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Subprogram 1.3-Review

SENATOR DURACK -Can I just refer to the cost of redundancy payments to former Canberra-based staff of the Department. This is an amount of $1.3m. Could you give me some figures on the number of staff involved, what their positions were and what effect that loss of skills may have had?

MS MCCAHEY -The total number of people who were deployed sideways as a result of the review windup was 50. Of those 50, four were at ASO8, 10 at ASO7, four at ASO6, seven at ASO5, which is a total of 25. There were then 15 others, making a total of 40. Of those 40, 21 were placed, three resigned, one went on invalidity grounds and 25 voluntarily retired. That adds up to 50 that were attached to the migrant operations task force. The average payout for that group was $52,688, totalling $2.1m.

SENATOR DURACK -I understand that there were 50 people shed from the Department. Is that right?

MS MCCAHEY -Yes. There were 50 people in the task force. Another 15 before movement into the task force declared themselves to be interested in voluntary retirement. So 15 went before movement into the task force. Of the 50 that were attached to the task force, the disposition was as I have described. There were 40 retirements in all.

MR HARRIS -Perhaps I could help by recasting the information so far provided. There were 50 persons in what we call a task force, which was designed to clear up reviews in central office prior to or at the same time as this review work was being decentralised. In addition to those 50, not all of whom retired, 15 people in the Department indicated a desire for voluntary retirement, which would make room for some of the people in the task force. So out of a total of 65 persons who might be thought eligible for retirement, 40 received payment and retired or resigned. I do not know whether that is a help or whether I have made it more difficult.

SENATOR DURACK -I suppose I have the general picture. You did not deal with the point I made. Were these 40 people really just surplus?

MR HARRIS -They were surplus in Canberra as we had decentralised and devolved review work to the States. One of the reasons for devolvement to the States is that that is where most of the applicants are.

SENATOR DURACK -Was there no interest in transfers? Were you interested in getting newer recruits or what?

MR HARRIS -The opportunity was taken to get newer recruits as well. There were some transfers.

SENATOR DURACK -So in fact there was no net reduction in staffing?

MR HARRIS -In the long run, no. There was no net reduction of staffing in the long run. We had to absorb some of the costs of those redundancies in the short term.

SENATOR DURACK -Was it a good deal?

MR HARRIS -There were too many smiles on the faces of people who were given redundancies for me to think that it was an absolutely good deal for us.

SENATOR DURACK -We hear a lot about all this wonderful restructuring going on. That is why I asked the question.

MR HARRIS -It is probably small in terms of the Public Service compared to the private sector. Certainly the amounts paid are not generous. One gives people their superannuation entitlement, their accrued recreation and furlough leave , and then up to a year's salary as the redundancy package.

SENATOR ROBERT RAY -This is a bit if an ambit claim of future benefits.

SENATOR DURACK -But then you had to replace them all. Is that what you are saying? That is what I was really interested in. In the end, have you had a better deal as far as service to the public is concerned.

MR HARRIS -Yes, we think we do. To say that some of the recipients were very pleased does not really lessen the benefit for us.

SENATOR ROBERT RAY -We have found the reference to the figure mentioned earlier. Three months was mentioned; it is eight months.

Short adjournment

SENATOR SHORT -I have some questions to put to the Minister on the immigration review fees, the matter concerning the Ombudsman and the announcements of last week. When reading the Ombudsman's statement to the Parliament last week the Minister said that persons who paid the $240 fee at any time under protest can request a full refund.

SENATOR ROBERT RAY -I will ask Mr Harris to define that, because, certainly from listening to Senator Puplick's analysis of what `under protest' means, our view would be quite diametrically opposed to his.

SENATOR SHORT -I was going to ask a similar question, because `under protest' normally has a quasi-legal meaning. What do you mean by `under protest'?

MR HARRIS -That discussion recorded in Hansard related to the Ombudsman's release, in which be observed that in cases like this people could apply for a refund where they had paid under protest. We have not yet examined what that might mean. But we will look at cases as they come and consider each case on its merits.

SENATOR ROBERT RAY -I think it is also fair to say that in my discussion with the Ombudsman, it was not his anticipation that this was a large number of cases-that is, prior to 12 December, under protest.

SENATOR SHORT -Since 1 October 1987 there would have been roughly 11,400 cases ?


SENATOR SHORT -How many of those cases are pre-12 December 1988?

MR HARRIS -We estimate that about 2,500 applications would have been made between 12 December till the cessation of the scheme.

SENATOR ROBERT RAY -So roughly 9,200.

SENATOR SHORT -About 9,000?


SENATOR SHORT -How much do you estimate will be repaid for the pre-12 December applications?

MR HARRIS -It is so small that we have not even thought of a figure. I do not even anticipate that all of those eligible for a refund whose funds were received after 12 December will apply. Some may consciously decide that by not applying they will be able to help fund the campaign against racism, for which the balance of the $500,000 would be used.

