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Regional Processing Centre in Nauru
Commonwealth government's responsibilities relating to the management and operation of the Nauru Regional Processing Centre

BRISCOE, Ms Cindy, Deputy Commissioner, Australian Border Force Support, Department of Immigration and Border Protection

DORRINGTON, Ms Jan, PSM, First Assistant Secretary, Integrity, Security and Assurance Division, Department of Immigration and Border Protection

MOY, Ms Cheryl-anne, First Assistant Secretary, Children, Community and Settlement Services Division, Department of Immigration and Border Protection

PEZZULLO, Mr Michael, Secretary, Department of Immigration and Border Protection

QUAEDVLIEG, Mr Roman, Commissioner, Australian Border Force, Department of Immigration and Border Protection

SCHOLTEN, Mrs Kylie, Assistant Secretary, Immigration Compliance Branch, Department of Immigration and Border Protection

SKILL, Mr Neil, First Assistant Secretary, Detention Services Division, Department of Immigration and Border Protection

CHAIR: Welcome. Information on parliamentary privilege and the protection of witnesses and evidence has been provided to you. We have received your submission, which we have numbered 31. I remind committee members that the Senate has resolved that an officer of a department of the Commonwealth or a state or territory shall not be asked to give opinions on matters of policy and shall be given reasonable opportunities to refer questions to a superior officer or to a minister. This resolution prohibits only questions seeking opinions on matters of policy; it does not preclude questions asking for explanations of policies or factual questions about when and how policies were adopted or implemented. I particularly draw the attention of witness to an order of the Senate on 13 May 2009 specifying the process by which a claim of public interest immunity should be raised. Witnesses are specifically reminded that a statement that information or a document is confidential or consists of advice to government is not a statement that meets the requirements of the 2009 order. Instead witnesses are required to provide some specific indication of the harm to the public interest that could result from the disclosure of the information or the document. I now invite you to make a short opening statement. After you have spoken I will invite members of the committee to put questions to.

Mr Pezzullo : Chair, as you have just said, my department has made a supplementary submission to this committee to address a number of matters which have been raised since our last appearance. I do not propose to canvass those matters; they may well come up during the questioning process. However, since we last appeared before the committee my department and the former Australian Customs and Border Protection Service were amalgamated on 1 July 2015. On that date the Australian Border Force was established within the department as its operational enforcement arm. This process of integration included the creation of the office of Commissioner of the ABF under the Australian Border Force Act 2015. The former CEO of the Australian Customs and Border Protection Service, Mr Roman Quaedvlieg, who joins me at the table, has been sworn into that office by the Minister for Immigration and Border Protection, the Hon. Peter Dutton. Mr Quaedvlieg took up his duties as commissioner on 1 July 2015.

I would like to briefly address erroneous claims that have been made regarding the operation of part 6 of the Australian Border Force Act regarding secrecy and disclosure provisions. It is wrong to claim that the ABF Act is intended or will be used as an instrument to 'gag' lawful disclosures in the public interest regarding the operation of either offshore regional processing or in relation to the Australian immigration detention network. Such claims, if believed, might lead some of our employees and/or contractors to mistakenly believe that they are not able to report instances of alleged criminal activity or misconduct to appropriate authorities, when in fact not to do so would be an extremely serious matter leading to potentially serious consequences for any individual who failed to report such matters.

The relevant provisions do not under any circumstances prevent the disclosure of information where it is made as required or authorised by law, including if made in line with the Public Interest Disclosure Act 2013. In accordance with applicable pre-existing mandatory reporting regimes, contracted workers now caught by the ABF Act, including doctors, teachers and other professionals, have an unambiguous obligation to report certain incidents and concerns regarding alleged criminality and/or misconduct to appropriate authorities. Claims that the ABF Act will somehow prevent doctors and other health professionals in particular from meeting their own ethical obligations or from reporting instances or allegations of, for instance, child abuse under state and territory mandatory reporting regimes are simply untrue.

It is also wrong in law and in fact to assert that contractors have an unqualified right of disclosure to the media. Commonwealth law does not recognise such a purported right either by way of attachment to employment within a Commonwealth department or agency or through employment through a contractual relationship of some kind with the Commonwealth. Under the Crimes Act for instance it has never been permissible for Commonwealth employees or contractors to make 'personal records' of protected or sensitive information for an individual's 'own purposes' in derogation of their contractual duties and certainly not for the purposes of making unauthorised disclosures, including to the media.

In all cases where a Commonwealth employee or contractor believes that alleged misconduct, corruption or criminal activity is not being adequately addressed or dealt with the Public Interest Disclosure Act 2013 provides protections for those who might wish to make a disclosure outside of their management or command chain in the public interest. Such a disclosure would receive the protections of the Public Interest Disclosure Act 2013 subject to certain conditions, including that the discloser has exhausted relevant internal disclosure processes and that on balance the disclosure is not contrary to the public interest. No more information that is reasonably necessary to identify the wrongdoing may be disclosed. My officers have met with senior representatives of contracted service providers who work in support of the department as well as the governments of Nauru and Papua New Guinea in delivering support services to explain the relevant application of the ABF Act in these terms.

CHAIR: Thank you. We had a discussion at the earlier hearing about the lack of transparency about the actual costs associated with Nauru. You have answered questions on notice about some of those costs. As a quick matter of arithmetic, over a period of 10 months the expenditure per asylum seeker is in the order of $630,000. Is that a figure you (a) agree with and (b) are comfortable with?

Mr Pezzullo : In terms of whether I agree with it or not, I cannot do the numbers quickly in my head. If what you have done is to divide the quantum that we have put in our response to the questions on notice by the number of transferees on Nauru, if that arithmetic is correct I cannot disagree with your figuring. But until I get someone with a calculator to run the numbers myself, I am not in a position to agree or otherwise. As to whether I am comfortable with it or not, that is a function of whether we are discharging the implementation of the government's policy and doing it on a value-for-money basis. My contention is that we are—which is, no doubt, subject to the discussion we will have over the next hour or so. Is it lawful, ethical and value-for-money expenditure? Unless I get presented with evidence to the contrary the answer is yes.

CHAIR: I raise that extraordinary per capita expenditure because we as a committee have decided that there has not been proper transparency in acquitting taxpayers' funds by the lack of referral to the Public Works Committee. That is a matter that will be mentioned in our deliberations but it is a separate matter. If you are going to build something valued at $15 million, it should be referred to the Public Works Committee. We have had expenditure to the value of $630,000 per asylum seeker in 10 months. You are not disputing that that is correct?

Mr Pezzullo : As I said, subject to someone putting a calculator over the numbers I can only assume that—

CHAIR: It is not a figure that surprises you?

Mr Pezzullo : I cannot do the mental arithmetic in my head. On the question of the referral to the PWC, to the extent that public works are involved—the construction of facilities et cetera—I think it is the case that the PWC, in the last parliament, granted expediency and urgency in relation to the works. But as I think you well know the PWC itself—

CHAIR: If you are going to use that, you may as well read it all out. Expediency and urgency was granted—

Mr Pezzullo : In relation to construction I said.

CHAIR: and regular updates and regular communication and to bring future works to the Public Works Committee was also in that parliament. That is where you did not carry out the obligations that were in the first expediency motions.

Mr Pezzullo : If I have got business that I then need to close off with that committee, I will. But I was going to go on to say that that pertains to construction of facilities. I cannot do the numbers in my head, but I presume that the number you have divided per capita, per transferee, relates to services and the provision of security in garrison and other services which in the ordinary course of events would not be captured by the scope of the PWC. That is the only additional comment I was going to make.

CHAIR: I understand that. Anyway, we are happy to move right along. Senator Hanson-Young.

Senator HANSON-YOUNG: A number of questions on notice that this committee has put to the department are still outstanding. Are we going to get answers to those?

Mr Pezzullo : I must say that I am slightly surprised. My advice is that we returned all written responses to question on notice. That is a matter of fact. If I am wrong in asserting that, I apologise. But I was advised that all responses have been provided.

Senator HANSON-YOUNG: I think there were perhaps some given today.

Mr Pezzullo : I cannot swear by when they were delivered—and if they were delivered as late as today I do apologise—but my understanding is that there are no outstanding responses.

Senator HANSON-YOUNG: I want to go to the very core issue that we have had back and forth throughout this committee—and we saw it again this morning—and that is the two contractors and the constant passing of the buck in regard to who is in charge of what goes on in the facility and who ultimately has to take responsibility. Obviously we have got children who have been sexually assaulted and abused. Women are being assaulted and exploited in many ways in terms of trading access to their bodies or sex for access to amenities or substances. I do not think anyone in the public really cares at what level this is occurring, but they want to know who is going to take responsibility for it and that it will not happen again. When we look at the amount of money that is being spent on running these facilities, to use Joe Hockey's words it does not pass the sniff test to suggest that the Australian government is not ultimately responsible.

Mr Pezzullo : You are right to say that this subject has been backwards and forwards, so I apologise if some of the evidence I give will re-encapsulate what I have said before. But the first point stands unambiguously as the priority point: the practices, instances and incidents that, for instance, were revealed through the Moss report are abhorrent and should not be occurring. To take Mr Moss's report—although, as you know from evidence, he looked at a particular time period and there are other reports that have come to hand, as has been stated to you, in responses from Transfield and ourselves—those things should not be happening and there is no question about that. Let me just draw a line there: there are no ifs, buts or maybes.

