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Legal and Constitutional Affairs Legislation Committee
Department of Immigration and Border Protection

Department of Immigration and Border Protection


CHAIR: Minister, I wonder if you want to make an opening statement.

Senator Cash: I don't, Chair, but I understand both the secretary and the acting commissioner do.

CHAIR: Okay. We'll go to Mr Pezzullo first.

Mr Pezzullo : Thank you for the opportunity to make some brief opening remarks. I wish to speak on two matters in these opening remarks: first, the closure of the regional processing centre on Manus Island, Papua New Guinea, on Tuesday, 31 October 2017; and, second, the establishment of the Department of Home Affairs, which I'm sure will be of great interest to this committee, especially in the context of how it might wish to organise its affairs next year. Turning to the closure of the regional processing centre, I should like first to acknowledge the important and successful collaboration that has taken place and continues to take place between the governments of Australia and Papua New Guinea in combating people smuggling and ending the flow of illegal maritime arrivals to Australia, which occurred in the five years preceding 2013-14. This nation owes its gratitude to the government and to the people of PNG for assisting us in an hour of need.

As the committee would be aware, Prime Ministers Turnbull and O'Neill announced earlier this year the closure of the regional processing centre in Manus Province to take effect on 31 October 2017. I can advise that alternative accommodation, meals, medical services and settlement services will be provided to refugees in Manus Province whilst they await resettlement. Residents in the regional processing centre have received notification of their alternative accommodation and service arrangements. Refugees, including those who have expressed an interest in resettlement in the United States, may also volunteer to transfer to Nauru. Some transferees have been found not to be owed protection by the government of PNG and those individuals have no lawful basis to remain in PNG, and of course should accordingly depart. The department continues to support the government of PNG to decommission the regional processing centre. All service providers and Australian government personnel will leave the centre by 31 October. The site, which is part of a naval establishment, will be reoccupied by its permanent owner, the Papua New Guinea Defence Force from 1 November 2017.

I turn now to the establishment of the Home Affairs portfolio. In the time that has passed since the department's last appearance before this committee, the Prime Minister announced on 18 July the establishment of the new portfolio of Home Affairs, which will include a new department of state to be known as the Department of Home Affairs. The Hon. Peter Dutton MP has been named as Minister designate of Home Affairs and I have been honoured to be named as Secretary designate of Home Affairs. Subject to the final decision of the Prime Minister, it is probable that we will appear before you at the next estimates meeting of this committee as the Department of Home Affairs. The Department of Immigration and Border Protection will be completely incorporated within the new department and, as such, it is quite possible that today we appear before you in that form for the final time.

In addition to the Department of Home Affairs, the portfolio will consist of the following agencies: the Australian Security Intelligence Organisation, ASIO; the Australian Federal Police, AFP; Australian Border Force, which will be operationally independent of the Department of Home Affairs; the Australian Criminal Intelligence Commission; and the Australian Transactions Reports and Analysis Centre, known as AUSTRAC. The core functions of this department will be policy, strategy and planning in relation to domestic security, law enforcement, counterterrorism, the protection of our sovereignty and the resilience of our national infrastructure and systems. The department will also lead the coordination across relevant agencies of the execution of applicable national strategies and the assessment of capability development requirements and associated resourcing strategies.

Specifically, the department will be responsible for the delivery of certain policy and/or programmatic responsibilities either in the lead or in support of other agencies. These, in the main, are as follows: immigration and citizenship; law enforcement and community protection; customs and border protection; transport security; civil maritime security policy and coordination; identity and biometrics policy and programs; emergency management, including crisis management, disaster recovery and disaster resilience; critical infrastructure protection; cybersecurity policy and coordination; counterterrorism policy and coordination; the countering of foreign interference and political subversion; and countering violent extremism programs, including working with other departments and agencies regarding programs concerned with the cohesion of our society on the basis that it is open, inclusive, multicultural and united.

Rather predictably, some of the commentary on the establishment of the portfolio has been ill-informed, typically using tropes such as 'the Behemoth of Home Affairs'. This commentary has tended to attempt to mischaracterise the new arrangements as being either a layer of overly bureaucratic oversight of otherwise well-functioning operational arrangements or a 'sinister' concentration of executive functions which will somehow not be able to be supervised and overseen. Both of these criticisms are wrong, and I will deal with them in turn. The department will not engage in the oversight of statutorily independent agencies, which is properly and necessarily vested in parliamentary, judicial and/or statutory processes. These properly established mechanisms, which we further refined under the Prime Minister's announcement that I previously mentioned for the oversight of ASIO, the AFP, the ABF, ACIC and AUSTRAC, will not be affected. I can assure this committee that the department will not act as an overseeing, overriding bureaucratic layer, nor will it be dictating terms to heads of agencies in the performance of their statutory functions. Rather, the department will seek to improve the strategic level of policy development and planning in support of a cabinet-level minister who, for the first time in the modern history of the Commonwealth, will be charged with addressing security issues as a full-time point of focus and accountability. I should say in passing that the ABF will remain an operationally independent body led by a statutorily appointed commissioner but will have its corporate and enabling services provided by the new department, and the secretary will continue to hold budgetary and employment powers consistent with present arrangements. In this context, the committee may wish to consider whether to perhaps have the ABF appear before you separately next year as the other agencies will, noting that it will be structurally connected to the department, including also in terms of the joint management of immigration status resolution and detention activities. The acting commissioner and I would be very pleased to advise the committee on how these new arrangements will work in the context of Home Affairs, and the committee could then make informed decisions about its proceedings next year.

Finally, I turn to the trope of the 'sinister behemoth' which has characterised some of the commentary. All executive power, including that which will be exercised by the minister and the officers of the Home Affairs portfolio, is subject to the sovereignty of this parliament and to the supremacy of the law. Executive action must always have prior legal authority, and that authority is ordinarily to be located in the laws passed by this parliament. In bringing together the security powers, capabilities and capacities of the Commonwealth into a single portfolio, these fundamentals will, of course, remain in place—that is, constitutionalism, the sovereignty of parliament and the supreme rule of law, all of which are crucial attributes of liberty. Power must always be exercised with legitimacy, and never more so than in the performance of the security function of the state. Any contrary suggestion that the establishment of Home Affairs will somehow create an unchecked, extrajudicial apparatus of power is ill informed—even if predictable coming from some quarters—fallacious and unworthy. It is commentary which bears no relationship to the facts or to how our system of government works. I thank the committee. If it pleases the committee, I'm happy to have that document tabled.

CHAIR: Thanks, Mr Pezzullo. I want to get some clarification, but we might hear from Mr Outram first, if we could.

Mr Outram : In July this year, the Australian Border Force marked its second anniversary. The first two years of the ABF have included considerable successes and many challenges. We've continued to contend with escalating volumes at the border. In the first two years of operations, the ABF processed more than 84 million air and sea travellers and crew. We risk assessed more than six million sea cargo consignments and inspected more than 100 million international mail items. At the same time, we've disrupted transnational crime and trade in illicit goods. In the past two years, the ABF has worked with domestic and international partners to detect more than 12 tonnes of illicit drugs and precursors at the Australian border, and has detected more than 170 tonnes of illicit tobacco and 250 million illicit cigarettes. This represents about $230 million in attempted duty evasion.

Already this financial year, we've again made significant seizures of illicit drug and illegal importation, including record seizures of ephedrine. In August, multiple people were arrested in connection with the legal importation of tobacco and conspiracy to import narcotics following the Joint Organised Crime Group's Operation Astatine. Among those arrested was a serving ABF officer, who is alleged to have used his position with the importation of tobacco. The ABF holds a trusted position at the border. What we do and the information we are privy to is very sensitive, and this means that we will always be a target for serious and organised crime. Whilst this is not a surprise, it is completely unacceptable. In response, we've reinforced mechanisms under our integrity framework. These measures are working and we will catch the small number who turn to corruption and fraudulent activity. These individuals, I should stress, do not represent the vast majority of ABF officers who uphold the highest standards of professional conduct.

In the past 12 months we've continued our increased operational focus to deter and detect goods suspected of containing asbestos. In 2016-17, we targeted more than 8,500 shipments, resulting in 63 positive detections. That's compared with the 1,100 shipments and 13 positive detections the previous year. Despite intensified and targeted effort, however, there has not been a proportionate increase in the number of positive detections. The ABF is also committed to prevent exploitative practices of vulnerable foreign workers through Taskforce Cadena. Since June 2015, Taskforce Cadena has undertaken 16 largescale disruption activities under the authority of 46 separately issued warrants. As a result, the Commonwealth Director of Public Prosecutions has accepted three briefs of evidence, with the intention of pursuing criminal prosecution, and additional briefs are being prepared. Taskforce Cadena is also working with international authorities to target organised visa fraud and worker exploitation before it actually reaches the Australian border.

The threat of extremism is ever present. The ABF increased its presence and security activities at international airports, cargo facilities and mail gateways earlier this year in response to counter-terrorism operations in Sydney, and disrupted plans to place an explosives device on an international aircraft. In addition, since 1 July, our counter-terrorism teams at international airports have conducted more than 70,000 assessments, resulting in more than 200 positive outcomes.

Clearly, our threat environment is evolving and increasingly challenging. The announcement in July of a home affairs portfolio acknowledges this and highlights the importance of safeguarding the border as an essential component of national security The ABF will remain Australia's border protection and, I should stress, customs service, operating as an operationally independent agency under home affairs. Our ability to perform our border compliance and enforcement role will be enhanced, but this does not reduce our commitment to facilitation in terms of the movement of people and goods.

We are committed to further building the Australian Trusted Trader program, with more than 100 fully accredited trusted traders now trading participating. In July, I signed new mutual recognition arrangements with Korea, Canada and Hong Kong to provide Australian exporters with fast-track system markets in those countries. The department and ABF will continue to partner with industry to understand their needs and to fully realise benefits of the ATT program and inform its future development. We've also made significant advances in traveller facilitation, with plans to roll out the next generation of arrival SmartGates by mid-2019. We expect 90 per cent of travellers will use automated border clearance processing by 2020.

The increasing volumes at the border and the rapidly evolving threatening environment mean that we have to do things differently—to innovate, to modernise and to adapt. We've embarked on the journey to transform our work through investments in technology and automation, partnering with industry, intelligence sharing and redesigning our core processes, services and systems. The move to home affairs will continue that journey.

During the success and challenges of the Australian Border Force's first two years, our officers have demonstrated outstanding dedication and commitment. I commend them for their ongoing professionalism during this period of change and for their unwavering commitment, delivering an essential facilitation service that is expected of us every day while maintaining a safe and secure border for the Australian community. Thank you. Chair, I will table that speech on the record.

CHAIR: Thanks, Mr Outram. The committee has proposed an indicative timetable. I would ask my colleagues to try to abide by that so that we do get through the program and everyone has a fair chance. I thank Senator Fawcett for, in my recent absence, facilitating that with other members of the committee. As is our usual practice in the committee, we will leave it principally to the opposition and to the crossbenchers to indicate who they want to call at these proceedings, although some government senators have also got some interest, but hopefully we can get through it.

My colleagues on the committee will be pleased to know that my devices are somewhere between here and Russia, so I won't be using my exact 15 minutes, but I'll ask the secretary to let me know when people have had about 15 minutes, and hopefully we could allow a colleague to then ask some questions, bearing in mind that we'll always come back where any senator has some more questions to ask. The program shows that corporate and general matters, which include the two opening statements, will continue till 12.30. I notice that a number of the other issues that were raised in those two statements are in the next section of the program, from 1.30 to 3 pm, so hopefully we'll be able to deal with all of those issues by 3 pm and allow some time to go into others.

With that, I might start the questioning, to seek some clarification on the Department of Home Affairs. Other senators will no doubt want to follow this along. Perhaps we could do it now if others want to ask questions about how the home affairs department will work. Mr Pezzullo, you mentioned that emergency management will now come within this portfolio.

Mr Pezzullo : Yes.

CHAIR: All of the work of emergency management?

Mr Pezzullo : Yes.

CHAIR: Will the minister be Mr Dutton or will it remain with Mr Keenan?

Mr Pezzullo : The ministerial arrangements have not been settled. That's a matter between the minister-designate and the Prime Minister. I can't imagine that the cabinet minister won't have some considerable involvement, but how those arrangements are split as between the cabinet minister and the assisting ministers is really a matter for the minister and the Prime Minister.

CHAIR: You mentioned that the home affairs department will not closely oversight the independent statutory agencies.

Mr Pezzullo : That's right.

CHAIR: Will the way that the department and indeed this committee deal with the AFP and ASIO continue the same as it was under the Attorney-General's Department?

Mr Pezzullo : My counsel to this committee would be to not vary your arrangements at all. ASIO, AFP and, for that matter, the ACIC and AUSTRAC variously appear before this committee as independent bodies. In my recollection, because I used to be in the Attorney-General's portfolio when the Customs Service was there, the minister at the table and the secretary remain in place and then the agency head comes along. My counsel would be that you continue that practice.

CHAIR: As far as the department is concerned, you will exercise no more and no less authority over the AFP, ASIO, the Border Force, AUSTRAC and ACIC than the Attorney-General did in relation to those agencies?

