelihood oppor­tunities for local communities, and create a strong foundation for the eventual transition of the Province to full Afghan responsibility. Our whole-of government approach reflects our commitment to strengthening the legitimate political, legal, economic and security institutions of Afghanistan:

Following commencement of the drawdown of Dutch forces from Afghanistan on 1 August 2010, an Australian senior civilian coordinator has taken up leadership of a Provincial Recon­struction Team (PRT) in Uruzgan under the multinational, ISAF-flagged Combined Team-Uruzgan. The PRT is the primary mechanism in Uruzgan focused on governance and develop­ment. It also seeks to build relations with key government and tribal actors in the Province.

The Australian Government recognises and has consistently stated that the conflict in Afghanistan will not be ended by military force alone. Political reconciliation and, ultimately, settlement between the Afghan Government and insurgents will be essential to a lasting and durable solution. The Australian Government supports Afghan-led efforts to reach out to elements of the insurgency that might be prepared to lay down their arms and rejoin their communities.

Australia is supporting the Afghan-led reintegration effort by contributing $25 million to the Peace and Reintegration Trust Fund, subject to the establishment of appropriate governance arrangements and role for donors, like Australia, in the administration of the fund. The Australian Government welcomes the release of the Afghan Government's draft Peace and Reintegration Plan, which set out a number of preconditions for reintegration, including renouncing violence, ceasing support for the insurgency, recognising the Afghan Constitution, and cutting all current and future tics with al-Qaida and other terrorist groups. These pre-conditions arc of course a matter for the Afghan Government to determine.

SELECT COMMITTEE ON MINISTERIAL DISCRETION IN MIGRATION MATTERS

MARCH 2004

Department of Immigration and Citizenship

April 2011

The Government welcomes the Senate Select Committee’s Report on Ministerial Discretion on Migration Matters (the Report).

The Migration Act 1958 (the Act) provides the Minister for Immigration and Citizenship (the Minister) with discretionary, non-compellable, and non-delegable powers to resolve cases, if it is considered in the public interest to do so. Therefore, Ministerial Intervention (MI) processes differ from those in the codified visa framework.

The Report identified a number of issues for reform of MI under the Act, including the need for greater accountability, transparency and procedural fairness. It also recommended regulation changes allowing greater access to the migration visa framework, thereby providing access to review and reducing the number of MI cases.

In 2008, the government commissioned Ms Elizabeth Proust to provide advice to the Minister on arrangements for the exercise of the Minister’s public interest powers. The Proust Report, released in July 2008, reiterated a number of issues outlined in the Senate Select Committee’s Report. It recommended that, to the extent MI was retained, it should be very limited and subject to strict guidelines.

Both Reports supported the retention of MI to deal with cases which are unable to be resolved within the codified visa framework in the Act but which, nevertheless, require a migration outcome.

Taking into account the views of the Com­mittee and the Proust Report, the government and the Department of Immigration and Citizenship (DIAC) are engaged in ongoing reform of MI, with a number of significant changes already implemented.

Following are DIAC’s responses to the Committee’s 21 recommendations.

Chapter 3 – Patterns of use of ministerial discretion

Recommendation 1 (3.54)

The Committee recommends that the Minister require DIMIA to establish procedures for collecting and publishing statistical data on the use and operation of the ministerial discretion powers, including (but not limited to):

Government Response

DIAC collects and reports on most of the information covered by the recommendation and is working to increase its capacity to record and report on a broader range of MI issues1. Key statistics on MI under section 417 is published in the DIAC annual report and will henceforth be available quarterly on the DIAC website.

A significant proportion of MI requests exhibit circumstances which may meet more than one of the grounds for referral, making identification and recording of any one specific ground problematic.

Chapter 4 – Development of ministerial guidelines and the exercise of the Minister’s discretionary powers

Recommendation 2 (4.67)

The Committee recommends that DIMIA establish a procedure of routine auditing of its internal submission process. The audits should address areas previously identified by the Commonwealth Ombudsman, namely identifying ways to improve departmental processes for handling cases, and ensuring that claims are processed in a timely way and case officers consider all of the available material relevant to each case.

Government Response

Since the tabling of the Ombudsman’s report, DIAC has strengthened arrangements for supporting the Minister in the use of his powers.