I am not going to challenge your premise, but please allow me to put the alternative view. As has just been discussed, and as is apparent from the responses to the questions on notice, there are significant amounts of taxpayers' funds going into regional processing activities offshore, of which Nauru is the matter in focus. On the legal jurisdiction, particularly the criminal jurisdiction, does it immediately follow that it is within Australia's jurisdiction? I am sorry to say it in these terms—we are going to have to agree to disagree—but it does not logically follow. The jurisdiction in question is unambiguously that of the Nauruan criminal justice system—and no doubt we are going to explore various manifestations of that in follow-up questions so I will not say anything more than that. We do not exercise effective control in relation to legal authority and in relation to the punishment of perpetrators and their dealings through a fair and transparent process of criminal justice. That said, I will again draw a line. We have been doing—and Mr Moss made some excellent recommendations that assisted us to further improve what we are doing—everything possible to assist the Nauruan authorities in the discharge of their duties and responsibilities and we continue to do so.

Senator HANSON-YOUNG: I want to go to some specific incidents so that we can get some clarity about the process of taking some responsibility here. Firstly, the incident that has been referenced a number of times throughout this inquiry is the sexual assault of a minor in November 2013. It is the earliest incident that we have been given evidence around. We have heard from Save the Children that they knew about it. We have heard from a woman who first reported it. We have heard today from Wilson Security that they knew about it; despite saying in previous evidence that it was by a cleaner and therefore it was not that responsibility, they confirmed today that they did actually conduct the internal investigation. So they were made aware of it. And Transfield Services were made aware of it. All three of those contractors made it very clear that the department knew about that incident when it occurred and when it was first reported back in November 2013. I want to know from you, Mr Pezzullo, or anyone else at the table whether you can confirm that that is the case.

Mr Pezzullo : I will rely initially on advice from the deputy commissioner who runs our support services for regional processing. I am not sure that it has ever been our contention that this was not known to the department in November 2013, but I will just ask Ms Briscoe to add to that answer.

Ms Briscoe : I am advised that that incident was reported at the time, through the appropriate system, to the department. An investigation was conducted by the NPF and it was left in the hands of the NPF.

Senator HANSON-YOUNG: Why weren't the child and the family removed from that environment?

Ms Briscoe : Obviously there was welfare provided for the family and child, but there were also a range of interviews and conversations conducted with them. My understanding is that the mother decided not to progress that complaint any further and the treatment that was provided was according to their wishes.

Senator HANSON-YOUNG: A child was sexually assaulted by somebody who was employed in the detention centre and the department thought that it was okay for that child and family to have to remain in that detention facility?

Ms Briscoe : No, I would suggest not.

Senator HANSON-YOUNG: Your department is the only body throughout this entire cobweb of various people responsible that can decide who is detained and who is not detained in that facility. I want to know why the department decided to leave that child and their family in detention despite knowing that that child had been subjected to sexual abuse.

Ms Briscoe : The level of information I can provide, as I was not around at the time, is that there would have been a range of actions taken in accordance with our process. That may not have been Save the Children at the time; there may have been another provider. Welfare provision would have been provided to the family and a range of interviews held, including by the Nauruan Police Force. The end result was, as I had raised, that the family decided not to progress it any further.

Senator HANSON-YOUNG: The evidence given by the Save the Children staff who supported that family was that they were further harassed and bullied by other staff members, and were left inside the centre as a result of the fact that they had reported the abuse of their son. Of course, they would want their case dropped with the Nauruan police because they had been bullied into it. That is the evidence that has been given. That is what has been reported to your department, yet you left the family in detention.

Mr Pezzullo : The committee is going to have to decide how it balances the different, competing views. But I heard the exchanges earlier today and I have heard them previously. That is not a view necessarily accepted by any of the agencies or authorities who have come before you, including the employers of the person who was allegedly involved at the time. I do understand, and I absolutely accept that there are some former staff members or current staff members, in some case, or persons who have made submissions who contend that—

Senator HANSON-YOUNG: That was the evidence from the case manager.

Mr Pezzullo : I understand that. It does not necessarily mean that it itself cannot be challenged, contested or queried, because when you put that direct proposition to others, they say, 'That's not the evidence that we have' from their own management systems and their own internal systems. For you to assert—

Senator HANSON-YOUNG: No-one has actually refuted the evidence put forward by the case manager that the family continued to be bullied after a report—

Mr Pezzullo : I have heard the evidence and I understand that.

Senator HANSON-YOUNG: No-one has refuted it.

Mr Pezzullo : I understand that.

Senator HANSON-YOUNG: Unless you are today, Mr Pezzullo, in which case you would be the first person who has.

Mr Pezzullo : I am not in a position to refute things in relation to which I have no evidence. I have no evidence that that has occurred. I know the assertion has been made. I know that people probably believe that that is the truth. I do not deny any of that; I do not have any evidence to support the contention though.

Senator HANSON-YOUNG: Except that we know that family remain in detention, despite the fact that the child was sexually abused inside.

Mr Pezzullo : And you have heard from the deputy commissioner that welfare and follow-up activity was undertaken. There is one detention centre, so that is where they stayed. Whether they were moved to a different compound, whether they were moved around, is a matter of detail.

Senator HANSON-YOUNG: So you feel comfortable that a child who has been abused in a detention centre remains in that facility? If that is the policy, that is the policy.

Mr Pezzullo : I do not feel comfortable about anyone being abused. You have to manage the environment we have. If people have done the wrong thing, they need to be disciplined within their management chain. I have heard the evidence from Transfield and Wilsons to that effect, not just in this case but in other cases as well, and the Nauruan police need to do their job as well. We are there to support them both.

CHAIR: We have just heard from a former Chief Justice and QC that the Nauruan police, when called to an alleged assault of some asylum seekers, came around and arrested the asylum seekers.

Mr Pezzullo : Sorry, I have just heard that. The committee has heard evidence; I did not hear the evidence.

CHAIR: I will tell you what the evidence was. The former Chief Justice and QC, Mr Eames, gave evidence immediately before you that the Nauruan police were called to the alleged assault of some asylum seekers by local Nauruan residents. When they got there, they arrested the asylum seekers, the ones who had complained about having been assaulted. You are saying to us that when you investigated all of these things, you had full confidence in the Nauruan Police Force—is that what you are telling us?

Mr Pezzullo : In relation to the matter that the previous witness—

CHAIR: I am not asking you to comment on it. I am just saying that is what he told us. You said earlier that we need to balance the evidence before us. The evidence before us is that when some people complained about being assaulted, they ended up being arrested by the Nauruan police. The question before you is: you have referred to the Nauruan police this alleged sexual assault and your department is confident that they are dealing with it—is that your proposition?

Mr Pezzullo : In relation to the matter that was previously contended in evidence and in relation to this matter, all we can do is make relevant inquiries and speak to the Nauruan police, and get an update from them as to where they are with their proceedings. Whether, in the first instance, asylum seekers were arrested or not, I have no basis for knowing either way.

CHAIR: No, I am not asking you to comment on that. The question to you is: you need to make a judgement as to whether you leave a child who has allegedly been sexually assaulted in detention and you need to make an assessment of those facts. One of the assessments you need to make is: is the Nauruan Police Force competent and doing its job? And if you are satisfied then you should put that on the record because we heard contrary evidence earlier in the day.

Mr Pezzullo : All I can say in relation to that is: unless and until we put those matters specifically to our colleagues in Nauru, I have no basis for engaging in how a particular matter was dealt with unless I understand what the Nauruan authorities did in each and every case. You ask me about my general level—

CHAIR: What is your view, deputy commissioner?

Ms Briscoe : I said it was referred to the Nauruan police. I think it is important to note that in terms of care and wellbeing of that child or any other child, there are regular forums, weekly forums and daily forums, that take place that deal with people who have suffered some sort of trauma or are ill. There is a range of forums where service providers and experts discuss each case and they would have continued to discuss this particular case—

Senator HANSON-YOUNG: Which is the evidence we have before us. The case manager raised very serious concerns about this family being left in the facility because they were subjected to further bullying because they reported the abuse in the first place. I want to know what the department did when you received that information. The evidence we have is that the child and the family remained in detention. You have confirmed they have remained in detention, but you have not told me what you have done as a result of the further investigation and reports that the family continued to be subjected to abuse.

Ms Briscoe : On this particular case, I do not have that detail of what went on. I am talking generally about the process. It would have been discussed at daily meetings about vulnerable people. The caseworker is just one person who would be sitting at that table; there would be a range of other people sitting at the table. On balance, they would make a decision about the care of the child or an adult, if it is an adult.

Senator HANSON-YOUNG: How many cases of child abuse and/or assault is department aware of that has occurred into inside the detention centre in Nauru?

Ms Briscoe : I will ask one of my staff to assist.

Ms Moy : In terms of sexual assaults against minors there have been 15 reported.

Senator HANSON-YOUNG: To the department?

Ms Moy : Correct.

Senator HANSON-YOUNG: Which is in stark contrast to the number that has been given to us by Transfield Services.

Ms Moy : Across what period?

Senator HANSON-YOUNG: Across the last 18 months.

Ms Moy : Okay. We are looking at from 14 September 2012 to 30 June 2015. I think you will find that the numbers that Transfield provided included all types of assaults against children.

Senator HANSON-YOUNG: They gave those figures. Also, in their own table, they gave 30 cases of what they described as child abuse involving staff and another 37 involving other asylum seekers. That is 67 cases.

Ms Moy : Your question previously to me was about sexual assault. I am saying in terms of sexual assault against minors, it was 15.

Senator HANSON-YOUNG: So you believe that all the incidents that Transfield have in their reports to us have all been reported to the department?

Ms Moy : Through the normal incident reporting—

Senator HANSON-YOUNG: You would be aware of all of them?

Ms Moy : Yes.

Senator HANSON-YOUNG: In effectively real time; the moment that they are reported?

Ms Moy : Not necessarily the moment they are reported, but they are reported with regularity through to the department.

Senator HANSON-YOUNG: I want to use this as a very specific example: the child who was abused in November 2013. Is there any reason that the department did not refer that to Comcare?

Ms Moy : To report the sexual assaults to Comcare?

