BREZZO, Mr Phil, Assistant Commissioner, South and Enforcement Division, Australian Border Force [by video link]

CAVANAGH, Ms Tara, First Assistant Secretary, Immigration Integrity, Assurance and Policy Division, Department of Home Affairs

HEINECKE, Ms Danielle, First Assistant Secretary, Labour and Connectivity Division, Office of the Pacific, Department of Foreign Affairs and Trade

KALACHOV, Ms Irina, Director, Harvest Trail Management and Reporting Team, Department of Education, Skills and Employment

KIDD, Ms Margaret, First Assistant Secretary, Workforce Division, Department of Education, Skills and Employment

McCORMACK, Ms Helen, Assistant Secretary, Pacific Labour Operations Branch, Department of Foreign Affairs and Trade

MOY, Ms Cheryl-anne, Deputy Secretary, Immigration and Settlement Services Group, Department of Home Affairs

PARTRIDGE, Ms Carly, Assistant Secretary, Agriculture Visa Branch, Department of Foreign Affairs and Trade

PETERS, Ms Louise, Executive Director, Engagement Branch, Fair Work Ombudsman [by video link]

SHILLITO, Ms Carli, Assistant Secretary, Pacific Labour Policy and Engagement Branch, Office of the Pacific, Department of Foreign Affairs and Trade

[13:06]

CHAIR: Welcome. I note that the DESE contributed to submission 75 and the Fair Work Ombudsman provided submission 28. Do either of you wish to make any corrections or amendments to those submissions?

Ms Kidd : No.

CHAIR: No. Information on parliamentary privilege and the protection of witnesses in giving evidence to parliamentary committees has been provided to you as part of your invitation to appear. I now invite opening statements, if any. If you'd like to make one, if it could just be for a couple of minutes, and, if you have something that's longer, then, by all means, please hand it up and we will circulate it to the committee and have it on Hansard. Are there any opening statements or comments you'd would like to make?

Ms Kidd : No.

CHAIR: Thank you.

Ms Moy : The department and the ABF don't have an opening statement, thank you.

Ms Heinecke : We don't have an opening statement from DFAT, thank you.

CHAIR: Great. Thank you. I'd now like to ask Senator Faruqi to start off with the questions.

Senator FARUQI: Good afternoon, everyone. Thank you so much for appearing to answer our questions and to provide evidence. I would like to start off with the Department of Education, Skills and Employment. In your submission on page 34 you claim:

Seasonal Workers are entitled to the same pay, conditions, and safety at work as Australian workers. DESE has safeguards in place to protect workers, including: oversight of recruitments, monitoring of placements and assurance processes.

I can tell you we have heard the exact opposite from workers this morning, and that has been the case for years now. So could you please explain to me which other Australian workers have the following conditions: under the condition of the visa workers can only work for the employer linked to their visa and, if the employer is dissatisfied with a worker, the worker can be sent home or refused a place in subsequent years, but, if the worker is dissatisfied with the employer, there is no real recourse for them, which basically forces them to live in slave-like, squalid conditions with such poor wages? So, which other Australian worker lives under these conditions, as you say that the conditions are the same?

Ms Kidd : I should say we've had a machinery of government change that's resulted in moving the Seasonal Worker Program from DESE to DFAT, so questions around the Seasonal Worker Program conditions will be answered by DFAT. I guess the DESE component of the submission around SWP has also now transferred across to DFAT.

Sen ator FARUQI: That's fine, but that is a statement that was made in your submission, which is about seasonal workers. Surely you can now either uphold that statement or say that that is incorrect?

Ms Kidd : I think the point I was making is the responsibility for those functions now sits with DFAT, so DFAT can answer those questions.

Senator FARUQI: Let's go to DFAT then.

Ms McCormack : Good afternoon. Workers under the PALM scheme are entitled to the same conditions as Australian workers, including pay, superannuation payments and, of course, safety at work. Workers are able to raise concerns with the department or the PLF, and a worker can contact the department to raise these concerns and request a transfer to a new AE. When this occurs, the department, or the Pacific Labour Facility, I should say, obtains all information from the worker as to why they are requesting the transfer and confirms with the worker that we can discuss their concerns raised with the approved employer or the welfare and wellbeing officer. If consent is not given, the department can still redeploy the worker with their agreement to a new AE where there are concerns in the event that we are unable to come to a reconciliation or an understanding between the employer and the worker. But, if consent is given, the department discusses the situation with the approved employer and asks to assist with the transfer of those workers to a new approved employer. Naturally, we work very closely with the Department of Home Affairs because it is a visa sponsored program, so we need to have those changes made in the Home Affairs system, with the change of sponsorship.

Senator FARUQI: It's pretty clear the conditions are not the same. No-one is tied to their employer. No Australian worker is tied to their employer. You're saying it's easy to complain and things can happen and employers can change. Then, why the heck has government run this—and this is my view of this campaign, and we have heard this morning that others have a similar view—really aggressive, rather insulting and pretty disgraceful campaign which attempts to shame and cause fear in seasonal workers who might leave their employer because of the horrible conditions that are being imposed on them? This campaign basically tells them that if they leave their employer they will not be allowed to work in Australia again, and this could include their family and their community members, and it will bring shame to their family's reputation. Which Australian worker is subjected to this through ads like this?

Ms Heinecke : First of all, before I get to the poster that you're referring to, I want to highlight that during the COVID period we actually moved 15,000 workers, some more than once, across Australia to meet workforce needs, with the consent of the employee, often because they don't have enough hours to keep continuing working under the scheme. It is important to note that workers do move, as evidenced by the number that I just gave you, to new employers. It's really important to note that they can only move, for the benefit of their protection, to approved employers. That is because improved employers are subject to a deed, which sits between the employer and the government, that sets out extra conditions, including the right for us to go in at any time and conduct compliance audits and assurance activities. As a result of those audits, we have terminated 17 employers and breached a lot more on minor conditions, which means they're subject to restrictions on how many they can take on. I just wanted to make that point before getting to the poster.