To ensure consistency in assessments, decision-making and referral of MI requests to the Minister, changes have been made to DIAC’s guidelines on the administration of ministerial powers. DIAC has implemented an analysis-based approach for all information provided by clients seeking the exercise of the Minister’s public interest powers. New templates for submissions and schedules have been developed which support a comprehensive analysis of the case and provide a preferred option in all cases that are referred to the Minister for consideration.

In line with evidence-based decision making principles and to ensure timely case processing, DIAC has conducted extensive training for staff involved in assessing MI requests.

A quality assurance process has been developed and implemented to review MI processes under section 417 of the Act, in line with DIAC’s National Quality Assurance Framework. The process monitors whether quality controls such as templates, guidelines and training are effective.

Recommendation 3 (4.70)

The Committee recommends that the Commonwealth Ombudsman carry out an annual audit of the consistency of DIMIA's application of the ministerial and administrative guidelines on the operation of the Minister's discretionary powers. The audit should include a sample of cases to determine whether the criteria set out in the guidelines are being applied, and to identify any inconsistency in the approach of different case officers.

Government Response

The Government notes that it is a matter for the Office of the Commonwealth Ombudsman to determine whether to carry out such an audit and, if so, the timetable, priority and focus of such an audit. DIAC would cooperate fully and provide support in any such audit.

Recommendation 4 (4.84)

The Committee recommends that the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT) standardise their procedures for identifying and notifying DIMIA of cases raising humanitarian and compassionate considerations.

Government Response

The Migration Review Tribunal (MRT)’s and Refugee Review Tribunal (RRT)’s standard procedures for identifying and notifying DIAC of cases raising humanitarian and compassionate considerations are set out in “Tribunals’ Policy and Procedures Guideline 1/2010 – Referrals for Ministerial Intervention” (issued on 4 February 2010).

The guideline contains standardised procedures for identifying and notifying DIAC of those cases considered by Tribunal members to exhibit unique or exceptional circumstances, including compassionate and humanitarian grounds, which the Minister may wish to consider in accordance with sections 351 or 417 of the Act.

Recommendation 5 (4.85)

The Committee recommends that the MRT and the RRT keep statistical records of cases referred to DIMIA, the grounds for referral and the outcome of such referrals.

Government Response

The MRT and RRT keep statistical records of cases referred to DIAC and records of the grounds for referral.

DIAC provides monthly advice to the Tribunals of cases in which the Minister has intervened under sections 351 or 417 in a format which enables the matching of outcome of referrals with the relevant Tribunal’s records.

Chapter 5 – Operation of the powers – problems encountered by applicants Recommendation 6 (5.9)

The Committee recommends that DIMIA create an information sheet in appropriate languages that clearly explains the ministerial guidelines and the application process for ministerial intervention. The Committee recommends that the new information sheet be accompanied by an application form, also to be created by the department. Both the information sheet and application form are to be readily and publicly accessible on the department’s website and in hard copy.

Government Response

DIAC provides written information about the MI process for public distribution on its website.

A general fact sheet about MI is available on DIAC’s website in English and 11 other languages including Arabic, Bengali, traditional and simplified Chinese, Hindi, Indonesian, Korean, Malaysian, Tongan, Urdu and Vietnamese. This is provided in hard copy through DIAC counters to clients interested in submitting a first MI request and refers to the more detailed information online.

Unlike a visa application process, a MI request does not require a client to comply with statutory criteria. Introduction of a prescribed application format has the potential to misrepresent MI as an application or review process, rather than as a safeguard for resolving unique and exceptional cases. It would therefore be inappropriate to create a binding format for making MI requests

In addition to the aforementioned general fact sheet, all clients making their first MI request are provided with a detailed fact sheet outlining the process and the expectations of the Minister and DIAC.

Recommendation 7 (5.12)

The Committee recommends that coverage of the Immigration Application Advice and Assistance Scheme (IAAAS) be extended to enable applicants for ministerial intervention to obtain an appropriate level of professional legal assistance. Extending the coverage of IAAAS should assist in reducing the level of risk of exploitation of applicants by unscrupulous migration agents.

Government Response

The Immigration Advice and Application Assistance Scheme (IAAAS) is a carefully directed response to Australia's international obligations not to refoule persons who might engage Australia's protection by meeting the Refugee Convention definition of a refugee. It provides publicly funded application assistance and independent and professional immigration advice to vulnerable clients seeking protection in immigration detention, and to the most disadvantaged, vulnerable Protection Visa (PV) applicants and other visa applicants in the community. The focus of IAAAS is on achieving an immigration outcome at the primary and merits review stages of the protection process.