Senator HANSON-YOUNG: As all serious incidents are meant to be?

Ms Moy : I would have to talk to my legal people in regard to whether Comcare applies to (a) the individual who may have been the perpetrator and (b) the contract that we have for provision of the services.

Senator HANSON-YOUNG: You do not know?

Ms Moy : I specifically do not know because I do not carry the legal work.

Senator HANSON-YOUNG: Mr Pezzullo, do you have someone who could answer that?

Mr Pezzullo : Possibly.

Senator HANSON-YOUNG: Previous evidence to this committee and to the Legal and Constitutional Affairs References Committee is that all of those incidents should, as a matter of course, be referred to Comcare.

Mr Pezzullo : I will see if the acting chief operating officer either knows off the top of her head or can rely upon an officer in the room, otherwise we will have to take it on notice.

Ms Dorrington : I will find out.

Senator HANSON-YOUNG: There is another case that I was asking Transfield and Wilsons about today and that is in relation to a seven-year-old child and the report of sexual abuse of that child in February this year—so since the Moss inquiry. I want to know whether the department considered removing that child from the detention facility.

Mr Pezzullo : I do not know. I would rely upon the deputy commissioner and her officers.

Ms Moy : In terms of the report of the seven-year-old, it is very difficult when we do not use specifics to identify individuals. There was a—

Senator HANSON-YOUNG: A seven-year-old girl in February.

Ms Moy : Yes. There was a report in February. I understand, that the Nauru police investigation has been finalised and closed, and that there was insufficient evidence.

Senator HANSON-YOUNG: So insufficient evidence, no-one has been charged and the child remains in immigration detention?

Ms Moy : This is a matter for the Nauruan Police Force, but the information I have received is that the evidence was not available, that there was no evidence to pursue the charge.

Senator HANSON-YOUNG: Did the Nauru police interview Save the Children workers who worked with this child?

Ms Moy : I could not tell you whether they interviewed Save the Children.

Senator HANSON-YOUNG: I can tell you they did not. That is the evidence we have been given. Do you think that is appropriate? Do you think that is a proper, thorough investigation by the Nauruan police, not to interview the people who were engaged with this child?

Ms Moy : In terms of an individual situation, it is not for me to determine who should be interviewed in an individual investigation.

Senator HANSON-YOUNG: Who would the Nauruan police normally interview in order to get evidence about the abuse of a child in the detention centre?

Ms Moy : That would be a matter for the Nauruan police.

Senator HANSON-YOUNG: You have given me 15 cases of sexual assault of children that the department knows about. I assume you have reported all 15 of those to the Nauruan police.

Ms Moy : The 15 allegations are with the Nauruan police, correct.

Senator HANSON-YOUNG: So out of those 15 cases, you do not know what happens then? You cannot tell me whether the Nauruan police go in and interview staff in the facility, interview other asylum seekers who might be involved and interview caseworkers? What is the process for the Nauruan police to investigate?

Ms Moy : The Nauruan police are responsible for the investigation. I do not determine who they will interview.

Senator HANSON-YOUNG: I am not suggesting that. I am asking what you know about the process.

Ms Moy : I would suggest that they would interview those people—

Senator HANSON-YOUNG: Do you know that or are you suggesting that? We are trying to gather as much evidence as possible. We have heard from numerous witnesses that the Nauru Police Force are not able to do this job sufficiently. I am trying to work out whether there is enough evidence to support that claim.

Ms Moy : As I originally said, the investigation of the Nauru police is a matter for the Nauruan police that they do with the government—

Senator HANSON-YOUNG: It is the Australian immigration department's detention centre, and they are your reports—15 cases of sexual assault.

Ms Moy : And the government—

CHAIR: Perhaps I could intervene there. If there was an allegation of sexual assault in a detention centre in Australia and you notified the relevant state police force there would be a normal interaction there: you would get feedback; you would get some sort of report. The problem has happened in a detention centre in Australia—

Mr Quaedvlieg : Perhaps I can assist. I make no comment in relation to any specific knowledge of the competency or otherwise of the Nauruan police force—

CHAIR: I am not asking you to do that; I am asking you about an Australian—

Mr Quaedvlieg : I understand. I just want to set the context. I will be visiting Nauru very shortly, in the next couple of days, and I will make an assessment of my own. In relation to your earlier comment, the decision by the Nauru police force in relation to what it does on that public disorder event—

CHAIR: I did not ask you that question. And, with respect, if you just want to get through until six o'clock, or a quarter to, you could just try to answer the questions I ask you. And the question I am asking you, which you have taken, is: in the event that there is a sexual assault in an Australian detention centre in Australia and you notify a state or federal police force, what steps then follow?

Mr Quaedvlieg : The response I was going to give is that it is the same process as it is with our relationship with the Nauru police force. It is an independent police force. Whether it is a state or territory police onshore or whether it is the Nauruan police force, they have their own autonomous, independent decision-making and investigative processes. For every investigation—and sexual assault investigations in particular are extraordinarily sensitive and complex—decisions will be made in the course of initial triaging and assessment. Many people may be interviewed, or few people may be interviewed. Decisions will be made in the course of a sequence of statements that are taken, and at some point or other a decision will be made as to whether to continue or to discontinue an investigation. We do not expect—it is not within the conduct or the context of memoranda or understanding with domestic police services nor of the Nauruan police force—to be apprised of every step of their investigations.

CHAIR: But you are advised of whether a case is found?

Mr Quaedvlieg : That is correct; absolutely.

CHAIR: Have any cases been found in Nauru?

Mr Quaedvlieg : Yes. In fact, five charges have been laid in relation to sexual assault complaints by the Nauruan police force.

CHAIR: And they have all proceeded to court?

Mr Quaedvlieg : Four are still currently before the courts. One has resulted in a conviction and a sentencing.

CHAIR: Why are four still before the courts? Is that because there is a lag in—

Mr Quaedvlieg : They are still proceeding through the judicial system.

Senator HANSON-YOUNG: I am concerned that there are 15 cases of sexual assault, that the department is well aware of, involving children. Unless I am missing something here, it seems as though the position of the department is to not really act in removing that child or doing things to make that child safe until there is some type of conviction through the Nauruan justice system. Is that correct? Am I reading this wrong?

Ms Moy : It is incorrect. As Deputy Commissioner Briscoe mentioned earlier, when there is an allegation of an assault against a child the service providers come together and manage that very closely. There is no view that it is left to be managed after a charge is found.

Senator HANSON-YOUNG: Why, then, was a child who was sexually abused in November 2013 and then subject to further harassment and bullying left in the detention centre? And why now is a seven-year-old girl being left in immigration detention after what you said was insufficient evidence? When do you decide to act around safety concerns?

Ms Moy : Regarding the individual child in November 2013, as Deputy Commissioner Briscoe mentioned, there were a number of discussions with the family, and there are a number of considerations. So, the considerations of the family and of the parents as well as the considerations of service providers are all taken into account. The parent in that instance and the child requested to stay where they were, so there was no move to move them.

Senator HANSON-YOUNG: So, there was a suggestion that they could be released from the detention centre.

Ms Moy : No, I was not talking about releasing; I was talking about—

Senator HANSON-YOUNG: Where would they be put, then? A different tent, or—

Ms Briscoe : One of the options open to us in these instances and other instances, not just cases of children, is movement into another managed accommodation area—what is called RPC1. There are instances in which, as a result of medical issues or assault or some sort of conflict, people have been moved into RPC1. Those decisions are taken at the meetings I referred to earlier.

Senator HANSON-YOUNG: What about this seven-year-old child who remains in immigration detention today despite witnesses seeing her sexually abused in February? Why does she remain in immigration detention? What have you done to act in terms of safety concerns for her?

Ms Moy : In terms of individual cases, as I mentioned earlier, service providers and—

Senator HANSON-YOUNG: I want to know specifically around this young girl. We keep hearing these general statements, and unless we get down to specifics there is no real sense of how things operate. There are all these general sentiments, but when it gets down to the ground they do not seem to actually constitute.

Ms Moy : Within a committee arrangement it is very difficult to talk about individual children particularly. We go to great lengths to ensure that children are not identified when we are discussing any of their cases. So it is very, very difficult to give you specific information about an individual child and their treatment plan—

Senator HANSON-YOUNG: I did not ask you to identify her. I asked why she remains in immigration detention, or what you have done to secure her safety. All you have told me is that there is not enough evidence to have the perpetrator charged and convicted. That is all I have been told. Surely the department has more concern for her safety than that.

Ms Moy : The information we have received is that there is no evidence of an assault.

Senator HANSON-YOUNG: You said there was not sufficient evidence.

Ms Moy : That is correct. There is no sufficient evidence, so—

Senator HANSON-YOUNG: So, you do not believe that she was assaulted?

Ms Moy : That is not what I said; what I said was—

Senator HANSON-YOUNG: I am trying to work out whether you have acted in relation to the safety concerns for this child or not. You do not seem to be able to answer that question.

Ms Moy : We take it very, very seriously and we act on the safety concerns of every child.

Senator HANSON-YOUNG: Well, what have you done? What have you done to secure the safety of this seven-year-old girl?

Ms Moy : In terms of this specific child I would probably need to provide it on notice—to tell you exactly what we did through every part of the pathway, but at the end of the day we would have to do that in a way that did not identify in any way that particular child.

CHAIR: Did we have any joy on the application of Comcare in this circumstance—where there is a duty of care of the department?

Mr Pezzullo : Possibly we have joy.

Ms Dorrington : Yes, we have confirmed that we do have reporting requirements, but we are just checking on whether those actual matters have been reported or not, as a matter of fact.

CHAIR: So the simple referral to the Nauruan police is not sufficient action by the department. You may have an obligation under Comcare.

Senator HANSON-YOUNG: They are saying they do have reporting requirements under Comcare.