The poster was developed with Pacific governments, at their request, both here in Australia—high commissions that sit here having a consular function—as well as Pacific governments and Timor-Leste that participate in the program. As you can imagine, absconding, as I think it has been termed, does actually present a high risk to workers. In this situation, they are exiting and working for non-approved employers, often illegally facilitated. In that scenario, we provide information to employers before they come, in language, in predeparture briefings about Australian labour laws, about driving, about a whole range of conditions. One of the reasons that that poster has been developed has actually been translated in a couple of cases—I think that was brought up earlier—by the partner governments. Some of the language was requested by them. Yes, we've taken it down for the moment. I think that was noted in previous hearings. The reason we've taken it down is to review it with them and the workers on the basis of some of the complaints that have been brought forward.

I also want to put on the record that the Seasonal Workers Program, now moving into the PALM scheme--there is a large number of Australian visa holders that are actually tied to employers, not just the PALM scheme. So any labour agreement with the TSS program—Home Affairs could probably talk more to it—is actually tied to their employer. The reason for that, partly, is to protect them. In our case, they're protected by a deed. I acknowledge that we have heard some horrific stories this morning from workers themselves. We do not condone that. We ask and regularly reach out through many mechanisms to seek to get more information so that we can investigate those claims. We don't always get evidence to be able to investigate those claims, but, in many cases, we conduct regular audits at the site to be able to proactively identify claims. But, if they come through the media or other means, if they come from high commissioners, we take immediate action based on the evidence that we're given to investigate any claims.

Senator FARUQI: I'm sorry, but I think it's preposterous to claim that people are being shamed for their protection when we know that the workers that have been approved through this program are the ones that are keeping people in squalid conditions where 60 employees have to share one kitchen. We heard this morning that people are living in squalid accommodation with bed bugs, and the employer is doing nothing. I think you should review that sort of stigmatisation and racism of Pacific island people. We know that, and I'm sure you know, there have been at least 16 deaths reported in Australia's troubled seasonal workers programs since the start of COVID-19. Who is responsible for investigating the cause of those deaths, reporting back and making sure that these things never happen again? Are any of the departments responsible for that?

Ms McCormack : It depends on the event or the cause of the death. It could be a police matter. It could be referred to the coroner to investigate because we don't always know the cause of the death. We can say that there have sadly been a number of deaths in both programs since 2012. None have been the result of a workplace accident or incident. They have all occurred outside of work. It would be the police or the coroner. We will look into, and ask the approved employer for, documentation on things such as their superannuation payments and having the correct medical cover to ensure repatriation is covered in that insurance. Those are the sorts of things that we will follow-up on behalf of the worker's family.

Senator FARUQI: For the 16 deaths that have occurred since COVID started, none of the departments here have responsibility to look into whether it is done both the police or the coroner and provide a report as to why those deaths occurred under that program and why they are much higher than previous years—am I correct on that?

Ms McCormack : If it is a police matter, if the police are looking into it or it's referred to the coroner—the department does not have the expertise that the police or the coroners would have here. So—

Senato r FARUQI: I'm not asking you to do the investigation. Would the police report back to anyone?

Ms McCormack : We will follow-up with the police and they provide information. We also provide information to the labour-sending units in the country of origin and also to the relevant high commission here in Australia.

Senator FARUQI: My final question is for the Fair Work Ombudsman. You might be aware of recommendation 29 by the Select Committee on Temporary Migration, which says that the committee recommends that a formal and legally binding firewall be established between the Fair Work Ombudsman and the Department of Home Affairs to protect whistleblowers and temporary visa holders that report exploitation to the Fair Work Ombudsman. And I know that previous committees have made similar recommendations. Our committee has made a similar recommendation in its interim report. I'm just wondering whether there have been any advances on making it happen.

Ms Peters : We are aware that a number of inquiry reports and recommendations have gone to the establishment of a firewall between Home Affairs and the Fair Work Ombudsman. The assurance protocol that we have is designed to encourage workers who have breached the work-related conditions of their visa to report exploitation to us. We know that some employers and other third parties threaten such workers with reporting them to Home Affairs and visa cancellation. We find that the assurance protocol offers an avenue to seek our assistance and provide them with some assurance in protecting their visa. We think a firewall would remove that level of assurance. The Fair Work Ombudsman and Home Affairs work very collaboratively together and share information to try to detect and disrupt those who commit visa fraud and exploit migrant workers. We feel that a firewall would prevent that whole-of-government approach that we try to take to this serious issue.

Senator FARUQI: Are you aware that the Department of Home Affairs conceded at a public hearing of that committee that the assurance protocol could not be characterised as complete immunity? So it doesn't provide immunity; and there is extensive reporting on how a firewall would actually help protect whistleblowers. So I'm a bit confused as to why there is this conflicting information and why the refusal always comes when there is so much evidence that it could help.

Ms Peters : As far as we are aware, every worker that we have referred to Home Affairs for consideration under the assurance protocol has not had any adverse consequences applied to their visa. There had been 77 referrals as at the end of the last calendar year, and my understanding is that none of those visa workers has had their visa cancelled. How that assurance protocol is applied by Home Affairs, and decisions around cancelling and granting visas, is obviously a question for Home Affairs and not the Fair Work Ombudsman. After having obtained informed consent, we only refer those workers who understand the nature of the protocol and the steps that will be taken. We obtain their fully informed consent before we provide any information to Home Affairs under the assurance protocol.

