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Legal and Constitutional Affairs Legislation Committee

CAMPBELL, Ms Leonie, Director, Criminal Law and Human Rights Division, Law Council of Australia

FORD, Ms Carina, Steering Group, Migration Law Committee, Law Council of Australia

KNACKSTREDT, Ms Nicola, Policy Lawyer, Criminal Law and Human Rights Division, Law Council of Australia

PRINCE, Mr Shane, Member, Law Council of Australia

Committee met at 08:45

CHAIR ( Senator Ian Macdonald ): I declare open this public hearing of the Senate Legal and Constitutional Affairs Legislation Committee for its inquiry into the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. The committee's proceedings today will follow the program as circulated. These public proceedings are being broadcast live via the web. Witnesses may request to have evidence heard in camera. I remind witnesses that in giving evidence they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to the committee. Such action may be treated as a contempt and it is a contempt to give false or misleading evidence.

I welcome witnesses from the Law Council of Australia and thank you for joining us. We have your submission, which we have numbered 129. If there is anything you wish to correct or amend in your written submission, you can do that now. Do you have any comments to make on the capacity in which you appear?

Ms Ford : I appear in my capacity as a member of the Law Council of Australia's migration law committee, which forms part of the Law Council's international law section.

Mr Prince : I am a Sydney barrister. I am a member of the human rights committee of the New South Wales Bar Association. I chaired a subcommittee of that committee to draft the New South Wales bar's response, which has been received by the committee. I have been invited by the Law Council to represent them here today.

CHAIR: Thank you. Would you like to make an opening statement?

Ms Ford : Thank you for the opportunity to appear before you today. As you may be aware, the Law Council is the peak national body representing the legal profession in Australia. Through its constituent bodies, the law society's and bar associations around the country and the large law firm group, it represents around 60,000 legal practitioners. This bill is of great interest to the legal profession, particularly to those with experience and expertise in migration law and protection visa claims. The Law Council supports efforts to enact a clear, fair and efficient system for processing protection claims and issuing protection visas. It considers that a legal framework for the determination of protection claims is urgently needed, especially for the legacy caseload. However, for the reasons outlined in our written submission, the Law Council considers that the bill's proposed amendments depart from the accepted standards of protection for asylum seekers in international and domestic law, key rule of law principles and procedural fairness guarantees. It therefore does not support the passage of the bill.

As noted in its submission, the Law Council's general view of these standards, principles and guarantees is set out in its recently published asylum seeker policy, a copy of which the Law Council would be happy to provide to the committee. I can provide that to you afterwards.

CHAIR: Thank you.

Ms Ford : In particular the Law Council considers that the most concerning features of this bill are the expansion executive power with little or no merits review and only limited judicial review available. For example, the minister's power is extended significantly in relation to the removal and detention of a vessel or aircraft either inside or outside the migration zone until a destination is secured or the minister otherwise exercises his or her discretion at schedule 1 of the bill and the determination of who may be excluded from the refugee status determination process—the fast-track process-at schedule 4 of the bill.

The retrospectivity of certain provisions—most significantly schedule 6 of the bill, which stipulates that babies that have been born in detention in Australia or in its offshore processing centres will be considered unlawful maritime arrivals or transitory persons. There are increased risks that such babies may become stateless in contravention of Australia's international obligations.

And the retreat from Australia's international obligations. This is most explicit in schedules 1 and 5 of the bill. The Vienna Convention on the Law of Treaties requires states to implement their obligations in good faith and stipulates that a state may not invoke the provisions of internal law as a justification for its failure to perform its obligations under a treaty.

The Law Council notes that several of these changes potentially conflict with what is considered to be Australia's chief international obligation with respect to asylum seekers: the obligation of non-refoulement, which prohibits states from returning refugees to countries where his or her life or freedoms are threatened. It also includes a highly restrictive approach to the definition of the refugee convention. The Law Council also notes that the proposed amendments—especially the removal or restriction of merits review—are likely to lead to more judicial review applications to the High Court. This will undoubtedly lead to further inefficiencies, thereby conflicting with the bill's stated intention and prolonging the process of determining Australia's protection obligations. The bill may have further unintended negative practical consequences, including the ongoing administrative burdens and economic costs flowing from the reintroduction of TPVs.