SENATOR ROBERT RAY -There would also be an element that applied for a change of status, paid their fee, were refused and have subsequently gone. I doubt that they are going to fly back to Australia to collect the $240. But trying to estimate how many would be in that mix at this stage--

SENATOR SHORT -In other words, what you are saying is that of the $2.7m collected since 1 October 1987, $2.2m was collected up to 12 December 1988?

MR HARRIS -Approximately.

SENATOR SHORT -And $0.5m since then.

MR HARRIS -In net terms, approximately.

SENATOR SHORT -You are not really allowing, in your mind or in your estimates, for any return of any of the $2.2m collected before 12 December?

MR HARRIS -We are not allowing in our minds that there will be any significant number who paid before 12 December 1988. But there is no appropriation required because it is a refund of revenue provision, under I think the Audit Act. So we refund from revenue; we do not make an appropriation for this. But to answer your question, we do not anticipate very many, if any, applications for a refund for amounts paid prior to 12 December.

SENATOR SHORT -And you do not have a definition of `under protest'?

MR HARRIS -I suppose, as an extreme definition, we have those two persons who started proceedings in the Federal Court relating to the $240 fee. I presume that we would regard those two persons as having demonstrated that protest in the most visible way possible.

SENATOR ROBERT RAY -I am quite happy to go back and discuss with the Ombudsman his definition of this, although I clearly recall in my discussions with him the reference to just a handful of people.

SENATOR SHORT -The Minister read in the Senate last week a statement from the Ombudsman. That was purely a statement by the Ombudsman, was it?


SENATOR SHORT -As I understand that statement, the Ombudsman has changed his position quite significantly from that which was contained in his report of mid-March, when he said that the whole of the $2.7m had been unlawfully collected. Would that be correct?

SENATOR ROBERT RAY -That is the report that he sent to our Department. That, of course, was then subject to discussion between us and the Ombudsman. I think he has explained it himself. He said that what he was looking for was a solution to the problems that we both had that have been raised by this issue, which, as you know, has long antecedents. Not everything that was in the original Ombudsman's report stands; not everything that I said originally stands. I originally said that I was totally disinclined to refund any money.

SENATOR SHORT -But are you saying that part of the $2.7m that was collected was in fact lawfully collected?

SENATOR ROBERT RAY -I have been always very careful when I have approached this subject, although I know that other people have not been quite so careful in quoting me. I have always said that there are two differing legal views and I still say that there are. At this stage any reasonable government on balance would have to say that the matter is severely in doubt and that the matter needs a legislative base. That is what I have said consistently all the way through. The biggest problem we have had is establishing what was in the mind of various Ministers and the Department at different stages. I think the Ombudsman's report, initially by inference specially in section No. 40 of the report, implied that we had almost knowingly collected fees illegally-knowing them to be illegal. It certainly was not the case in my mind or in any officer 's mind in the Department with whom I discussed it. One has to say that for us the watershed was 12 December when we received the letter back from the Attorney-General which arrived not long after the opinion of Mr Scully, QC, which I had not seen on 12 December, but that is not surprising because I was waiting for the Attorney-General's letter. A combination of all those things to us, we suggested to the Ombudsman, culminated in the watershed, that we could no longer have been entitled to rely thereafter on the opinion of Michael Black, QC, in fact that the fee was legal.

SENATOR SHORT -But the reason you gave in the Senate last week for not refunding prior to 12 December 1988 on the same sort of basis as since 12 December, as I understood you, was essentially that the cost would reflect on your expenditure programs.

SENATOR ROBERT RAY -With respect, Senator, I did not say that, but my overall disinclination to refund the fee-which, after all, even if it were argued to be illegal, I am under no obligation to refund automatically, but leaving that aside-is based on the fact that I would have to find that money within my portfolio. I think you, Senator Short, interjected and said that it goes into general revenue, but my program is offset against that revenue. An agreement in my program of my expenditure level is offset against that. But the crucial point is, as I said before, at what point was the Department able to admit that there was sufficient uncertainty about the issue, and that watershed as I said occurred on 12 December. Just in case you think we sat on our hands thereafter, the Department after four days got a submission to me on this on 16 December which I read. I instructed the officers to carry out certain actions to regularise the situation. I can refer to a minute on 6 January qualifying some of those and coming up with some more problems. I instructed them to go away and further develop it. The moment I came back from overseas I received the Ombudsman's report. Apart from a regrettable three-or four-day delay we acted very quickly to rectify the matter always against a background of course, that we hoped the new legislation would give such fees a legislative base and give absolute certainty in the future.

SENATOR SHORT -When you said there was a few days delay, you said that the Department made a submission to you within four or five days of 12 December, on 16 December.