CHAIR: Is that your understanding, Ms Moy? You have an understanding that—

Ms Moy : Yes, as per Ms Dorrington's—

CHAIR: So I suppose then the question becomes: what action have you taken under Comcare?

Ms Moy : I will have to take that on notice.

CHAIR: So, the answer is that you do not know?

Ms Moy : I do not specifically know, and I do not know whether there is someone here who can actually provide that information.

CHAIR: Do you know whether anybody has taken action under the Comcare act to secure—

Mr Pezzullo : I think the short answer would be that it would not be separate action; it would be completely dysfunctional and unworkable. First Assistant Secretary Moy has taken on notice the specifics that will describe the transferees—the seven-year-old girl. So, we will look at that in specifics. But, as Moss found and as has been our evidence previously, this has to be done consultatively, because there are Nauruan police issues. The Nauruans run the centres. They have operations managers. The Commonwealth has its own responsibilities in terms of the services that are procured. I know Senator Hanson-Young describes it as a cobweb, and I know she is not doing that pejoratively. But it is complicated; you have multiple jurisdictions at play.

Senator HANSON-YOUNG: I tried to come up with the most pleasant description.

Mr Pezzullo : I understand that. It is certainly complicated.

CHAIR: But it cannot be that complicated that we are spending $1.2 billion over 20 months, we have a police force which—I accept your commissioner's assessment—is independent and does its job. We have Comcare, which applies. And all we are asking, with that enormous amount of taxpayers funds being expended, is that we can be absolutely sure that someone who has been assaulted is being properly looked after. I do not think that is extraordinary. I think it is extraordinary that you cannot satisfy us here today; that is what is extraordinary.

Mr Pezzullo : Until the officer looks at the particular case, what was decided in February when the initial incident report arose, what the managers on the ground decided in terms of the girl's placement and her family's placement—until we look at those facts specifically we are not in a position to give you a specific answer.

Senator HANSON-YOUNG: I am surprised that we cannot have any more information on the previous case of November 2013 considering that that has been a very well-documented incident throughout this entire process. There is no-one here who can tell me whether it was referred to Comcare or not, and the information I have is that it was not, but I would like to know whether that is the case.

Mr Pezzullo : I think Deputy Commissioner Briscoe said—and she will correct me if I have misheard her evidence—that there were discussions at the time of the initial incident: with the family, between welfare officers and the family. It is probably the case that there are always going to be different views about whether to move someone into RPC1, whether to move them into managed accommodation, whether to leave them in particular parts of the compound. If your question, going back to the November 13 matter, is whether any consideration was given to the release from detention as opposed to a differential placement within the centre, that is a matter of fact that we will have to look at. But generally speaking our agreement with the government of Nauru is that we will support them in the maintenance of transferees in the regional processing centre pending their determination as refugees or otherwise.

Senator HANSON-YOUNG: As a matter of policy or procedure, is it even a consideration that a child who is subjected to abuse or assault would be released from detention? Or is it that, 'No, that child has to stay in detention; it is just about whether they're in this tent or that tent or this part of the OPC or that part of the OPC'?

Mr Pezzullo : The regional processing nodes, or compounds, are separated off, so there are discussions about where people are placed and—

Senator HANSON-YOUNG: Maybe I am not being clear. I am thinking about this from a very practical perspective. If my child had been abused in detention, why the hell would I want to stay there? Why would I want my child to stay there? If I was given the option to be released from detention, surely you would take that? I want to know whether that is even an option.

Mr Pezzullo : We have moved to an open centre arrangement, so it might be that time has changed this, but certainly I do not believe that in November 2013 that would have been an option, but we will look at that specifically.

CHAIR: In the interests of managing the time we have, Senator Hanson-Young—

Senator HANSON-YOUNG: In relation to those Comcare questions, I obviously want the answer specifically around the November 13 matter—why that was not reported to Comcare. But I also want to know, out of these other 15 assaults that have been referenced, whether any of those have been reported to Comcare as well.

CHAIR: Perhaps I can get an indication from other senators—

Senator LUDLAM: I have some questions relating to incidents in which my colleague Senator Hanson-Young was surveilled by Wilson Security staff at the end of 2013. My understanding is that Senator Hanson-Young has to notify the department if she wants to travel to visit the detention centre. She has indicated that she would have done that a week or two before her planned visit. Is that the normal process?

Mr Pezzullo : It stands to reason that it is. As to whether it was a week or whether the senator gave us more or less notice, I just do not know. Perhaps Mr Skill can add to that.

Senator LUDLAM: If you have got it exactly, that would help, but it was within a couple of weeks that you were notified that her visit was intended?

Mr Skill : I do not have the date that the centre, or the locale, was notified of Senator Hanson-Young's visit. I do know it was in advance of the visit, though, because I believe we actually arranged for an escort officer to go with Senator Hanson-Young from the department.

Senator LUDLAM: That was for the on-site visit?

Mr Skill : The visit to Nauru, yes.

Senator LUDLAM: So the notification goes to the department and the department then notifies Transfield and/or Wilson Security? What is the chain of communication?

Mr Skill : Generally what would occur—and this may not have been exactly what happened in the circumstances—is that the senator would write to the minister's office and get approval from the minister's office, and then we as a department would be tasked with facilitating arrangements on the ground, meetings and the like and access to the centres. We would pass that through to the Nauru operations managers on the ground, and they would then work with the stakeholders on the ground in relation to who is coming and the timing of the visit and so forth.

Senator LUDLAM: I do not expect you to have this information at the table, but could you take on notice for us when that key communication happened between the departmental officers and those on the ground?

Mr Skill : Certainly. We can take that on notice.

Senator LUDLAM: Were there any special instructions that came either from the department or from the minister's office relating to Senator Hanson-Young above and beyond any other high-profile visitor that you would normally be notified of?

Mr Skill : As you may be aware, Senator, as a result of the media allegations that came out around the surveilling of Senator Hanson-Young, I undertook a fairly comprehensive review of information that was around et cetera. I have not been able to identify anything at the time that was over and above standard visit processes. There was nothing that stuck out in my mind, but I am happy to take that on notice and just confirm whether or not there was anything over and above.

Senator LUDLAM: Thanks. I would appreciate that undertaking—whether any particular guidance came from the minister's office above and beyond if it was a visit from a journalist or someone from Amnesty International or somebody else who might have a different view, for example—either from the minister's office or whether yourself or whoever was in charge within the department of making that communication back to the contractors on site.

Mr Skill : I will certainly confirm what was the content of any advice to the contractors on the ground and if there was anything from the minister's office. I would have to check. As you know, it was a while ago. So we can confirm that.

Senator LUDLAM: Yes, it was, because none of this was disclosed at the time. So it is not our fault that this is all unfolding 18 months later. So there were no specific instructions to security or to the subcontractors that you are aware of. For the sake of the record, can I just confirm that neither the department nor the minister instructed Transfield or anybody else to surveil the senator while she was on Nauru?

Mr Skill : You can definitely confirm that we did not and we have no record of anybody being instructed to do so from the department or the government or the minister's office.

Senator LUDLAM: We have got a file note that was provided to the committee on Friday, which I am presuming you have either got with you or have seen, which relates to the specific officers on site—the instructions, the action that the supervisor took the morning after this specific subset of the allegations are said to have occurred.

Mr Pezzullo : Perhaps Mr Skill has, but I have not seen any such file note. Obviously the committee has got it. Could you just assist me—who is the noter, or the recorder, if that is available to the committee? And is it contemporaneously related to these events?

Senator LUDLAM: Yes, it is. It might assist if you have actually got a copy. I wonder whether the secretariat might undertake to get that to you.

Mr Pezzullo : I cannot say that I am conversant with all of the documents that—

Senator LUDLAM: That is reasonable. If it had not been provided to you, I will not attempt to quiz you on it. We will see if we can get you a copy.

Mr Pezzullo : I dare say some of my officers have probably seen it.

Senator LUDLAM: Let us just come back to basics, though. There were no forward instructions from the department or the minister's office that you are able to tell us about, so when were you first notified that in fact an Australian senator had been surveilled on the island by Wilson Security staff?

Mr Skill : Consistent with the advice that the secretary gave at the last hearing, the first we knew about it as a department was when the media reporting commenced and when Wilsons provided information at the last hearing.

Senator LUDLAM: They rebutted a large part of the allegations and said it never happened, that this person apparently just made up a bunch of it. But nonetheless what we do have on file is extremely significant. When you went back to examine the records at the time—and I appreciate that you have done that—did you unearth anything that the department had on file from the time?

Mr Skill : Nothing at all. There were no records at all in the department of anything being reported or discussed in relation to surveillance of Senator Hanson-Young. The first we heard about that was, as the secretary said, when the media reporting occurred.

Senator LUDLAM: That is remarkable. So not even the contractor had it? It never left the subcontractor's office as far as you are aware?

Mr Skill : I can say that I have spoken to the senior immigration officers that were on the island at the time and neither of those were informed of the incident or of any planning or of any scenarios such as Senator Hanson-Young—

Senator LUDLAM: Have you invited your contractors or subcontractors to amend their procedures to ensure that that kind of thing would be brought to your attention in the future?

Mr Skill : It certainly has been the subject of robust discussions between myself and Transfield, who are our contractor.

Senator LUDLAM: What are the outcomes of those robust discussions?

Mr Skill : Based on information you have got with regards to the file note et cetera, Wilson accepted or acknowledged that it was inappropriate or unwise for them to have taken the position that they did in not reporting the incident to anybody. They did deal with it in internally. We are satisfied on the investigations that I have undertaken that Wilson did act appropriately after the fact. However, I have certainly given very strong verbal instructions to Transfield in relation to this sort of activity. They are under no illusion that it is not to happen again.

Senator LUDLAM: Would you consider it a breach of their contract?

