Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Legal and Constitutional Affairs Legislation Committee

LARKINS, Ms Alison, Acting Deputy Secretary, Policy Group, Department of Immigration and Border Protection

PARKER, Ms Vicki, General Counsel, Legal Division, Department of Immigration and Border Protection

VISSER, Ms Karen, Director, Protection and Humanitarian Policy Section, Department of Immigration and Border Protection


ACTING CHAIR ( Senator Jacinta Collins ): I now welcome representatives from the Department of Immigration and Border Protection. Thank you for being with us today. The committee has received your submission, numbered 171. I suspect you are very familiar with the Senate resolutions about appearing before committees, so I will not repeat those. Do you wish to make any amendments or alterations to the submission?

Ms Larkins : No.

ACTING CHAIR: I invite you to address any issues you would like to before we move to questions.

Ms Larkins : We will not make an opening statement, but I might just clarify an issue arising from Dr Thom's testimony. There is nothing in this bill that affects the capacity of UNHCR to refer cases to us under the refugee program. It does not relate to that at all.

Senator HANSON-YOUNG: But the point is you will not take them because their father was a boat person.

Ms Larkins : That is not correct. There are—

Senator HANSON-YOUNG: There is no family reunion under TPVs.

Ms Larkins : It is a different issue. UNHCR are perfectly able to refer those children under the refugee program.

Senator HANSON-YOUNG: Well let's get it done then—let's get the guy a visa and get it done. Graeme, you've got a result.

Ms Larkins : Well no; I am just saying there is nothing—

Senator HANSON-YOUNG: We will follow up at estimates.

Ms Larkins : As you would understand Senator, there are provisions that give last priority to IMAs seeking to use the family reunion streams or to sponsor people through the special humanitarian program. Those are completely separate streams from the UNHCR-referred caseload. So there is nothing in this bill in particular that prevents—

Senator HANSON-YOUNG: Ms Larkins, if you can take on board the case, and get these two girls reunited with their father, I think all of us would be really happy

Ms Larkins : We are always happy to provide further advice on cases.

ACTING CHAIR: All right. I think the point that was not picked up but was very quietly mentioned by Dr Thom was that the minister had made it clear that he was not going to act on this matter. But if you want to tell us something different, that would be very good.

Ms Larkins : I did not hear that, Senator.

ACTING CHAIR: Or if further interventions can occur, then that would be good too.

Ms Larkins : But to be clear: this is not a matter that is covered in this bill at all. It is not a function of anything to do with this bill.

ACTING CHAIR: No, but he was highlighting a case that has the merit of being in what I think was described as the top one per cent of the UNHCR referral process. We will deal with the bill, but the concern raised is, I think in part, that it seems the minister has indicated that he has no interest in addressing such a case, and we would encourage him to reconsider that approach.

Senator HANSON-YOUNG: Absolutely.

ACTING CHAIR: But let us go to the bill, and while we are on a related area in the bill, something that I have been trying to work through which I think you might be able to help us with fairly quickly, Ms Larkins, is this: if a child born in Australia has one parent who arrived by boat, what is the status of that child if their other parent is an Australian citizen?

Ms Larkins : In terms of their access to citizenship?


Ms Parker : Senator, they would be a citizen, having one parent who was a citizen.

ACTING CHAIR: Okay. But can you tell me how that is guaranteed in the provisions of the bill?

Ms Parker : It is provided for in the Citizenship Act.

ACTING CHAIR: I know that, but then in this bill we have further amendments to the Citizenship Act, which introduce a new class of a person who has 'a parent' who arrived by boat, and so I want to understand this: where is the reassurance in the provisions in the bill, to guarantee that the provisions under section 12 of the Citizenship Act are paramount?

Ms Larkins : We might have to take that on notice.

ACTING CHAIR: Okay. Could you do that sooner rather than later?

Ms Larkins : Yes.

Senator HANSON-YOUNG: And can you provide an explanation as to why it is explicitly referenced as 'a parent', as opposed to 'parents'. What does it only have to be one parent?

Ms Larkins : Why does it only have to be one parent, for someone to be considered to be a citizen?

ACTING CHAIR: I think you can address that in responding to my question, Ms Larkins, but it is an obvious question to me. The clearest example being a child born to two parents, one of whom happens to be an Australian citizen and another who arrived by boat—that creates a problem with the way you have approached the definitions in those provisions. If you can take that on notice and address that, then that would be helpful.

The main area I would like to focus on is where we are up to with the SHEV. Your submission tells us that it is anticipated it will come into effect in April 2015. Is that correct?

Ms Larkins : That is right, Senator.

ACTING CHAIR: Your submission also tells us that it will be finalised by government consultation with key stakeholders, which commenced in October. Can you give us an update of where those consultations are up to?

Ms Visser : I can, Senator. We have been consulting individually, ahead of the passage of the bill, with the key government agencies that have an interest in this area. We did outline those particular agencies in the submission to the inquiry. We have also attended a meeting of the senior migrations officials group, so that we have had first consultations with all the states and territories about their potential roles, and given them information about how the minister expects the SHEV to operate.

They have action items relating to that in terms of getting back to us with ongoing contact points so that we can deal appropriately with their different administrations and so forth. We have started responding to their requests for further information about the case load and what our expectations are about how the regulations will work. The minister has also written to state leaders and asked for feedback from them. We are yet to receive that, but it is early days and we do not yet have the legislation. They are the steps that we have started off with.