SENATOR ROBERT RAY -They then made a submission to me on 6 January asking whether I wanted to consider proceeding with this route. They said there were some problems in relation to the minute of 16 December that I signed. As you know, Senator, I, in the service of the country, went overseas for some three weeks. Having got back, the only delay was about a four-day delay in taking up the Ombudsman's concerns.

SENATOR SHORT -The Ombudsman's report was dated 19 March.

SENATOR ROBERT RAY -No. I will explain. The Ombudsman sends us a preliminary report. The Secretary to my Department then responded to the points made in that report, and then we receive a final report. I am talking about a preliminary report.

SENATOR SHORT -What action was taken between 16 December and your negotiations with the Ombudsman last week?

SENATOR ROBERT RAY -I have already explained that, but I will go over it again .

SENATOR SHORT -That is almost a four-month time lapse.

SENATOR ROBERT RAY -On 16 December I received a minute based on the Attorney's letter, having referred the Attorney's letter to the Department for advice. The advice I received, essentially, was on balance that we had better put this in the regulations. They went away over that period to develop those regulations. The Department wrote back to me on 6 January saying that I should give consideration to amending the course of action we had agreed on on 16 December only in a tactical sense, basically. From there we proceeded once we got the Ombudsman's initial draft. Probably the instructions to finally regularise that went to the Department on 3 March. I abandoned this scheme on 3 March.

SENATOR SHORT -You announced a predisposition or a disposition on 3 March.


MR HARRIS -From 3 March the Department took action to abandon the scheme and the instructions went out so that at the end of the first working day after that announcement the scheme as abandoned.

SENATOR ROBERT RAY -Yes, that is, in fact, true. It was on Friday, 3 March, in Question Time in answer to Senator McKiernan that I announced the end of the scheme.

SENATOR SHORT -You announced a `disposition'-that was the word you used-to take legislative action.

SENATOR ROBERT RAY -To solve this situation I will consult the Hansard reference. I do not believe I indicated a disposition to end it there. I ended it there. I announced a suspension. I will have to check the record to find the exact words used. There was no `disposition'.

SENATOR SHORT -I think if you check the record you will find that I am correct .

SENATOR ROBERT RAY -I am sorry, my memory is playing tricks too; Senator Burns asked the the question. I think you were correct, Senator. I am talking about immediate action in the paragraph prior to the `disposition'. The paragraph after becomes more definitive. I concede that I used the word `dispose' but, read in context with the rest of it, it is absolutely clear; that is I announced exactly what I am going to do, an interim measure. So we are both right, which is fortunate.

SENATOR SHORT -I claim that I was more right than you, Minister.

SENATOR ROBERT RAY -However, even though I may have given that impression to you--

SENATOR SHORT -And the nation.

SENATOR ROBERT RAY -No, not the nation every newspaper wrote that I had just finished it off. The press release that went out made it quite clear that we had finished it. There was even some concern as you will notice in subsequent questions about whether people accepted fees up to the seventh because it takes a while to get the directions and letter outs. I made it very clear in answer to Senator Jenkins later on that I regarded my public announcement on 3 March as it; not when everything else may have administratively occurred down the track to enforce it. So even if we got to a situation with the Ombudsman- I made this clear in an answer to Senator Jenkins-that we would not refund any fees, I went on the public record to say that from 3 March to 7 March, when any fees may have been paid, they would certainly be refunded. I think it is the date the Minister announces it, is not the date when we get all the paperwork in order.

SENATOR SHORT -I return to the point that the time gap between 16 December, when the Senate was still sitting, and the time until any action was taken or announced was several months.

SENATOR ROBERT RAY -Yes, but it was also in the context of when our legislation would be ready. I had even hoped that it might be up and running in March. I think that is a secondary factor in this. I said that we were entitled to say that, on the balance of opinion before us, we could have reason- able doubt after 12 December, and we had to regularise that by way of regulations, none of which can be drafted overnight. It will now be from 3 March to 17 April until we can finalise this matter, when the regulations are gazetted.

SENATOR SHORT -Why go the interim route of regulations? Why not simply amend the Act? Correct me if I am wrong, but I assume that the regulation route is an interim measure, which will go by the board once the Act is amended.


SENATOR SHORT -Does the Migration Amendment Bill, which is in the Senate at the moment, include this provision?


SENATOR SHORT -Is it a different Act?

MR HARRIS -One of the reasons regulations were seen to be the way is that when we received the Attorney-General's letter on 12 December there was no hope for an amendment to the Act. So regulations were started to be drafted and instructions prepared immediately on receipt of the advice of the Minister that he was intending to go down that way in response to the Attorney-General' s letter. We have been drafting those regulations and instructing the Attorney -General's Department ever since mid-December. The Bill before the Senate at the moment provides for a review scheme to continue before the two-tiered review scheme comes into operation. So it enables a review scheme to be authorised; it enables the charging of fees to be authorised before a two-tier system is established. At the same time the regulations that are to be tabled soon will cover the time between when they are tabled and when the Bill is enacted.