Mr Skill : I would have to look at the performance reporting aspect. It could well be considered a failure in relation to one of the KPIs in relation to incident reporting.

Senator LUDLAM: That is one way of putting it. That all sounded very vague. I am trying to ascertain whether anything has materially changed.

Mr Skill : In relation to activities on the ground?

Senator LUDLAM: Yes, in relation to the activities on the ground. Are journalists followed around? Are human rights observers followed around? How would we know if it was happening other than having file notes buried in a filing cabinet within Wilson Security?

Mr Skill : What I can say is that in recent months—and I would have to confirm the date—there has been a significant improvement in relation to the operational planning documentation, particularly with regards to visiting dignitaries, MPs, senators, ministers and so on that planning documentation is comprehensive and it goes to roles and responsibilities and also to risk assessments around the visits and potential disruption in the centres. I am confident that that documentation and that suite of procedures can make it very clear to people on the ground as to what is and what is not acceptable. I am confident it cannot happen again.

Senator LUDLAM: Do you happen to have at hand the dates when that material was brought to your attention? I mean specifically submission No. 62 to this committee, where allegations that are quite expansive relative to what has been disclosed in the file note, which involves surveillance of the vehicle parked overnight. Do you have to hand what date you were made aware of that?

Mr Skill : It was the same date as the media reporting. I understand it was in Wilson's response to that submission.

Senator LUDLAM: Do you have the date at hand?

Mr Skill : It was 4 June 2015.

Senator LUDLAM: What actions did you take when the allegations raised in that submission were brought to light? What did you do?

Mr Skill : There was quite a flurry of activity.

Senator LUDLAM: Just describe the flurry if you could.

Mr Skill : I was very quickly instructed to make contact with Transfield to ascertain the veracity of the claims and to find out what occurred, when the department may or may not have been notified, who was aware of it, what happened and to provide that information as quickly as we could.

Senator LUDLAM: Did you identify that there was a discrepancy between what Wilson Security acknowledged had occurred and what the submitter in submission 62 had alleged?

Mr Skill : It was quite quickly apparent that Wilson's information in relation to the issue was disparate from the submission. The submission, as you have said, went to very broad allegations, and the advice we got from Wilson via Transfield—again I say Transfield is our contractor, not Wilson—was that the vehicle was monitored overnight and that there was no surveillance of Senator Hanson-Young.

Senator LUDLAM: They have only been willing to acknowledge, I would say, a subset of the allegations that are contained in submission 62.

Mr Skill : They have confirmed what their recollection and their records indicated occurred.

Senator LUDLAM: But you still consider that it is extremely significant that a senator's vehicle was monitored, even if that is all that did occur—and there is plenty of evidence that suggests that a lot more occurred than that. You would still consider that to be a very significant breach?

Mr Skill : I would consider that to be a reportable incident, yes.

Senator LUDLAM: Thanks. So when Minister Dutton—

Mr Pezzullo : Sorry, Senator.

Senator LUDLAM: Yes, go ahead, Secretary.

Mr Pezzullo : Can I add that I gave evidence on this previously but I am not sure that you were present.

Senator LUDLAM: No, I was not.

Mr Pezzullo : But, for the sake of clarity, I stated in evidence—I will paraphrase my own evidence—that I found it completely unacceptable and that, had senior management in the department been advised of any such planned operation, they would have killed it within a nanosecond, I think I said.

Senator LUDLAM: It sounds like the department made at least some attempt at some due diligence, and it appears to me that the minister did not, because Minister Dutton went out to the press on 5 June and said:


referring to Senator Hanson-Young—

makes these allegations which are completely unfounded.

That was at least 24 hours after you had gone and done some due diligence and identified that they were not at all unfounded.

Mr Pezzullo : Senator, I have no—

Senator LUDLAM: Sorry, I was not quite finished.

Mr Pezzullo : My apologies.

Senator LUDLAM: Had you communicated to the minister the results of the flurry that Mr Skill is referring to? Was the minister aware that you had actually gone back and validated some of the allegations?

Mr Pezzullo : He was certainly aware of the evidence that I gave, because I spoke to him about it after the event. I do not know what was in his mind or what his state of knowledge was—did you say on 5 June?

Senator LUDLAM: After the flurry—after the department had gone back and validated what had occurred.

Mr Pezzullo : I think Mr Skill said that he became aware of these matters on 4 June.

Senator LUDLAM: Correct. The following day, the minister goes out and tells the press corps that nothing has happened—that the allegations are baseless.

Mr Pezzullo : Unless I reconstruct the sequence of events—and the minister can speak for himself on this—I do not think Mr Skill—

Senator LUDLAM: Well, he is not here. We cannot call him.

Mr Pezzullo : Say again?

Senator LUDLAM: He is not here.

Mr Pezzullo : Indeed. I do not know if Mr Skill worked through the night and had all relevant facts back to me by the fifth. I was the one who gave the instruction to get to the bottom of this, because the first I became aware of it was—as I recall it, and I stand to be corrected, the media reporting was off the back of the submission, I think, to this inquiry. I might have that wrong, and I apologise if I do. I certainly gave, at our daily coordination meeting, instructions to the effect of: 'Get to the bottom of this. If this has happened, it would not be acceptable.' Hence the focus and ferocity that Mr Skill brought to the task. But I am not sure—I would have to check the records—that all of that activity was concluded by the morning of 5 June.

Senator LUDLAM: Had you briefed the minister before he went out and fronted the press gallery?

Mr Pezzullo : On this particular matter?

Senator LUDLAM: Yes, on this particular matter.

Mr Pezzullo : I do not particularly recall.

Senator LUDLAM: Would you agree that that is reasonably significant for us to ascertain before a minister of the Crown goes out and impugns the reputation of a senator and says that allegations are completely—

Mr Pezzullo : Well, I am not going to accept—

Senator LUDLAM: Had you briefed him before his press conference?

Mr Pezzullo : I have not seen the transcript. I do not know whether he was impugning anyone.

Senator LUDLAM: How much of it would you like me to read to you?

Mr Pezzullo : You can read it all if you like. But, in terms of what contemporaneously happened on 4 and 5 June, I would have to refresh my own records of when I spoke to the minister, when Mr Skill was commissioned to do his work and when—sort of tactical—what we call a hot issues briefing was provided to the officer. I would have to reconstruct all of that. I am not going to make any assumptions. You can read the whole transcript if you wish.

Senator LUDLAM: Did you not expect that this issue would come up today?

Mr Pezzullo : There are lots of issues that potentially could come up.

Senator LUDLAM: There really are, aren't there? Could I ask you, then, to take it on notice. I think you are making that undertaking. I would like to know whether Minister Dutton was briefed or whether he was just making stuff up. I think that is reasonably useful for us to know.

Mr Pezzullo : Through you, Chair, I am not going to take on notice—

CHAIR: The question is quite clear: did you brief the minister prior to his statement?

Mr Pezzullo : Yes, but the other flip of that was 'whether he was just making stuff up'. We will get the factual—

CHAIR: That is not the question. We are only asking if you—

Mr Pezzullo : We will provide factual evidence on notice to the committee, and the committee can make its own mind up about what has happened here.

CHAIR: I think it is fairly clear. The time line is: did you brief the minister on Mr Skill's investigation prior to—

Mr Pezzullo : We will take that factual sequence on notice, thank you.

Senator LUDLAM: The department appears to have known well before Minister Dutton went out—the day before, when submission 62 came to light with very serious allegations. Do you consider that you have—

Mr Pezzullo : I am sorry I am interrupting you, but when you say 'the department was aware' I am not sure that is right. We were aware that serious matters had arisen in a submission, I think, to this inquiry, which then resulted in a press report, I think, on the morning of the fourth. If I have that wrong, I will check.

Senator LUDLAM: That sounds about right.

Mr Pezzullo : But that is not conclusive. Just because the press reports that the senator was surveilled does not mean that that is conclusive.

Senator LUDLAM: Mr Skill went into quite a bit of detail about the calls that he made and the attempts that he made to validate what did or did not occur.

Mr Pezzullo : Yes, that was all at my direction. I recall not quite the exact sequence, but I recall the profundity of the matter, yes.

Senator LUDLAM: You are doing this on behalf of a minister, who is then making quite serious public statements.

Mr Pezzullo : You say I am doing it on behalf of the minister. I am not disassociating myself from that statement, but in the first instance I am doing it on behalf of: what has my department done, what have my officers done and were we party to this? If it is true, it is completely unacceptable. I wanted to get to those facts.

Senator LUDLAM: How important is communicating facts to the minister before he goes out and says stuff on—

Mr Pezzullo : It is part of our daily bread and butter. As I said, we will reconstruct the chronology. The chair has assisted me with my understanding of the point that I took on notice. We will come back with a historical record.

CHAIR: Senator Ludlam, could we bring this section to a close. We really do need to go to—

Senator LUDLAM: My final question is whether Mr Skill actually wrote a briefing, a file note or any document around the conclusions that you came to. If so, could that be provided to the committee?

Mr Skill : I have not done a formal briefing as to the conclusions of the investigation. I did provide some contributions to a hot issues brief that was provided. I want to go back to your statement that the department knew all about what was going on. In my recollection, it was late on 4 June when we were tasked—when that was released by the committee. There were a number of phone calls and a number of initial inquiries that I made that evening. I then followed up the following day and also over the weekend—the ensuing days—to try to get to the bottom of what had occurred. What would have been included in a hot issues brief—as is the standard inclusion in a hot issues brief—is the information that is to hand at that time. It is quite clear in the hot issues briefing that things can evolve. That is the purpose of the hot issues brief.