Most importantly and as set out in our written submission, the Law Council considers that access to independent legal or migration advice for asylum seekers under Australia's jurisdiction is fundamentally important. The provision of independent advice at an early stage of the determination process will reduce inefficiencies and help ensure that asylum seekers are not at risk of returning to a place of jeopardy, in accordance with Australia's international obligation. Such advice is critical when the changes contained in the bill include a fast-track process and where the department's submission has indicated that as little as two weeks will be given for responses or opportunities to respond to allegations. The provisions of the current bill, combined with conflict changes in other legislation, include the proposal to place the burden of demonstrating claims on the applicant without any assistance from a third party and without legal advice. The Law Council is concerned that asylum seekers will be left without help to make significant legal applications and be unable to respond in a quick manner. Immigration officials will be left to make decisions on poorly prepared and incomplete applications. The process relies too heavily on being considered quick and efficient without considering fair and just outcomes. I will now pass to Shane to make a few general comments.

Mr Prince : You will have seen from the New South Wales bar submission as well that the New South Wales bar council is opposed to this legislation as going well beyond what is necessary and interfering significantly with the rule of law and also with Australia's international obligations. I was going to deal principally with schedule 1 of the bill and the implications of that for Australia's compliance with its international obligations. In this bill you will see characteristically throughout it very wide, sweeping measures entrusting the executive and taking the view that the compliance with Australia's international obligations is really entirely a matter for the executive. In my submission that really does mistake the nature of the state. This parliament is the superior branch of the state constitutionally, and the courts are also a branch of the state—and, obviously, so too is the executive—but constitutionally inferior. The idea that the rights and obligations of Australia to the world under international law is only a matter of concern to the executive is something that in my submission this parliament would not tolerate. The normal, well-established rule of law is that parliament intends Australia's laws to comply with Australia's international obligations unless it otherwise says so, so to have provisions in legislation which expressly depart from Australia's obligations under international law is a matter of very serious concern and should only happen in the clearest circumstances where the parliament is satisfied that such a measure is necessary.

What you will see in, for example, schedule 1 is a clear and unequivocal statement that the law itself—the legislation—is not meant to require the executive to comply with international law. In the department's response they say the executive will comply with international law, so there is nothing to worry about; but, if that is the case, the immediate question is: why then take out of the legislation a presumption that Australia will comply with international law? There can be no need for the legislation if it is the government's intention to abide by its international law obligations.

CHAIR: Can you refer me to the clause that says that?

Mr Prince : Go to item 1 of schedule 1. You will see the words that are currently in the Maritime Powers Act.

CHAIR: Sorry. I have interrupted your flow, and we will come back to that. I just wanted to see.

Mr Prince : Not at all. If you go to schedule 1, part 1 of the bill, you will see in item 1 that section 7 is going to be omitted from the Maritime Powers Act. Section 7 currently talks about the exercise of powers being limited in places outside Australia in accordance with international law. That is one example. If you then go to item 6 for proposed section 22(A)—

CHAIR: Section 7 says 'in accordance with international law, the exercise of power is limited in places outside Australia'?

Mr Prince : That is what it currently says. This amendment would take that out of that act.

CHAIR: Which means?

Mr Prince : Which means that, at the moment, the legislation currently has a note about the limitation on the exercise of powers under international law. The question is: why would you need to take that out of the act? It may be that the suggestion will be made in due course that the parliamentary intention was to eliminate or no longer restrict the powers and exercise under the act by reference to international law. I will take you to some specific provisions.

CHAIR: What was the second one you referred to?

Mr Prince : 22(A), item 6.

Senator JACINTA COLLINS: Page 6.

Mr Prince : In particular 22(A)(1)(a) and even (c). That is, the law will validate or recognise authorisations made by the minister even if they are inconsistent with Australia's international obligations.