Internally, we started an implementation plan which goes to what systems changes we would need to make and what form changes we would need to make, policy and procedural advice and those sorts of things, as well as very initial thinking about what the drafting instructions need to be for creating the regulations.

Senator JACINTA COLLINS: The difficulty that we face is a threefold. One is that there is very little information about what the SHEVs will involve. There is some information, as you have reproduced in the submission. That is from the minister's second reading speech, if I recall, or it might be from the explanatory memorandum. It would be very helpful for the committee to have some sense of what is being considered for the regulations. You mentioned that this process started in October. Are we at the stage where, for example, the committee could have made available to it the draft regulations or the basis for which consultation has occurred with stakeholders or states and territories?

Ms Visser : I am sorry, they are not available yet.

CHAIR: Can you give us a feel of what they are about? Sorry, I interrupted you then.

Ms Visser : Yes, they are not available. But in terms of the process for the SHEV itself, because it is a protection visa, what we are doing is going through a process of confirming with the minister the next level of detail, if you like, that goes beyond the announcements that he has made.

Senator JACINTA COLLINS: There has presumably been some level of detail if that has been canvassed with states and territories, for instance.

Ms Visser : Yes. What I was going to say is that we have started that consultation with states and territories based on the level of detail that the minister has made available. What we are seeking from them is an understanding as to how best to work with them in the context of coming up with the designation, the opting in and out process for regional Australia and so on. We need that, obviously, to work with them.

Ms Larkins : Just as a simple example, we had talked to them about what definition of region do we best use and what is the system of discussing what is regional Australia.

CHAIR: You might come to me for a view sometime too. I have strong views on regional Australia.

Ms Visser : That is the sort of level of engagement that we are in. Largely, the requirements for the SHEV are the same as for a temporary protection visa, insofar as it is a protection visa and the person holding it needs to have been assessed to be a refugee. The complicated part of it is in the pathway to other visas, which is obviously what the intent of the visa is for. The complicated part of that is in articulating the definition of regional Australia, as Alison has just mentioned, and also what accesses to social services count towards meeting the requirements for the visa or not. We need to come up with a very clear list of that. The minister has said that he does not want welfare that is received while somebody is studying to count against a person's time in a regional area. We need to articulate what those—

Senator HANSON-YOUNG: What does that mean?

Ms Visser : Because the SHEV is for work or study, if you are studying you could be in receipt of support. The minister does not want that support to count against you at the end of the five years time, so we have to work out which allowances count and do not count. There is a lot of technical staff that goes to that pathway. That is what we need to work on, rather than the actual protection visa element of the visa process itself. But it all needs to be worked through.

Senator JACINTA COLLINS: Would the same apply to things like family benefits?

Ms Visser : They are the things that we need to work out.

Senator JACINTA COLLINS: That may or may not count.

Ms Visser : Precisely.

Senator JACINTA COLLINS: So you may have someone who is penalised by virtue of the fact of having children, but they will not be penalised if they have studied.

Ms Visser : I do not know if that is the case or not, because we have not worked through all of that detail. What I can say is that the intention is for the SHEV to be available to the broadest number of people to encourage people to move into the SHEV and to work and study in regional areas.

Senator JACINTA COLLINS: Well, that is a subsequent issue to this. What concerns me is that it has been suggested that the SHEV will come into effect by April, but that at this point in time—not too far away from April—you cannot tell me whether family assistance is one of the issues that will not count in the pathway assessment process.

Ms Visser : I would not expect it to count, Senator. But I have not gone through that detail yet, and we have not got to the point of confirming that list of entitlements and services and so forth with the minister.

Senator JACINTA COLLINS: Okay. Ms Visser, we are looking at concerns raised with us in submissions so far about the lack of detail in the bill itself. I think the scrutiny committee, if I recall correctly, has raised concerns that some of these matters are, under this proposal, going to be dealt with by regulation rather than by legislation. At this stage—the only hearing day that we are having before we consider the provisions of this bill—there are some pretty important issues that you are now telling me the minister has not even considered yet.

CHAIR: Again, we just have to be a bit careful of what we ask officials to comment on.


CHAIR: They do not want to second-guess the minister's mind. But I think your point is made, Senator Collins: the minister still has not given full instructions to the department on all of the detail. Is that correct?

Ms Larkins : Well, to be fair, we are working through what is quite a process, that requires us to do quite a lot of consultation with state governments and other Commonwealth department agencies. We are working on that—we have resources and we are going full steam ahead on getting as much clarity as we can, as soon as we can. And as we come to a positon on each issue, we are seeking the minister's agreement to that position; so some of it we do have clarity on.

Senator HANSON-YOUNG: I reckon we should delay the bill until we know the details.

Senator JACINTA COLLINS: Ms Larkins, I understand the consultation issues; but perhaps I was more deliberate then I intended to be at the time by identifying family benefits. That is a pretty straightforward matter for the Commonwealth to determine.

Ms Larkins : I think Ms Visser is just making the point that we do not yet have ministerial sign-off on that as an issue. I think she has also made the point that it is very unlikely that family benefits would be out—but we do not want to speculate, because we have not had a chance to put advice to the minister or have his view.

Senator JACINTA COLLINS: I ask you then to take a question on notice, and this will give you the opportunity to consult the minister's office too. Especially given the concerns raised by both the human rights and the scrutiny committees, can I ask that this committee be provided with more information about precisely what the government is looking at putting into the regulations under this proposal for the SHEVs?