Senator LUDLAM: There is a difference between black and white. The minister went out said there was no substance, that it was completely unfounded. Quite clearly, well before he went out and said that, the department knew that it was not completely unfounded—that there was evidence within submission 62, and evidence that Wilson Security had in a filing cabinet that they had not provided to anybody up to that time, that the allegations were not completely unfounded at all. So the question is whether the information you had was provided to the minister before he went out and opened his mouth on TV. That is all I am after.

CHAIR: On that point, we will move to Senator Carr.

Senator KIM CARR: I take it the acting deputy secretary has some other information to report.

Ms Dorrington : I do.

Senator KIM CARR: Do you want to take that before I start?

Ms Dorrington : I can advise that under the Work Health and Safety Act 2011 there are certain notifiable incidents. These include serious injury or illness, death and a dangerous incident—for example, a fire or an explosion. A child at risk of physical harm is not listed as a notifiable incident. A child admitted to hospital would be notifiable. As I understand it today—and I will get these matters clarified and give you a more fulsome response on notice—no such incident in relation to children has been referred. But, as I say, for completeness I will take the question away and I will go through those matters one by one and give you a more fulsome reply.

CHAIR: A pertinent fact there is that a child at risk of physical harm is not a notifiable incident.

Ms Dorrington : That is correct.

Senator KIM CARR: Mr Pezzullo, there is an asylum seeker vessel reported to be off Dampier. Is that correct?

Mr Pezzullo : I have no comment on operational matters.

Senator KIM CARR: So you are aware of the report?

Mr Pezzullo : I am aware of the media report, yes.

Senator KIM CARR: And you do not want to comment on it?

Mr Pezzullo : No.

Senator KIM CARR: The Moss review clearly identified a number of matters of grave concern. You have indicated that you have accepted 19 of the Moss review's recommendations and that 13 of these recommendations are now complete, with the remaining recommendations—2, 5, 6, 9, 16 and 17—to be completed in the coming weeks. The bulk of those matters—2, 5, 6, 9, 16 and 17—relate to relations with Nauru.

Mr Pezzullo : I cannot remember the right number.

Senator KIM CARR: Well, I could detail them for you if you like.

Mr Pezzullo : Some or all—

Senator KIM CARR: Given the time, that is my summary of the recommendations with one exception, and that is that you, as a department, undertake a further review of the actions in regard to Save the Children.

Mr Pezzullo : I believe that is No. 9, as I recall.

Senator KIM CARR: The rest of them are all relating to Nauru, improving processes—

Mr Pezzullo : I think that is right. I will just make sure that I am not misspeaking. No. 9 has a relationship to certain actions taken by the government of Nauru, but it is principally about matters that sit with the department.

Senator KIM CARR: All right. I will come back to the Nauru matters. In particular, on the decision to appoint Christopher Doogan to conduct the review, has that been concluded?

Mr Pezzullo : Yes.

Senator KIM CARR: Have the terms of reference been released?

Mr Pezzullo : Publicly, I do not think so. I will just ask Ms Dorrington, who is both the acting Chief Operating Officer and, in her day job, the head of the relevant division that oversees such reviews.

Ms Dorrington : No, the terms of reference have not been released.

Senator KIM CARR: Why not?

Ms Dorrington : Part of the terms for Professor Doogan, and I just think that we have not released them. But I do not have—

Senator KIM CARR: The reviewer has to release them, do they?

Ms Dorrington : They will be part of the review report. Sorry, I did not make that clear.

Senator KIM CARR: Why wouldn't the terms of reference be available publicly?

Mr Pezzullo : Offhand, I cannot recall whether or not an active decision was made not to disclose them. I am very happy to provide them to the committee, though.

Senator KIM CARR: Thank you. The report, as you have said, is concluded. When will it be released?

Mr Pezzullo : In the near future. The report was provided by Professor Doogan in accordance with the time frame that we gave him. In the first week of July I was overseas on official business, but I was provided with it last week. I have read through it, and I have discussed the management response plan that relates to his recommendations with Ms Dorrington, who has carriage of how we acquit the relevant recommendations. I have asked her to do some more work on certain aspects of the response plan, not on the Doogan review itself but on the intended response plan—that is to say, the management response to his review. When that is ready I will discuss it with the minister, and that should be in the not too distant future. Then I will come to a view, taking counsel and advice no doubt from the minister about the releasability of the review in terms of relevant redactions as to privacy et cetera. Then my intention would be to publicly release it, subject to any necessary redactions.

Senator KIM CARR: It is Professor Doogan, is it?

Mr Pezzullo : I think it is associate professor, is it, Ms Dorrington?

Ms Dorrington : Professor.

Senator KIM CARR: Professor Doogan has indicated through Holding Redlich that—

Mr Pezzullo : Sorry, I am advised these things are important in the tertiary education sector. It is adjunct professor.

Senator KIM CARR: Well, they are very important here. I mean, imagine me getting the commissioner's name or rank wrong.

Mr Pezzullo : No, he is not an adjunct commissioner. He is a full commissioner.

Senator KIM CARR: Exactly. I wouldn't want to confuse the term, would I?

Mr Pezzullo : I am advised that he is an adjunct professor, but someone with an appointment of that type.

Senator KIM CARR: Thank you. He has indicated through Holding Redlich that there would be no adverse finding against the persons who were removed from Nauru, which led to the Moss review being established.

Mr Pezzullo : Who has contended that to the legal firm?

Senator KIM CARR: The department has informed Holding Redlich, to be precise, in a telephone conversation on 23 June—and I quote this, because it says 'Mr Doogan':

… Mr Doogan would not be making any adverse findings against my colleagues or me, he would not be in contact with Holding Redlich or any of our group of removed employees …

Was that information conveyed?

Mr Pezzullo : I would have to check specifically whether any such communication occurred with Holding Redlich on 23 June. It is news to me.

Senator KIM CARR: That is the submission we have.

Mr Pezzullo : I am sure it is the submission—

Senator KIM CARR: I would ask you to take this on notice: can you confirm that that information was provided to Holding Redlich?

Mr Pezzullo : We will certainly look at that. I would be surprised, because the professor had not completed his report.

Senator KIM CARR: That is the evidence before us.

Mr Pezzullo : I understand that.

Senator KIM CARR: It also indicated that there would be no adverse findings. Is that accurate?

Mr Pezzullo : I have got the report now and I know what the findings say, so I am not going to speak to what was suggested to the legal firm on 23 June. All I can say is that I will need to look at whatever communications occurred with Holding Redlich on 23 June.

Senator KIM CARR: You can take it on notice. What date are replies due back by?

Mr Pezzullo : I think the chair said the 24th, this week.

Senator KIM CARR: The Moss review said that there was no evidence—'any' evidence is the word they used—to support the allegations made against personnel that were removed from—

Mr Pezzullo : I think Moss used the term there was 'no conclusive—

Senator KIM CARR: No, he used two—that is quite an important point.

Mr Pezzullo : Yes, I know—in chapter 4.

Senator KIM CARR: I understand that you would seek to emphasise that paragraph, but there is another paragraph that follows it, which says that he did not have any evidence.

Mr Pezzullo : In relation to which matter? There are a number of matters in chapter 4—

Senator KIM CARR: In relation to the allegations made against Save the Children employees that were deported from the island, accused, as I understand it, of fabricating reports of sexual abuse and of coaching detainees.

Mr Pezzullo : I think he found no evidence, unqualified, at all—you are right—in relation to encouragement to self-harm, as I recall it. I might have—

Senator KIM CARR: No, it is actually a bit broader than that.

Mr Pezzullo : I know. There are a number of subsections in chapter 4. I think in two cases Mr Moss says 'no conclusive' and in another case he says 'no evidence', but that is just a matter of directly reading the document.

Senator KIM CARR: I have read that. Aren't those persons that were accused and deported entitled to an apology?

Mr Pezzullo : They are certainly entitled to any due process that arises as a result of my consideration of the Doogan report, and they will be afforded that due process.

Senator KIM CARR: And that extends to compensation?

Mr Pezzullo : I am not going to prejudge, speculate or predetermine what course of action is going to be taken.

Senator KIM CARR: But it may well involve compensation.

Mr Pezzullo : I am not going to speculate, prejudge or predetermine.

Senator KIM CARR: I turn to the contract arrangements. Transfield's contract expires in October?

Mr Pezzullo : Sometime in October, I think.

Senator KIM CARR: And you have opened the tender arrangements for the new contract period after October?

Mr Pezzullo : I will ask that the evidence be delivered through Deputy Commissioner Briscoe and her officers.

Mr Skill : The procurement for those services is currently underway. We are on track to be able to select, negotiate and contract a replacement provider in line with the time frame for that procurement.

Senator KIM CARR: Can you refresh my memory: what is the time frame for a decision?

Mr Skill : I am not sure if that has been published.

Senator KIM CARR: You have just said to us that there is a time frame.

Mr Skill : I said we are on track.

Senator KIM CARR: You are on track. What is the time frame?

Mr Skill : In time for the end of the contract.

Senator KIM CARR: So before October?

Mr Skill : Correct.

CHAIR: In respect of that contract, does that continue the modus operandi that you currently have, which is a closed detention centre, or is there a move to a more open detention centre in this new round of contracts?

Mr Skill : I would have to confirm the exact details of the contract that was put out. It is a draft contract that was issued with the tender documentation that is subject to change during the negotiations with the preferred tenderer. I can confirm the clauses that are contained therein. I can say that it is quite different to the current contract in that it has a range of other requirements that we have learned over the time of the existing contracts. I am more than happy to provide you with a copy of that draft contract if that would help the committee.

Senator KIM CARR: Thank you, that would be helpful. We have had this conversation previously, and I am sure that we have had officers here today who can brief you on this. I have raised the issue of the changed draft contract in regard to the attention to human rights issues. Is there a greater emphasis in the new contract, in your assessment, on human rights issues?