CHAIR: If this is passed, though, isn't that an indication that parliament does intend the powers not to be invalid because of those things?

Mr Prince : That is right. This is an indication that parliament intends that the authorisation will have the force of law even if they are inconsistent with Australia's international obligations.

CHAIR: Okay.

Mr Prince : 75(A), which is item 19, is in a similar vein. That is on page 11. 75(A) is the exercise of powers. Section 22(A) is the granting of authorisation. So, at both points where things are being done under this act, these sections would mean that those acts would be valid even if they were inconsistent with Australia's international obligations.

Finally, I take you to page 16 and proposed section 75(H). What is very concerning about that provision is that it provides that the laws specified in subsection 3 do not apply in relation to a vessel at any time when the vessel is detained in exercise or purported exercise of powers under section 69. If you go to subparagraph 3, the laws which are prescribed include the Navigation Act 2012 and the Marine Safety (Domestic Commercial Vessel) National Law. You will see that in 75(H)(1) the laws which are excluded include the regulations and instruments made under those laws. The Navigation Act contains in it, as you may know, Senators, all of the safety of life at sea international conventions, all of the shipping laws, all of the maritime orders and all of the maritime safety provisions, so what this means is that, if Australian officers are in charge of a vessel which is detained in the exercise of a power under this act, they will not have to comply with those provisions of the Navigation Act which enact into Australian law Australia's international obligations under the safety of life at sea and other measures. That is a matter which is very concerning to the Law Council, and there is no real reason why those matters should not apply.

Otherwise, what we are really doing is creating two classes of safety of life at sea consideration in circumstances where every mariner would know that these norms of international law are some of the most fundamental things that all nations have been able to agree on because of long history and the like. So those provisions in my submission are quite concerning.

Senator REYNOLDS: A point of clarification on that: are you inferring then from that that the government's intent is to reduce safety at sea provisions? What do you think the government is going to do with those—make it less safe for people? What is the intent that you are inferring there?

Mr Prince : The intent is that they are not going to be bound by them. The question is: why would you not want to be bound by those provisions?

Senator REYNOLDS: But the consequence of that is you are saying they are going to take people's safety at sea less seriously?

Mr Prince : As the department notes—and I have no doubt about this—the professionalism of the officers of the Royal Australian Navy is beyond question. The difficulty is that a lot of the Navy's traditions and understandings about how things work at sea are based on a very clear set of international norms and obligations which have been around for a very long time.

Here you have an act of parliament that is expressly carving out of those traditions and obligations at sea a very significant component in relation to a particular set of circumstances. So, in a difficult situation, where quick judgments have to be made, this gives enormous power to the Minister for Immigration and Border Protection to issue directions to naval officers to do things, with some carve-outs and exceptions for the Defence Act. But it allows direct intervention by the Minister for Immigration and the giving of direct orders, effectively, to naval assets.

CHAIR: We might pursue that later. We have interrupted you.

Mr Prince : I am happy to help in any way I can. Those are the principal concerns arising out of schedule 1. If it is the case, as the department says in its submission, that it is not the intention to transgress Australia's international obligations then the obvious question is: why do you need these amendments?

CHAIR: I would suggest that you as a lawyer would know that every little comma in the wrong spot allows some application, and I would guess that this is addressed at trying to stop very technical appeals. I am guessing.

Mr Prince : It seems to me to be directed pretty directly to what happened recently with the vessel that was at sea.


Mr Prince : That matter is still before the High Court and the decision is reserved, so I am not going to comment on that. But one can see that there are not great legal technicalities or lawyers' points in observing safety of life at sea obligations or—

CHAIR: I do not think there is any suggestion that—although I do not know the case, but perhaps you do—but as you rightly say we should not be talking about it. Have you finished your statement?