Mr Pezzullo : There is one caveat. With one qualification, that is right. The exception relates to the Border Force, and that's why I had a couple of paragraphs in my opening statement. The government has decided not, at this stage at least, to vary the current governance arrangements whereby the Border Force is legally integrated with the department in a number of ways. The budget is held by the secretary, for instance—which is not the case with ASIO, AFP and the others—as are the employment arrangements. The employment power sits with the secretary, who employs all officers of the Border Force other than the commissioner, who obviously is statutorily appointed. As we've given evidence over the years, particularly in the last couple of years, we have also integrated the Department of Immigration and Border Protection, as we are currently, and the Border Force in a number of areas—intelligence, shared services, corporate services, enabling services and things like the provision of the detention services arrangements, so contract management is provided to the commissioner by public servants who are technically employees of the department. Those arrangements, from the point of view of efficiency, the point of view of effectiveness, will remain in place.

In another respect, as we've also previously briefed this committee—and no doubt these matters will arise today as well—there's also an integrated management of cases. That is to say, civilian officers in the department determine someone's status under the Migration Act and the commissioner and his officers then take the follow-on action, such as detaining a person, removing a person or releasing a person. In those examples that I've given, there is probably more integration, both in corporate and operational matters, than otherwise would be the case. That said, my counsel to this committee would be to treat the ABF as an independent body, no more and no less than it would treat ASIO and AFP. It might just mean, in the practicalities next year when we're appearing, there might be a number of Public Service officers, perhaps even deputy secretaries, for instance, of Home Affairs, who appear with the commissioner and support him or her in the giving of evidence. That is different from the other agencies.

CHAIR: Thanks for that for the committee's point of view but, from the arrangement point of view, will the department and the Border Force change in any appreciable way?

Mr Pezzullo : No. We intend to maintain the integration program that is currently underway. In terms of the comparison with the Attorney-General's Department, the Attorney-General's Department currently supports the Attorney with policy strategy advice at the strategic level. Those agencies then discharge their duties independently but within a sort of policy that's set down by the government. Those arrangements won't change either.

CHAIR: Okay. I might just say this to the committee. This is something the committee might have to look at, and the secretariat might note this. I'm not sure who makes these arrangements. The secretary tells me it is the Senate, but actually it doesn't. As we are taking on ASIO, AFP, ACIC and AUSTRAC, it may be that the time we spend on the Department of Home Affairs will have to increase and the time we spend on the Attorney-General's Department will have to decrease as a result of these changes. That's something the committee might have to give some thought to between now and the next estimates.

Mr Pezzullo : I didn't mention this, but it was in the Prime Minister's announcement. The Attorney-General's portfolio will certainly have some functions removed, but other functions will go into the Attorney-General's portfolio. The Prime Minister announced that integrity and oversight functions will be centralised in that portfolio.

CHAIR: Integrity and oversight for all of these agencies?

Mr Pezzullo : For instance, in relation to intelligence and security, the Inspector-General role, the Ombudsman's role and I think one or two other functions will go into the Attorney-General's portfolio.

CHAIR: Where were they?

Mr Pezzullo : They were principally in the Prime Minister's department, as I recall it. I didn't make that a feature of my opening remarks. It's not quite in my lane. There are three bodies of work that I should be clear about. There's the establishment of Home Affairs, as just discussed. There's the reshaping of the Attorney-General's portfolio. Some of those operational functions will come out, but integrity and oversight functions will go in. Then there's a third related matter, which I should add, just for the record. The acceptance by the government of the recommendations of an independent review into the intelligence community will also have a bearing on the work of this committee, because a number of the intelligence related functions within Border Force, the current Department of Immigration and Border Protection, AFP and others will come under the remit of the new Director-General of National Intelligence—a position that will be established next year in law, under the Prime Minister. That will replace the current arrangements with the Director-General of the Office of National Assessments. Because of the intricacies involved and the interdependencies across these three tracks of work—establishing Home Affairs, the reshaping of the Attorney-General's portfolio and the establishment of a national intelligence community, headed by the Director-General of National Intelligence—all of this work is being led, in terms of machinery-of-government and consequential legislative and administrative changes, by the Prime Minister's department. I draw that to the committee's attention, because these things cross over. For instance, changes around the establishment of the new Office of National Intelligence will have a bearing back into Home Affairs because, for the first time ever, under the arrangements announced by the Prime Minister also on 18 July, there will be a single view of intelligence that will include things such as immigration intelligence, customs intelligence and policing intelligence. That will come under the purview and remit of the new office of the Director-General of National Intelligence. So, those interdependencies across those three tracks of work are probably just worth noting at this point.

CHAIR: Perhaps you could try your hand at some sort of easy-to-understand chart that indicates who's who and what's what and who controls which.

Mr Pezzullo : I'd be happy to do so. I'll need to consult with my colleagues in the Prime Minister's department, who have the overriding responsibility to make this happen.

CHAIR: Yes, just so the committee knows to whom we should be asking questions, and we'll find out tomorrow from the Attorney-General answers to the same questions in relation to what he's doing, and no doubt he'll mention that as well.

Senator KIM CARR: Thinking about what you've said, you're saying that probably the department will appear here. Is that what you said?

Mr Pezzullo : Yes.

Senator KIM CARR: 'Probably'—why probably?

Mr Pezzullo : Because the final decision on when the machinery-of-government change is effected is a matter for the Prime Minister. He's indicated both in his announcement on 18 July, and I think subsequently in commentary, that the government is keen to move on these arrangements expeditiously and to have them fully implemented by 1 July next year. But the Prime Minister and no doubt his senior colleagues wish to be assured that all of these interdependencies—all the legal consequences, any impacts on legislation—are fully attended to. So, the government hasn't made a final decision as to when the arrangements will cut in. That's why I said that the next time we appear, which ordinarily would be in February, we probably will be home affairs—but I don't want to commit, because I don't want to pre-empt the Prime Minister.

Senator KIM CARR: So, the announcements that were made on Bastille Day: the machinery-of-government announcements were completed at that time, were they?

Mr Pezzullo : On 18 July, on Bastille Day?

Senator KIM CARR: Yes. They were the announcements that were made—the announcements the Prime Minister made about the establishment of the new—

Mr Pezzullo : Sorry, Senator; I'm not trying to be cute. You've thrown me. There were no announcements on the 14th—

Senator KIM CARR: The announcements that the Prime Minister made about the new department: he at that point released machinery-of-government—

Mr Pezzullo : No, they were anticipatory announcements, and he said that, subject to these pieces of work that I've laid out, home affairs—the oversight and integrity arrangements and intelligence—that there are various reports back to the government before they will proceed.

Senator KIM CARR: So, we don't have the new machinery-of-government orders?

Mr Pezzullo : No. They've not been released, because the machinery-of-government changes have not yet been effected.

Senator KIM CARR: They won't be released until these are finalised.

Mr Pezzullo : In the normal course, the Governor-General will sign them and they'll be released congruently with the establishment of the portfolio, yes.

Senator KIM CARR: And we can't really determine where these committee should sit or what functions they perform until that's done?

Mr Pezzullo : I would say that's right, and all I've been able to do this morning was give the committee some indicative guidance based on the directions that I've been given, the announcements that the Prime Minister has made and some amplifying guidance that I've received since that time.

Senator KIM CARR: You've said that the closure of the Manus Island Regional Processing Centre will take place on 31 October. Was that a mutually agreed decision of the Australian government and the PNG government?

Mr Pezzullo : It's a mutually agreed position as between the two governments.

Senator KIM CARR: Was there a mutually agreed decision. That is the question I asked.

Mr Pezzullo : Yes, as between the two governments.

Senator KIM CARR: When was that agreed to?

Mr Pezzullo : It was agreed to earlier this year, and I'll need to refresh my memory as to the dates, but it was a discussion and an agreement reached at prime ministerial level, and indeed announced by the two prime ministers afterwards.

Senator KIM CARR: I had a look at the reports of the announcement, that press conference. There was no date mentioned.

Mr Pezzullo : Whether or not the date was publicised at that point, I can assure you that the date has been consistent with their discussion as being agreed between—

Senator KIM CARR: So, there was an MOU, was there?

Mr Pezzullo : No. We have a standing regional resettlement agreement. That provides for discussions to occur and to be properly minuted. We're the lead agency on the Australian side. The Immigration and Citizenship Service is the lead agency on the PNG side. And we engage in discussions and exchange correspondence accordingly.

Senator KIM CARR: So, it's by correspondence.

Mr Pezzullo : And officials' discussions, which are minuted, yes.

Senator KIM CARR: It is just that the PNG Attorney-General is cited as saying, 'I am the chief legal adviser to government; I have not sighted a formal document that confirms that date had been mutually agreed.' That was on 25 August. Is that correct?

Mr Pezzullo : I'm familiar with his statements, yes.

Senator KIM CARR: That's clearly in contrast with the statement you made to this committee on 22 May, so it was after that documents that statements were made.

Mr Pezzullo : I can't illuminate what the Attorney-General of Papua New Guinea had in mind when he made that statement. You'll need to ask him.

Senator KIM CARR: So, you'll need to give me the date, then, on which this formal agreement was reached, won't you? That will help us clarify that.

Mr Pezzullo : It would. In fact, I'm sure the record will show that—I'm advised, and I'll have this checked absolutely, that the date was included in the announcement back in April. I might just ask Deputy Commissioner Newton to join me here. She has better recall of the details than I have. But I'm advised that the date was part and parcel of the April announcement. But, as I said, I'll have that checked to the point of certainty.

Senator KIM CARR: Deputy Commissioner, are you able to assist me? What was the date on which the agreement was reached?

Ms Newton : It was 8 April.

Senator KIM CARR: So, it was 8 April. What was the form of the agreement?

Ms Newton : The form of agreement was an announcement on behalf of the Prime Minister of Australia and the Prime Minister of PNG that the centre will close on 31 October.

Senator KIM CARR: So, an announcement. Was there a document?

Ms Newton : There was a press release, I understand.

Senator KIM CARR: That is the only document?

Ms Newton : That's correct, from my understanding.

Senator KIM CARR: I'm surprised it was only a press release—no memo?

Mr Pezzullo : As I said, the overall architecture or overriding cooperative arrangement here is set out in the regional resettlement agreement, otherwise known as the RRA, a document we've discussed many times. It provides for and allows for official-level discussions, ministerial-level discussions, some of which are formal and need to occur at particular times and others that occur incidentally. The outcomes of those discussions are always minuted and recorded. We take our record and the PNG side takes its record, and where necessary we arrange for joint records to be agreed. And both in the lead-up to that prime ministerial conversation that the deputy commissioner and I have spoken about and subsequently, all the appropriate correspondence has been entered on our files. It doesn't require a separate legal understanding, as it were, because the omnibus is the RRA.

Senator KIM CARR: You say that often you get your correspondence—your minutes are mutually agreed, you exchange the—

Mr Pezzullo : Yes.

Senator KIM CARR: Were they exchanged on this occasion?

Mr Pezzullo : Either in the lead-up to or subsequent to the Prime Ministerial meeting, there would've been relevant meetings of the various joint committees that exist at different levels of authority, and all of those committees would have been animated by the decision that the two prime ministers had taken.

Senator KIM CARR: That's not what I asked you. Were the minutes exchanged on this particular occasion regarding this particular decision?

Mr Pezzullo : We'll need to take on notice exactly how the prime ministerial conversation was recorded. This is a matter for the Prime Minister and his department, but in the ordinary course those conversations are always minuted. Whether a joint understanding was entered into by the two gentlemen or whether they just simply directed their officials and we've recorded it in our various joint management committees is something that I will have investigated for you.

Senator KIM CARR: It's quite a significant point of difference. The Attorney-General of Papua New Guinea is saying that there was no mutual agreement and you're telling this committee that there was.

Mr Pezzullo : I can state to this committee that there absolutely is a mutual understanding from the two prime ministers down, involving also my minister, myself, other high officials and the various joint steering groups and management committees. Everyone has been very clear about the intention of the two prime ministers.

Senator KIM CARR: Was it a fait accompli that the Prime Minister of Papua New Guinea was accepting?

Mr Pezzullo : I wouldn't characterise it like that at all. He's a very independent leader of his nation and he would have engaged in the discussions with our Prime Minister, as all of his ministers do with our ministers, on the basis of being fully independent.

Senator KIM CARR: Your minister recently visited Papua New Guinea—is that the case?

Mr Pezzullo : Whether he visited Papua New Guinea or met with colleagues in Queensland I'm not quite sure. I'll ask Ms Newton to refresh me on that issue. He has meetings with his counterparts sometimes in the state of Queensland, sometimes in visiting Papua New Guinea and sometimes by telephone.

Ms Newton : My understanding was that the announcement on 8 April 2017 occurred in Papua New Guinea.

Senator KIM CARR: Yes. That was the last time he visited Papua New Guinea?

Mr Pezzullo : We'll have to refresh ourselves. We'll take that on notice.

Senator KIM CARR: You'll take on notice whether or not the minister visited Papua New Guinea?

Mr Pezzullo : It's a very busy portfolio, as you can imagine—

Senator KIM CARR: I'm sure it is, but surely there's someone here who handles the minister's travel arrangements.

Mr Pezzullo : We'll find out for you.

Senator KIM CARR: An international trip is, by and large, something that doesn't go unnoticed by the secretary or by the minister's department.

Mr Pezzullo : No, it doesn't. We'll check for you.

Senator KIM CARR: That won't take long to check?

Mr Pezzullo : I doubt very much it will take very long at all.

Senator KIM CARR: We don't need to take it on notice then?

Mr Pezzullo : I'll check during the course of these proceedings, yes.

Senator KIM CARR: I'm interested to know whether there have been negotiations with Papua New Guinea about the assistance that might be provided to Papua New Guinea following the closure of Manus.