Ms Larkins : Sure.

Senator JACINTA COLLINS: To be relatively glib, what this committee wants to be able to determine is whether PUP has been sold a pup.

Ms Larkins : Well, certainly from the point of view of the department, we are fully engaged in establishing this as a visa product. We have got systems work going; we are talking to states and territories—

Senator JACINTA COLLINS: The systems do not seem to be going.

Senator HANSON-YOUNG: From the Senate's point of view, we do not have any of the detail. All we have is a letter to Clive Palmer signed by the minister, and that is it.

Ms Larkins : Well, I think we have given you the detail that we could give you in the submission, and I have taken on notice that I will go away and see whether there is further detail we can give you at this point.

Senator JACINTA COLLINS: I understand your point, and I am not directing this at the department. You are providing what detail you can, but what I—

Ms Larkins : No I know; but it is quite a complex process, and we are trying to do this, collaboratively with states and territories and other players, in a way so that we establish a robust process that is going to work.

CHAIR: The minister's office will of course take notice that these are questions that will obviously be raised in the Committee of the Whole when the bill comes before the Senate. So it is, perhaps, forewarning to the minister's office—I am sure that debaters in the committee stage of the bill will want this information.

Senator JACINTA COLLINS: Ms Larkins, when did the minister sign the letter with Mr Palmer?

Ms Larkins : I could probably get that date for you, but I do not have it right at my fingertips.

CHAIR: Is that a public letter? I am not sure that I have seen it.

Senator JACINTA COLLINS: I think it was reported in the media.

CHAIR: It sounds like it might be a letter from the minister to a parliamentarian that perhaps is not able to be disclosed. You might just check on that.

Senator JACINTA COLLINS: Okay. I compare this process to, for instance, the way in which we were able to accommodate the very serious concerns around the Kosovars and placement—support for those people very promptly and quickly in negotiations with stakeholders and states and territories. This matter seems to be bogged down and is taking months.

Ms Larkins : I think they are completely different.

Senator JACINTA COLLINS: They are different circumstances.

Ms Larkins : Absolutely different circumstances and very different products. One is where we are talking about a visa that people will be expected to have for five years. The Kosovar situation was in the context of an international emergency situation and temporary safe haven, so I do not know that you can compare the two.

Senator JACINTA COLLINS: We are talking about temporary products here too.

Ms Larkins : Yes, but in a totally different context, I would say.

Senator JACINTA COLLINS: What—30,000 people living with uncertainty—

Ms Larkins : I am not saying it is not extreme; I am saying it is not an emergency in the way the Kosovar situation was.

Senator JACINTA COLLINS: In fact, another question flows from that. Can you tell us when we are likely to see the minister's response to the Scrutiny of Bills Committee's report?

Ms Visser : The Scrutiny of Bills Committee response has been drafted and is currently with the minister for consideration.

Senator JACINTA COLLINS: Could I ask that we be forwarded a copy of that at the same time as that is forwarded to the committee itself? You may not be aware that, in one recent piece of legislation, we had the Attorney-General suggesting that the Senate in committee could not consider the response to the scrutiny bill because the Scrutiny of Bills Committee had not yet tabled its report. It is a completely bizarre situation because we were actually being asked to conclude the committee stage of consideration ahead of the Scrutiny of Bills Committee's report being tabled in the Senate. On this occasion, fortunately we have both a Scrutiny of Bills Committee alert and a human rights committee report. I would be interested in the minister's response to those issues as well, ahead of us concluding our considerations.

Ms Larkins : My colleague has just reminded me that there may be Senate privilege issues there that we will need to consider.

Senator JACINTA COLLINS: I am pretty confident that, if you seek some advice from the clerks, there are no Senate privilege issues.

Ms Larkins : We will seek that advice.

Senator JACINTA COLLINS: It would be helpful if this committee could have before us—as we already do have the alert and the report from the Human Rights Committee—the government's response to the issues that have been raised in quite some considerable detail.

Senator HANSON-YOUNG: And were quite concerning.

Senator JACINTA COLLINS: Very concerning. I go back to the issue of more information about the SHEVs and what might become available to us. One of the points that some of the submissions have raised is that all of the requirements around the TPVs are in the act, so why wouldn't we put the requirements around SHEVs in the act? I am assuming the answer to that is that a range of matters need to be worked out. Senator Hanson-Young's response to that is: 'Then let's wait.' I presume the government's response is: 'No, we'll deal with it by regulation.' From this committee's point of view, I would prefer to have as much information as is possible to weigh up the circumstances around the SHEVs. The assurances the minister might have given Mr Palmer is one thing; the Senate looking at the detail of what is proposed is quite another thing. As many of the submissions have said, there is just too little information and much of that information, just for scrutiny purposes, should not be in regulation; it should be in legislation.

Senator HANSON-YOUNG: If you can do it for TPVs, you should be able to do it for SHEVs.

Ms Larkins : I have taken on notice that I will come back to you with as much information as I can.

Senator JACINTA COLLINS: In your submission about SHEVs, the third dot point on page 8, you say:

SHEV, like TPV holders will not have access to family reunion or a right to re-enter Australia, however they are free to depart.

I am assuming that is for people whilst they are under a SHEV.

As they proceed down a pathway to another form of visa, will such people be permanently penalised for having arrived in Australia by boat or will they, in the future, once they are on another type of visa, have the full rights and status of everyone else who is currently under that type of visa?