Mr Skill : The draft contract that was provided as part of the RFT does require service providers to comply with all legislation, subordinate legislation and legislative instruments of the regional processing country, Commonwealth, state, territory or local authority in force from time to time, including the Human Rights and Equal Opportunity Commission Act 1986, the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, the Workplace Gender Equality Act 2012 and the Australian Human Rights Commission Act 1986. That is not an exhaustive list, but it gives you an indication.

Senator KIM CARR: No, but there is clearly a human rights question there with regard to Australian human rights. What about international obligations?

Mr Skill : The contracts also include provisions that the providers must comply with Australia's obligations under international treaties, charters, covenants and agreements. Can I just give you a couple of examples of these ones?

Senator KIM CARR: Yes.

Mr Skill : International Covenant on Civil and Political Rights; Convention Relating to the Status of Refugees; Convention on the Rights of the Child; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Convention on the Elimination of All Forms of Racial Discrimination; Convention on the Elimination of All Forms of Discrimination against Women; Convention on the Rights of Persons with Disabilities; and Universal Declaration of Human Rights. In addition, the draft contracts require the service providers to provide access to the Australian Human Rights Commission and other governmental bodies—to cite some personnel.

CHAIR: Are any of those requirements additional to the current contract?

Mr Skill : I would have to confirm that. I will do a comparison.

Senator KIM CARR: Could you take that on notice? And would you take on notice whether or not the new contract arrangements require any obligations under the UN Guiding Principles on Business and Human Rights?

Mr Skill : We will take that on notice and confirm that.

Senator KIM CARR: Is it the department's assessment that Transfield has met its obligations on human rights under the existing contract?

Mr Skill : I am not sure that I have the detail in relation to that. I will confirm that. I can confirm that Transfield met its obligations in relation to the KPIs that are stipulated in the contract from a performance management perspective.

Senator KIM CARR: That is the existing contract, under human rights. Would they have met them under the new contract?

Mr Skill : If we were to cross-reference the requirements of the proposed contract?

Senator KIM CARR: Yes.

Mr Pezzullo : Sorry, Senator—in some retrospective sense?

Senator KIM CARR: Presumably you asked for a new model contract. That is the basis on which you are negotiating the new tender.

Mr Skill : It is a new draft contract. That is correct.

Senator KIM CARR: Are there higher standards of human rights observation in the new contract than the old?

Mr Pezzullo : I think the best thing to do—as Mr Skill has undertaken to do—is we will take on notice a sort of a textual comparison. I think as a matter of principle, as you all know, under our jurisprudence those covenants and other obligation rights flow through domestic law. If the contract currently on foot—and I assume it says this, but we will check the text—says you have got to obey all applicable Australian laws, then read into that clause would be all of those obligations that this parliament has legislated for that are of a UN character, just to use that shorthand, if I may. Whether this model contract better distils, in terms of the specificity, all those obligations, whether it moves from an implied regime of obligations to an expressed regime of obligations—that is something that we will look at by way of a side-by-side reading. As to the premise of your question about whether it is a higher standard, I think ipso facto it cannot be, because, unless the parliament has legislated for particular human rights requirements since, in between the two contracts being enlivened, then Australian domestic law was always applicable.

Senator KIM CARR: We have heard evidence today that there is a view on Nauru that there was a decision made by Minister Morrison not to hard-wall the facilities because that would lead to demands for air conditioning, or air conditioning would be imposed. Did the minister ever make a formal decision to halt constructions of hard-wall facilities on Nauru?

Mr Pezzullo : I think the short answer is no. We have been over this ground in previous evidence. I will ask Mr Skill to remind me and the committee of what was said previously. Certainly after the change of government and on the occasion of the 2013 federal election there was an active decision that needed to be taken by a government—whoever was the minister—about how to deal with the reconstruction of the facility post the fire. I do recall some specific evidence being given to that effect last time, but perhaps Mr Skill can remind us.

Mr Skill : We provided a response on notice with regard to the time line as to what happened on the ground. The secretary is quite right—there were some decisions that were made in August/September 2013 in relation to the style of accommodation that was to be established. The record I have in front of me is that contract for the initial establishment of the RPC3 facility was signed in August 2013, and that was for marquee style accommodation, reflecting the temporary nature of the proposed stay for the transferees. Then, subsequent to that, after the election, in line with the election policy, there was a rapid expansion of the facilities on Nauru. Again, that was done using marquees rather than hard walled accommodation.

Senator KIM CARR: So there was never any decision, according to your records, to hard-wall the facilities?

Mr Skill : Not that I have been able to identify, no—not to hard-wall the facilities.

Senator KIM CARR: Who is responsible for the maintenance of the personal security of detainees on Nauru?

Mr Skill : This goes to the question this morning, I think, with regard to Transfield and responsibilities here.

Senator KIM CARR: What is the department's view of who is responsible?

Mr Pezzullo : For the personal safety of transferees?

Senator KIM CARR: The personal security of detainees.

Mr Pezzullo : Ultimately it is a matter for the government of Nauru. They have jurisdiction.

Senator KIM CARR: And what is the Commonwealth responsibility?

Mr Pezzullo : We provide and facilitate services pursuant to an agreement that we have with the government, to support them in the discharge of their duties and obligations.

Senator KIM CARR: So you are acting as a subcontractor for Nauru, are you?

Mr Pezzullo : We are not a contractor; we are a sovereign state engaged in an agreement with another sovereign state.

Senator KIM CARR: But it is your contention that it is the government of Nauru—

Mr Pezzullo : Ultimately.

Senator KIM CARR: that is responsible for the security of the people that the Commonwealth of Australia detains?

Mr Pezzullo : We do not detain persons on Nauru. We cannot, by law. We transfer people to Nauru. We can go over the case law again and a number of decisions that have been taken—

CHAIR: Mr Pezzullo, you are aware of the evidence that we heard here today that there was a text message sent out to all Nauruan citizens to gather at the detention centre, suitably equipped with whatever utensils they found, to put down a riot?

Mr Pezzullo : So you are asking me a question about—

CHAIR: That is a matter of fact. There was a text message sent out to all Nauruan citizens to attend the incident in order to deal with it. You are suggesting that the Nauru government takes precedence in the safety and security of people we send there.

Mr Pezzullo : It is not a suggestion from me, as if it is a personal opinion that I have. It is a matter of law. It would require a treaty level transference of sovereignty, an abrogation on the part of the government of Nauru and an acquisition of sovereignty on the part of the Commonwealth of Australia, for Australia to have sovereignty in relation to, for instance, the administration of criminal justice. It is a factual matter. I am not trying to be cute in saying that. It is just a matter of fact.

Senator KIM CARR: I asked a direct question. In your view, who is responsible? For the duty of care, who is responsible?

Mr Pezzullo : The government of Nauru is ultimately responsible in the exercise of its jurisdiction. It is not a matter of opinion. I know there are contentions around this, but—

Senator KIM CARR: I am not asking you to defend the position. I am just asking: what is your assessment? We are in a process of writing a report. That is the official view—that it is not your responsibility; it is the government of Nauru's responsibility.

Mr Pezzullo : I said several times that ultimately it is a matter for the government of Nauru, yes. We are partners. We provide services pursuant to an agreement. Partners have dialogue. Partners have discussion. You heard earlier about discussions that are held on the facility in response to questions from Senator Hanson-Young about the best care and outcome decisions in particular instances. But you asked: ultimately, who has the sovereign authority? It is the government of Nauru.

Senator KIM CARR: Who has the moral responsibility?

Mr Pezzullo : If you want my opinion on morality—

Senator KIM CARR: Get a dog—I know. What is it?

Mr Pezzullo : I am an administrator of a Commonwealth department. I will tell you what the state of the law is, and I will tell you what the state of administrative policy is.

Senator KIM CARR: Thank you.

Mr Pezzullo : I did not counsel you to get a dog, by the way, in case the Hansard is in any—

Senator HANSON-YOUNG: We heard today from Save the Children staff that, when children fainting as a result of the heat in the tents inside the camp occurred as a reportable incident, it was downgraded to a level of 'minor' as opposed to 'critical'. Who sets the standard of the levels of criteria of reportable incidents?

Mr Pezzullo : I did not follow all of the evidence; I am not familiar with the fainting issue. In terms of the hierarchy of reporting and the thresholds, which I think the burden of your question goes to, I might ask the deputy commissioner and her staff to respond.

Ms Briscoe : Mrs Scholten will assist in terms of the incident reporting framework.

Mrs Scholten : Senator, could you please repeat your question?

Senator HANSON-YOUNG: Sure. I will ask specifically around the incidents related to the treatment and the health of children, but I want to know firstly who sets the criteria for reportable incidents—for example, whether something is reported to be critical or minor?

Mrs Scholten : The department provides clear incident reporting guidelines to service providers. That provides three levels of clear indication of what is reported and the timeframes accordingly.

Senator HANSON-YOUNG: So do you decide whether something falls into the category of critical or whether it falls into the category of minor?

Mrs Scholten : No. That is—

Senator HANSON-YOUNG: Sorry. You just said to me that your information to the service provider was clear, and yet the answer to me was not clear.

Mrs Scholten : Well, obviously every incident is different, and so there is a—

Senator HANSON-YOUNG: Who sets the criteria?

Mrs Scholten : The department, in consultation with the service providers at the time it was developed, as well as regular reviews. We set, with guidance of the government of Nauru, the incident categories.

Senator HANSON-YOUNG: So you have three levels of incidents?

Mrs Scholten : Yes, we do.

Senator HANSON-YOUNG: There is 'critical'?

Mrs Scholten : Yes.

Senator HANSON-YOUNG: What is the next one?

Mrs Scholten : That is called a category 3. The next one is called a 'major incident', which is a category 2. A category 1 incident is called a 'minor incident'.

Senator HANSON-YOUNG: Is there a protocol or is there a document that outlines the different things that fit in—

Mrs Scholten : Yes, there is. We have guidelines that are issued to our service providers.