SENATOR ROBERT RAY -The reason why we will not use that-I have already said this-is that the Bill, if it secures passage, will be proclaimed in October. There is a fairly large gap between now and October.

SENATOR SHORT -Does the Bill before the Parliament at the moment contain this aspect?

SENATOR ROBERT RAY -I will ask Mr Gibbons to add to this answer, but the Bill contains a capacity to charge fees.

MR GIBBONS -The Bill before the Senate at the moment for the first time creates a statutory basis for the review of certain decisions under the Migration Act. It also provides for the charging of fees for review at both levels provided under the provisions of the Bill. The scheme provided for by regulation is not a pure review scheme. It provides for the making of a second application in certain circumstances, and that second application is to be considered by the Minister or his delegate after the matter has been examined by the immigration review panels. It also provides for the charging of a fee for consideration of that second application.

SENATOR SHORT -So there will not be any further Bill introduced into the Parliament to give you the legislative backing that you seek? You are saying it is contained in the present Bill?

MR GIBBONS -It is contained in the Bill that is before the Senate now.

SENATOR SHORT -At the rate things are going, that Bill could well be passed through the Parliament before the regulations are through, or within a very small time.


SENATOR ROBERT RAY -We are slightly at cross-purposes here. The second application fee is legislated back by the current Bill, but it will also be in the new Bill. We have been at cross-purposes a bit, and that is why the answers are starting to get a bit confused. A second application is statutorily based, and we are entitled to make regulations to that effect under the current Bill-the one we have been operating under since 1958 effectively. But you also asked whether we could do the same under the new Bill, and the answer is yes.

SENATOR SHORT -Given that answer, what legislative backing are you saying you have not had?

MR HARRIS -Since the Senate rejected the Bill put before it in, I think, December 1987, we have not had a legislated review scheme or the ability, according to some, to levy a fee for a review. The Act does allow the Government to charge for applications, and thus Mr Gibbons's comment that the regulations to be tabled shortly will relate to second applications rather than to a review of a decision. The effect on the client may be quite similar, but in law they will be quite different. The drafting of those regulations has occupied us since mid-December.

SENATOR SHORT -You made the announcement that you expected the regulations would be drafted within three weeks, and then last week you said it would take another two weeks. That makes a total of five weeks. Yet you say that the draftsman has been working on these since mid-December?

MR HARRIS -Yes, this and alternatives to this.

SENATOR SHORT -How could it possibly have taken already four months to do that ?

MR HARRIS -Because it is a complex matter. That is the only way I can answer it.

SENATOR ROBERT RAY -The good news is that it has gone through Executive Council and it will be gazetted on 17 April.

SENATOR DURACK -The legal foundation of it is, as you say, a provision in the Act for making second applications-so you can charge a fee for the second application. Is that what you are saying?

MR HARRIS -Yes. A person seeking change of status in Australia makes an application and pays $300. If that application is refused, there is nothing in the Act that prevents that person making another application for $300. Nothing in the existing Act prevents such a second application.

SENATOR DURACK -But that is the legal foundation for the regulations, is it?

MR HARRIS -The regulations seek to describe some second applications so that a fee of $240 may be levied rather than a $300 change of status application, and the conditions and the timing under which those second applications will be treated in a slightly different way to other second applications.

SENATOR DURACK -How is that difficult?

MR HARRIS -There were a number of options. That was the option that the Govenment finally put before the Governor-General in Council. There were other options that were examined on the way.

SENATOR DURACK -All the people since 12 December who have wanted to review an application have had to bank up until this week. Are they going to be covered by the regulations?

MR HARRIS -Between 12 December and 7 March we received some 2,500 applications , for which a fee has been paid. Those persons who wish to have their case reconsidered will be able to do so when the new regulations apply.

SENATOR DURACK -Are they going to apply from March?

MR HARRIS -We will go back to embrace them.

SENATOR ROBERT RAY -Anybody who applied between 12 December and 7 March and paid a fee on application will have the fee refunded but it will not affect their review rights. Their review will proceed in order.

SENATOR DURACK -I am still a bit confused about your state of mind, Minister, from 12 December. I thought you said from that day on in your own mind you realised you were not entitled to charge a fee.

SENATOR ROBERT RAY -You are putting words in my mouth. What I said was that up until 12 December a variety of opinions have been expressed. The most high powered, or the one that I would be most inclined to rely on, was that by Michael Black, QC, on 24 October. I was asked questions about this in the Estimates Committee on 13 October.

SENATOR DURACK -You answered them quite well then but your state of mind has changed since.