Ms Larkins : I can talk about the current intention, but there will be a whole other set of legislation that will need to be put in place to manage the accessing of other visa products for people who hold SHEVs. That is some time down the track.

Senator HANSON-YOUNG: Hang on a minute. That is new information. So there is going to be another raft of—

Ms Larkins : Sorry, Senator. Just let my colleague clarify, because I may have been misled.

Ms Visser : Perhaps 'raft' is too generous a word. It is more that we need to make sure that the pathway that the minister intends to create works properly. At the moment, because of barriers to applications being made in certain visa classes, we have to make sure that we make the SHEV interact appropriately with those other visa classes that the pathway is supposed to lead to. That may well require us to make some amendments to the application validity requirements to ensure that the pathway that is intended operates properly.

Senator HANSON-YOUNG: So not only do we not have the detail of the conditions that people will be living under on a SHEV, the detail as to how the SHEV is designed to have a pathway to permanency is still totally up in the air.

Ms Visser : It is a technical matter that needs to be worked through.

Senator HANSON-YOUNG: I raise this point. I do not think it is technical, because the minister himself—this is actually very important—when he announced this legislation and tabled it in the chamber said that there would be very high bar to get that pathway to permanency. So he has already made very clear his intent as to whether many people are going to get there or not. Would you agree with the minister's statement that it will be a very high bar?

CHAIR: You know I am going to rule the question out of order. I would not expect public servants to agree or disagree.

Senator HANSON-YOUNG: Is that your understanding of the intent of this other piece of legislation that we are yet to see—that it will be a very high bar to transfer from a SHEV to a permanent visa?

CHAIR: I am sure if the minister has said that—

Ms Larkins : I think in that case, when the minister said that—

CHAIR: the office would be trying to put into writing what the minister has—

Senator HANSON-YOUNG: This is a joke.

CHAIR: Senator Collins, have you just about finished?

Senator HANSON-YOUNG: Why is it even in there? Just remove the whole schedule.

CHAIR: There is the Hanson-Young amendment—'remove this schedule'! You might get some—

Senator HANSON-YOUNG: Will you second that, Senator Macdonald? It is a waste of bloody paper. It does not do anything.

CHAIR: Senator Collins, did you have any specific questions?

Senator JACINTA COLLINS: There is one other issue around my request for information. In part, I think Senator Hanson-Young's point is reasonable, given the amount of information currently before us. But I am giving the department or the minister the opportunity to challenge that point by providing us with the types of information that I think are reasonable. The advice I have just been passed is that any questions over Senate privilege are easily surmounted by the minister requesting approval from the scrutiny committee to make such information available to us. I would be very surprised if that request was not acquiesced to as we attempt to progress the bill. This bill being one that the minister is very keen for us to attempt to deal with by the end of this parliamentary session, I would be surprised if the minister is not going to cooperate with reasonable requests for information.

If he is, then, as Senator Hanson-Young mentions, it does again raise concerns over whether PUP has been sold a pup—whether these SHEV provisions are simply a charade. So perhaps, Ms Larkins, that is the question I can ask you. Please, convince me. From the department's dealings with this matter, given the limited amount of information that you are able to provide us with at this stage, are these SHEV provisions a charade?

Ms Larkins : No. We are working in good faith to put this product in place and to be in a position to start drafting the regulation.

CHAIR: I am sure that the minister, having seen this interaction, will write to the committee or get a message to the committee telling us what he can about the regulations.

Ms Larkins : I just want to assure the senator that we are working very hard to stand this product up, including consulting with state and territory governments and other departments, and changing our systems. So it is not a charade, from our perspective.

Senator JACINTA COLLINS: Whatever information you can give us to describe the product would be useful, because at the moment the lack of a capacity to describe the product, and the serious scrutiny concerns about legislation not encompassing further information about what product we are talking about, and assurances that matters will be dealt with some stage after April by regulation, for someone who has worked through those processes for many years, are not particularly assuring. They might be assuring to Mr Palmer and to PUP, but they are not to us.

CHAIR: Okay, we must move on to Senator Reynolds. I might say I agree with Senator Collins. I spent six years trying to get regulations before we voted on legislation and never succeeded much, Senator Collins, but two wrongs do not make a right. Senator Reynolds?

Senator REYNOLDS: Thank you very much, Chair. Ms Larkins, I just have a number of points of clarification on some of the testimony we have heard today. I will just scroll through a few, if I could. The first one is that we have heard from more than one person giving evidence that this legislation, or the bill, changes the definition of a refugee, and in fact that it breaches—but I will just ask that point first. In schedule 5, 5J(1)(c) was the one that was quoted specifically. I was just wondering if you have any comments on that.

Ms Larkins : Maybe it would help if I just made some overarching comments and then I will ask Ms Parker to respond to the particular issue that you have raised. In schedule 5 there are a number of provisions that are, in effect, just provisions that we have relocated from other places in the act into this new section. There are a number of definitions that are basically a codification of existing case law. In four cases the government is responding to case law that it disagrees with, to modify the definition. I might get Ms Parker to talk—specifically you asked about 5J(1)(c)?

Senator REYNOLDS: When asked, that was the one that could be pointed to that—

Ms Larkins : And that is one of the limited cases where the government is seeking to tighten the definition in response to existing case law.

Ms Parker : Just to add to what Ms Larkins has said, we are, as you are aware, seeking to codify Australia's good faith interpretation or understanding of the refugee convention in this legislation. 5J(1)(c) is the internal relocation principle—I think that is the one that you are referring to.