Mr Pezzullo : To properly answer that, a bit of context is warranted. We've discussed this part of the story in these proceedings before, so I'll just give you the summary form. Going back to the decision of the Papua New Guinea Supreme Court in, if I'm not mistaken, April 2016 in the judgement known as Namah's case, the Supreme Court found that the centre—as it was operating at that time, at least—infringed constitutional rights to be found in that country's constitution. It said that, as a result, ongoing detention of persons who were asylum seekers seeking to have their refugee claims determined was invalid. As a result of that, from April 2016—and I've given evidence on this before, so I'm just going to mention it without rehashing it—discussions commenced under the rubric of the regional resettlement agreement, which I've mentioned several times this morning. Discussions arose in two parts: what had to be done immediately to render the centre safe in terms of the findings in Namah's case—it was opened; people were free to come and go; it ceased being a closed detention centre at that point—and what needed to be done ultimately to shut the centre once the great majority, if not all, of the asylum claims had been determined.

So there's been a discussion underway, minuted on our side and also evidenced in joint committee discussions between the two governments and officials of the two governments, about how we transition, in effect, away from this centre. That provided the background to the two prime ministers having their conversation in April. They settled on the date of 31 October. As I said, we'll check that that date was actually announced publicly, as opposed to simply being directed to officials. The period since April to now has been largely taken up with the logistics in two respects, one of which critically goes to your question and the other of which is relevant: how do we close the centre, decommission it and return it to its original state as best as can be accomplished?

It sits within a naval establishment, so there are costs and logistical requirements entailed there. Secondly, given the likely state of play with the case load—obviously the US agreement was known to us—the fact that a number of people, as I said in my statement, would've been found not to be owed protection and then had various review points discharged—so what happens with those people—and then, obviously, what happens with people who have been sent to Port Moresby, for instance, for medical treatment. All of those groups and subgroups have been part of this discussion and, yes, there has been discussion about what ongoing support will continue past 31 October—not in relation to the centre that's closing, but in relation to other facilities and establishments and processes.

Senator KIM CARR: I asked you if you could provide us with the types of assistance, so, clearly, I need to know the types of assistance. That was a fairly long answer that didn't go anywhere near the types of assistance.

Mr Pezzullo : It borders to the foothills of the answer; we'll now start climbing. There is the East Lorengau Refugee Transit Centre, East Lorengau being a township—

Ms Newton : It's about a 35-minute vehicle drive from the RPC.

Mr Pezzullo : A 35-minute vehicle drive—I've done that drive a couple of times myself. That is for persons who have been determined to be refugees who may or may not be in the—if I use the shorthand—US queue that otherwise will need to be resettled either in PNG, the US or other places. That accommodation is supported around Lorengau and with other establishments, which the deputy commissioner can speak to. Other persons are in Port Moresby and they're being provided support.

Senator KIM CARR: Can I have the numbers, please? How many?

Mr Pezzullo : I'll hand over to the deputy commissioner.

Ms Newton : East Lorengau Refugee Transit Centre can accommodate 400 refugees. Other accommodation, West Lorengau House, will accommodate 300 refugees.

Senator KIM CARR: That's an additional 300?

Ms Newton : If required. We only need about 150 of those beds at this point in time. And Hillside House can accommodate 198 non-refugees, and we have about 150 to accommodate at this time. Service provision will include support for PNG for contract management of garrison support—so meals for non-refugees. Refugees will be provided funding to prepare their own meals and purchase their own food and other personal items. Security will be provided at all three facilities. Health care will be provided at East Lorengau Refugee Transit Centre. Other general support services will be also be provided to ensure ongoing support to PNG in returns arrangements for refugees to return home or non-refugees that elect to return home.

Senator KIM CARR: So that's employment services, for instance?

Ms Newton : Yes, there are employment services incorporated into support services.

Senator KIM CARR: What's the total cost of that support?

Ms Newton : The total cost at this point in time isn't finalised because we're completing contracts at this time.

Senator KIM CARR: You must have some idea of budget.

Ms Newton : I'd estimate that it's somewhere between $150 million to $250 million for a 12-month period. That's dependent on how long PNG would like to have those services before they can transition to the Papua New Guinea government.

Senator KIM CARR: Thank you very much. You say contracts are being negotiated. Who are they being negotiated with?

Ms Newton : They're being negotiated with a number of different groups. I'm very happy to run through those. There is Paladin Solutions, a primary contractor for the East Lorengau transit centre. Health services continue to be provided by IHMS, and we have a contract with them until 28 February 2018. They are the current provider. Settlement services are with JDA Holdings, and that includes your comments associated with finding or assisting to find jobs, as well as providing funding for food and other support services. Site management is with NKW Holdings.

Senator KIM CARR: Are these contracts with the Australian government?

Ms Newton : Yes, they are at this time.

Senator KIM CARR: You say they'll go through for a minimum of 12 months.

Ms Newton : At this point in time, those contracts can actually be stopped at any particular time. That is currently being negotiated with each of those contractors. We're in discussions with PNG through the management committee that exists between the Department of Immigration and Border Protection and the immigration department in PNG. Our discussions relate to moving from the regional resettlement agreement to a future agreement in PNG.

Senator KIM CARR: Do you anticipate that these contracts will be taken over by PNG?

Ms Newton : They could be novated to PNG at a suitable time with agreement of both countries.

Mr Pezzullo : I think it's fair to say that they're being designed with that capacity, but there's no pre-existing agreement to that effect at this time.

Senator KIM CARR: The design principle would be that the Australian government provides aid or some other payments to PNG and then PNG then takes over the management of these contracts?

Mr Pezzullo : Beyond the period that the deputy commissioner is speaking of, we haven't reached final agreements on those questions.

Senator KIM CARR: What's your intention?

Mr Pezzullo : The intention is to honour the agreement that was struck originally through the memorandum of understanding and then the more detailed RRA, which is to support Papua New Guinea in the support they're giving us for as long as is necessary. Obviously, a number of factors are at play here. You're right about the design principle in general terms, but it's contingent on the pace at which the US program now goes—the US program, which no doubt we'll get to today. That kicked over on 1 October and the relevant executive authorities from the President have now been, as it were, activated to allow refugee cases to be adjudicated and for people to start travelling to the US—some 54 have gone, and about half of them have come from Manus. That will take some time, but it's not infinite and open-ended, either.

Senator KIM CARR: But you said the principle is, under the MoU, as long as necessary. Presumably, Australia has a duty of care for people they've sent to Papua New Guinea.

Mr Pezzullo : It's less expressed as duty of care. No doubt we can have that discussion through the course of the day. A mutual agreement was struck in 2013 to meet all reasonable costs.

Senator KIM CARR: I want to be clear, the Australian government has an obligation—

Mr Pezzullo : To meet all reasonable costs.

Senator KIM CARR: to meet all reasonable costs for as long as it takes.

Mr Pezzullo : Yes.

Senator KIM CARR: That's the principle.

Mr Pezzullo : That's the principle. How that is achieved, though, is through mutual agreement.

Senator KIM CARR: Are you now negotiating out what that means?

Mr Pezzullo : Yes, in practical terms.

Senator KIM CARR: Minus the people who are sent to United States or anywhere else.

Mr Pezzullo : Or anywhere else or who, indeed, are settled in PNG.

Senator KIM CARR: At this point, it's somewhere between $150 million and $250 million for a 12-month period.

Mr Pezzullo : That's the estimate, I think, the deputy commissioner is referring to.

Senator KIM CARR: It's a fairly broad estimate.

Mr Pezzullo : The variables relate to who's coming and going. It's actually quite a tight estimate, given the variables that we deal with. It comes with the lower cost.

Senator KIM CARR: The deputy commissioner has been more than reasonable. $150 to $250—

Mr Pezzullo : She's more than reasonable on nearly all the occasions I deal with her. In terms of the embedded costs that we have encountered thus far—just to assure this committee that we're very mindful of costs and value for money—the amounts reflect a considerable reduction in the costs of the annual program that hitherto we've had to fund and provision for.

Ms Newton : Senator Carr, if I can assist. It depends on the cohort remaining once the US process is completed as well as the number of non-refugees that choose to return home. At this point in time we have about 52 refugees and non-refugees that have chosen to return home voluntarily with support. The final costs or agreement associated with PNG and Australia would be dependent on how many people remain in PNG. We have 35 settled at this point in time into the community. All of those factors may well determine that there's 100 people remaining in PNG, or 300 people remaining in PNG. We have also provided opportunity that, if refugees wish to go to Nauru, Nauru and PNG will facilitate that process.

Senator KIM CARR: I will come to Nauru bit in a minute. I understand that there have been some services contracted by the PNG government. Is that the case?

Ms Newton : The PNG government actually procures very limited services in terms of the current RPC. Australia funds the costs associated with Broadspectrum.

Senator KIM CARR: Are the international health and medical services contracted by PNG?

Ms Newton : No, they have been contracted by Australia.

Senator KIM CARR: By Australia?

Ms Newton : Yes.

Senator KIM CARR: So the report in The Guardian to that effect was incorrect?

Ms Newton : It may well have been.

Senator KIM CARR: It was 20 October.

Mr Pezzullo : What was the statement, Senator?

Senator KIM CARR: On 20 October there was a report that the international health and medical services had been contracted by the PNG government. You're saying that's incorrect.

Ms Newton : That's incorrect. It is a current contract that Australia has held for some time and will until 28 February 2018.

Senator KIM CARR: Is that procured through the normal processes by the Australian government?

Ms Newton : Yes, that's correct.

Senator KIM CARR: Is there any expectation that detainees will be self-managing medication?

Ms Newton : At the moment, they have received four weeks of their normal medication, like any other person in the Australian community, to medicate associated with whatever their care arrangements are, and it's articulated on their medication as to the requirement. Then, if they require further medication, they would return to the East Lorengau Transit Centre and see a doctor again for further medical requirements.

Senator KIM CARR: Are there psychiatrists available?

Ms Newton : Yes, we have a psychiatrist, a psychologist and health nurses, as well as counsellors. There are 14 in total in PNG at this time.

Senator KIM CARR: That would be available after the 31st?

Ms Newton : Those services will continue to be available.

Senator KIM CARR: Are they full-time?

Ms Newton : It is not at the regional processing centre. They will be available at East Lorengau Transit Centre.

Senator KIM CARR: Are they full-time?

Ms Newton : Yes, full-time staff.

Senator KIM CARR: They will still be funded by the Australian government?

Ms Newton : Yes, that is correct. We have a contract with them until 28 February 2018.

Senator KIM CARR: That's all part of your expectation, the funding envelope.

Ms Newton : Our current support services, yes.

Senator KIM CARR: Have you been able to establish whether the minister travelled to ...

Mr Pezzullo : A note hasn't been put in front of me. Oh, here we go, magically a note has appeared. I'm glad you reminded me, Senator.

Senator KIM CARR: It's a shocking thing that the secretary doesn't know where the minister is. That is quite a serious problem.

Mr Pezzullo : On 1 September.

Senator KIM CARR: It was 1 September?

Mr Pezzullo : Yes, 1 September.

Senator KIM CARR: How long did he go for?

Mr Pezzullo : A day or so.

Senator KIM CARR: The note with tell you.

Mr Pezzullo : No, it doesn't, it just gives me the date of 1 September.

Senator KIM CARR: You don't know. In my experience the secretary always wanted to know where the minister was. You're saying there's a new policy in that regard, is that it?

CHAIR: No, this secretary trusts this minister to go by himself.

Senator KIM CARR: No, no, that is not quite what I meant.

CHAIR: It didn't apply in your case, Senator.

Senator KIM CARR: I will tell you, Senator, that's not the way it works.

Mr Pezzullo : I don't have a tracker on him.

Senator KIM CARR: No, but you would like to know where he is.

Mr Pezzullo : He'll advise me of his whereabouts as he sees fit.

Senator KIM CARR: Can you tell me how long the trip was?

Mr Pezzullo : I will check for you.

CHAIR: Have a better look at Yes Minister and find out what you're supposed to know.

Senator KIM CARR: I'm sure there would be other officials who would know where he was.

CHAIR: I will go to Senator Hume now.

Senator HUME: Thank you, Chair. A lot of my questions have already been answered. I just want to follow-up a little bit on the progress of the US arrangement. Can you provide us an update on that?

Mr Pezzullo : I can. The first group went under a particular dispensation. It was in the prior program year. The American program year goes from 1 October and it refreshes on 1 October. We're currently in their new program year. I'm joined by the acting deputy secretary for policy, Ms Geddes, and she can elaborate on that answer.

Just for the benefit of committee members, in broad terms what we've briefed before is that the US program is set at 1,250 places. The US administration, on several occasions, have advised that they intend to honour that in those terms. It was subject to the decision made by the President about the setting of their annual program. He has now done that. The President has determined the annual program to be 45,000, and we've been advised that the allocation for Manus and Nauru is a component of that program and that now they're in a position, with their new program year having been established, to start making what they call adjudication decisions. But beyond those broad parameters I will ask Ms Geddes to answer in detail.

Ms Geddes : The secretary is correct. The US has confirmed that the 1,250 is in the 45,000, so we anticipate that those people will progress through this fiscal year within the US, and 54, to date, have already travelled to the US.

Senator HUME: So 54 were in the previous year, ending 30 September?