SENATOR ROBERT RAY -I answered them and based those answers on Michael Black's opinion-an opinion I value very highly. It may even have force over other opinions. On 24 October I wrote to the Attorney-General on this matter asking him for his opinion. He wrote back to me on 12 December. Maybe I was surprised when I got his letter saying that the better view was that it should have a legislative base. I think from that moment on I was no longer supremely confident that the fee would be regarded by everyone as lawful; there was a balance of opinion that suggested to the contrary. That was our state of mind. Having referred that letter to my Department for comment and advice, it got back to me on 16 December and said, `We will have to look at a variety of methods by which we can solve this problem'. The most preferred option was by regulations. It was not precisely clear from 16 December what route under the regulations we would take. Again, the Department got back to me on 6 January to say that we were not all free from problems; we could go this way, that way or the other way and what was my view on that.

SENATOR DURACK -Having made the decision that you are going to can the old scheme on 7 March, it was then between 12 December and that date that you continued to levy fees, and in a state of some doubt you then decided to refund them. Is that correct?

SENATOR ROBERT RAY -I did not decide in isolation. The Ombudsman had made his views very clear when we had a discussion with him. A lot of the discussions centered on what was the state of mind of my Department and myself-did we believe that the fee was legal. The crucial thing is that there was a possible thought in the mind of the Ombudsman that we may have knowingly collected a fee which we all knew to be illegal or should have known to be illegal. Having had a long discussion with the Ombudsman we came to that crucial data of 12 December when we could no longer say we were supremely confident that the matter did not require a legislative base. On that hinges the date from which we determined to refund the money.

SENATOR DURACK -From what you have said there is not going to be any group of people who will be disadvantaged by not being able to have a review process. Am I right in that conclusion?

SENATOR ROBERT RAY -You are right about that. There has been some concern that people have to lodge an appeal within 90 days. Because of that interregnum between 3 or 7 March and 17 April, we were asked whether that period would be included in the 90 days. I have said we would exclude it from the 90 days.

SENATOR SHORT -What is the current backlog of review cases relating to those submitted since 12 December?

MR HARRIS -I do not know the answer to that. Some of 2,400 that came in between 12 December and 7 March have been concluded but most I would imagine would still be in process.

SENATOR SHORT -On the basis of that 2,400 between mid-December and early March -it is not far short of 1,000 a month, and there has been a suspension of applications since then-you probably have another 1,000 or so in the pipeline.

MR HARRIS -There are 1,000 or so waiting for the regulations to be tabled so that they may have their case re-considered by a second application.

SENATOR ROBERT RAY -I stress that the view panels are continuing to work. It is a bit like driving up to traffic lights when a red light is showing. As we know, the traffic ahead eases. I assume a similar situation will occur here. We are still continuing to do that with all appeals up to 7 March. The very fact that these other ones will come in late means a lot of others will have been done and we can get to them earlier. I do not think this is going to affect waiting times too much. After all, waiting times on appeals have come down on average from 12 months to 5 months since we instituted the fee.

SENATOR SHORT -How do you propose to advertise the availability of the refunds to these people, particularly for those since 12 December but also for those beforehand?

SENATOR ROBERT RAY -I do not think we have turned our mind to it. There will have to be a fairly wide advertisement. It is amazing how quickly various networks get the message out. We are not contemplating, as you might be thinking, putting it only in the Kalgoorlie newspaper.

SENATOR SHORT -Do you propose that a letter from the Prime Minister or the Minister will be sent to each of the applicants? You must know who they are.

SENATOR ROBERT RAY -We did discuss this matter with the Ombudsman. It will be done by advertisements.

SENATOR SHORT -So you will not be contacting each applicant individually?



SENATOR ROBERT RAY -Why should we?

SENATOR SHORT -Because they are eligible for a refund.

SENATOR ROBERT RAY -Yes, and that is why we are advertising. The administration costs of writing to every individual would be fairly substantial.

SENATOR SHORT -Will you be advertising in the full range of the ethnic media?

SENATOR ROBERT RAY -Governments are bound in a lot of their advertisements to go to a variety of areas. The offer to refund fees will be advertised in the national and ethnic newspapers.

SENATOR SHORT -How frequently?

MR HARRIS -It does not specify that. We will have a look at the costs of the advertisements. It has already received a large amount of free advertising in the national and ethnic press by way of coverage of the statements of the Minister and the Ombudsman.

SENATOR ROBERT RAY -One would have to say that our target audience may not always read the Australian, the Australian Financial Review or the Canberra Times.

SENATOR SHORT -Almost certainly. Hence, I come back to my question that if you are seriously attempting to advise those people of their eligibility would it not be very likely to be more economical and equitable to write to each applicant?

MR HARRIS -Sorry-that we would write to each applicant?