Ms Moy : I confirm Ms Peters' evidence of 77 referrals with no consequences to the individuals' visas. We think that the assurance protocol is a very good avenue for anyone who has issues to raise. Even if the individual has not met some of their visa arrangements, which has happened in those 77, we have not cancelled or removed anyone's visa because they came forward and provided us with that evidence that we could act on with the ABF.

Senator GROGAN: Can I take you back to the poster for a moment. The poster came from the Pacific Labour Facility?

Ms Heinecke : Yes, that's correct.

Senator GROGAN: That falls under DFAT but it's also contracted out to Julie Bishop's firm, Palladium?

Ms Heinecke : Yes, that's correct.

Senator GROGAN: Were they the ones responsible for developing that poster?

Ms Heinecke : Yes. The Pacific Labour Facility was responsible in consultation with the 10 labour-sending countries. The PLF has advisors and people who work with each of those countries situated within each of those partner governments. So, yes, that's correct.

Senator GROGAN: Can I go to the Fair Work Ombudsman. Were you consulted on this language?

Ms Peters : We weren't consulted on the poster.

Senator GROGAN: What's your sense of that language? Do you feel it's helpful or do you feel it plays into the challenge that we've seen with people feeling safe enough to report that they're being abused or badly paid or living in horrendous slave-like conditions?

Ms Peters : It's probably not a matter for us to comment on. As we've repeatedly said, we encourage all workers to come through to the Fair Work Ombudsman for assistance. There are a number of avenues through which they can do that, including anonymous reporting. The Fair Work Act applies to all workers, and we assist all workers regardless of whether they are compliant with their visa conditions. We've litigated cases where visa workers have been in breach of their visa conditions, for example, so that would not be a barrier for them seeking assistance from the Fair Work Ombudsman for workplace related issues.

Senator GROGAN: From your perspective, perhaps, but maybe that kind of language could make them feel unsafe. Obviously, your role is to investigate these things and to protect these people. Surely there is a challenge if on the one hand the government is frightening people and on the other hand it is saying, 'No, it's totally fine; you can come and talk to us.'

Ms Peters : I think the situation is challenging; and, as you point out, there are a number of intersecting regulatory and policy and program regimes. That's why we take a whole-of-government approach to this. You'll see from the panel here that we work collaboratively across all the various departments. There are structures in place to support that work as well, including interdepartmental committees at senior levels, covering labour mobility, agriculture visas, Pacific labour schemes and the like. We do try to work collaboratively together.

Senator GROGAN: On this particular issue, I totally accept that you attempt to work collaboratively. But it does seem like it provides a great deal of opportunity to duck and weave, for no-one to be responsible, and for us to continue to be in a situation where we see vulnerable workers being treated unbelievably badly. In response to one of the questions on notice from Senate estimates in November, Australian Border Force said worker exploitation in the labour hire market is a systemic issue. Do you agree with that statement?

Ms Peters : We do find that compliance in the labour hire sector can be challenging because of the multiple layers that are often involved in the contracting. Trying to identify, in some cases, who the actual employer is can be a challenge. Labour hire operators, like every employer, are expected to comply with their fair work obligations, and we approach our compliance and enforcement work in relation to that sector in the same way we do for other areas.

Senator GROGAN: So why are we failing? Why are we failing to stop worker exploitation? We've seen so many different layers of, 'This is how we protect people; this is how we strengthen the system,' yet we are still seeing a significant number of people in exploitative situations—to the point where people are agreeing that it is a systemic issue. What exactly is being done about that?

Ms Peters : As the Fair Work Ombudsman we do a lot to educate and engage with migrant workers and other workers. We also take a very strong compliance and enforcement approach to those that are found to have been exploiting migrant workers. In terms of what else we do, we call on the community, industry stakeholders and others to come to us with intelligence, information and allegations. Any credible information or intelligence that comes to us will be looked at and considered in line with our compliance and enforcement policy.

Senator GROGAN: Maybe I could go to DFAT or Home Affairs. We've seen a lot of workers and we've heard of a number of other workers who are being exploited and badly treated. What does this do to our reputation? When you're negotiating overseas, what are these countries thinking of us and the manner in which we're treating their people?

Ms Heinecke : We engage closely with the partner countries. The PALM scheme is actually highly valued by Pacific governments and communities because of the opportunities that it creates. I acknowledge that there are some problems. That's why we have heavy compliance and assurance activities. That's why we have a 24/7 helpline. It is why we engage a lot in terms of on-the-ground audits, including around accommodation. It's why the government has funded the program—working in these high-risk sectors to be able provide an extra layer of assurance that wouldn't be available without the program settings that we have, including the deed that protects.

We work very closely with high commissions, as well as labour-sending units in each country, to understand the challenges and to correct those challenges as they come up or, where there are cases of payslips being provided, to quickly investigate them. We either do that ourselves, through the program settings we've got that sit under our compliance and assurance functions, or, in some cases, where it is something that is within the Fair Work Ombudsman's remit, refer them to the Fair Work Ombudsman.

I want to put on the record that—as Ms Kidd, from DESE, just said—we have recently amalgamated the program. The Seasonal Worker Program was amalgamated into DFAT on 20 January. We have been undertaking an extensive consultation process across Australia with improved employers, industry, unions, community and with Pacific governments—both here and in their countries. We are in the process of revising the deed at the moment, which will inform future conditions under the deed. The new PALM scheme will come into effect on 4 April. We're in the midst of those negotiations at the moment, and all the feedback we've got from that—and from investigations and other reviews that we've done, including into issues that have been raised today, like accommodation—will impact on the future deed. That's just to assure you that we do provide this extra layer of assurance, which wouldn't be available if they were coming out and working with sponsored employers without a deed that protects them and gives us legal grounds to be able to come in and investigate and undertake assurance activities.