A MI request is not a visa application process, nor does it require applicants to comply with statutory criteria. MI is intended as a safeguard to resolve unique or exceptional circumstances and not as a standard part of the visa application process. As clients request MI at their own discretion after receiving an immigration outcome, it is not appropriate for IAAAS services to be available to this group.

It should be noted, however, that the Migration Amendment (Complementary Protection) Bill 2011 is before the Parliament. This Bill may pass into law, matters that are currently considerations in cases for MI such as other international conventions that have a non-refoulement (non-return) obligation. Where IAAAS assistance is available, these complementary protection considerations may be brought within the operation of the IAAAS.

The responses to recommendations 13 and 14 detail measures put in place to address the problem of unscrupulous migration agents.

Recommendation 8 (5.18)

The Committee recommends:

Government Response

The revised Minister’s Guidelines which came into effect on 5 December 2008 provide that a request for the exercise of the Minister’s public interest powers can only be accepted from the person who is the subject of the request or their authorised representative, unless initiated by DIAC. Letters of support provided by the person’s supporters can still be forwarded to DIAC and may be taken into account when a request for MI has been made.

In keeping with the principles of client service delivery and the best interests of the client, DIAC consults with clients to obtain any additional documentation which might assist to present their case holistically to the Minister. DIAC is currently considering the potential impact on MI of the High Court decision of November 2010 in Plaintiff M61/2010E v Commonwealth regarding procedural fairness.

However, providing individuals with draft submissions would cause significant delays to finalising MI requests. Due to the non-compellable nature of the MI powers, providing individuals with a draft submission for their comment would be an unnecessary measure. For this reason, it would also be inappropriate for the Minister to provide reasons for not considering or declining to intervene in a request.

Recommendation 9 (5.35)

The Committee recommends that DIMIA take steps to formalise the application process for ministerial intervention to overcome problems surrounding the current process for granting bridging visas, namely:

Government Response

Unlike a visa application process, a MI request does not require a client to comply with statutory criteria. Introduction of a prescribed application format has the potential to misrepresent MI as an application or review process, rather than as a safeguard for resolving unique and exceptional cases. It would therefore be inappropriate to create a binding format for making MI requests

The guidelines published by the Minister on 5 December 2008 provide that a request will only be considered when made by the person for whom intervention is requested or their authorised representative2. This ensures that clients are not disadvantaged if supporters request MI without their knowledge.

These changes also included the direction that, unless a client is in immigration detention, the Minister will not generally consider their request unless they hold a current bridging visa or other visa, or have applied for a bridging visa. Details regarding bridging visa conditions for MI clients are outlined on the DIAC website, including permission to work arrangements, access to Medicare and eligibility for Centrelink benefits3.

Departmental ministerial powers instructions state that “requests or information provided by any third party who is not the person’s authorised representative may be taken into account if a request by the person or their representative has been made.”

Recommendation 10 (5.44)

The Committee recommends that all applicants for the exercise of ministerial discretion should be eligible for visas that attract work rights, up to the time of the outcome of their first application. Children who are seeking asylum should have access to social security and health care throughout the processing period of any applications for ministerial discretion and all asylum seekers should have access to health care at least until the outcome of a first application for ministerial discretion.

Government Response

As part of the 2009-10 Budget, the Govern­ment announced changes to permission to work and Medicare access for PV and MI applicants.

New arrangements introduced on 1 July 2009 support the principle that PV applicants and people making an initial MI request, who have remained lawful and actively engaged with DIAC to resolve their immigration status, should be eligible for permission to work (and therefore access to Medicare) while they await the outcome of their application.

In addition, DIAC’s Community Assistance Support (CAS) program specifically targets clients who are assessed as being highly vulnerable, on temporary visas (including Bridging visas) while their immigration outcome is being actively managed.

Recommendation 11 (5.53)

The Committee recommends that DIMIA consider legislative changes that would enable ministerial intervention to be available in certain circumstances where there is a compelling reason why a merits review tribunal decision was not obtained.