Ms Geddes : They were. There was the executive order by President Trump, which was the executive order Protecting the Nation from Foreign Terrorist Entry into the United States. That put a ban on making decisions around refugees, but there was a waiver to that, and the waiver to that was where a pre-existing international agreement was already in place and when there was a genuine, bona fide relationship with someone in the US. The 54 came in under that waiver. Fifty-three of those came under the pre-existing international agreement, and one person had the bona fide relationship, so that's how they moved in the previous fiscal year.

Senator HUME: So 54 have left Nauru; is that correct?

Ms Geddes : No, it was 54 refugees in total, 25 from PNG and 29 from Nauru.

Senator HUME: And they were interviewed on Nauru or on PNG before they left; is that correct? Is that how the process works?

Ms Geddes : Yes. I will let my colleague answer that.

Ms Newton : I will run through the process that occurs. The US go to both Nauru and Papua New Guinea, to Manus at this point in time, to undertake interview processes. I'm very happy to step through how many of those have taken place.

Senator HUME: That would be terrific. Thank you.

Ms Newton : There have been 1,380 refugees referred to the resettlement support centre, 864 from Nauru and 516 from Papua New Guinea. Twelve hundred and thirty-three have attended prescreening interviews with a resettlement support centre—that's 778 from Nauru and 455 from Papua New Guinea. Eight hundred and thirty-seven have had their biometrics collected—that's 524 from Nauru and 313 from PNG. Seven hundred and thirty-one have attended second-stage interviews with US Citizenship and Immigration Services, 506 in Nauru and 225 in Papua New Guinea. And 259 have completed US medical assessments, 211 in Nauru and 48 in Papua New Guinea, with further assessments underway in PNG, which will be updated at a later stage, at the next Senate estimates.

Senator HUME: So let me be clear here: 1,380 were referred but the deal is that they will only take 1,250; is that right?

Ms Newton : Yes, that's correct, a maximum of 1,250.

Senator HUME: And 34 have already gone, but there is—

Ms Newton : Fifty-four have already departed.

Senator HUME: Sorry, 54 have already gone—

Ms Newton : Yes.

Senator HUME: so there are essentially just under 1,200 remaining, which they will take?

Ms Newton : That's correct.

Senator HUME: Will they take them all in this US financial year, up until 1 October next year?

Ms Newton : We've certainly had a commitment that we would anticipate that a large number of those 1,250 would be accepted this year, if they're going to accept that many people. But we certainly can't confirm that. That's a matter for the US to determine in terms of the total international refugee status and arrangements they're making.

Ms Geddes : Senator, if I may, I've just one point of clarification. The original agreement for the US resettlement stated at least 1,250. So the US may take more; they also may take less.

Senator HUME: How have you found this process, in dealing with US authorities, in this regard? Do you get a sense that everybody is working towards a common goal, that there hasn't been any reluctance or hesitation in working together?

Mr Pezzullo : Yes, it's reflective—I've been associated with the US alliance for 31 years in various programs and compartments. This, as always with our engagements with the US, is very frank, very deep, intuitive. We have meetings where we can finish each other's sentences. It's been both professionally warm and very collegiate.

Senator HUME: Are there other opportunities for Australia and the US to work together, in this immigration space, that you could potentially anticipate or enlighten the Senate on?

Mr Pezzullo : As we've given evidence before in earlier meetings of this committee, we've got a longstanding history of collaborating. Sometimes we will assist the US with resettlement out of Latin America. For instance, there might be policy reasons, in the way that we have policy reasons, where persons who are otherwise bona fide refugees or have humanitarian claims of various descriptions or family connections, so they come under permanent migration arrangements, for policy reasons—because of the way they've attempted to crossed border—can't be settled in the US but there's no other reason for preventing their resettlement or migration. So we will assist them.

We've spoken before in this committee about the agreements—most contemporaneously that we've struck with the Obama administration, for instance—to assist with people from Central America, Cuba and the like. I would see that collaborative spirit, that engagement, as a sort of twin imperative, of border protection on the one hand and humanitarian assistance on the other hand, continuing for as long as we are allies and partners.

Senator HUME: So you would characterise this policy as a particularly successful one in your department.

Mr Pezzullo : Yes. And, frankly, if more countries came together in the spirit of mutual collaboration—you've got to address these dynamics based on the dual imperative, that just because someone crosses your border or comes to your border, it doesn't give them, in our view and the US view is the same, automatic rights to determine where they settle. Once you give that lever up, the smugglers determine who goes where; the smugglers become the logisticians of the global refugee system. That, frankly, is something we should all avoid and seek to defeat. So we come together with the US, as we do with a number of other jurisdictions, to say, 'Let's separate out the humanitarian and refugee imperative. We'll treat those matters on their merits, but let's also factor in how a person has sought, in some cases illegally, to cross your border, not that being a refugee itself is illegal; it's the mode of arrival at your border that is potentially unlawful. So how can we work together to ensure that it's the state that is making these decisions and not the smuggler?'

CHAIR: These people in Manus and Nauru, does the Australian taxpayer pay them some sort of allowance and, if so, what is it?

Mr Pezzullo : They're provided with assistance in kind rather than monetary allowances, but I'll let the deputy commissioner spell the detail out. We have given evidence on this before, so it might just be a matter of summarising the—

CHAIR: If there is a monetary allowance, my question is: how long does it continue once they go to the US?

Mr Pezzullo : Yes, understood. It ceases, but I'll let the deputy commissioner speak to that.

Ms Newton : There is an allowance paid to people who are living in the community in PNG and it is proposed that those refugees in the regional processing centre at this time, as well as the ones in the East Lorengau Transit Centre and West Lorengau centre, will receive an allowance.

CHAIR: What is it?

Ms Newton : I'll just have to check the figures. I think it's about A$174 a fortnight, or the equivalent in kina. That amount of money is for them to purchase food, all their normal day-to-day goods, clothing and support. They receive private medical care associated with not only the services we would provide through IHMS but also further care services for private care for a 12-month period. They receive all of their accommodation and electricity and other things incorporated into that.

In Nauru, similarly, those people that don't live in the regional processing centre receive an allowance to live in the community. That allowance is reduced according to whether or not they have a full-time job or are earning other income. That is assessed on a regular basis. I just have to find the details for you of what that allowance is.

CHAIR: So the $174 is in addition to medical care and accommodation, which includes food.

Ms Newton : No. The intention is that each of the refugees in those centres have full cooking facilities, fridges, hot plates and other things within their room areas. They have a communal living area and two or three bedrooms associated with that living area in East Lorengau. The expectation is that they will undertake their own cooking. For some years now, those people have been offered a variety of food preparation and cooking classes to assist them with skills and being able to prepare their own meals.

CHAIR: How is the $174 and the other figure which you were going to get for me, which I assume is more than that, assessed? Is that assessed as being a reasonable amount for a person to feed themselves, clothe themselves and have other basic necessities?

Ms Newton : It's a figure that is agreed in Papua New Guinea by the immigration department, ICSA. It is consistent with what people in the local community would normally earn on average, so there isn't disparity between what community members receive and what the people living in the centres have to spend on a day-to-day basis at the markets and other locations.

CHAIR: That makes sense.

Ms Newton : If they're earning additional income, that would be taken into account if we become aware of them earning additional income within the community. The same occurs for Nauru, It is an agreed funding amount consistent with Nauru community costs and living allowances for local Nauruans.

CHAIR: Will those sorts of payments cease once they transfer to the United States?

Ms Newton : It's a matter for the United States as to the support program. But our payments would cease, yes.

CHAIR: There was a fairly well-publicised feature in The Courier-Mail and perhaps other newspapers about four detainees living a life of luxury, it seemed, on an idyllic tropical island. Can you tell me whether that's factual or whether it was photoshopped news? Do you know anything about it? Do you know what I'm talking about?

Ms Newton : The article where people were on holiday, potentially—a number of refugees?


Ms Newton : I don't know the details. That's a matter for the immigration department in PNG to follow up with further details. But people on Manus are free to move around the island and in the general community there. If there was a local island that they moved to within the group of islands around Manus they are most likely able to do that. We find that a number of the refugees leave the regional processing centre for weekends, months sometimes, and weeks at a time—it varies.

Mr Pezzullo : But they have to have permission to come to the mainland. Is that right?

Ms Newton : Yes. They don't have a visa to leave the Manus area and they would need permission from immigration if they're going to, say, Port Moresby.

CHAIR: That's PNG immigration?

Ms Newton : PNG immigration, yes. Those that are transferred for medical purposes to Port Moresby have an agreed arrangement with, ICSA, the immigration department in PNG, to move. All of those moves or transfers of people are signed off by PNG.

CHAIR: And for those who have been found not to be refugees by the UNHCR, is it, or by—

Ms Newton : By Papua New Guinea. They undertake the refugee determination process.

CHAIR: Are they assisted by UNHCR, do you know?

Ms Newton : Not by UNHCR, but they're assisted by their legislation; they're assisted by Australia in terms of setting up their arrangements to make that assessment process.

CHAIR: And how many of those are presently still living in Nauru or Manus, or both?

Ms Newton : At the moment in PNG, we have 166 failed asylum seekers, and five in Australia that have been transferred on medical grounds. For the Nauru population, there are no failed asylum seekers at this time, but there are 284 that are still in the determination process.

CHAIR: And what's happening with those people?

Ms Newton : Those people are at various stages in the determination process.

CHAIR: No, sorry, the 166?

Ms Newton : The ones that are fully determined? They've been advised that they should return home and make arrangements to return home. They've been offered voluntary return arrangements. Six people to date have been returned involuntarily from Papua New Guinea to their home locations by the Papua New Guinea Immigration department.

CHAIR: With the 166, does Australia assist with travel arrangements if they agree to go home?

Ms Newton : Historically we've been assisting them with arrangements to return home, in helping PNG seeking papers for travel to occur. We will continue to undertake support for those services in Port Moresby after 31 October.

CHAIR: But do we pay the PNG government some money to assist them to get a plane flight home?

Ms Newton : Most of those people have actually returned home at this time on domestic aircraft. Those that have returned via alternative means, because Australia has had the lead in that responsibility to 31 October this year—we have undertaken the commitment for travel for those people and borne the cost associated with aircraft.

CHAIR: Sorry, can you—

Ms Newton : Australia has borne the cost of aircraft where somebody has been difficult and had to be returned to their home country.

CHAIR: For compulsory return?

Ms Newton : Yes, compulsorily returned.

CHAIR: And that wouldn't normally be on commercial aircraft?

Ms Newton : If it's compulsory and we recognise that there may be a major issue with a person's behaviour, we would look at the lease of an aircraft to return them.

CHAIR: Okay. But, for the 166, if they say, 'Yes, I'm prepared to go back to Myanmar' or to Sri Lanka or to the Middle East or wherever, who pays their airfare?

Ms Newton : We're paying the cost associated with those returns and will continue to support PNG in that process.

CHAIR: So that means we'd pay for the airfare and transit, hotel accommodation?

Ms Newton : That's correct.

CHAIR: Do we give them some money to tide them over once they land in their own country of origin?

Ms Newton : Assisted voluntary returns at this time cost US$25,000—that's the payment that is made for those persons to voluntarily return to their own country. At this time we've got 52 of those people that have chosen to return home voluntarily. All of those people we expect to have returned to their countries by the end of December.

CHAIR: And the $25,000 is a set figure?

Ms Newton : The figure is a set figure at this time but can actually change according to agreement by both the minister and cabinet.

CHAIR: And out of the $25,000, are the travel costs taken out of that, or is that in addition to travel costs?

Ms Newton : I think it's within the $25,000, but I'll just check for you and confirm that.

CHAIR: I've been away for a few weeks; are we still in the situation where no-one has entered Australia illegally since Operation Sovereign Borders was—

Mr Pezzullo : The last successful arrival that had to be dealt with by way of transference to Nauru, and that case remains the case, was the July 2014 arrival; that's right—so coming up to 3½ years.

Ms Newton : Chairman, I have the details for you, if you would like. For PNG, the payments are in kina, $320 per fortnight for persons in the community.

CHAIR: 320—

Ms Newton : Kina.

CHAIR: You said dollars.

Ms Newton : Yes, kina dollars.

CHAIR: Okay. Any idea what that means in Australian dollars?

Ms Newton : It's about 50 per cent—so it's around 160, in the vicinity of. I think the exchange rate is somewhere around 52 cents in the dollar.

CHAIR: Fine, that's close enough.

Ms Newton : And for those at East Lorengau Transit Centre, it is 100 kina per fortnight. For Nauru, those people in the community, in Australian dollars it is $100 per week per adult, $185 per week per couple, and $55 per child; and in the RPC, $55.

CHAIR: And those amounts are determined bearing in mind what the local population average receive as a wage or assistance from their governments; is that the basic principle?

Ms Newton : That's correct, Chair, and it has to be agreed by the governments in those countries that that amount of money is correct, in their view, to be paid.

CHAIR: Thanks for that. We will go back to Senator Carr for about 15 minutes.

Senator McKIM: Chair, just on a point of order, if I might. I'm seeking some clarity from you about the arrangements of this committee, given you indicated at the start you would be working in 15-minute blocks. However, Labor had half an hour in their first block, and the government has now had half an hour.

CHAIR: Sorry; the government has had 20 minutes. Senator Carr did have half an hour. It was my intention after Senator Carr to go to you, instead of going back to the government.

Senator McKIM: So you will come to me for half an hour, will you?

CHAIR: No, to come to you for about 15 minutes, which is what we're trying to do.

Senator McKIM: Yes, Chair. The problem—

CHAIR: Senator McKim, I was going to come to you next and, as you've done before, you could have come and asked me and I would have told you that. But if you want to make a major issue of it, well, let's have the fight now.