Mr Prince : There is one more point I would like to make on this schedule. There may be a collateral unintended consequence of these provisions in that, because of the breadth of sections 22A and 75A, and their application to any of Australia's international obligations. There may be the setting up of a situation that, where a direction is given to an Australian vessel pursuant to one of these powers, outside another country, that can be done without being invalid because of breaching Australia's international obligations, that direction could include, for example, to move the Australian ship into another country's territorial waters. The protections that exist in section 40 of the Maritime Powers Act at the moment for exercising powers inside another country, by consent and the like, do not apply to the exercise of powers just outside the country.

CHAIR: Give me a hypothetical on what you are talking about.

Mr Prince : For example, a vessel could be directed under one of these powers to go to Indonesia and drop people in Indonesia. That direction would not be invalid if it breached international law. But for an Australian vessel to go into Indonesian territorial waters without permission would be a transgression of Indonesia's sovereignty under the United Nations charter, which is one of the most serious breaches of international law that one can imagine.

CHAIR: And it could be blown out of the water by the Indonesian Navy, technically.

Mr Prince : Quite so. Those situations may arise when you have two classes of people, those who—

CHAIR: Sorry, in that hypothetical, would the captain of the vessel say, 'I do not care what the Australian government says, I am not going to go in and put myself in range of the shore batteries that will blow me out of the water.'

Mr Prince : If it is within range of shore batteries. The difficulty is that it is a young man's game to be the captain of the vessel, and you are going to have 35-year-old commanders who are going to be subject to directions from Canberra directly from the minister to do things.

CHAIR: You are talking about Australian Navy vessels—

Mr Prince : Any Australian vessel. It could be a Customs vessel or it could be anything. An Australian flagged ship.

CHAIR: An Australian government vessel.

Mr Prince : Or a vessel under Australian government orders. Because you have the authorisation, it brings in the doctrine of state responsibility, because what they are doing is pursuant to directions from the Australian government.

CHAIR: I understand.

Senator JACINTA COLLINS: Mr Prince, you were about to finish your sentence about the two classes.

Mr Prince : So you end up having two classes of situations. One where one of these operations is applying and the ordinary norms of international law are excluded, and one were these circumstances do not apply, where all the normal international obligations exist. This inevitably will lead to people viewing operations under this act as being different to their normal day to day operations, where they are required to abide by international law at every step of the way. That is our concern.

Senator JACINTA COLLINS: On that point, the two classes are, for the purposes of authorisations—and what was the other one at 75H?

Mr Prince : Exercises of power under 69, 69A, 71—

Senator JACINTA COLLINS: That would distinguish the two classes the different standards would apply to?

Mr Prince : Yes.

Senator JACINTA COLLINS: You have covered some pretty comprehensive ground, but our time is going to be fairly limited today. The only issue, further to the discussion around schedule 1, that I want to take you to is schedule 5 and the treatment of our international obligations there. I think it would be helpful if you could cover the concerns regarding schedule 5, as well.

Mr Prince : Do you mind if Ms Ford deals with that?


Ms Ford : Did you have any particular questions on that that you wanted addressed?

Senator JACINTA COLLINS: No, just that, fortunately, we have dealt with some level of detail in relation to schedule 1, but some of my briefing notes have raised particular concerns regarding how schedule 5 is clarifying Australia's international obligations?

Ms Ford : Schedule 5 is deeply concerning. When you first read this bill I know that I sort of focused on 1, 2 and 4. Then, over the last couple of days I have probably spent more time on schedule 5, because at the practical level I see schedule 5 being one of the most concerning parts of all applications, whether they are pending or in the future. That is mainly because many decisions are determined on relocation. The reasonable test, in all honestly, is very easy to follow at a practical level. The case law in that area is well established. It sets out a basic test that you follow in terms of determining whether someone should be relocated. It is really now going to be a situation where that is completely turned over on its head. My understanding from reading the department's submission in particular, was that what they in effect were considering is that you will only consider the journey. Take a big country like Afghanistan. If you are from the top of Afghanistan, all they will look at is that you can move and they will only take into account that journey. They will not take into account any personal aspects of the person in terms of whether it is reasonable for them to move there.

It goes further in the department's submission to seem to indicate that they will look at other factors, but of course that is being removed from the legislation, and that is completely against the convention. I think the UNHCR's submission and the Australian Human Rights Commission's submission are very good on those points relating to relocation.