Government Response

Existing provisions in migration legislation may offer further options in certain circumstances to applicants who fail to seek merits review. Section 48 of the Act enables a person whose visa application has been refused, whether or not they have sought merits review, to apply for a range of specified visas, including a PV if they have not already applied for such a visa.

The Minister also has the personal power under section 48B of the Act to allow a person who did not seek review of a PV refusal to lodge a further PV application. If that application is unsuccessful at the primary stage and at review, the MI power becomes available. Additionally, section 195A of the Act provides the Minister with a personal non-compellable power to grant a visa to a person who is in immigration detention, if the Minister considers it to be in the public interest to do so, whether or not the person has applied for a visa.

Making MI available only after both the primary decision and merits review was intended to preserve the statutory basis and consistency of visa decision making generally, while also providing a safety net for unique and exceptional cases after all of the formal processes have concluded. The comprehensive criteria in the Migration Regulations for each visa class which are considered at both the primary and review stage, allow for a structured and transparent assessment process to be undertaken.

In 2009, the Migration Regulations were changed to allow certain partners of Australian citizens, permanent residents and eligible New Zealand citizens, who were previously barred from making an application for a Partner visa in Australia, to do so where they meet certain criteria4.

Chapter 6 – Representations to the Minister Recommendation 12 (6.71)

The Committee recommends that the Migration Act be amended so that, except in cases under section 417 that raise concerns about personal safety of applicants and their families, all statements tabled in Parliament under sections 351 and 417 identify any representatives and organisations that made a request on behalf of an applicant in a given case.

Government Response

Publication of the identity of representatives or organisations could identify the client, raising complex privacy considerations and the potential for delay while agreement to publish such information is sought.

Recommendation 13 (6.74)

The Committee recommends that DIMIA and MARA disseminate information sheets aimed at vulnerable communities that explain the regulations on charging fees for migration advice, the restrictions that apply to non-registered agents and the complaints process. The information should also explain that the complaints process does not expose the complainant to risk.

Government Response

To protect communities from exploitation by unscrupulous and unregistered migration agents, DIAC has implemented a number of initiatives including:

In consultation with key stakeholders, the OMARA is publishing a Consumer Guide to provide information on what to expect from a registered migration agent and the complaints process. OMARA also publishes agent average fee information on its website.

Recommendation 14 (6.75)

The Committee recommends that the Migration Agents Taskforce should expand its operations to target unscrupulous operators that are exploiting clients through charging exorbitant fees, giving misleading advice and other forms of misconduct.

Government Response

The Migration Agents Taskforce (MATF) was set-up in June 2003 to deal specifically with particularly unscrupulous operators (who may be registered migration agents or unregistered persons acting unlawfully as agents) and to target any related criminal behaviour. It was originally intended that the taskforce would exist for a limited time and was dissolved in March 2007.

The 2007-08 Review of Statutory Self-Regulation of the Migration Advice Profession (the Review) found that there is a strong view in the broader stakeholder community that the architecture of the arrangements for regulating the migration advice profession was not ideal.

On 9 February 2009, the then Minister announced the establishment of the new OMARA. On 1 July 2009, the new OMARA was established to regulate migration agents to ensure visibility and transparency of the operations of the Office and to enhance consumer confidence. The new Office, attached to DIAC, is supported by a representative and independent advisory board.

Persons who may have been exploited by unscrupulous operators may make a complaint to:

Chapter 7 – Role of the Minister Recommendation 15 (7.53)

The Committee recommends that the Minister ensure all statements tabled in Parliament under sections 351 and 417 provide sufficient information to allow Parliament to scrutinise the use of the powers. This should include the Minister’s reasons for believing intervention in a given case to be in the public interest as required by the legislation. Statements should also include an indication of how the case was brought to the Minister’s attention – by an approach from the visa applicant, by a representative on behalf of the visa applicant, on the suggestion of a tribunal, at the initiative of an officer of the department or in some other way.

Government Response

Statements tabled in Parliament under sections 351 or 417 of the Act are prepared in a manner consistent with legislative requirements and include broad reasons why the Minister considers it in the public interest to intervene in a case. Any circumstances by which the case was brought to the Minister’s attention that would identify the person cannot be included in the tabling statement.

Recommendation 16 (7.54)

The Committee recommends that the Migration Act be amended so that the Minister is required to include the name of persons granted ministerial intervention under section 351 in the statement tabled