SENATOR SHORT -Would it not be very likely to be more economical, and certainly more equitable, to write to each applicant-I presume the name and address of each of which you must have-rather than to hope that they will be able to (a) read the paper and (b) read the advertisements that you are proposing to place? What is the argument against contacting every applicant?

MR HARRIS -To find the 2,500 files in the Department, wherever they might be, and to make sure that you set up a system to identify those files accurately and to write would be very expensive. It might be about $30 or $40 per applicant.

SENATOR SHORT -But would you not have in the Department a list of the applicants, the names and addresses of those who have made application since 12 December?

MR HARRIS -No, I do not think we do. I think the applications live in the person's file, and those files are handled in different ways in different States and with different timings.

SENATOR SHORT -I must say, with respect, that that sounds extraordinary-that such information is not available.

SENATOR ROBERT RAY -It is not at all extraordinary that you do not keep a centralised file on every aspect of the Department by classification of appeal or whatever else. I do not find that extraordinary. I think Mr Harris is right. The reason after discussion with the Ombudsman we went the advertising route is the cost of administration. But I do not think one should just limit discussion of people's access to information to paid advertisements. I think- having been stimulated by your arguments here tonight-we will have to make sure that SBS and the various ethnic radio stations, which usually run these public announcements, will carry these sorts of things so that information is disseminated to grant-in-aid-workers and migrant resource centres. I think mostly the message will then substantially get out.

SENATOR SHORT -I would hope so, and I would urge the Department to do so because I put it to you that what you have done is to take a lot of money illegally or unlawfully off a lot of people. I think there is a very significant obligation on the Government to advise those people of their right to a refund.

SENATOR ROBERT RAY -Obviously I do not agree with the premise that it is necessarily unlawful. Firstly, I would say that is only on the balance of opinion that it is. Secondly, we have no binding legal obligation to refund in general but only on application by an individual who wants to take us to court. But I think it would be too harsh and oppresive if we followed that route. I would also like to say that we have not really addressed here tonight the question of whether we should charge fees for appeal. I am certainly in favour of that rather than loading it onto generalised immigration applications as a more generalised fee. It has in the main produced a lot of frivolous appeals. This is the area with the biggest leakage rate of appeals of any Government department. It is far greater than any other. You know the reason why; you have mixed with ethnic communities. You know that a sponsor always feels inclined to appeal to prove to the people in the home country that they have done everything possible. Whilst there is no question but that I would have preferred in 1987 for this matter to be put in legislation or put beyond doubt, there is also some justification for having fees in this area. Delivery of the review process now is far better. As I say, the delays are generally down on average from 12 months to five months. A lot of improvements have occurred in this area. Also, by having revenue to cover review, it releases further expenditure available to ethnic and settlement services. I just say to those people-you have not said it to me directly tonight, Senator, and I do not say you have-who say that I should refund the whole $2.7m, that that would be offset against my portfolio expenditure. I do not want to be cutting language courses on grant-in-aid workers or reducing migrant resource centres that have provided an excellent service to the community in the last few years.

SENATOR SHORT -Nor do I think you should, but, as we said in the Senate the other day, I think the two are not automatically linked. As you know, the view of the Opposition is that-just to get it clearly on the record-you should be refunding the whole of the $2.7m and that that should not affect your existing programs. That leads me to my next question.

SENATOR ROBERT RAY -As always, Oppositions are very good at spending money and not raising it. I am not sure you would take that attitude if you were in government. Things have perhaps changed in the last six years. You do not just dip into Consolidated Revenue for these things. Things are offset to porfolios. You may want to change that; that is all right.

SENATOR SHORT -I thought these fees were paid into Consolidated Revenue.

SENATOR ROBERT RAY -Yes, but my continuing program is offset against those fees. It is quite clear.

SENATOR SHORT -Perhaps we could debate that at another time. Even accepting the logic of your point-and let me say I do not-is it not quite inconsistent with that logic--

SENATOR ROBERT RAY -`Is it not quite inconsistent?'-can we just put it more directly?

SENATOR SHORT -If you are concerned about your revenue base so far as your programs are concerned, why are you, on the one hand, accepting that you need to refund to people fees already paid, but, on the other hand, saying that as you have said in your press release and in the Senate the other day, you are going to use on a new program the balance of the funds which are refundable but which you do not think will be collected? What you are doing, on the one hand, is reducing, if you like, using your accounting convention, the revenue available to you through the decision of last week-not as much as you should, in my view, but you are still reducing the revenue available-and using as at least partial justification for not refunding more the fact that it would cut into your present programs, and yet you are at the same time announcing a new expenditure program. I just do not follow the logic of that, I must confess. I would be grateful for your comment on it.

SENATOR ROBERT RAY -In our discussions with the Ombudsman, he clearly came to the view that that money paid since 12 December should not be available to my Department.