Senator REYNOLDS: Yes.

Ms Parker : That principle states that a well-founded fear of persecution is one where the real chance of persecution relates to all areas of the country. Australian case law has actually broadened this interpretation beyond what is actually even being held by other countries, I believe. What this legislation is doing is seeking to make that principle consistent with Australia's understanding of it.

Senator REYNOLDS: I raised, initially, a question about any stand-alone requirements for family reunification in any of the conventions or covenants that we are signed up to. My understanding, and what I stated before, is that there is no stand-alone right in any of them for family reunification per se, if the claimant does not already have a right to that. My colleague Senator Hanson-Young said that that was incorrect—I understood her to say that there is a stand-alone right. Could you clarify that for me?

Ms Parker : It is certainly the Australian government's position that there is no standing right to be reunited with family—to family reunification. There are several articles in the various human rights conventions that refer to the sanctity of the family, basically; but there is not one that gives a right to anyone to be reunited with their family in another country.

Senator REYNOLDS: So the provision for the sanctity of the family goes to the treatment of somebody rather than an automatic right, a stand-alone right, for family unification?

Ms Parker : It recognises that the family is the fundamental unit of society and therefore not to be breaking up the family, but it does not give a right to be reunited.

CHAIR: It makes you wonder why parents break up the family by sending unaccompanied minors across the world.

Senator HANSON-YOUNG: I think they are trying to save their sons from having their head chopped off by the Taliban. I reckon that is a pretty strong family value, actually.

Senator REYNOLDS: Excuse me, Chair, if Senator Hanson-Young would like to make any comments she can certainly sit over on the other side and provide testimony.

CHAIR: Senator Hanson-Young was wrong, but so was I. I started that.

Senator JACINTA COLLINS: You are all being very bad.

Senator REYNOLDS: We have also had a number of people today making various claims or assertions that this legislation is two things: it appears to be a stalking horse or it is the thin end of the wedge, if you like, that government has an ulterior motive. I am not asking you to comment on the minister's motives. As I understand it, this particularly relates to schedule 4 and a very specific group of people—that is, those who arrived after August 2012—and that it is not more widely applicable.

Senator HANSON-YOUNG: So it can't be a deterrent then.

CHAIR: Keep going, Senator Reynolds.

Ms Larkins : When you say 'stalking horse', the argument would go—

Senator REYNOLDS: There are other implications. So there is a broader application of this bill beyond those who arrived after August 2012.

Ms Larkins : Certainly the department's view would be that there are elements of this bill that would be appropriate to apply to other case loads. That has not been a priority for the government up until now. But there are certainly elements of it whereby if they were applied to people who applied on shore would improve the process from our perspective.

Senator REYNOLDS: Talking about improving the process, one witness from the MIA who gave evidence today said that the 30,000 case load was not a problem and that the only problem was with the department and its inability to effectively process the claims. Therefore, I understand by imputation that none of the amendments in this legislation are required. Do you have any comments to make on that from the department's perspective?

Ms Larkins : The changes to the fast-track process really have come out of a range of policy work that has been done in the department but also respond to the government's election commitments in this area. Perhaps the most fundamental changes are seeking to ensure that the primary decision becomes the most important part of the decision-making process. So this bill and the previous bill are designed to put incentives in place and disincentives in place to encourage people to put their full claims as early as possible in the process. I think the criticism it is responding to is a sense that our current process has multiple layers and takes a very long time.

Senator REYNOLDS: From that, are you saying that people who put in applications do not take it seriously, do not provide the full information or do not provide truthful information?

Ms Larkins : I would say that, because there is an opportunity for a full reconsideration of the case in front of the Refugee Review Tribunal, that can provide a circumstance where the primary decision, the primary process, is not given significant weight by the applicant.

Senator REYNOLDS: Under current processes—and I recall that I have used it today, and I am going to check whether or not I am correct—how long would it take the department, without change to the legislation, to deal with the backlog of those 30,000 people who have been referred to?

Ms Larkins : I do not have that. I would have to take that on notice.

Senator REYNOLDS: Could you take on notice whether we are talking about months or years. The figure I heard was about seven years to get through the backlog, which to me does not seem to be remotely fair.

Ms Larkins : We will take it on notice for you.

Senator REYNOLDS: We also heard quite a bit of testimony today about schedule 5, about the non-refoulement obligations, and suggestions that these changes will breach our international requirements for that under various conventions and covenants. Do you have any comments or clarification on that?

Ms Parker : I can start and Ms Larkins might like to add something. The government's compliance with our international obligations is of course made up of various factors, some of which is provided for in the legislation, some is provided for in policy and some is provided for in practice. Whilst these provisions are dealing with the manner in which we deal with asylum seekers, you need to look at the total practice of the government in meeting its international obligations. It is quite clear in the explanatory memorandum—it is stated on several occasions—that the government has no intention of breaching its international obligations, in particular the non-refoulement obligation.

Senator REYNOLDS: So would it be fair to characterise it as changing how it meets the requirements, not abrogating responsibility?

Ms Parker : Yes.

Ms Larkins : I think there has been a bit of misunderstanding about the provisions that relate to the removal power in particular and separation of the removal power. Because we can assess refoulement obligations under other parts of the act, we do not need to have that reflected in the removal power. We are not suggesting that we would remove people in breach of our international obligations.

Ms Parker : Until some recent cases, that was in fact the position that was understood—that the 198 removal power was a removal power quite separate from the assessment process that we undertook in relation to asylum seekers.