Senator GROGAN: I think about an hour before these proceedings you released a new fact sheet on the PALM scheme—

Ms Heinecke : Sorry, just to correct you: it was the agriculture visa that we released a new fact sheet on.

Senator GROGAN: You've said that the negotiations with the Indonesian government are progressing. Can you give us a bit of a sense of where that's up to and whether you believe that they have any concerns given the level of evidence that's been provided over the last 12 months or so regarding the issues of workers?

Ms Partri dge : For obvious reasons I won't go into too much detail about discussions, but, as the fact sheet indicates, we are in quite advanced discussions with Indonesia that are going positively. On your question about the issue of worker protections, it's something that both sides have raised and something that both sides, including Australian officials and Indonesian officials, think it is very important in the discussion, and it's been a subject in that context.

Senator GROGAN: Thank you.

Senator CANAVAN: Thank you to all of the officials. I wanted to ask about the requirements and the visa. I'm not sure if you were listening earlier this morning, but for some of the workers we heard evidence from their major request to us was they wanted to change their employer. It sounded like they'd had a fairly harrowing experience. How would they go about that under the Pacific—I think these workers were under the Pacific labour scheme, so let's take that one. How would a worker undergo a change of employer? What would they have to do? Do they have to notify yourselves or get government approval et cetera?

Ms McCormack : The worker can contact the department or the PLF directly. I might just take a step back because also under the program there are welfare and wellbeing officers that each approved employer is to engage, and those officers meet with the workers fortnightly so that the workers can raise concerns with the welfare and wellbeing officer as well. There are also country liaison officers in Australia who they can raise concerns with. They are all the ways we can get the information that the worker is concerned with their current employment or situation.

However, when the information comes to the department, we seek to interview the worker as to why they're requesting the transfer. We need to confirm with the worker if they've raised the concerns with the approved employer or the welfare and wellbeing officer and also seek the worker's consent to discuss their concerns with the employer. If that consent is not given, we can still redeploy the worker with their agreement to a new approved employer where there are concerns regarding their welfare and wellbeing. If consent is given the department would then go into discussions with the approved employer to resolve any issues.

Senator CANAVAN: So they can't just change? I'm taking as a given here, correct me if I am wrong, that under the scheme they have to work for a PLS approved employer, presumably somebody in the horticultural space who has been accredited; they just can't go and work wherever. I understand that. But, if there's another PLS approved employer who says, 'Look, you can come work for me,' if they're just unhappy or don't like where they are working, like any other Australian, they can't just switch jobs. They can't just say, 'Okay, I'll just change.' They can't do that.

Ms McCormack : No. They would need to go through the department because also it is a sponsored visa so then the department engages with Home Affairs—it is a whole-of-government program—with regard to the visa. Sometimes we have to transfer the visa to the new sponsor, which is the new AE. So that's a little bit of a government administrative process there.

We would agree to the worker's transfer if there were concerns with their welfare and wellbeing or they weren't getting enough hours of work, for example. As Ms Heinecke referred to earlier in her evidence, there's been around 15,800 redeployments of workers across Australia to not only meet industry unmet labour demand but ensure that the workers remain in employment and are able to continue sending their money back home.

Senator CANAVAN: Would just being able to get paid more be enough of a reason if someone came to the department and said: 'Hey, I got an offer to earn a bit more money down the road at a different farm. Can I change jobs?'

Ms McCormack : Basically, not really, no.

Senator CANAVAN: It does sound like indentured labour then. There's no competition then for—

Ms Heinecke : I'll just jump in quickly on this one. There are two reasons for that. One of them is that we really want to protect them. If they're moving to an unsponsored employer who, first of all, doesn't have the regulations—

Senator CANAVAN: No, can I just be clear? I'm only talking about staying with a sponsored employer—somebody who is their sponsor. I'm not saying that they're going to work down at the local pub. It's someone who is a PLS approved employer and if they came and said, 'Hey, down the road this strawberry farm is offering an extra dollar an hour piece rate'—a dollar a punnet or whatever—and that's not enough so you'd reject that as a reason to change jobs.

Ms Heinecke : We'd need to understand, first of all, whether they were getting enough hours in their current employment. There are requirements under the Seasonal Worker Program where they are required to have 30 hours per week on average over the period of their placement. It's a really important point that portability has been raised quite a lot, both in the context of the agriculture visa settings as well as in the discussions that I mentioned earlier in my evidence about the PALM scheme. We're looking at greater portability, but we really want to make sure it's regulated well—for a number of reasons.

Another reason also is to protect Australians. This is a sponsored visa and we do need to make sure it's market tested. Every job that we advertise has to be market tested under the market-testing rules—

Senator CANAVAN: That's a different issue. Wouldn't Australians be protected more—Australian workers, this is—if we allowed the PLS migrants to drive wages up to a market level? That would then potentially make employing Australians more attractive. It seems like they have a cartel or something; they can't change jobs and it seems it doesn't allow us to respond to market conditions in the normal way we would in the labour market. We're hearing a lot of evidence of misconduct which, in my view, is very much a small minority of farmers. But the conditions are ripe for that misconduct if someone can't easily change from a job they don't like. Do you think there's any contribution by this lack of portability, as you've termed it, to some of this misconduct?

Ms Heinecke : We're looking at revising the settings in the future; it's an issue that has been brought up. But I think we also need to make sure that in making that move they're not moving all the time, because every time a worker moves it also means shifting accommodation, and there are other issues at play that sit under the program settings which actually create costs for workers as well. I think we heard that in earlier evidence from somebody working here under the Working Holiday Maker scheme.

So there's a balance to how much portability we can bring into the scheme because of the costs to workers in making that move. We're looking at the settings in terms of who pays for the movement as well. I think that everything we're hearing today is informing future settings, both for PALM and the ag visa.