Senator McKIM: I came and asked you earlier and you said you would be working in 15-minute blocks.

CHAIR: Yes, well, I gave Senator Carr 30 minutes on the expectation that the government would have 15 and I would then go to you, which means you've got on at exactly the same time as you would have. Now unfortunately, the government—me—has gone five minutes more, so I'm sorry about that. But that's the way we are going to do it.

Senator McKIM: So you're coming to me now?

CHAIR: No, I'm going to Senator Carr for about 15 minutes, and then to you for 15 minutes. So instead of going back to the government after Senator Carr, I'm going to you. That's how generous I am. Senator Carr?

Senator KIM CARR: Can I ask, has the department established how long the minister—

Mr Pezzullo : Yes, it was a day trip on 1 September which, from recollection, was a visit to meet with the government—indeed, with the Prime Minister, as I recall it—after their election, which had at that point recently been determined with the return of the O'Neill government.

Senator KIM CARR: Thank you. And who from the department accompanied the minister?

Mr Pezzullo : I will check with the deputy commissioner. Did you go, Deputy Commissioner?

Ms Newton : Not with the Prime Minister, no.

Senator KIM CARR: No; on the trip.

Ms Newton : With Minister Dutton, yes; I attended with him for that meeting with the Prime Minister.

Senator KIM CARR: I figured that might be the case. Mr Secretary, is it usual for departmental officials to accompany ministers?

Mr Pezzullo : Of course; we are a full-service department.

Senator KIM CARR: Yes, that's right. You didn't send him off by himself?

Mr Pezzullo : Well, the minister can go where he pleases with whomever he pleases, but—

Senator KIM CARR: I'm sure he can, but it would be normal practice—that's why I'm surprised your memory needed prompting.

Ms Newton : My apologies, Senator, but I thought you were talking about our Prime Minister visiting.

Senator KIM CARR: No, your minister.

Ms Newton : If I had realised you were talking about the minister—

Mr Pezzullo : There was a degree of confusion. I'm sure it wasn't in the way the question was asked. I think the question was asked rather clinically.

Senator KIM CARR: Thank you. I take it the trip was on a VIP, was it?

Ms Newton : Yes, that is correct.

Senator KIM CARR: Oh, well!

Ms Newton : In fact, the minister caught a lift on the VIP to PNG and back with other ministers and other officials. We didn't have it booked for these purposes.

Mr Pezzullo : I think it was already deploying there, wasn't it?

Ms Newton : That's correct.

Senator KIM CARR: Who else was on the VIP? That would be all on the log—it's only a matter of time.

Mr Pezzullo : That one we will have to take on notice.

Senator KIM CARR: You can't remember who was on the trip?

Ms Newton : On the return trip it was the Minister for Defence. We actually caught the flight with the Army on the way up.

Mr Pezzullo : Always looking to cut costs, Senator.

Senator KIM CARR: I'm sure you are. The purpose of the trip?

Ms Newton : The purpose of the trip was to meet with Prime Minister O'Neill in regard to the decommissioning of the RPC by 31 October.

Senator KIM CARR: So administrative costs were discussed?

Ms Newton : Administrative costs in terms of ongoing support under the regional resettlement agreement will continue.

Senator KIM CARR: That was the purpose—to discuss those costs?

Ms Newton : The purpose was to discuss the closure by 31 October, as well as the ongoing intention of the regional resettlement agreement, and all of the services that were incorporated within that arrangement.

Senator KIM CARR: So the Prime Minister of Papua New Guinea was advised that the Australian government was going to honour the agreement and the broad parameters of that?

Ms Newton : That's correct.

Senator KIM CARR: He was advised that it would be in the order of $150-250 million over the next 12 months?

Ms Newton : No, he wasn't advised of that because we hadn't progressed at that point in time with contracts for ongoing support in PNG.

Senator KIM CARR: So what services was the Papua New Guinean Prime Minister advised would be provided?

Ms Newton : The Prime Minister in Papua New Guinea, Prime Minister O'Neill, understood that Australia would continue bearing the costs of all contracts associated with garrison support, security, general maintenance and management of the centre and costs associated with payments for people to prepare their own food and resettlement arrangements, and at any point in time, with agreement between the two governments, that contract arrangement could be moved to PNG's management.

Senator KIM CARR: And the Prime Minister of Papua New Guinea didn't actually ask you how much was involved?

Ms Newton : No, he didn't.

Senator KIM CARR: That's a surprise. Are you certain about that?

Ms Newton : We didn't discuss any funding whatsoever with the Papua New Guinea Prime Minister, about payments or how the contracts would be managed.

Mr Pezzullo : You asked about the travel, and we've given you that answer. I stated to you earlier that it is the Australian government's intention to honour its agreement. I think we are starting to get into ground where you're almost retelling the backwards and forwards of private diplomatic negotiations and discussions.

Senator KIM CARR: Sure. But it wasn't a secret trip, was it?

Mr Pezzullo : My advice to this committee—and we will not be providing any further information, though I respect your right to ask the question in all different sorts of ways—is that the meeting was generally to discuss how to give effect to the decision of the two prime ministers, prime ministers Turnbull and O'Neill, to close the centre on 31 October, and all of the associated ancillary, parallel and complementary agreements you can take as read as having been part of the discussion, but we're not going to give you chapter and verse, if I may say respectfully.

Senator KIM CARR: Was the trip announced?

Mr Pezzullo : There might have been some publicity associated with it—I can't quite remember if there was a press release on the PNG side, but, again, that's something that can be checked, and we will check it.

Senator KIM CARR: Yes. I'm just surprised that your memory needed to be prompted. I can't recall a public announcement of the minister's trip.

Mr Pezzullo : I wouldn't rule it out—sometimes the Papua New Guinean side puts out a release, sometimes even if we don't put out a press release we might make commentary about it in subsequent media. Where I'm drawing the line, and I'm doing it as gently as I can and as respectfully as I can, is that we are not going to retail specifically what was discussed in private diplomatic negotiations. So please feel free to ask questions as you see fit, and we will answer at least—

Senator KIM CARR: No, I appreciate the point. I'm trying to understand why it is that the department has had so much trouble with its collective memory on this.

Mr Pezzullo : Oh, I wouldn't characterise it like that. We do lots of things, not all of which are about Manus, although a lot of them are. You asked me a question about when Minister Dutton last went to PNG. I refreshed my memory and we've given you the answer. I don't intend to dive into the specifics.

Senator KIM CARR: In terms of the phase-down, this is a matter of some controversy in Papua New Guinea. The Attorney-General has made a point of saying that it wasn't mutually agreed. You are saying that he was wrong.

Mr Pezzullo : No, I said you'll need to ask him what the basis of his statements was.

Senator KIM CARR: You're suggesting that the Prime Minister's statement clarifies that. We now have an understanding that there was a meeting between your minister and the Prime Minister—

Mr Pezzullo : No, I've given more emphatic evidence than that. I've stated to this committee with absolute certainty—and we discussed this last time when we met in May, I suspect—that the two Prime Ministers agreed in April that the centre would close on 31 October.

Senator KIM CARR: Yes, and that it was by way of press release; no formal agreement struck at that time.

Mr Pezzullo : You well know, Senator, as a previous serving cabinet minister, that agreements can be struck, correspondence can be exchanged, joint understandings can be minuted. Each evolution of the progress of a matter that you are collaborating in doesn't itself require a new treaty or a new legal instrument. You well know that, Senator.

Senator KIM CARR: In eight days' time, the Manus Island centre will close.

Mr Pezzullo : The regional processing centre, yes.

Senator KIM CARR: It will close. That part of the operation will close?

Mr Pezzullo : Yes. It will be returned to its permanent owners, the PNG defence force.

Senator KIM CARR: It will be part of the Navy base?

Mr Pezzullo : It has always been part of the Navy base. Its allocation for this purpose will cease.

Senator KIM CARR: It will be taken over as a defence establishment?

Mr Pezzullo : That's right.

Senator KIM CARR: In terms the phase-down arrangements—and I understand that Senator McKim has some issues he wants to pursue on that matter, so I won't cut across that—I would like to know how many asylum seekers or refugees or people that Australia has responsibility for are currently in the centre?

Mr Pezzullo : How many refugees are currently in the centre?

Senator KIM CARR: People we have responsibility for, people who have been found not to be refugees—how many people—

Mr Pezzullo : We don't have direct legal responsibility for any of them.

Senator KIM CARR: How many people are still in the centre?

Mr Pezzullo : We'll go over those figures again.

Senator KIM CARR: In the centre itself.

Mr Pezzullo : I understand. I think we may have articulated that before. I do apologise—

Senator KIM CARR: You've given the number of people who have failed in terms of their refugee application. How many people in total are still on the premises?

Ms Newton : 606.

Senator KIM CARR: And you expect all 606 to be off the premises by 31 October?

Ms Newton : Yes, that's correct.

Senator KIM CARR: What happens if they are not?

Mr Pezzullo : That will be completely a matter for the authorities in PNG. It's a naval establishment, so presumably the defence force has a say, the government generally has a say and the immigration and citizenship service agency has a say. It's not legally a matter for Australia.

Senator KIM CARR: They will be removed by force?

Mr Pezzullo : I have no idea what PNG intends to do, other than to say it's a matter for PNG. On the morning of 1 November, if anyone is there, they will be on a PNG naval establishment. I presume the ordinary laws of trespass apply. Again, I'm not an expert in their law and I'm certainly not a spokesperson for Papua New Guinea or what it intends to do in that eventuality.

Senator KIM CARR: In regard to the Manus Regional Processing Centre, what is the difference between that centre and the facilities that you're providing at the East Lorengau Transit Centre?

Mr Pezzullo : As was stated previously—I'll get the deputy commissioner to amplify this—the transit centre was purpose built, as the names implies, to be a transitionary point, where there is the opportunity for collective cooking of meals and the like. People have been found to be refugees, they are on their way somewhere, so the amenity, I assume, is designed with that principle in mind. But I will ask the deputy commissioner to add to that answer.

Ms Newton : The services are much nicer at East Lorengau than in the regional processing centre. All the accommodation being offered is hard-walled accommodation. Each of the units that people will be living in in East Lorengau have a shared kitchen, a living area facility, as well as a number of bedrooms and a bathroom. They have washing machine facilities adjacent to the unit areas, as well as prayer rooms and other service areas where they can congregate and meet, and there are training facilities as well.

Senator KIM CARR: It is smaller; is it not?

Ms Newton : That centre is smaller because it's only there to accommodate approximately 400 refugees.

Senator KIM CARR: And you've got 602—

Ms Newton : At this point in time 606.

Senator KIM CARR: How are you going to accommodate the extra people, assuming you get them all to go?

Mr Pezzullo : There is also West Lorengau House, which is a facility being provided to refugees as well that will be able to accommodate up to 300 refugees if required. It has similar living conditions, single rooms—

Senator KIM CARR: You'll only want 150.

Ms Newton : We'll only need 150.

Senator KIM CARR: Of the 606, how many are refusing to move?

Ms Newton : All 606.

Senator KIM CARR: Why are they refusing to move?

Ms Newton : My understanding is that they're refusing to move because some don't like the idea of having to cook for themselves, to undertake some of their own cleaning and some are indicating concerns about safety. The safety provisions include fenced areas around each of the facilities.

Mr Pezzullo : If I can express a view on this. Those are some of the manifest factors. If the truth be told, there is a very vigorous campaign. These people are not prisoners; they've got access to the internet and communications. Their concern, frankly, is that by moving from the regional processing centre, and I don't know why they have come to this view, that somehow they're a step further away from ever coming to Australia. But that's the animating sentiment that sits at the heart of all this. As Australia has made clear, certainly the government of Australia has made clear from the Prime Minister and the minister down, it's the law of this country that those people will never come to Australia. In a sense, the sooner we get on with the sensible transition to new arrangements, whether they're going to the US, whether they're resettling in PNG, whether they're availing themselves of voluntary return or, ultimately, some may have to be compulsorily returned, it's important we all get on with our lives. It's important that those 606 men all make sensible decisions within that framework. Staying in the regional processing centre does not get you a step closer to coming to Australia.

Senator KIM CARR: Has the department booked any accommodation in Lorengau immediately prior to 31 October?

Mr Pezzullo : Accommodation for whom?

Senator KIM CARR: Have you booked any additional accommodation in hotels or motels?

Mr Pezzullo : For these men?

Senator KIM CARR: No. Has the department undertaken any out-the-ordinary bookings for accommodation?

Mr Pezzullo : For our staff?

Senator KIM CARR: For staff or anyone else?

Mr Pezzullo : I'm not aware of it. The Australian Border Force—and I should've been clear on this point prior to now—will cease its operations in support of PNG on the island as of midnight 31 October. Unless I'm otherwise advised, I don't see any need for any Border Force officers to be on island; therefore, they won't be needing hotel rooms. Whether there are people who do contract support and contract management support, I will let the deputy commissioner speak to that.

Senator KIM CARR: Are you able to enlighten me on this? Has any additional accommodation been booked?

Ms Newton : We have scoped various accommodation in the hotels on island, in particular to work with contractors on the arrangements for their contract staff to come in to perform the roles they will have at East Lorengau.

Mr Pezzullo : Are these Border Force officers?

Ms Newton : No, they are contractors.

Mr Pezzullo : Are these departmental officers?

Ms Newton : No departmental officers.

Senator KIM CARR: Has the department booked accommodation for the contractors?