The other issue of course is the particular social group. The example used in the department—I am trying to use practical examples because I know it can assist—is the beautician in Algeria. I am not going to go into all the details of that, but it was found that a beautician in Algeria was of a particular social group. Under the new regulations it would be argued that that person would no longer fall under a particular social group, because they could change their occupation if they were to return. Take another example such as a human rights lawyer, or a doctor treating women in Afghanistan. What that says is that if they go back, as long as they change their occupation, based on the new test they would be okay. That again goes against the convention. It was never expected. Some of the cases in this area are from 2003 and 2004. There have been well established High Court cases that have not since been challenged. Therefore it would be our argument that it is unnecessary to bring those in.

Senator JACINTA COLLINS: I am curious about a number of areas where removing reference to the convention is an approach applied here. There is one other example in recent times from the current government that comes to mind. I think Mr Prince covered this fairly well at the outset—it is an approach that says our laws no longer require direct references to international conventions, because you can trust the executive.

Ms Ford : That is right.

Senator JACINTA COLLINS: In terms of your broader responsibilities about Australian international and domestic law, have you seen this approach applied elsewhere at some point in history—perhaps even not recent history?

Ms Ford : No. I cannot think of an example of where that is considered to be put in place. I think in the department's submission it is indicated that it is to make it easier for applicants. There is just no way that by tightening these tests and going against mentioning the convention that it is to make it easier and more practical for an applicant. That is just not true. I am also very concerned about the fact that there could then be a situation where not only do you have a new form of tribunal but you are going to have all of these member learn a brand new area, which is going to lead to far more court cases—there is no doubt about that—in what was already well-established law. I do not see the point of having to remove the convention in regulations. I personally think schedule 5 is just going to cause so many issues, and is really unnecessary given everything else that has been covered in this bill.

Senator JACINTA COLLINS: When the department comes later I will be asking them what consultations occurred with respect to their case for making these changes. But are you aware of where that approach to meeting our international obligations is coming from?

Ms Ford : I think it comes from a practical level on the department's side from when they are looking at decisions and reading through RRT decisions. You can see by the paper that they have used an RRT decision in one of them, but they obviously support it. With the particular social groups, you can see that people have gone through and gone, 'Gosh, they have picked this one out and they have picked that one out. What they did not do is pick out the other groups that are extremely vulnerable.' There was no consultation in relation to that at all, as I understand, other than this consultation. That would be my view on it. I hope that clears it up, although that answer was probably a bit wishy-washy!

Senator JACINTA COLLINS: I understand that from your end you are saying that within the department it seems as if they might be trying to respond to practical case examples. From my end it seems as if they have not applied a historic, well-understood approach to international conventions and the rule of international law. So I am curious about this notion that we defer it to the executive. What is the historical basis of that? From what I can gather you are saying to me that you are not aware of one.

Ms Ford : No.

Mr Prince : Can I respond to that, too. One matter that concerns the department over the years is that the High Court consistently reads the Migration Act as giving effect to Australia's international obligations under the refugee convention, and being directed towards that. These provisions are an attempt to unwind that so that they will then be able to argue in the courts that this is a domestic statutory code that is not designed to simply give effect to the refugee convention. The removal of references to the convention, I suspect, is probably in aid of such an argument being made down the track.

You have seen other examples in the Migration Act of trying to constrict the international law meanings—for example, section 91R, deals with persecution and serious harm. There have been attempts to codify that. But there has never before been an attempt to remove references to the convention in the body of the legislation. It seems to me that that is designed to be able to say to the court that this does not have to be read together with the refugee convention.

Senator REYNOLDS: I would like to further pursue some of the sections you have referred us to. You mentioned section 75A. I have gone through and had a look at that in a bit more detail. As I read it, it is about not invalidating a decision because a mariner failed to consider the domestic law of another country. On the face of it, that does not seem unreasonable in the circumstances. Could you clarify why you think that is a bad thing?