Senator CANAVAN: Those portability settings you're talking about: are they in the legislation, or are they determined in a regulation or simply by the guidelines set somehow by the department? Where's the legal authority for restrictions on portability?

Ms Partridge : There are regulations around sponsored visas that are in the Migration Act, which my colleagues in Home Affairs can speak about. Then we have a set of program guidelines and policy settings that sit under those regulations. As Ms Heinecke has mentioned, we've certainly received a very significant amount of feedback about the importance to employers of portability and, as you and others have said, potentially to workers as well. That's an issue we're looking at in terms of what the policy options are to better support portability.

Senator CANAVAN: Right. You mentioned that there were 15,800 approvals for the change in employment, I think—did you?

Ms Heinecke : Yes, that's correct.

Senator CANAVAN: What time period was that over? Was that just under the Pacific labour scheme, and for what time?

Ms Heinecke : Yes, this was under the Seasonal Worker Program. Helen will talk about the time period.

Ms McCormack : We call them 'redeployments'. We enacted this redeployment because workers were unable to return home. Of course, when work runs out we want to give them the opportunity to continue working and earning money—and also to meet that unmet labour demand. It's really been since COVID.

Senator CANAVAN: So before that they couldn't redeploy at all?

Ms McCormack : They could at their request. We would look into it and have a discussion with them.

Senator CANAVAN: They got approved—

Ms McCormack : Yes. It goes back to what I was discussing earlier.

Senator CANAVAN: Okay. So the 15,000 is since COVID, is it?

Ms McCormack : Yes, 15,800-odd.

Senator CANAVAN: Have you made it easier to redeploy? What did you change when COVID hit?

Ms McCormack : We didn't change anything really. We worked out solutions with the Department of Home Affairs to ensure that they were still working within the requirements of the visa. Then we came to an arrangement, but—

Senator CANAVAN: That's a little bit vague. Did each one of these 15,000 need to prove that they were being mistreated or had a legitimate complaint?

Ms Heinecke : What changed is that, as you'd be aware, before COVID most seasonal workers would come and go. But, with borders being closed, as well as the lack of opportunities in Pacific countries, most workers chose to stay. And the government made a decision to allow people to move onto the 408 visa—the pandemic visa—which allowed workers to stay in Australia to work, given workforce needs, but also for their own employment opportunities, given the limited opportunities, in our case, in the Pacific.

The 408 visa allowed us to move workers that would normally have gone home—for example, if they were working on a mango farm up in the Northern Territory and they were planning on being in Australia for three to six months—to stay and move to a different employer in a different state, or nearby in the Northern Territory, to be able to undertake a new season for a different type of crop. We acknowledge that there have been some problems with that process, but on the whole it has been highly valued by the Pacific, and by communities and families, that those workers have been able to stay and to continue to provide remittances to their families during this period.

Also really important is that we prefer workers not to stay and only be given small hours of work. This has allowed us to move workers to where the crops are to allow them to get enough hours per week to be able to meet the guidelines of the program, which is important to their wellbeing and their weekly wages.

Senator CANAVAN: Okay. My final question goes back to some evidence this morning. There were claims that some employers weren't allowing workers to leave or go and observe religious events, particularly weekly churchgoing. My experience with many of the migrants from the Pacific is that they are quite committed to their religion. Is there any obligation on a PLS approved employer to allow their workers to reasonably observe their religious practices?

Ms McCormack : The guidelines state:

The Offer of Employment letter must also outline the expected typical days of work, including what days the Seasonal Worker will have as days off from work. You, as the Approved Employer, must provide sufficient information to enable the department, and the Seasonal Worker You wish to employ, to understand that a sufficient number of days off will be provided.

So we don't actually—

Senator CANAVAN: It doesn't mention religion then, by the sounds of it. Going back to our earlier discussion, if someone were working for an employer—and we've heard reports of working weeks at a time—and they weren't able to get time to go to church and what have you on a weekly basis, would that be sufficient grounds to change employer, to be redeployed, so to speak?

Ms McCormack : That's a hypothetical. It certainly could be factored into any consideration. But it's a hypothetical—

Senator CANAVAN: It sounds like a pretty basic breach of their human rights, I would imagine, under our international human rights law. Has that ever been raised? Have you ever received legal advice on that?

Ms McCormack : That they can't go to church and things like this?

Senator CANAVAN: Yes, to allow people to observe their religious faiths.

Ms McCormack : Employers are to give workers time off each week. Those times off need to be reasonable and ensure that the worker has enough time to have time to themselves and also go to church and things like this. I don't have the actual detail on me, but it could vary.

Senator CANAVAN: Could you take on notice if you've ever gotten legal advice on providing appropriate time for workers to observe their religion?

Ms Heinecke : We can take that on notice. I just want to add that, through the Pacific Labour Facility but also through the Community Connections Program run by the Salvation Army, there is quite a lot of focus on connecting workers within the communities that they're living in with church groups, with sports groups. The majority of employers—obviously, one has being cited this morning where that's not the case—understand that those connections are going to be important to the happiness of the worker, the productivity of the worker and the ability of those workers to return. Most employers—the vast majority—actually do get return workers. I think the statistics are that around 47 per cent of workers, over the average of the Seasonal Worker Program, return to the same employer, return to the program, each year. That's because they're actually embedded into the community, they're valued by the employer and all of those kinds of opportunities are part of their lived experience in Australia. They are also part of the objectives of the Pacific Step-up scheme, which gives them an experience of living in Australian communities. We agree with you that that type of connection is important, and that's one reason why the program actually facilitates those connections, but we will take it on notice. We don't dictate to workers what they do with their time, but if they're seeking that from any employer there are certainly grounds for them to at least seek advice through the 24/7 welfare line about what is reasonable and what's not, and we would provide that advice. It is mostly Pacific islanders who sit on the welfare line in the Pacific Labour Facility. They speak the language, so that is actually a good conduit for them to be able to raise cultural issues with someone from their own country who understands the Australian context, in terms of being able to resolve issues with employers. We encourage them to go to that line to resolve those kinds of work-life balance issues that are coming up in the context of each employer.