Senator HANSON-YOUNG: Are we able to have a copy of those three categories and the things that would fit in with them?

Mrs Scholten : The full guidelines? Yes, we can make sure that they are provided to you. I believe that in our first submission to the inquiry we provided a guidance in one of the attachments outlining those three actual categories of incident reporting.

Senator HANSON-YOUNG: Would you be surprised that the fainting of a child because of extreme heat inside one of the tents would be considered minor? Would that fit your criteria?

Mrs Scholten : Look, I would have to look at the actual conditions of the incident. Like I said, there are a whole range of factors that are determined as part of whether it is category 1, category 2 or category 3. We do provide clear guidance; however, it is also based on the environmental factors. If a child has fainted, it may be that the child has not drunk any fluids, or it could be conditions that could be warm. It could be a whole range of things; maybe they have just played.

Senator HANSON-YOUNG: It is always warm in Nauru in a tent.

Mrs Scholten : Yes, it is always warm, but you only have to look at how children respond in other warm climates. There are a range of factors that can indicate whether a child has fainted from—

Senator HANSON-YOUNG: So the fainting of a child in a tent because it is 50 degrees, which is the evidence that has been given to us, was downgraded from being a critical incident to a minor incident; you can understand that downgrading, can you?

Mrs Scholten : Once further investigation around the incident is undertaken, if it is determined that those conditions within the tent were high and that could have been a causal factor to that incident—

Senator HANSON-YOUNG: Sorry. Could you speak about the event that I am talking about? I am saying that a child collapsed—fainted—because it was 50 degrees in a tent. Is that considered to be a major, a minor or a critical incident?

Mrs Scholten : In my opinion—and in my opinion only, not knowing at the time what was occurring when that incident was reported to the department—I would say that that would at least be a major incident and critical, too, pending further investigation of the situation.

Senator HANSON-YOUNG: Would you be surprised that a caseworker would register an incident such as this—the incident of children fainting in the tent because it was 50 degrees—as critical, worried about the children's safety and health, then to be told by other officers from Wilson Security that it needed to be downgraded to minor? Is that alarming to you?

Mr Pezzullo : Sorry, Senator, can I just check: this is not a hypothetical incident—

Senator HANSON-YOUNG: No. This is evidence that was given today.

Mr Pezzullo : I think the best thing that Commander Scholten can do is to take it on notice. Otherwise, it is clear to me—unless she wishes to clarify my understanding—that the specific matter is not known to her. We will have to look at the specific circumstances. I understand it is not a hypothetical; it is based on a real-life case. Is it being suggested that there was an initial entry at a particular level—

Senator HANSON-YOUNG: Yes.

Mr Pezzullo : and that—I think this is what you are asking in your question—through some extraneous pressure or influence, which I suspect you would consider to be undue, it was downgraded improperly?

Senator HANSON-YOUNG: To minor.

Mr Pezzullo : Why don't we establish the facts first on notice? Whether it was, as Commander Scholten said, a reasonable revision of the status based on examining the facts—you might have an initial report that records it as a 3 or a 2, and then, on reflection, people say it is a 2 or a 1—

Senator HANSON-YOUNG: I am happy for you to take it on notice.

Mr Pezzullo : We should just reconstruct the facts—

Senator HANSON-YOUNG: Sure. It does surprise me that the collapsing of children in a tent because it is 50 degrees would be considered minor by anybody.

Mr Pezzullo : So there are multiple children here?

Senator HANSON-YOUNG: Yes.

Mr Pezzullo : We will just take that on notice.

Senator HANSON-YOUNG: We do not have an awful lot of time left. In relation to the 15 cases of sexual assault that were referred to earlier, I would just like to know how many of those are still currently being investigated.

Mr Pezzullo : I will ask Ms Moy to resume her place. I think the short answer is: some.

Senator HANSON-YOUNG: Yes. I just want to know exactly how many.

Ms Moy : I would have to take the exact number on notice. I understand it is in the vicinity of around 13, but I can take the exact number on notice.

Mr Pezzullo : We will check that.

Senator HANSON-YOUNG: That was in relation to sexual assault of children. How about the number of incidents of rape and sexual assault of women inside the facility that the department is aware of?

Ms Moy : Sorry, Senator. Your question was the number of—

Senator HANSON-YOUNG: Yes.

Mr Pezzullo : And how many investigations are on foot?

Senator HANSON-YOUNG: Yes. I want to know how many have been reported to you, how many you are aware of and, yes, of course, how many are on foot in terms of being investigated.

Ms Moy : In terms of the sexual assaults against adults: 19.

Senator HANSON-YOUNG: Do you have the data for whether they were male or female?

Ms Moy : I do not have the male-female breakdown. I can take that on notice for you.

Senator HANSON-YOUNG: Could you, please. I would imagine that, similar to those 15 children, with those cases of adults the adults still remain in detention as well.

Ms Moy : I would need to check whether they are actually still within the RPC at the moment.

Mr Pezzullo : It is a question of point in time. If they have had a positive determination come down, it might well be that they were in the centre at one point but were in the community now.

Senator HANSON-YOUNG: Could you take that on notice? I would like to know how many remain in immigration detention. This is a bit of a diversion from those matters, but we were given evidence in one of our submissions, submission 8, that one of the security officers that was stationed at the Fly Camp—these are local Nauruans employed there—was as young as seven years old. Are you able to refute that? It sounds ridiculous to me.

Mr Pezzullo : We will have to have a look at the claim.

Senator HANSON-YOUNG: You have not come across that as yet?

Mr Pezzullo : I have not personally read submission 8. It sounds implausible, but I do not want to pretend that it is implausible without checking. But, no, they would have to probably be the youngest security guards in the world!

Senator HANSON-YOUNG: Yes, it sounds extraordinary to me, so I would like to know (a) whether it is true, or (b) whether the age is wrong and it is a minor of some other age. If you could take that on notice that would be helpful.

Mr Pezzullo : We will ask Wilson Security directly. They are the security subcontractors through Transfield. We will not ask about seven-year-olds; we will ask about anyone who is a minor. I cannot begin to imagine that they would have anyone on the books who is either seven, eight, nine or 10—or whatever. But we will just ask the question about minors.

Senator HANSON-YOUNG: I just want to be clear about this: I would like to know the Australian definition of a 'minor', because we know that the definition of 'minor' in Nauru gets a bit blurred. We refer, of course, to minors being under 18 here, and in Nauru it tends to be more like 15.

Mr Pezzullo : We will check. It is a matter of law. It would be a matter of the employment law.

Senator HANSON-YOUNG: I would like to know if there is anybody working as a security guard under the age of 18, frankly, paid for by the Australian taxpayer. Do you see what I am saying?

Mr Pezzullo : I understand.

Senator HANSON-YOUNG: Do you think that might be difficult for you?

Mr Pezzullo : No, we will ask about their ages. Whether it meets a definition of a 'minor' under Nauruan or Australian law we might just leave almost to one side. We will just ask about anyone under 18.

Senator HANSON-YOUNG: Yes, that satisfies me.

Mr Pezzullo : It might not be unlawful. At the age of 17 it might not be unlawful, but we will just ask the question of those under 18.

Senator HANSON-YOUNG: Under 18 suits me. That is fine. We have been given so much evidence and we are going to have to spend the next few weeks going through it in order to put our report together. But overwhelmingly there are cases of abuse, sexual assault and the trading of sexual favours in exchange for other things that seemed to be previously reported and known to the department. Overwhelmingly, we have been told, and again today, that the department had been made aware of these incidents when they had been reported by contractors.

Mr Pezzullo : Where they have been reported.

Senator HANSON-YOUNG: When they have been reported. Mr Pezzullo, do you have a sense, as the department secretary, of whether there are a significant number of incidents that are not being reported?

Mr Pezzullo : I can really only be assisted by the view formed by Mr Moss, which he clearly expressed in his report in two parts. One is that a number of matters came to light through the course of his proceedings that were previously unreported to anyone—service providers, the department, the Nauruan authorities. As I recall it, and I am going to have to paraphrase here, but I suspect you are as familiar with the phrasing of his findings as I am, he found that there was probably the basis to think that there was some underreporting. I think he referred to cultural factors in part, particularly—and I am paraphrasing—senses and ideas of shame and not wanting certain matters to be ventilated within family groups and certain cultural settings. So does that mean that to this day potentially there are matters that have not been reported? I would like to think not. We have made a huge effort, particularly post-Moss—I think there was some concerted effort pre-Moss, but certainly since Moss—where a number of the recommendations went to better collaboration between the different authorities, reconciliation of incident reporting, some of which you have touched on. I would like to think there are no unreported matters, but can I give you an absolute guarantee? Of course not.

Senator HANSON-YOUNG: There have been a number of—

CHAIR: Senator Hanson-Young, I draw your attention to the time.

Senator HANSON-YOUNG: It is my last question and I am happy for it to be taken on notice. I am interested as to whether any of the incidents, either that you have previously known about or that have been canvassed throughout this inquiry, have resulted in the department disciplining or requiring abatements from Transfield Services as a breach of contract.

Mr Pezzullo : I will ask Mr Skill to confirm—

CHAIR: I think we were going to take that question on notice.

Senator HANSON-YOUNG: I am happy for you to take that on notice.

Mr Pezzullo : I will take it on notice.

CHAIR: Given that it is 5.45 pm, I would like to thank all witnesses for their evidence. Answers to questions taken on notice should be provided by 24 July 2015. That concludes today's proceedings. I would like to especially think Hansard for their patience with the schedule today and Hansard and Broadcasting for their assistance. I declare this hearing of the Select Committee on the Recent Allegations relating to Conditions and Circumstances at the Regional Processing Centre in Nauru closed.

Committee adjourned at 17 : 46