Mr Prince : The reason for making it not invalid is to effectively make it immune from review from the courts—that is, the courts cannot judicially review to see whether officers under this act are exceeding their power because they have breached international law. Obviously the best way to enforce international law obligations is when it is brought into domestic legislation, and the conduct of Commonwealth officers is subject to judicial review of the High Court to ensure lawfulness.

Senator REYNOLDS: It is specifically about the domestic laws of other countries as well as international obligations. Could you focus on that point a bit further.

Mr Prince : It depends on which domestic laws of other countries you are talking about, I suppose. For example, if Indonesia had an anti-people-smuggling law which said that people who are not authorised to be taken to Indonesia cannot be taken to Indonesia, then a direction to an officer to effectively break international law would not be invalid if it was made in accordance with this section.

Senator REYNOLDS: As a general principle, to me it seems quite reasonable that, in relation to the domestic law of another country, that is excluded.

Mr Prince : It is about defective consideration of those matters. Take, for example, a domestic law of a country which provides that a particular type of person is going to be executed if they are brought back. That law is not something that an officer would have to consider or turn their mind to correctly when deciding to take a person back to that country.

Senator REYNOLDS: But isn't that the responsibility of the government? You are saying you had some concerns that this would put the decision in the government's purview in terms of this legislation. But to me it is the absolute role of government—and it is the role of government today—to make these decisions. It is not up to a naval officer or a customs officer to unilaterally make these decisions, which is one of the reasons we have got the joint task force that General Campbell currently runs. My interpretation is that you are inferring it is a bad thing that some of these decisions are clearer for government to make. But I would have thought that is exactly where the decision should be.

CHAIR: You said an official might send someone back who could be executed. But the minister has the power to intervene there, doesn't he? I hope so because I have a case of that very thing before the minister, and I am concerned that you might be telling me that the minister cannot in appropriate circumstances say, 'The official says that he should go back for all the technical reasons but I understand that he is going to be shot if he does go back so I am not going to do it.'

Mr Prince : There are general discretions that the minister has, depending on the circumstances—for example, if a person is in immigration detention. But this bill will operate outside the migration zone—and I have not looked into whether there will be such a discretion in this case. I can give you an example of the discretions that do exist under section 48B and the old section 417 of the Migration Act, which allowed what was called a 'super discretion' for the minister to intervene if he thought it was in the public interest to grant a visa. That was traditionally the pressure safety valve to allow hard cases that the department could not resolve to be dealt with. Under successive governments we have seen those powers used less and less. The High Court, in a case that I was in called Plaintiff S10, found that there was no capacity in practice for judicial review of those decisions because they were not required to accord procedural fairness. So it all depends on whether somebody is lucky enough to have somebody like you, Senator, raising their case with the minister. And that type of safeguard, in my submission, is not really a very satisfactory one when you are trying to uphold Australia's international obligations against refoulement.

Senator REYNOLDS: Do you start from a position where you accept that there is a problem, that we have 30,000-odd people who are in limbo and there is a need to deal with them expeditiously?

Ms Ford : Yes, but it has got to be done in a fair and just process. I am not sure whether senators are aware that there used to be a migration department internal review office that sat between the tribunal and the department. If you had a decision rejected by the department, it went to an internal review office and then you got the right to go to the tribunal. That was got rid of because it had become a rubber-stamping process. It is very similar to this whole tribunal process because there was no hearing process; you did not necessarily get a chance to comment. I feel that the whole way that was done was completely against the way the Refugee Review Tribunal works and, at the end of the day, I do not know that it is actually going to make it quicker. All that is going to happen with those applications that get rejected is that they are going to be appealed to the courts. There is no doubt about that.

Senator REYNOLDS: Thank you, that was a useful clarification of your position. Do you agree that there should be limits to protection and that there should be some way of assessing the relative merits and that those who are most deserving of protection get the positions?