CHAIR: Just very briefly on the line of questioning that Senator Canavan has raised, I want to just clarify a couple of things. Would people who receive a document about absconding that has been endorsed by the government that they're working in, the Australian government, want to go and contact that same government if this is the way they're being treated and talked about? Do you think that is a disincentive for people to speak out? I just want to add that additional question that Senator Canavan rightly raised and I just want to put my oar in a bit for it as well to support what he said. People's religious practices and their requirements to be able to practice their religion are really incredibly important. Also, from the evidence we received this morning—as you would be aware from various other inquiries—many of these workers are working long hours. They're taken from a facility where they are staying to the workplace, sometimes in a container with many other workers, then brought back to the container and are expected to stay in the container, and they do not have an opportunity to do social activities. So the church aspect becomes an even more important and critical thing for social contact and community contact, as well as for finding out what your rights are, because I'd imagine they'd be meeting people in those same church communities who have been here for generations or for years. So, if there's a problem, they'd be talking to peers, rather than talking to somebody who put out this document about absconding.

Ms Heinecke : As I said before, we're reviewing the information with Pacific governments, who have had an important voice in that. I agree with you on the right to being able to attend, whether that be church or other events that are important to the worker, and that's why we actually facilitate it, including during COVID. There was considerable online religious access to activities where workers were not able, because of lockdowns in Australia, to be able to access physical church sites. So through the Pacific Labour Facility we organised a whole lot of online religious events, for different denominations, to meet that really important part of Pacific life.

CHAIR: Thank you. First of all, this isn't going to take anything away from the positive aspects of that activity that you just said. The unfortunate thing is, there are many people not receiving that opportunity. As for employers understanding that a happy worker is a good worker, as we've heard from evidence in 11 inquiries, unfortunately there is a large cohort of labour hire companies and some farmers that don't agree with that philosophy at all; it's quite the opposite.

I want to move to some questions for Border Force. This morning we heard from Geoff and Jane Smith, Christian missionaries in Bundaberg, who were raided by nine Border Force troopers last year for helping migrant workers who had escaped slave-like conditions. I discussed this with Mr Pezzullo and Commissioner Outram at estimates in November. It's disappointing that neither have shown up today, particularly as the commissioner revealed he was personally briefed on the day of the raid. Mr Brezzo, when were you first briefed on the raid?

Mr Brezzo : I first became aware of the activity on 21 July.

CHAIR: The ABF confirmed, in response to questions SE21 to 396, that both of the ABF's deputy commissioners were briefed on the raid, as you've just said, and also on the individuals named on the warrant. Commissioner Outram was briefed in general terms, as I understand. Are the ABF commissioner and both deputy ABF commissioners briefed ahead of every warrant the ABF executes?

Mr Brezzo : No, we are not. In this instance, both deputies were involved at the time. I was the acting deputy commissioner responsible for a number of things, including enforcement operations, which would cover this type of responsibility. The other deputy commissioner was responsible for the regional area in which the activities took place, being Bundaberg, Queensland. It is not that we would go through the details of all investigations or all warrants to be executed, no.

CHAIR: Why was this a special case?

Mr Brezzo : In this instance, I became aware of the fact that the Vanuatu high commissioner had been named as the second condition on the warrant and, aware of the fact that that would attract some sensitivities, I raised that in general terms on the morning of the warrant being executed.

CHAIR: When you say you raised that in general terms, you raised that directly with the commissioner, did you?

Mr Brezzo : I raised it at the commissioner's daily sync that morning. The commissioner and a number of others were there. There was some warrant activity underway in Bundaberg that day.

CHAIR: Just so I'm clear, at that meeting you also mentioned your—I'm using my words—'special case'. So you did raise with the commissioner, specifically, that the Vanuatu high commissioner was also on the warrant?

Mr Brezzo : I think I raised it not so much as a special case but certainly as a case that was a little bit unusual. It certainly isn't common having members of the diplomatic community, in any way, associated with any of the warrants. Acknowledging that fact, that was the context in which I raised it.

CHAIR: As you've stated, Mr Fare is the Vanuatu high commissioner. Mr Smith, of course, has supported many Pacific workers who have fallen victim to severe exploitation. Mr Fare is naturally interested in the welfare of Vanuatuan citizens in Australia. Does that explain why Mr Fare was listed on that warrant?

Mr Brezzo : I just need to be mindful of the fact that this matter relates to an ongoing investigation, so there's some detail that I can't go into. What I'd say is the Australian Border Force's role, in the context of this, is enforcement of the Migration Act. That includes adherence to conditions of any visas that noncitizens have been granted. In cases such as the one we're talking to, the conditions of the warrant—in particular, the second condition—don't, in any way, give an indication that an individual listed as a second condition is the subject of that investigation, nor a person of interest. I'm happy to go through the details as to what the second condition means if you like.

CHAIR: Thanks. You may want to take that on notice, and I'm happy for you to send it over. I want to go to the question of article 24 of the Vienna Convention on Diplomatic Relations, which is enshrined in Australian law through the Diplomatic Privileges and Immunities Act 1967. It says:

The archives and documents of the mission shall be inviolable at any time and wherever they may be.

It's pretty clear, isn't it?

Mr B rezzo : What I would say is that the ABF are satisfied that we have not acted unlawfully by including the name of the Vanuatu high commissioner in the second condition of the search warrant, nor have we acted contrary to the obligations under the Vienna convention as incorporated into the Diplomatic Privileges and Immunities Act.