SENATOR ROBERT RAY -That in fact--

SENATOR SHORT -Is it going to be available to some other department?

SENATOR ROBERT RAY -No. Have you finished?

SENATOR SHORT -Who is it going to be available to?

SENATOR ROBERT RAY -Have you finished?

CHAIRMAN -Frankly, this discussion is boring me witless, not because we are discussing an issue in an appropriate way but because we have a problem here. Senator Short, can you make your questions short, and, Minister, can you reply succinctly, because this is now becoming a philosophical debate. We are here about Estimates. We have had a long time on this one. We are now on program 1. 3. This issue has been going for more than an hour. It has been debated in the Senate on any number of occasions. I am just wondering if we can move on a bit more quickly. Seeking of information is fine but I am trying to stop debate on the issue. Can we come back onto that now?

SENATOR SHORT -With respect, I would say that the subject we are debating, as Senator Ray himself has said in the Parliament, relates to the legality of the Operations of the Government. I would view that, in an Estimates committee context or any other context, as a very important and very serious subject. I do not think an hour spent on a subject of this magnitude is excessive. Having said that, I will try to speed up. I have just about finished my questions on it.

SENATOR ROBERT RAY -My hesitation is that you have interrupted me three times in order to qualify a question or otherwise. I did want to get the answer on the record rather than you diverting me halfway through the answer so that I do not get the full answer on the record. As I said, in terms of the 500,000, I think what is in the Ombudsman's mind-I cannot really speak for the Ombudsman; I only had a conversation with him in my office-is that if 12 December is the cut-off point, that money should be refunded. The question then came up: What do you do with the balance if it is not claimed? He wanted to seek from us an undertaking that we would put that money not into an existing program but into a new program-not just absorb it or keep it but put it into a new program. Similarly, with the $2.2m that was not going to be refunded, he wanted us to take a step on the basis that I would not refund it because I might have to cut a lot of programs to show that we would also offset part of that to some new program. That is going to hurt-and in a budgetary sense you know that-but it is a lot easier to deal with $700,000 than $2.7m.

SENATOR SHORT -In terms of the practicality, yes, but--

SENATOR ROBERT RAY -That is the world I live in. I do not live in a fantasy land.

SENATOR SHORT -But in terms of the principle involved, surely there is no difference involved at all.

SENATOR ROBERT RAY -I look forward to your cheque for $2m. You say that there is no difference. There is to a practising Minister who is trying to administer a fairly tight budget in times of fiscal restraint. Of course I would rather only have to pay out $700,000 than $2.7m.

SENATOR SHORT -You have said that one of your problems with re-funding $2.7m is a practical problem with your exisiting programs. It sits oddly with that that you are, in the context of this, announcing a new expenditure program.

SENATOR ROBERT RAY -I did that in the context of the Ombudsman suggesting that , having decided in my own mind that 12 December was the cut-off point, I should not retain those funds, and that I should also show-because I put the argument very strongly; I did not want to refund the $2.2m-that some of that should go to a new program. As Minister, it is my task obviously now to argue for those new programs and to get the money for them, to keep my good faith with the Ombudsman, and I intend to do that.

SENATOR SHORT -You announced the establishment of a new program, a campaign against racism. I presume that decision has been taken.

SENATOR ROBERT RAY -It is not finalised, no.

SENATOR SHORT -You announced in your press release of 7 April that the value of the balance of the $8.5m would be used towards a compaign against racism, to be introduced in 1989-90. Are you saying that a final decision to introduce such a campaign has been taken.

SENATOR ROBERT RAY -There will be that campaign at least to the residual amount; I would hope more.

SENATOR SHORT -So a decision has been taken for such a campaign?

SENATOR ROBERT RAY -I have taken a decision. It has to go through certain processes to validate it, but do not hold that against me.

SENATOR SHORT -What do you envisage will be the content of a campaign against racism program?

SENATOR ROBERT RAY -I will announce that in due course. I am not going to anticipate that sort of policy, other than to say this: What I do not have in mind is a quick fix, short term advertising campaign, an electronic media blitz. I am not going to be crass enough to compare it with some other campaigns I have seen over the last 15 years. It will be a long term building block approach through schools, et cetera. That is what is in my mind at the moment.

SENATOR SHORT -You mentioned that you wrote to the Attorney-General on 24 October. Was that the first time that you or your predecessor, or your Department, had sought the views of either the Attorney- General or the Solicitor-General on the legality of the arrangement?

SENATOR ROBERT RAY -I guess it depends upon what you mean by `sought'. Certainly it was the first time I had, and certainly I did it formally in writing. I think there may have been an occasion in the past where the matter was raised in one or two occasions. I might ask Mr Harris to refer to that.