Ms Ford : We are very supportive of fast-tracking those people who have strong claims. At the moment, no-one is being fast-tracked, they are all still sitting there, and something needs to be done that. Our view is that those who are rejected should also have a right of appeal. That appeal currently exists. There is no reason why a new tribunal or a new form of assessment authority needs to exist. That would go against the fundamentals of merits review in that it removes the words 'just and fair'—and that is where our position lies.

Senator HANSON-YOUNG: We have 27,000 people, many of whom have been waiting for their applications to start being processed—some for two or three years and some for even longer than that. How do the changes in schedule 4 in relation to fast-tracking interact with the fact that people will not actually have legal advice?

Ms Ford : That is a major concern. From reading the department's submission last night, I see that they are only going to be given a really short period—if they are given the opportunity to respond. People practice in this area of law in both the commercial and non-commercial sectors. Most commercial practices in this area take on a lot of pro bono work. Trying to meet a two-week deadline is going to be nearly impossible. It is already hard enough trying to meet a 28-day deadline in terms of getting instructors and dealing with interpreters. And they have got to find someone who is willing to take that on. Currently there is no assistance. If they are lucky enough to have work rights, they may be able to afford someone. With the cut in funding, my practice has taken on more refugee offshore work in the last year than we have ever had before. I believe you have got quite a lot of the pro bono organisations talking to you today. That would be a really good question to put to them. I know that RAILS, in Queensland, has an excellent paper on the effect it has on the pro bono organisations and how difficult it was with the TPV processing.

Senator HANSON-YOUNG: In terms of interacting with the changes to reduce people's ability to appeal and have a genuine merits review of a decision, surely this is just upping the stakes for mistakes to occur.

Ms Ford : That is right—and you are not necessarily given a chance to respond. The whole process goes on behind closed doors, so you do not attend a hearing and you do not necessarily get the chance to respond.

Senator HANSON-YOUNG: isn't this just trying to weed people out? Fast-tracking might be one way of describing it, from the government perspective, but really all they are doing is trying to find more ways to give protection to fewer people.

Ms Ford : There is a high turnover rate at the RRT and that might be one of the reasons it is being looked at. The reality is that if you cut applicants' ability to respond then you are definitely likely to see an increase in the amount of applications rejected. And then it is about what you are going to do with those people. That is the other thing that has still got to be considered in all of this. I am not going to go into the detail about the removal powers because I am sure it will get covered later this afternoon. But just because you might fast-track the review process does not mean you are going to fast-track the whole process.

Senator HANSON-YOUNG: I will put this question to the department. I think you have hit the nail on the head. As a result of this there is going to be a higher rate of rejections. Yes, we are trying to make some changes to the removal powers so that it is not necessarily in line with non-refoulement obligations, which is extremely concerning from my perspective. But we cannot remove people to another country—often without that nation agreeing.

Ms Ford : That is right.

Senator HANSON-YOUNG: So what is going to happen to these people? They are going to be put back into detention. So the whole argument of getting people out—

Ms Ford : Afghanistan is a good example, and maybe it would be worth bring that up with the department—and Iran. It is extremely difficult to return people to those countries.

Senator HANSON-YOUNG: Even if we have said we are not giving you a protection visa, we do not recognise you as a refugee—regardless of the merits of that decision—ultimately those people are going to have to go back into detention.

CHAIR: Do they stay in detention indefinitely then?

Ms Ford : That is why the government needs to decide what they are going to do with those people.

CHAIR: That is the case I am involved in—or the incident.

Ms Ford : It is a major issue. But simply having a fast-tracking process for review is not fast-tracking the whole overall process. When you are restricting the review process and not making it just, that opens it up to judicial review. There is no doubt that there is going to be an increase of judicial review on many aspects of this bill if it passes. It also creates the problem of how you remove those people. Yes, there are some agreements with Sri Lanka, but they are not all Sri Lankan applicants. Detaining or keeping people on an ongoing bridging visa—the majority of these people are on bridging visas; I think it is 22,000 people at the moment—obviously creates uncertainty for applicants. It also creates costly issues for which, at the end of the day, the taxpayer is also paying for.

Senator HANSON-YOUNG: So the argument about unclogging the courts is a bit of a furphy?