CHAIR: Can I put this scenario to you? There have been no charges laid against anyone at this point, have there?

Mr Brezzo : It wouldn't be appropriate for me to go into details of our investigation.

CHAIR: No. First of all, I'm not asking for the details of what you might be looking at with charges, although I might well ask you that question as I go. I am asking you specifically: have any charges been laid against any of the individuals named on that warrant, including Geoff and Jane Smith and the high commissioner? Have there been any charges laid against any of those people?

Mr Brezzo : Senator, just so you're aware, you were cutting in and out a little bit there, but I'm pretty sure I got the question as to whether or not charges have been laid to this point. The answer to that question is no.

CHAIR: Thank you. The high commissioner is protected by the Vienna convention. Are you aware of any other occasions in history—let's just say over the last 50 years, pulling out a figure of some decades, or even the last 10 years if it's easier for you—where any high commissioner in Australia or any other diplomat has had a warrant served that has involved receiving information on communications that they've held between parties?

Mr Brezzo : Senator, I'm not aware of—

Ms Moy : If I can just comment there, to be fair to Assistant Commissioner Brezzo, he would not be aware of anything out of the remit of the ABF. That was quite a broad question.

CHAIR: Thank you for that, Ms Moy. I will refine it purely to the ABF. Have there been previous occasions there?

Mr Brezzo : Thanks, Senator. No, not to my knowledge—not in the history of the ABF.

CHAIR: I would put to you that this is a breach of the Vienna convention. I put that to you on the basis that there has not been found to be a reason for exempting the high commissioner from that protection. So there's been a fishing expedition to go to the questions which have involved people like Geoff Smith, Jane Smith and other individuals who have been escaping horrendous conditions, such as we've heard about this morning and in 11 reports in the last five or six years. How could you possibly say that there's an exemption from the Vienna convention when there has been no case found against any parties that are on that warrant? I extend this logic: if you—when I say 'you', I mean the ABF—want to find information from any high commissioner, and you just make an assertion that there may be an exemption to it, and then you just turn around, get all the documents and look at all the confidential documents between the high commissioner and others, which are normally protected under the Vienna convention, and you then don't take any actions on the exemption question, haven't you actually breached the Vienna convention? If you don't charge the high commissioner, isn't that effectively a breach?

Mr Brezzo : No, it's not. I don't accept your position as stated on that as well. As I said before, we're very satisfied that we haven't acted unlawfully in terms of the Vienna convention or, indeed, the Diplomatic Privileges and Immunities Act. I haven't mentioned anything as to exemptions or otherwise. As I stated before, being mentioned on a second condition of a warrant does not make an individual the subject of the investigation, nor indeed even a person of interest.

CHAIR: Ms Moy.

Ms Moy : I was just going to mention that AC Brezzo has mentioned that the investigation is still ongoing. At this point there has been no conclusion to that investigation, and equally I was just going to say that we had not claimed that there was an exemption to the Vienna convention at any time.

CHAIR: Who made the assessment that the ABF had not breached the Vienna convention?

Mr Brezzo : I need to be mindful of legal professional privilege, but I have received legal advice about what I said before, which was reaching the conclusion that we're satisfied that we haven't breached the convention or the act.

CHAIR: I appreciate there may be some matters you want to redact from the legal advice, but is that able to be made available to the committee?

Mr Brezzo : I would have to take that on notice. I'd have to seek advice with regard to legal professional privilege.

CHAIR: Would the advice on how these matters are dealt with by Border Force be able to be in more general terms when it comes to the high commissioners? I am very mindful that this is an extremely sensitive matter where every high commissioner who protects and has had a history of speaking out on behalf of their nationals in Australia could now be turned around and be part of an ABF warrant. Do you understand the dampening effect of that? We've got absconding from one department and we've the ABF going after high commissioners on another level. Isn't that a dampening effect on people speaking up?

Mr Brezzo : No-one was going after the high commissioner, as I said before, and the high commissioner is not and has never been the subject of investigation. In terms of the broader protocols and considerations, as I mentioned before, it is certainly highly unusual and, in the relatively short history of the ABF, not something that I've come across before. In terms of the protocols and procedures that, under best practice, would necessitate consultation with other agencies, people like DFAT protocol and indeed with legal advice, we're certainly reviewing that aspect of it. The commissioner has recently issued a direction that we develop a new direction and be deliberately involved in those periods of consultation with those stakeholders as well. So we're very mindful of the Vienna convention. We're very mindful not only of the Diplomatic Privileges and Immunities Act but of the role of the diplomatic community in Australia.

CHAIR: You're aware that the warrant gave the ABF the ability to seize any documents or correspondence of the high commissioner relevant to the conditions of the warrant. So how can you say the ABF was not going after him?

Mr Brezzo : Again, there's a limit to how much detail I can go into on a matter that's an ongoing investigation. But being a second condition on a warrant does not mean that, in this case, a high commissioner or anyone else mentioned as a second condition has their personal details looked at. The focus has to relate to the first condition of the warrant, and that has been explained in terms of what we were doing on the execution of that warrant on 22 January.

CHAIR: Would you concede that you now have documents that were of a private nature between the high commissioner, Mr Smith and potentially other people?

Mr Brezzo : No, we do not have documents of a sensitive nature relating to the high commissioner.

CHAIR: Do you have any documents in relationship to the high commissioner and this matter that's on the warrant?

Mr Brezzo : Not to my knowledge, but, again, that's about the limit that I would go to. It's an ongoing investigation.

CHAIR: We have received the evidence this morning, so I'd like you to think about this very carefully. From the evidence this morning, there was material taken off the mobile phone which included personal matters for Mr Smith and also contained exchanges between the high commissioner and Mr Smith. Does the ABF have records of Mr Smith's mobile phone?