Ms Newton : I'll have to check whether we have some accommodation booked. Potentially, we are looking at having contingency arrangements in place if all accommodation isn't completed by 29 October, which is the date we anticipate the accommodation to be completed. If for some reason it's not completed, we have been seeking additional accommodation to ensure that we have suitable places for every refugee to be accommodated post 31 October or by 31 October.

Senator KIM CARR: You've indicated that you've got accommodation of 400 beds available at the transit centre; there are an additional 300 beds available at a nearby centre; but now you're saying that you might need extra hotels as well. Are you saying that the accommodation, the 700 beds, aren't actually ready? They aren't actually available?

Senator McKIM: That's right.

Ms Newton : At this point of in time, no, all of those beds are not ready. We expect that they will be ready by the 29th.

Senator KIM CARR: You need to explain why they're not ready.

Ms Newton : The reason why they're not ready is because—

Senator McKIM: It can't take that long to clean a room. It's because they're making it up as they go along.

Ms Newton : we had a short period of time to actually secure suitable accommodation that Papua New Guinea are happy to locate people into. We have been working with the PNG government and immigration, citizenship and support services to actually ensure that accommodation is suitable in the Manus community for the people in Manus. We've booked 48—

Senator KIM CARR: You previously said there are 700 beds there. Are you saying there is not 700 beds?

Ms Newton : I'm saying that at this point in time, East Lorengau facility is fully operational and in place. For Hillside Haus, which is for non-refugees, we expect all works will be completed by 24 October. We're expecting—

Senator McKIM: That's tomorrow.

Ms Newton : Yes. And then—

Senator KIM CARR: When you say completed, do you mean to say—

Ms Newton : Full accommodation services with running water, sewerage, bedding arrangements in place.

Senator KIM CARR: You mean the plumbing is not hooked up.

Mr Pezzullo : Of course it is.

Ms Newton : They're in the process of finalising painting and other things at that location to ensure that it's suitable, because the accommodation hasn't been used for some time.

Mr Pezzullo : It's like when you're between tenancies. One tenant relocates—

Senator McKIM: It's nothing like that at all.

Senator KIM CARR: How many hotel rooms have you booked?

Ms Newton : We've booked 48 beds at lodges. They're multipurpose and could be included for refugees if required, or contractors as well.

CHAIR: Senator Carr, I'll have to stop you there. I am being urged by Senator McKim, by the commitment I made to him that I'd go to him after you. You've had about 20 minutes. Senator McKim.

Senator McKIM: I want to start by seeking to table a document which is an official translation of a notice that was handed out to some detainees on Manus Island. I have provided a copy to the chair and to the opposition.

CHAIR: The committee is happy for that to be tabled. I've had copies made for the Labor Party, for the government and for Mr Pezzullo, so he knows what you're talking about when you ask questions. Is that okay with you?

Senator McKIM: Yes, thank you.

CHAIR: Can you just make sure the secretary has that document.

Senator McKIM: While this is making its way to you, Mr Pezzullo, I'll just explain what it is. It's an official translation done by an accredited translation agency of a notice headed 'closure of Manus Regional Processing Centre'. I've blacked out the name, the boat ID and the date of birth of the person who received it. I want to ask you some questions about that. It touches on matters that you've already been discussing with Senator Carr.

Mr Pezzullo : Can I read it? I'll read it as quickly as I can. Well, Mr Chairman, noting that this—

Senator McKIM: A point of order. I haven't asked any questions on it yet.

Mr Pezzullo : I'm just seeking clarity on the status of the document. This is to you, Senator McKim, but I'm sure the Chair will be alert to my question. To the extent that I recognise, if you will, the policy stance here, I'm happy for the deputy commissioner to answer what I suspect will be your line of questioning, noting that some of this has already been the subject of questions from Senator Carr, I suspect. But I do note that this is not an official document. It comes from a company that presents language services. I have no reason to think that the translator has done anything other than translate a document that was given to her in good faith. But I just do note for the record that this is not a document that I recognise as having any official status or standing whatsoever.

CHAIR: It would seem important that you ask your staff to see whether this sort of letter in Persian was actually written and whether your office has a translation. That way you can check whether this translation is an accurate portrayal of an official document that's gone out. That should be easy enough to do.

Mr Pezzullo : That should be easy enough to do. So I don't intend to allow my officers to respond specifically on the document in question. But to the extent—

Senator McKIM: It might not be your decision yet, Mr Pezzullo. You're at a Senate committee here, not a departmental secretary's meeting.

Mr Pezzullo : Understood.

CHAIR: Mr Pezzullo, it probably would be useful, because I assume Senator McKim wants to ask some questions on it, that if you're not certain of its authenticity, I thought it would be relatively easy to establish whether it is an authentic document or not. I'm not sure how long it would take you to get that. No doubt someone in the department is listening.

Mr Pezzullo : I suspect that we could easily establish that by the time of Senator McKim's next block of 15 minutes.

Senator McKIM: Chair, what I'm proposing is that I start asking my questions, which I haven't had an opportunity to do yet. We'll see where the conversation takes us.

CHAIR: That's fine, Senator McKim, but I assume from what the Secretary has said that his answer in each case will be, 'I'm not sure of the authenticity so I don't want to answer until I'm assured of the authenticity.' That may mean that you and the committee is wasting its time.

Mr Pezzullo : If I may—my apologies for appearing to interrupt—the other thing I need to check is whether the source document is an Australian government document, as opposed to a document of the government of Papua New Guinea. I would certainly not want to be answering questions in relation to a document, in relation to its authenticity, as we have mentioned, but also its provenance—whether it's a document of the Australian government.

Senator McKIM: Just to be clear, I've made no claim that it's an Australian government document.

CHAIR: Senator McKim, it's up to you to ask your questions if you like, but I'm assuming, and Mr Pezzullo has confirmed, that his answer's going to be, 'I don't want to comment on that until—'

Senator McKIM: With respect, Chair, it will depend on what my questions are. My suggestion is that we just get on with it.

CHAIR: Well, fire away.

Senator McKIM: Firstly, Mr Pezzullo, is it the case that after 31 October the facility that you describe as the Manus Island RPC, and I describe as Australia's Manus Island prison, will not have electricity or water?

Mr Pezzullo : It will be decommissioned as a regional processing centre and handed back to the Papua New Guinea Defence Force.

Senator McKIM: Will it have electricity or water?

Mr Pezzullo : I don't know what the PNG Navy's requirement for those buildings are, but I'll ask the deputy commissioner. Without referencing this document, because we have some questions about its provenance and authenticity, so put that to one side, what is the state of play with electricity and water?

Ms Newton : The regional processing centre as such will no longer have water or electricity.

Senator McKIM: Specifically, when will that be cut off?

Ms Newton : On 31 October.

Senator McKIM: Midnight on the 31st?

Ms Newton : Some time on 31 October, because the providers finish their contract on 31 October.

Senator McKIM: So the department has no knowledge whatsoever about what time on the 31 October that will occur?

Ms Newton : I haven't requested the time.

Senator McKIM: Do you have any knowledge was my question.

Ms Newton : I don't have a knowledge at this point in time—

Senator McKIM: Does anyone else?

Ms Newton : associated with when it's going to be cut off. I'm sure that we'd be able to receive advice as to the intended time for that to be cut off.

Senator McKIM: But you have given evidence that the department does have knowledge that the cut-off will occur on 31 October?

Ms Newton : That's correct.

Senator McKIM: By water, does that include all provision of drinking water?

Ms Newton : That is correct.

Senator McKIM: So if there's anyone left in the camp on or after 31 October, they will not have access to drinking water. Is that what you're telling the committee?

Ms Newton : What I'm telling the committee is that all services will stop on 31 October and all residents of the facility will be expected to live in the alternate facilities, where they will receive all services.

Senator McKIM: I understand what you're saying, but the question was specifically about drinking water. Could you confine your answer to that, please. When you say all services, that includes drinking water, does it?

Ms Newton : Yes. That includes drinking water.

Senator McKIM: Food?

Ms Newton : Yes.

Senator McKIM: Electricity?

Ms Newton : Yes, that's correct.

Senator McKIM: Sewerage?

Ms Newton : That's correct.

Senator McKIM: Hygiene facilities?

Ms Newton : That's correct.

Senator McKIM: Health support?

Ms Newton : That's correct.

Senator McKIM: Education?

Ms Newton : That's correct.

Senator McKIM: Trauma counselling.

Mr Pezzullo : All of which will be provided at those locations.

Senator HUME: Can I just clarify: all those amenities will be available in an alternative facility—is that correct?

Senator McKIM: No.

Ms Newton : Yes. They will be provided at other facilities—the three that we've already spoken about. East Lorengau will have full medical services.

Senator McKIM: That's right. The point is that all of those services are not available in all of the other three facilities, are they?

Ms Newton : Transport will be provided from the other two facilities to East Lorengau for medical services.

Senator McKIM: But at the other two facilities, neither of which are complete yet, just over a week before you say that basic human rights will be removed, and requirements for life—

Mr Pezzullo : If I may—

Senator McKIM: No, you may not, Mr Pezzullo. The way this works, Mr Pezzullo, is that I'll ask the question—

CHAIR: Senator McKim, can you ask a question, please?

Senator McKIM: Is it true that you'll be withdrawing the basic necessaries of life from the Manus Island RPC on 31 October?

Mr Pezzullo : You must have a GP clinic and an emergency ward next to your house, Senator.

Senator McKIM: The question is very clear, and it doesn't reflect who lives next to me. This is about 600 human beings who you are going to withdraw the basics of life from. That's what it's about.

Senator Cash: There are alternatives available to them, should they so exercise their choice.

Senator McKIM: Senator Cash, you're the one that admitted in the Senate that the Australian government was doing this. You're the one that admitted last week that the Australian government was—

CHAIR: Do you have a question, Senator McKim?

Senator McKIM: Yes. I'd like the question that I asked previously answered.

CHAIR: It has been answered.

Senator McKIM: No, it hasn't. Mr Pezzullo started talking about GPs living next to my house. That is as good an attempt to derail a Senate estimates inquiry as I've seen in my time here. Could you please respond to the question. Are the basic necessaries of life being withdrawn from potentially over 600 people on 31 October in the Manus Island RPC?

CHAIR: The question has been answered, in that other facilities will be available. That's quite clear from the answers from both Mr Pezzullo and Ms Newton.

Mr Pezzullo : Absolutely.

Senator McKIM: This question relates specifically to the Manus Island RPC. I will use your terms, so we don't get side tracked into a discussion about semantics.

Mr Pezzullo : Basic needs, by definition, will be met at East Lorengau and the two other establishments that the deputy commissioner referred to, whether it relates to food, water, medical treatment, access to counselling, access to educational and other services. As the deputy commissioner said, in some cases, if you need to jump on a bus I think they provide these buses to attend the clinic. My reference to the fact that we don't all live next door to a clinic is that it's not a withdrawal of someone's human right to not have a clinic next to where they live, so you need to drive to it. It happens in the first world as well.

Senator McKIM: Thanks for that little lesson about the first world. I may come to some of your thoughts about the first world later.

CHAIR: Do you have a question, Senator McKim. If you just want to insult officers, we'll move to someone else.

Senator McKIM: I have multiple questions. I can assure you I'm not going to run out of questions.

CHAIR: Please ask the question.

Senator McKIM: Given that I've asked one question and you've answered a question I didn't ask, I'll just ask again. Specifically in the context of the Manus Island RPC, you're giving evidence that the Australian government is aware that the basic necessities that support human life will be removed from anyone left there after—

Mr Pezzullo : I have denied that completely and resolutely.

Senator McKIM: So if someone's there after the 31 October, how do they access drinking water, for example?

Mr Pezzullo : They go to their government provided accommodation.

Senator McKIM: You're not listening to my question. I'll be very clear, because I don't want there to be any confusion here. I'm asking specifically in the context of the Manus Island RPC. In my previous question I specifically referenced anyone who might be there after 31 October.

Mr Pezzullo : If someone is trespassing on a PNG naval establishment, that itself is an issue which PNG, as I said to Senator Carr, will need to resolve in its own mind. Presumably there are issues around trespass there. They'll need to deal with that. In terms of what the Australian government is providing, which is what I'm responsible for, people have access to meals, they'll have access to a bed—I could state it again.

Senator McKim: We've heard all of that.

Mr Pezzullo : Does that mean that it's 35 minutes driving down the road? Yes, that's where their bed is. And is that where the clinic is? Yes, and I could rattle them all off. So any suggestion that we're denying them or depriving them of access to their basic needs and therefore infringing their basic human rights I reject utterly.

Senator McKIM: So you're saying that, if people are still in what is now the Manus Island RPC after 31 October, they will have access to drinking water, will they?

Mr Pezzullo : No.

Senator McKIM: So you're denying them their basic human rights.

Mr Pezzullo : They don't have a human right to trespass on a naval base.

Senator McKIM: They've got a human right to have enough water to keep them alive. I would be astounded if you disputed that.

Mr Pezzullo : There'll be plenty of places for them to access clean water at the accommodation—

Senator McKIM: The problem you have here, Mr Pezzullo—

CHAIR: Senator McKim, if you ask the question, at least do the officer the courtesy of hearing his response. Mr Pezzullo, could you finish your answer.

Mr Pezzullo : I've finished.

Senator McKIM: Are there arrangements in place for the PNG Defence Force to occupy the RPC site?