Ms Ford : That is definitely not going to be the case.

Mr Prince : It will make it much worse.

Senator HANSON-YOUNG: The courts are going to be more clogged as a result of these amendments.

Mr Prince : Yes. In fact, at the moment, the courts show quite a degree of deference to the RRT's fact-finding processes because they have a set of reasons, they know there is a process that is undertaken—an interview—and there is at least a level of interaction.

I suspect what you will find under this new process is that those comforts to the courts will no longer be there, so the courts may be more ready to intervene and grant judicial review, which will just start the whole process again. Really, it is a completely false economy.

Senator REYNOLDS: A very quick clarification: just as a general principle, to speed up the process, we have a lot of people who are living in uncertainty. There are tens of thousands of people who are living in uncertainty. Wouldn't it be better to get the process right up-front? When they get the hearing from the department wouldn't it be better for people to provide the facts up-front and perhaps take it a bit more seriously up-front so that we do not have quite as long tail going through at the end. That seems to me to be a win-win situation. If people take it more seriously up-front and things are dealt with more expeditiously up-front it is not only better and means a quicker processing time for the department but also for people who are involved.

CHAIR: You are asking a question.

Senator REYNOLDS: Does that not seem to be—

Ms Ford : That is assuming they are getting assistance up-front. At the minute, apparently, they get one pamphlet that tells them how to lodge a protection claim. I don't know if you have seen the form for a protection claim. It is about 30 pages long.

Senator REYNOLDS: I see nothing that stops people getting legal advice up-front or getting advice.

Ms Ford : If they are in detention they do not have access to that necessarily.

Senator REYNOLDS: Aren't we talking about people who are not in detention? A lot of these people are not in detention.

Ms Ford : It covers both. The issue with those who are is that there is a lack of resources at the minute for them to seek assistance. The pro bono organisations are completely full. Sometimes you cannot get in.

CHAIR: I am sorry. We are now 25 minutes over time. This is something we could talk about all day.

Senator HANSON-YOUNG: I think we will be talking about it all day!

CHAIR: We are hearing someone else in between times. I thank you very much. I do appreciate the points you have made. Like Senator Reynolds I think it is the government responding to what the Australian people clearly want. It is up to the Public Service and the draftsmen then to put into operation the things that make it easy for the government to do what, politically, we think the people of Australia want. It is an issue, and you have rightly pointed out some very draconian things. Hopefully, they will be reasonably temporary. We are basically trying to deal with a big holdover from a previous time, and to get those people out and to give them some certainty, whether it is good or bad. It is clearly something, if the bill is passed and as it proceeds, we do need to keep a very close eye on and perhaps address again some of the issues you have raised. I do not know if you want comment on that. That is the difficulty for government. The people of Australia have said, 'We want you to look after Australia. We don't care about treaties. We don't care about this, that and the other. We want people to come in in a regular way.' Australia has a reputation as being one of the best refugee receivers in the world, and we want to do that in an ordered fashion. A lot of things you raise seemed to me, as a long-distant lawyer, to be perfectly reasonable. You have hit the nail on the head: the government is trying to say, 'We're not going to have the courts clogged with technical objections, because we want to do what we've been told to do.' I understand your point that it is going to be more. Having made that broad statement, if any of you want to respond please do so very quickly.

Mr Prince : The concern of the public, so far as it can be discerned, is that boats will stop arriving. That has already happened under the existing state of the law. The idea that this law is needed to achieve that objective just cannot be correct. What this is, really, is an overreach by the department of immigration, and it deals with a whole range of matters well beyond those things. It is not proportionate or necessary to the perceived political response that is necessary.

CHAIR: What you say—your general submission—does concern me, but against that, as a politician, over that, I know what the Australian people want. They do not understand the finer points that you make, which I barely understand myself, but I accept that they are very valid. It is something that I think needs to be kept under very close scrutiny. Anyhow, we have your written submission and that of the Bar Association of New South Wales. Thank you, very much. We will study those. Unfortunately, we are constrained for time.

Ms Ford : Thank you.