Senator REYNOLDS: I am sure you would have heard some of the testimony this morning and read in the submissions that the word 'unconstitutional' has been used, and some of the language included 'stripping away people's legal rights'. As I understand it—and please correct me if I am wrong—it is not unconstitutional in that it has not taken away people's constitutional rights to take things through to the High Court, through the court process. People can at every stage seek legal assistance. It does not change either of the legal rights.

Ms Parker : Senator, are we talking in relation to schedule 2 through to schedule 6 or 7—those arrangements?

Senator REYNOLDS: Yes.

Ms Larkins : Absolutely. We are not removing any rights from people to take—

Senator REYNOLDS: So applicants can still get advice from some of the various agencies who provide pro bono advice and they can seek their own legal advice and pay for it, where they have the means to do so?

Ms Larkins : That is right.

Senator REYNOLDS: And they still have all of the legal rights, right through to the High Court?

Ms Larkins : That is right.

Senator REYNOLDS: Thank you.

CHAIR: There is one thing that somebody asked and I indicated that I would put it to you. There is a cap on temporary protection visas. What happens to those who qualify but are beyond the cap?

Ms Larkins : There is no cap at the minute.

CHAIR: There is no cap?

Ms Visser : There is no cap.

Senator JACINTA COLLINS: It is proposed.

Ms Visser : It is proposed that there be a power that would enable the minister to cap.

Senator JACINTA COLLINS: Were that power exercised, the question that has been raised with us is: what will happen to people who do not attract the protection because of the cap? Will they still be able to once the next uncapped period commences?

CHAIR: Would they otherwise qualify for the—

Ms Larkins : The benefit of having a capping power is to ensure that, in particular, the places—within the budget process, the government allocates a certain amount of money for the humanitarian program. Within that there is a subset put aside for refugee referrals from the UNHCR referred program—refugees coming from overseas. What has happened in the past when we have not had a capping power is we have just eaten into allocations for refugees coming from overseas and people from the Special Humanitarian Program.

The capping power, when it is in place, allows the government to manage within a budget and ensure that it does not eat into the overseas cases. In answer to your question, Senator, the practice is: if we have more people then we can—within the budget allocation—give a visa to in that year, they go into a queue, and they are granted the next year.

CHAIR: Okay. I will just finish my turn and then come straight to you, Senator Hanson-Young. I often refer to a queue—jumping the queue—and I was under the impression, perhaps wrongly, that there are people waiting in refugee camps around the world who have been determined by the UNHCR to be genuine refugees, if I can use that term, and who would like to come to Australia. Is that not correct?

Ms Larkins : It is both that group, and the people who are in dire circumstances who reunite with their family through the Special Humanitarian Program. And in the past we have eaten into that overseas allocation when we have had a big influx of people owed protection onshore.

CHAIR: Yes. But the question is really: is there a queue waiting in squalid refugee camps around the world—which is my terminology—waiting to come to Australia?

Ms Larkins : There are a large number of people who are assessed as being—

Senator HANSON-YOUNG: He has asked whether there is a queue.

Ms Larkins : Sorry?

Senator HANSON-YOUNG: He has asked whether there is a queue.

Ms Larkins : There is not a queue in the sense of everyone having a number.

CHAIR: No, I appreciate that. But how do you then access those people—if we did not have any onshore issues at the moment, and we were wanting to bring in, what is it, 13,500 refugees, how do we source them?

Senator REYNOLDS: Prioritise them.

CHAIR: Yes. How do we prioritise them?

Ms Larkins : We have a program this year of 13,750 places of which 11,000 are reserved for people coming from offshore. Of these, if my memory serves me, it might be around 5,000—no; I am not sure.

CHAIR: Let us say approximately.

Ms Larkins : That number of people are refugees, and they will be referred to us from the UNHCR.

CHAIR: So the UNHCR writes you a letter and says, 'we have this list of 5,000 people who would like to come to Australia'—or how does it work?

Ms Larkins : In practice what we do is, on the basis of UNHCR advice and community feedback in Australia, we will ask the minister to agree on allocations for particular regions so that we know—for example, there are 4,000 visas for Syrian refugees at the minute. So we will work with UNHCR then, over the program year, to identify people who meet the visa criteria, who are refugees who can come to Australia.

CHAIR: So the minister says, 'we will take 4,000—

Ms Larkins : Well; absolutely, he says—

CHAIR: from Iran, and we will take 2,000 from Myanmar', and so on.

Ms Larkins : Absolutely. And he says 'these are the target groups that I am interested in taking'.

CHAIR: And then you contact UNHCR.

Ms Larkins : And then we will work with the UNHCR to deliver the program.

CHAIR: Okay. I just wanted to clarify that for my understanding.

Senator HANSON-YOUNG: Thank you, Chair. I have a couple of areas I want to touch on; some are clarifying issues that have been raised before. But firstly I just wanted to pick up on a point you raised, Ms Larkins, in relation to the intention of the fast-tracking element of this bill—being that, effectively, you want the primary decision to hold the most weight, and to be the most important. You want it to be up-front from the beginning—

Ms Larkins : We want applicants to provide as much information as possible at the beginning of the process.

Senator HANSON-YOUNG: That makes absolute, total sense.

CHAIR: Senator Hanson-Young, you are asking a question; not commenting or agreeing.

Senator HANSON-YOUNG: No; I am just about to ask my question, Chair, thank you.