Mr Pezzullo : When you say 'to occupy', they are the permanent owners. It's been separated from the naval establishment now for—

CHAIR: The first question, Mr Pezzullo, is do you know?

Mr Pezzullo : Yes, I do.

CHAIR: You know what the PNG—

Mr Pezzullo : It's their establishment and they're intending to occupy their full establishment.

CHAIR: You know that?

Mr Pezzullo : Yes.

Senator McKIM: So this is the same Papua New Guinea Navy that fired over 100 rounds into the camp earlier this year, isn't it, Mr Pezzullo?

Mr Pezzullo : I'm not sure that all of those inquiries have been concluded.

Senator McKIM: In fact, your Border Force officers have given evidence to this committee that over 100 rounds were shot by the Papua New Guinea Navy into the Manus Island RPC—some from semiautomatic weapons and others from shotguns. We've also heard that a Toyota Hilux was loaded up and rammed into the gates so that they could get into the centre that way. This is the same navy into whose hands you intend to abandon anyone left in the RPC after 31 October. Is that correct?

Mr Pezzullo : You can impute whatever you want in your questions. It's a naval establishment and it will be returned to PNGDF authority and occupancy on 1 November.

Senator McKIM: You've just said that it will be returned to PNG defence occupancy, which is what the notice that I've provided you with a translation of says. What arrangements, if any, have you put in place to ensure the safety of anybody left behind at the Manus Island RPC after 31 October? I'm talking specifically about safety from the PNG Navy, which, in April this year, on Good Friday, fired over 100 shots into the centre and tried to ram a vehicle through the gates.

Mr Pezzullo : The first point is that they're not meant to be on a military base on the morning of 1 November. Second, the maintenance of public order and issues to do with trespass and the rest of it are matters for the Papua New Guinea Navy.

Senator McKIM: Ms Newton has just given evidence to the committee that she is aware that 606 people are refusing to leave.

Mr Pezzullo : They need to make their own decisions.

Senator McKIM: Ms Newton has already said that she is aware that over 600 people are refusing to leave, Mr Pezzullo. Don't you think you're risking a human rights disaster and potentially a mass loss of life here?

Mr Pezzullo : I think that's a rather colourful appreciation of the situation. I don't think it will entail a mass loss of life. I don't think it will entail the loss of life at all. PNG is very seized of these issues. It is thinking very carefully about how it might deal with what is regrettably attitudes that are being stoked and fuelled by troublesome outsiders who are encouraging these poor souls to—

Senator McKIM: Oh, please! Please! Just spare us the fake sympathy. You've been torturing them for four and a half years.

CHAIR: Senator McKim, we put up with your editorialising. We can allow the secretary to complete his answer.

Mr Pezzullo : I reject any assertion that this department has been torturing anyone. The only torture that I'm aware of is sometimes when we have to appear here.

Senator McKIM: I don't think torture is a laughing matter, Mr Pezzullo.

Mr Pezzullo : I don't know how to get through to you on occasions, Senator, whether it is by deft responses or by, frankly, sometimes highlighting just how silly these conversations can get.

Because we engage with them constantly, I know that the PNG authorities are well seized of the fact that there is a narrative—I will use that term, just to try to be as neutral as possible—that is encouraged that, if you move to one of these establishments that Ms Newton has indicated, somehow this is part of a trick and you're a step further from ever coming to Australia. I will just call it a narrative; I will be as neutral as I can, without at all being pejorative by way of any imputation.

It is challenging to deal with that narrative when people—because they are not detainees or prisoners; they have access to the internet and so on and so forth—are given the idea that if you just 'dig in'—and I'm trying to use very neutral phraseology—somehow the will of the Australian government or the Australian people, or through, I don't know, UN condemnation, somehow Australia will break and you will all come to Australia. That is what is animating the choices that people are making at the moment. It's regrettable and, through my evidence and testimony today, hopefully I can be as clear as I can that that will not deviate the government from its policy and that there is perfectly reasonable, appropriate, accommodation and other supports for the necessities of life that you mentioned earlier, available in alternative locations.

Senator McKIM: Mr Pezzullo, we've heard evidence today that the department is aware that about 600 people are refusing to leave.

Mr Pezzullo : For the reasons I've articulated.

Senator McKIM: Okay. On what basis are you making that claim? Have you spoken to all of those 600 people? Or is that just an assumption on your part?

Mr Pezzullo : No. It's more than an assumption. We get a lot of reporting from a lot of different sources and providers and people who interact. There is no doubt in my mind, I have a clear sense in my mind, that people at the centre have got, to varying degrees—again, I am going to try to be neutral here—of fixation that somehow, if they just persevere, stay in the centre, the will of the government—and the minister can no doubt speak for herself here; I don't speak for the government per se, but I don't see any sense that the government will change on this question.

Senator McKIM: So refugees have been murdered. Refugees—

CHAIR: Is that a question?

Senator McKIM: It is a preamble to a question. Yes, it is. Refugees have been repeatedly assaulted in the PNG community, including repeatedly attacked with machetes in the town of Lorengau.

CHAIR: What is the question, Senator?

Senator McKIM: I could go on about the dangers.

CHAIR: Yes, but what's the question?

Senator McKIM: The question to Mr Pezzullo is: is he rejecting entirely what on the face of it would be a very sensible notion that actually they're scared to leave the centre?

CHAIR interjecting—

Senator McKIM: You can laugh at death and machete attacks if you like, Chair, but I'm not going to join in. Mr Pezzullo.

Mr Pezzullo : Well, the contrary evidence that I see with the reports I get is that people venture into town and they engage in movement in and out of the centre today. That won't change. They will be engaged in the ability to move in and out of the East Lorengau centre. Ms Newton, I think, has the figures on how many people leave and come back into the centre. I can only deal with the evidence I have before my eyes, and no doubt you say the same thing. Ms Newton.

Ms Newton : Senator McKim, on average over the last eight months 189 residents of the centre go to Lorengau every day. That is around 4,640 per month.

Senator McKIM: How many have never come out?

Ms Newton : Never come out of where?

Senator McKIM: The RPC?

Ms Newton : I don't have those figures on me.

Senator McKIM: Do you have them?

Ms Newton : No, I don't.

Senator McKIM: Sorry—the department.

Ms Newton : I don't know whether or not I could get that detail.

Senator McKIM: So you have a situation, as is made clear in the translation of this notice that I've given you—and, by the way, I have the original Persian, and I've got the Farsi copy and in Burmese too, if you would like it. I've only had the Persian one translated, because they're all the same message at the end of the day.

CHAIR: Senator McKim, do you want to table the original document in whatever language which shows where it comes from?

Senator McKIM: I would just need to de-identify it first before I did that. I'm just informing the committee that I'm very confident of the ground I'm occupying here.

Mr Pezzullo : Sorry, Mr Chairman, through you, can I ask the senator—and perhaps this might ease discussions later—is the document de-identified for reasons you very properly allude to? Is it an Australian government document that we're talking about here?

Senator McKIM: I don't believe that it is, Mr Pezzullo, but it's a note that was given in various languages to detainees from various backgrounds who spoke those relevant languages. But I will make it clear that, contrary to the practice in the Senate of the last 4½ years, it was not posted in English on the noticeboards in the centre—which, of course, is interesting and, I would argue, suspicious. In any event, this translation that I've given you makes it clear that in fact only the East Lorengau transit centre accommodation is available at present, and we've had that confirmed by evidence.

CHAIR: Senator, what's the question?

Senator McKIM: I'm just coming to it, Chair. I'm not sure why everyone else gets a lengthy preamble and I don't, but that's a matter for you.

CHAIR: They're simply political statements, which are fine.

Senator McKIM: Well, it's not; it's a statement of fact.

CHAIR: These estimates are about asking officials questions and getting their answers, whether you like them or not. If you could ask the question, and I would ask the witnesses if they could reply as directly as possible to the question that's asked. I might repeat that, Mr Pezzullo. I'm asking the senator to ask questions, but I'm asking the witnesses to answer as directly as possible to the actual question. That way would help us all.

Senator McKIM: These questions go to what will happen after 31 October, depending on how successful your attempts to starve these people out of the regional processing centre are—or force them to move by denying them, for example, drinking water—which you have given evidence will occur.

Mr Pezzullo : Senator McKim, I will try to be direct, but accusations that we're starving people—

Senator McKIM: You're cutting off their food, Mr Pezzullo. How would you describe it?

CHAIR: Mr Pezzullo, the way to answer that—if I could suggest to you, and it's not for me to give evidence—is to say, 'That is simply not correct.' Senator McKim can ask you whatever he likes as a question, but you could just say, 'That is not correct.'

Mr Pezzullo : It just means there are many layers that I have to give to my answer.

CHAIR: You've already answered these, I have to say, but now might be an appropriate time to go to morning tea until, say, 11.25.

Proceedings suspended from 11:07 to 11:25

CHAIR: We will resume. We're dealing with the Department of Immigration and Border Protection.

Senator GRIFF: Ms Newton, earlier today, you mentioned the contract with IHMS will cease on 28 February 2018. How is the department ensuring the men on Manus will have access to ongoing medical and, particularly, psychiatric care once the contract ceases?

Ms Newton : Obviously, there'll be an additional contract post-28 February 2018. That's still a matter for PNG and DIBP to work through in terms of who owns that contract.

Senator GRIFF: You're ensuring, as part of this, that the full services—mental health, for example—will continue and there'll be no break in treatment at all?

Ms Newton : No. We would expect that services will continue. Whether it continues to be IHMS or somebody else, a new tender process will go forward for contracts.

Senator GRIFF: Has a replacement been appointed following the resignation of the Chief Medical Officer and Surgeon General?

Ms Newton : No, a replacement hasn't been finalised at this time.

Senator GRIFF: Where are you at with that process?

Mr Pezzullo : I'm probably best placed to speak to that. You weren't here for the earlier proceedings, but with the move to a Department of Home Affairs, I will need to give consideration to whether the department proper needs to engage the services of a chief medical officer at that level of seniority, whether the relevant matters are more particularly ones that ordinarily would be dealt with by the Australian Border Force on a day-to-day basis. The acting commissioner and I are in discussions about that. Then there's a second factor to consider, and that is the health services assessments that pertain to the visa issuance program. Visas are issued by the department, so the department will need a degree of medical service support and advisory support.

Rather than going for a straight one-for-one filling of that position, we're taking the opportunity of the vacancy being currently on our books to think it through. Obviously, there are people who act and who act with delegation, so the position is never vacated. In terms of permanent occupancy of the position, the acting commissioner and I are working those issues through as to what Home Affairs will require, noting that Home Affairs—once it's established—will be the immigration authority, so it will issue visas. There's a health services and medical advisory capacity required to support that function. Then the Australian Border Force, because it runs detention operations and the like, will also require the services of a surgeon general. How we fill that position is the subject of ongoing discussion.

Senator GRIFF: What were the reasons for the apparent sudden resignation?

Mr Pezzullo : When you say 'apparent sudden resignation', as I have cause to caution other senators, you shouldn't believe what you read in the papers—all the time, certainly. Dr Brayley chose to explore other opportunities and do other work. He and I were in discussions for quite some period of time about his views about the next phase of his career. It was done in a very respectful, collegiate and collaborative fashion. There was certainly nothing abrupt or surprising to me in where we got to in the end.

Senator GRIFF: With his departure, who's currently supervising the offshore health service provision and urgent medical transfers?

Mr Pezzullo : I'll ask the deputy commissioner to speak to what the acting arrangements are.

Ms Newton : First Assistant Secretary Elizabeth Hampton is currently oversighting medical services and calling upon our health service panel, with various doctors with different skill sets according to the requirements, to provide additional services and advice when required.

Senator GRIFF: With regard to mental health treatment, what are IHMS's obligations for offshore detainees who are arrested in PNG? For example, do they continue to provide medical health care while they're in custody?

Ms Newton : Whilst they are in custody, no, they wouldn't enter into the facilities and provide ongoing support.

Senator GRIFF: How would that support be provided?

Ms Newton : It would be provided by PNG, through their police force and the services that they have available.

Senator GRIFF: And you're confident that the level of care, if you like, will be as good as should be expected with IHMS?

Ms Newton : IHMS is a contractor that works on behalf of Australia's government. PNG and the police force there would be providing local services.

Senator GRIFF: I understand that women on Nauru who request an abortion are now being asked to first seek approval through the Republic of Nauru Hospital rather than the ABF, as previously happened, and, since that change was made, no women have been approved for the procedure, because abortion is illegal in Nauru. Is that the case?

Ms Newton : No. That's incorrect.

Senator GRIFF: Are there any other medical procedures for detainees on Manus or Nauru that have undergone a change in approval process at all?

Ms Newton : No. They haven't at this point in time. People still transfer to PNG for some medical arrangements. There have been transfers to Australia for medical arrangements and services that couldn't be provided in Nauru, and we continue to work with other medical support in country or in a third country, as required.

Senator GRIFF: I'd like to refer back to answers to questions on notice from the budget estimates in May, where I asked the department to provide details of how many data-matching requests for unlawful noncitizens have been made to the ATO.

Mr Pezzullo : I'm terribly sorry; I missed that—pertaining to what?

Senator GRIFF: It related to how many data-matching requests for unlawful noncitizens have been made to the ATO. In response, the department said that the ATO provides possible matches for 15,000 people each quarter. However, I put the same question to the ATO and was told that they provided the department with 71,000 matches in August last year and over 66,000 in November. How would you explain the significant discrepancy?

Mr Pezzullo : I would have to look at both—I assume that the question was the same, because—

Senator GRIFF: It was the same question.