Mr Brezzo : I'm not going to go any further into these matters, which relate to an ongoing investigation.

CHAIR: I'll ask this question generally, then. Do you have records of Mr Smith's phone? You served a warrant. You required that information to be given. Mr Smith has given evidence that that's what happened—that there was a technical person there that was going through their various technical equipment, including their mobile phones.

Ms Moy : I think Mr Brezzo's answered the question: it would be remiss of us to compromise an investigation by answering questions that purely relate to what somebody else has provided in evidence.

CHAIR: No, this is a question about information that was gained under the warrant. Under the warrant, there was information that specifically included mobile phones as a form of communication. On that form of communication, it included exchanges between two of the people named on the warrant, one being the high commissioner and the other one being Mr Smith. So I don't think you're giving anything away by saying—confirming the evidence that we received this morning—that you do have copies of the mobile phone records. I'll draw the conclusion that you then have copies of private, confidential exchanges between the high commissioner and Mr Smith.

Ms Moy : I understand you can draw conclusions from the evidence of another person, but for the organisation who was undertaking the investigation to release information about that investigation and what might have been gathered as a cause of that warrant may compromise the investigation, and that would be remiss of us as good public servants.

CHAIR: So I'm clear, you're seeking to take immunity, are you? You're claiming public interest immunity?

Ms Moy : We can take the matter on notice. It is common—

CHAIR: I'm very mindful, as you are, that we're submitting this report next week, so we have very limited time. We are going to have a break, and there are a number of other witnesses. Are you able to come back to us about whether you're taking public interest immunity on that question?

Ms Moy : What I actually said was we can come back on notice to you with regard to that last question. I don't think it would be satisfactory to provide something right now, so we can come back on notice on that.

CHAIR: What I'm suggesting to you is that this hearing is going until 5.45 pm. We certainly can go longer than that. Are you able to come back at, say, five o'clock—that's a few hours away—and tell us whether you're seeking public interest immunity?

Ms Moy : No, I didn't claim public interest immunity at any point. What I said was we would come back on notice.

CHAIR: Yes, I appreciate you coming back on notice. I'm asking you: will you come back today? 'On notice' means it will not be presented to this committee prior to the report being given. There were some very serious allegations made this morning. There are some very serious concerns that have been raised with the ABF and now with you. To get the information that this Senate committee is seeking—either you give us the information or, alternatively, you turn around and say you are going to take public interest immunity. If you don't do it this afternoon to give us the capacity to get to the heart of this question, it means that we've run out of time, and you're well aware of that. Can you turn around to assist this committee in three hours or—if you need longer than three hours—four hours?

Ms Moy : I'm actually due at another committee in one minute, in the Afghan inquiry; however, we will look and see what we can do by five. I'd suggest it's probably going to be past five, because we would need to engage our legal team. I'd suggest that probably tomorrow would be the earliest I'd be able to provide you with information on notice with regard to that last question.

CHAIR: Yes, we'll come back tomorrow. We'll find a time for the committee to reconvene tomorrow to get an answer on that question.

Ms Moy : We can provide it straight to the committee.

CHAIR: We may well want to raise issues. I appreciate, Ms Moy, that we did receive the notice from you before that you needed to go, but we just need to have a very brief break, and then I'll come back to you so I can easily release you.

Ms Moy : Sure.

CHAIR: Let's suspend.

Proceedings suspended from 14:14 to 14 : 35

CHAIR: I'm very mindful of the time, so we'll make haste. I understand from some of the discussions—and correct me if I'm wrong of course—that you may be able to come back to us after two o'clock tomorrow. What we'd would be seeking is if appropriate persons can come back to this hearing, and it would be appropriate for the ABF to also be here.

Ms Moy : Can I clarify your question? What you have asked is: within the evidence gathered as part of the warrant, was there information in relation to the High Commissioner's phone records? Is that a good summary, or can you provide it to me?

CHAIR: Do the records and documents that you've got include information, including from mobile phones, of exchanges between Mr Smith and the High Commissioner? I'm not asking for the detail of those exchanges—purely whether that information was taken off. Separately to that, I have an additional question on the same subject: do you have the information that is on Mr Smith's phone and communications that Mr Smith has made with various parties? I'm saying 'parties' as in general 'parties'—it could be the person down the street; it could be anyone named on the warrant; it could be Geoff speaking to Jane, his wife.

Ms Moy : I will speak to our legal team. Just to clarify, myself and AC Brezzo do not have information in regard to what is in that evidence—neither should we, because neither of us is involved in the ongoing investigation in terms of the application of the evidence to the Migration Act and any activity in terms of that issue. So I will go to the legal people and have a discussion and come back to you. Firstly, I'll will come back to the committee in writing, and, if you require us to attend again, then we will liaise with the committee around that detail.

CHAIR: Thank you, Ms Moy. I appreciate that consideration. I've a very quick question, and I'm going to ask the question over this side. I'll ask you first so I can release you. Did the ABF have discussions with Home Affairs before they issued the warrant?

Ms Moy : Not to my knowledge, but I would have to take that on notice in terms of checking further down through the chain. I'd have to speak to some other areas. However, I'm not quite sure whether or not AC Brezzo might have that information.

CHAIR: Mr Brezzo, have you got that information?

Mr Brezzo : I don't. But, like Ms Moy, not to my knowledge. No.

CHAIR: If you could both take it on notice I'd appreciate an as-quick-as-practical response. Tomorrow would be of a great deal of assistance, but as quickly as you possibly can. Thank you, Ms Moy. I've a brief question to ask DFAT as well on that subject: were there any discussions that took place with DFAT prior to the issuing of the warrant?

Ms Heinecke : No.

Proceedings suspended from 14:39 to 15:11
.