MR HARRIS -None of the references in the Ombudsman's report relating to opinions, advice or views of the Attorney-General were provided other than at the request of the Department. All of those citations were in response to a request from the Department or the Minister.

SENATOR SHORT -As I understand the Ombudsman's report-I cannot find the exact reference-the Department had as early as September 1987, or certainly in 1987, internal legal advice raising doubts about the legality of the fee in the absence of a legislative base. Is that correct?

MR HARRIS -That is correct.

SENATOR SHORT -From whom had that advice been obtained?

MR HARRIS -That was an internal advice from persons working in the Department.

SENATOR SHORT -So your own internal legal advice that far back was to raise doubts about the legality?


SENATOR SHORT -Did that go back as far as September 1987?

MR HARRIS -I do not know if it went back as far as September 1987, but one should recall that at that time the Government was contemplating, as announced by the then Minister Young and as discussed with the then Opposition, as I gather, introducing legislation in the first term of 1988, which was retrospective in its reach.

SENATOR ROBERT RAY -That would more likely put it at December 1987.

SENATOR SHORT -Yes, but in 1987. However, had you sought the advice of either the Attorney-General's Department of the Solicitor-General prior to the Minister's letter of October 1988?

MR HARRIS -As I mentioned, all the references in the Ombudsman's report to legal opinions advising us or to views from the Attorney-General were sought by the Department.

SENATOR SHORT -So you did have views from the Attorney-General's Department prior to 12 December 1988?


SENATOR SHORT -I do not think that we have seen those advices, but I have asked in a question on notice whether your legal advisings would be available. Did those advisings raise doubts about the legality of the fee?


SENATOR SHORT -What distinguishes those advisings from the advising on 12 December which finally led you to act?

MR HARRIS -In the initial period, on the failure of the Bill to pass the Senate, the advice was that the better view is that legislation would be required for the fee. That advice was taken in the context that the Government was then thinking of retrospective legislation being introduced in early 1988 to validate a fee being collected in 1987. In early 1988 it became clearer that the Government might not advance a retrospective legislation, and the more substantial advising from the Department of the Attorney- General than the one-sentence advice we received in December 1987 had been received. That lengthy advice cast further doubts on the legality of an administratively based fee.

SENATOR SHORT -When was that?

MR HARRIS -January 1988, I think. At that time we were becoming rather nervous about the continuation of this fee. In February 1988 a court action was commenced against us on the legality of the fee. In that context, we received from Mr Black, QC, an opinion which I regard as being the best opinion that we have received in terms of its scholarliness. In other words, I distinguish between its outcome and its internal quality. That opinion, received in the context of that Federal court hearing, gave us confidence that, indeed, an administratively based fee was legal, and no one to this day has yet analysed Mr Black's opinion or rebutted it.

SENATOR SHORT -Was it not sent to the Attorney-General's Department for advice ?

MR HARRIS -The Attorney-General's Department was involved in the solicitation of that advice from Mr Black, QC.

SENATOR SHORT -Which conflicted with its own advice to you?

MR HARRIS -Yes. That was referred to it in early March 1988 formally in a letter from us to the Attorney-General, and that matter has not been responded to since by the Attorney-General's Department.

SENATOR SHORT -Did you ask the Department for a response to the Black opinion?

MR HARRIS -We pointed out that the Black opinion differed from its opinion.

SENATOR SHORT -And what did it say?

MR HARRIS -As I said, we have not had a response as to why it viewed the Black opinion as deficient.

SENATOR ROBERT RAY -This was taken up by the Ombudsman at great length. If you read his report, he talks about different stages of opinion. The first stage was that, maybe, we should have a legislative base. Then in December there was the Senate debate that was knocked out. In January the Department gets more worried about it. But then a test case is coming up, so the Department thinks that this matter will be tested in the courts. In the process of getting it tested in the courts, there is an opinion from Michael Black, QC, which is fairly supportive but not totally without doubt. That was a prevailing opinion for most of the rest of 1988. It was raised here at the Estimates Committee whether it was legal. I think there was another case for our going to the court taken into account. We wrote to the Attorney-General. Finally, we got the opinion of two people, culminating in Scully, QC, on 1 December, and then the letter comes back on 12 December. On the question of the legal opinions, did you say you put it on notice to the Estimates Committee?

SENATOR SHORT -I put it on notice to the Estimates Committee, but only yesterday or today.

SENATOR ROBERT RAY -I have to qualify your question. We will not make available the ARC advice because that is advice to the Attorney. It is not within my power to do so. I think I have here most of the other legal opinions that you asked for. There are 10 in all. I will make those available.

MR HARRIS -Not all of those are opinions that relate to the legality of the fee and not all of them are opinions. Some of them are one sentence asides, as I mentioned before, in addressing other matters but the Ombudsman saw fit to cite them.

SENATOR ROBERT RAY -I table those.