CHAIR: Okay; sorry.

Senator HANSON-YOUNG: I wanted clarification that we were both on the same page, and we are—fantastic. Now here is the question: if that is the case—that everyone's information, as much as possible, is as clear as possible up-front—why on earth would we not assist people in doing that? Why would we not give them the proper legal assistance up-front to do that?

Ms Larkins : That was a government election commitment. It is government policy.

Senator HANSON-YOUNG: So how do we expect people to be able to be as clear as possible up-front about their own case without ensuring that there is assistance for them to do so?

Ms Larkins : The government's policy position is that it is not appropriate for the government to fund legal advice for people who enter the country through—

Senator HANSON-YOUNG: How important is it to have that information up-front?

Ms Larkins : If I can just finish: there is nothing that precludes people getting assistance and legal advice. There will be a range of products and support that we will provide to people who are going through the application process. So, to us—

Senator HANSON-YOUNG: Is it the intention of that schedule in the bill to ensure that the primary decision has as much information as possible?

Ms Larkins : That and the previous bill—yes. So we are trying to ensure that we get as much information up-front as possible and that people do not delay to the review stage to give us—

Senator HANSON-YOUNG: So that is absolutely crucial to making this fast track process work?

Ms Larkins : I was explaining to you part of the rationale for why we had gone to the fast track process.

Senator HANSON-YOUNG: It seems extraordinary that you want to change the entire Migration Act to ensure that that primary decision is weighted so heavily, to remove an appeal, in terms of merits review, and yet you are not going to give people official assistance in making sure that they can put forward their application?

CHAIR: That is a comment, which you do not have to respond to.

Senator HANSON-YOUNG: What is the department's response to criticism that has been given today in evidence that—because people will not necessarily have access to assistance to ensure they can give all the information and they understand the process—without a merits review, we are going to see cases clogging the courts?

Ms Larkins : Just to be clear: under the provisions in the bill, most applicants will have merits review. There will be a small group of people who fall within a clearly defined set of circumstances, having had their primary assessment fully made, who will not have access to merits review. So, just to be clear: we are not removing merits review for everyone who is applying for asylum. Sorry, I forgot—

Senator HANSON-YOUNG: But if you have not put forward the information in the first instance it cannot be considered, can it?

Ms Larkins : The department is and has been working to ensure that we implement the government's policy position and provide a range of assistance—as much assistance as we can provide—to help people through the application process to ensure—

Senator HANSON-YOUNG: What will that assistance look like?

Ms Larkins : To start with, as you will be aware, there will be some paid application assistance for the most vulnerable in that cohort, including unaccompanied minors, and there will be a range of materials and supports for people in languages—

Senator HANSON-YOUNG: So some pamphlets?

Ms Larkins : I think that—

Senator HANSON-YOUNG: Well, I am asking: are you providing pamphlets for people?

Ms Larkins : Do you want to talk in a bit more detail about that?

Ms Visser : We are calling it application information and guides, and there are some already on the website to help people. As to the sorts of topics that they go into, I have a list. They provide an overview of the protection visa process. They talk about the importance of establishing identity and nationality and citizenship. They talk about how to prepare a visa application and claims, including what the government is expecting of applicants. There is one that is about how to lodge the application and how to pay the visa application charge. There is information about the interview requirements and the fact that there will be an oath or affirmation request. Then there is information about the review processes. At the moment, those documents are about the current process; obviously, if the legislation passes, we will update those with a range of other materials which talk about the new fast track process and how that is going to work. There is a translation contract which has been let which will have those documents translated, and we are also working on a mobile phone app to help with accessibility for people. So that is information—

Senator HANSON-YOUNG: Can you take on notice the communications budget that you have for that assistance package—those pamphlets and guides and the mobile phone app—please?

Ms Visser : Certainly.

Senator HANSON-YOUNG: Thank you. Can I come back, Ms Larkins, to the question that I asked you about responding to a criticism given in evidence today that this is effectively a false economy. Without people being able to have proper assistance up front, independent assistance up front, what you will see is a clogging of the courts through judicial review.

Ms Larkins : I think—

CHAIR: It is someone's opinion; I do not think—

Senator HANSON-YOUNG: I am asking for a response. It is a legitimate criticism and I am asking what the department's response is. You do not have a response?

Ms Parker : I think that we are seeing in the current judicial review—and I would need to take on notice the actual statistics—that a high proportion of asylum applicants actually go through to judicial review at this point, in any event. So it will not add to judicial review, because a lot of them seek it already as a next step.

Senator HANSON-YOUNG: That is your official response to that criticism—that people go to review anyway, so this is not actually fast-tracking the process at all?

Ms Parker : I will check on the statistics, but you were inferring that this new process would mean that a lot more people went on to judicial review.

Senator HANSON-YOUNG: I am not inferring. I am putting evidence, which has been given to us today, to you for response.

CHAIR: What is your question? It is difficult for the officials to answer a question that is really a statement and accusation. What is the question?

Senator HANSON-YOUNG: I am asking what their response is to the evidence that we already have before us today.

CHAIR: Which evidence?

Senator HANSON-YOUNG: That we will see more cases clogging the court system as a result.

Senator JACINTA COLLINS: And that the court consideration will take longer than it currently does, because they will not be taking as given what has occurred in the previous process, as they might have previously.

Senator HANSON-YOUNG: They would start from scratch.

CHAIR: That is both hypothetical and a matter of opinion.

Senator HANSON-YOUNG: No, listen, Chair. If that is the department's response, I am happy to take that.

CHAIR: How can they foresee what is going to happen in the future? They are not clairvoyants.

Senator HANSON-YOUNG: Because they are putting forward a bill to amend an entire system, asking us to believe what they already foresee. So they must have taken this into consideration.

CHAIR: I do not think—it is up to them.

Senator HANSON-YOUNG: Why do it then?

CHAIR: But if it is anything more than their guess of what might happen then it is hardly relevant to the committee.

Senator HANSON-YOUNG: I am not asking for a guess. I am asking for a response to the criticism. Is that your response, Ms Parker?

Ms Parker : It is my response. I just have a note here as well that adds, in support of that, that rates of litigation have remained at high levels irrespective of whether successive governments have provided clients with migration assistance to assist with the primary applications. In relation to your concern that a court would have to commence the whole proceedings and take all the evidence et cetera, courts are looking for an error in process, not undertaking merits review. So that would not in fact be the case.

Senator HANSON-YOUNG: Thank you for that.

CHAIR: It is an important point.

Senator HANSON-YOUNG: I just want to ask whether you could take on notice whether there has been any increase or forecast in terms of the budget dealing with issues of judicial review for the department for these types of decisions. I assume you will not be able to tell us, because MYEFO is not out yet, but, if you could take it on notice, I would like that. Going back to the issue of SHEVs, which permanent visas will SHEV holders be able to apply for?

Ms Visser : The minister has indicated the range of visas that they would be able to apply for, including student and other permanent visas, and the visa he has expressly excluded is a permanent protection visa.

Senator HANSON-YOUNG: I will ask the question again. Which visas—which permanent visas—will SHEV holders be able to apply for—because there is no list? The minister's statement in relation to this referred to student visas, which are not permanent, and 457s, which are not permanent. So which permanent visas will SHEV holders be able to apply for?

Ms Visser : I cannot answer that question in detail, because that is one of the lists and sets of decisions that we need to go back to the minister on with all of the detail around implementing SHEV. That is on my list of things to do.

Ms Parker : Could I go back to that budget question? I might be able to answer that now without taking it on notice.

Senator HANSON-YOUNG: Sure.

Ms Parker : We will receive additional funding for litigation matters under the fast-track process, but that additional funding has been worked out on the basis of current flow-through rates, no additional flow-through rates. It is additional funding because of the 30,000 that need to be processed.

Senator HANSON-YOUNG: Thank you. I appreciate that. In relation to schedule 6—babies born here in Australia—babies deemed to be transitory persons are under this bill. Will they be able to apply for temporary protection visas?

Ms Parker : No, they will not.

Senator HANSON-YOUNG: And will babies deemed to be unauthorised arrivals be able to apply for temporary protection visas?

Ms Parker : Not without the minister lifting the bar.

Senator HANSON-YOUNG: Could you explain for us why there is a retrospective nature to this schedule? Why is it that babies who were born here are now facing being deemed either transitory persons or unauthorised arrivals—children who are already born, are existing and arrived in the most natural way possible?

Ms Visser : The amendments operate retrospectively to capture the persons the legislation is already intended to capture. As you would know, the government's position has been that the children of UMAs are UMAs, and the legislation operates retrospectively to put even further beyond doubt, if you like, the policy position that already existed.

Senator HANSON-YOUNG: So a child who was born 12 months ago yesterday in an Australian hospital is now retrospectively categorised as an unauthorised maritime arrival?

Ms Parker : On the basis of the current law, that is the case. The matter has been heard by the Federal Circuit Court and that position was upheld. It is on appeal at the moment, but, on the current state of the law, yes, that is the case without any retrospectivity; that is the current law.

Senator HANSON-YOUNG: Why do you need the retrospectivity? Why couldn't you just say: 'Babies born from the day that the bill is passed'?

Ms Larkins : The overarching objective is to do what we try to do in all other parts of the Migration Act, which is to ensure that there is consistency of migration status between parents and children. That is a fundamental way we approach families, really, to ensure that they have the same migration status. So we are just bringing this area into line with the way we treat parents and children throughout the rest of the act.

Senator HANSON-YOUNG: That does not really answer my question as to why this has to be retrospective. We continue to hear from the minister that all of these provisions—ultimately, the government's position—rightly or wrongly, is about a deterrence policy. These babies are already born. It is not like they can go back into the womb.

CHAIR: What is the question? Senator, I just remind you that I and Senator Collins are leaving at 4.15, so every further question diminishes the time for Maurice Blackburn, who you wanted called.

Ms Parker : Should we not be successful on appeal, that would mean that there are families who have children with a different status, which would be inconsistent with what Ms Larkins has just described as the objective—to keep families having the same status.

Senator HANSON-YOUNG: So, effectively, this is to circumvent a potential court ruling?

Ms Parker : It will preserve the position that is currently the understood position.

CHAIR: You talked about a mobile phone app being done. Surely, a lot of these people will not have mobile phones. What is the point of a mobile phone app?

Ms Visser : We actually find the cohort to be very well engaged with social media, and many of them have mobile phones, as do the rest of the population.

CHAIR: Who pays their phone bills? Does the department pay their phone bills?

Ms Visser : No. We are talking about people who are in the community.

CHAIR: I see, okay. Thanks. There are a million other questions—we might even put some questions on notice.

Ms Parker : That would be useful, yes.

CHAIR: Again, thanks very much for your attendance today, and we look forward to seeing you next time.