Mr Pezzullo : I assume you provided it. I'd have to look at the wording of the answers as to whether there were any preambular conditions, qualifications, statements that would give me some context as to what the basis for those numbers is. I'm happy to, perhaps over lunch—

Senator GRIFF: On notice.

Mr Pezzullo : I will look at the two answers side by side and no doubt get some advice. There's always a way to explain statistics one way or another.

Senator GRIFF: I appreciate that. The department also advised that there are approximately 64,600 unlawful noncitizens in Australia. You have advised me in previous hearings that this number is fairly constant. However, according to the ATO, the department regularly makes about 85,000 data-matching requests for unlawful noncitizens. What would you see as being the discrepancy between—

Mr Pezzullo : Sorry; over what time period?

Senator GRIFF: It's 12 months.

Mr Pezzullo : Again, I'll need to look at the relevant documents side by side to make sure that I'm understanding fully the context and therefore not misleading you, but I'm assuming that the number, or the stock, as we describe it, of unlawful noncitizens who are here beyond the expiry of their visa—that's approximately 65,000?

Senator GRIFF: That's right.

Mr Pezzullo : Sorry; if you can assist me—64,000 and some few more on top of that?

Senator GRIFF: It was 64,600, but they are saying 85,000.

Mr Pezzullo : Let's call that 65,000. That is the stock of people. But, if I could put it in these terms, the actual number of humans—because it's a flow as well, not just stock who transition in and out of that state—is always going to be a greater number. That is because every day someone leaves. But every day, regrettably—and this is where the Border Force earns its salary—people extend or overstay by a day. So you might have the number not vary. If today I'm an unlawful noncitizen who's overstayed their visa but as a matter of conscience or because I have otherwise been directed I leave, but then another person today clicks over into that category, two human beings have the status of being unlawful noncitizens but only one is counted in the stock, if that makes sense. Therefore the data matching might well relate to a number of persons greater than the stock of 65,000 because there are people, in some cases—and I think we've given you evidence to this effect before—who have been in that category for years. We know that because of the entry and exit data. So we know that someone came and haven't left. They might be dead, they might be living under an assumed identity or they might have changed their name. That's one category. It goes right through to someone who overstays for a day. Maybe they didn't look at the date on their visa. They are technically unlawful for that one day, but if they catch a flight and leave then they're lawful. It's a stock-and-flow concept that we're dealing with here.

Senator GRIFF: Could you also provide, while you're looking at that, updated figures on the duration, visa type and nationality of the overstayers in 2016-17?

Mr Pezzullo : I thought we provided information on the breakdown, but perhaps it wasn't as you have requested. I might just seek the assistance of the acting commissioner.

Mr Outram : Going to the secretary's point, it's not a fixed group of people at a point in time. So data about how long they've overstayed isn't simple. What I can tell you is that, as at 30 June 2017, there were an estimated 62,900 unlawful noncitizens. We rate that about 99 per cent of the more than 7.1 million temporary entrants comply. So one per cent don't. Some of those might overstay by a day or a couple of days et cetera. To break that down for you in visa types, there were 46,030 visitors, 9,360 students, 2,270 temporary residents, 1,690 working holiday visas, 300 bridging visas, 280 on bridging visa E, 20 migrants and 2,930 who have been classified as 'other'. That gives you a sense of the breakdown. In terms of how long each individual in that group has overstayed by, that would be quite a lot of data to pull together. It's obviously a big group of people.

Senator GRIFF: And the nationalities?

Mr Outram : I don't think we've got that to hand. We'll have to take that on notice.

Senator GRIFF: That would be appreciated. I'd just like to refer—

Mr Outram : Excuse me, Senator. We may have some information on that.

Mr Williams : I can give you the top five nationalities—Malaysia at about 15 per cent, China at about 9.5 per cent, the US at eight per cent, the UK at 5.6 per cent and India at 4.1 per cent.

Senator GRIFF: Has that changed in the last 12 months?

Mr Williams : It would have changed a little bit, but I don't have that detail. I can that take on notice.

Senator GRIFF: Okay, thank you. Just moving on a little bit from that particular question, I'd like to refer to the department's move to deliver that new automated border clearance solution for passengers arriving at international airports, using facial recognition. Is facial recognition technology proven to be able to more accurately identify travellers or is it more about speed and efficiency?

Mr Pezzullo : Both is the short answer. The acting commissioner may wish to speak to this in detail. If we really want to get into some of the technology related issues, I might just need to arrange for officers who are not here presently to be summoned. Why don't we start with the acting commissioner.

Mr Outram : It is both. Firstly, it's far more effective in terms of facilitation. If you look at the queues, say, in Sydney Airport where we've introduced outbound SmartGate technology, there's been a significant impact on the flow of passengers through the primary line. It speeds things up significantly. Secondly, it enhances our biometric capability. The photograph, the details contained within the passport and the face of the actual person, of course, are captured by the SmartGate itself. There's more accurate checking there. It's actually far, far more accurate and reliable than the human eye.

Senator GRIFF: I'll have further questions later.

Senator KIM CARR: I might follow through on some of the questions that Senator Griff was asking about the resignation of the Chief Medical Officer. Mr Secretary, you categorically stated that the Surgeon General of the ABF resigned for personal reasons to do with his own career.

Mr Pezzullo : Yes. He and I discussed the matter, so I've got direct personal knowledge of this.

Senator KIM CARR: That's what you've said. He gave prior notice, did he?

Mr Pezzullo : Yes, noting that, as I said to Senator Griff, Dr Brayley indicated to me at some point prior to that that he was thinking about alternatives or, in effect, thinking about moving on. I asked him to continue to contemplate that. I was very grateful for his service and his support to me as secretary and the way in which he could break down very complex medical and health issues into terms that were certainly comprehensible to me. I told him I would be, frankly, sorry to see him go. He went away and contemplated that and came back to me. In giving me relevant notice, whether I gave him some discretion to leave more immediately because other opportunities were arising I can't quite recall. I'd need to check that. But, again, as I said to your colleague, he and I had been in discussion for a period of time and so his decision in the end to leave the department did not come as a surprise to me.

Senator KIM CARR: So it wasn't abrupt?

Mr Pezzullo : No.

Senator KIM CARR: When did you brief the minister?

Mr Pezzullo : I'd have to look at that. In fact, I'd have to recall whether I mentioned it to him in passing, because these are matters for the department. It's not really a matter for the minister. Whether I mentioned it to him in one of our regular meetings or whether I gave him written advice, I'll need to check.

Senator KIM CARR: I would have thought the resignation of the Chief Medical Officer would be a matter for the minister.

Mr Pezzullo : I don't see why. It's a departmental role. The employment status of the officer is not a statutory one. He is an employee of the secretary of the department.

Senator KIM CARR: So the statutory obligations are not set down in legislation?

Mr Pezzullo : Of the role?

Senator KIM CARR: Yes.

Mr Pezzullo : No. It's a Public Service position. Because of the—I was going to say 'peculiar'—notable status of ABF officers as Australian public servants, other than the commissioner himself, all ABF officers are also employees of the secretary under the Public Service Act. There's no issue there about being employed under a different head of a statutory authority.

Senator KIM CARR: The Chief Medical Officer and Surgeon General of ABF is just a normal public servant. Is that what you're saying?

Mr Pezzullo : They are an Australian public servant—that's right. Obviously the exercise of delegations and powers, as for any officer, flows through the secretary. But, no, it's not a position—

Senator KIM CARR: It's just on a normal delegation from the secretary. That's the point you're trying to make.

Mr Pezzullo : Yes, it's not a position specified in legislation.

Senator KIM CARR: So the fact you've now appointed the first assistant secretary as acting Chief Medical Officer and Surgeon General of the ABF is consistent with that, is it?

Mr Pezzullo : It is, insofar as the role obviously requires management and administration as well as medical advising. The management and administration, Ms Hampton can deal with. She's not a doctor, so she relies on a panel of health specialists, as Deputy Commissioner Newton indicated, and doesn't provide me with medical advice obviously.

Senator KIM CARR: Ms Hampton has no medical qualifications?

Mr Pezzullo : No. She relies upon a panel of medical advisers.

Senator KIM CARR: How many members are on the health advisory panel?

Mr Pezzullo : That I will need to check. I'm sure that someone can advise me, if not immediately then within today's proceedings.

Senator KIM CARR: Has there have been an increase in the number of people on the—

Mr Pezzullo : I think that Dr Brayley did a terrific job in, as I recall it, broadening out and standardising the terms in which that panel is constructed—I don't mean 'terms' in a commercial sense, but in getting subspecialties—and I know that panel has evolved in recent times. I would just need to refresh my memory. We have specialties and subspecialties covered.

Senator KIM CARR: But you have a non-medical specialist now as the Chief Medical Officer and Surgeon General.

Mr Pezzullo : No, the position is split into two roles. There's the head of the division, who is a first assistant secretary of a Public Service division, if you will, which Dr Brayley—

Senator KIM CARR: That is the Children, Community and Settlement Services Division.

Mr Pezzullo : That's right, and there's another division called Health Services Division, of which Dr Brayley was the first assistant secretary. That's a general administrative role; and you don't need to be—it's like health administrator in a hospital, where you don't need to be a doctor; you need to be able to administer a function. Whilst we go through the discussions, which I indicated earlier to Senator Griff, of what specialised in-line full-time medical specialties both the Department of Home Affairs and the Australian Border Force will require, Mr Outram and I have decided not to rush to that, and that's the best way to describe that.

Senator KIM CARR: You're certainly not rushing it.

Mr Pezzullo : We have other officers, both in-line and contracted, who provide—at some point, unless you put a doctor in charge of the whole department, a medical specialist always has to advise a generalist, whether it's a deputy secretary, a FAS or a secretary. In this case—

Senator KIM CARR: I understand what you're saying, Mr Pezzullo, I want to know how many people are on the panel.

Mr Pezzullo : I thought I was being not entirely clear.

Senator KIM CARR: The more you talk, the less clear you become. I would like to know how many people are on the panel. I would have thought the person who is the chief medical officer should have medical qualifications.

Mr Pezzullo : I can assure you that the permanent occupant of that position will have. The panel consists of 12 practitioners, and we also have a number of SES officers who are also medically qualified. I need to remind myself of the detail of that. The 12 panel members, who are not my employees—they're empanelled—come from a variety of clinical backgrounds across all of the areas that you would—

Senator KIM CARR: They're medical specialists.

Mr Pezzullo : Yes, in various fields.

Senator KIM CARR: There have been a further three resignations of senior medical staff on Nauru. Is that correct?

Mr Pezzullo : On Nauru?

Senator KIM CARR: Yes.

Mr Pezzullo : We don't have doctors on Nauru ourselves as a department. Whether the contractors have, perhaps Ms Newton can assist me here. Whether staff on Nauru who are contracted have moved onto other employment, I don't know. We'll wait for Ms Newton to return. Just as a general chapeau comment, I can advise that non-medical generalist public servants—I say that neutrally—provide great administrative support, but they don't make medical decisions nor do they provide medical advice.

Senator KIM CARR: Is it true that there have been three senior medical personnel on Nauru who have resigned?

Ms Newton : The Australian Border Force or the department doesn't actually employ health professionals on Nauru. That's a matter for IHMS, the provider.

Senator KIM CARR: Okay. Have there have been three people associated with the provider who have resigned?

Ms Newton : I'm aware of one person who has left employment, but I'm pretty sure it wasn't a resignation. It was a request for that person to leave.

Senator KIM CARR: So they've left the island?

Ms Newton : That's correct.

Senator KIM CARR: Was that person attacked with a knife?

Mr Nockels : Senator, I can perhaps assist here. IHMS delivers primary health care on both Manus and Nauru through the contracts the Commonwealth has with them. We would expect IHMS to manage staffing as required. There's always coming and going at all levels across IHMS. So I'd have to go back and check, exactly, in terms of numbers in the last six months, who has come onto island and who hasn't, and who's not returned, because staff rotate on and off on a regular basis. I'd have to go back and check. I think you're referring to a senior doctor who, I think, resigned recently, and that could be in the last couple of months so I'd have to go back and check on that.

Senator KIM CARR: My question goes to the media reports suggesting that there have been a number of departures. We can quibble about whether they've resigned or requested transfer, but what I'm saying is they're not available.

Mr Nockels : They're replaced. If someone were to resign from IHMS or seek to move to a different contract that IHMS might be managing, we have an expectation that the service provider would continue to deliver the footprint that we require of them under the contract. It would be their responsibility to ensure that someone appropriately trained to take on the role would be found to fill that position.

Senator KIM CARR: So you'll be able to tell me how many people. Is that a matter that is readily at hand?

Mr Nockels : We'll take that one on notice.

Senator KIM CARR: What I'd like to know is whether it's readily available here today.

Mr Nockels : I don't have those details with me at the moment.

Senator KIM CARR: If you could find that out today, it would be appreciated; if you could just check to see if it's around.

Mr Pezzullo : We'll take it on notice—

Senator KIM CARR: The trouble is, 'on notice' means we'll have to come back in February.

Mr Pezzullo : Possibly. I was about to say we'll take it on notice but if we can acquit it today we will.

Senator KIM CARR: On Manus, are there many medical positions that are unfilled?

Mr Nockels : Off the top of my head, I think we have a full complement there at the moment.

Senator KIM CARR: So you'll be able to tell me how many positions, what the turnover is on Nauru this calendar year. Perhaps that might be the best way to deal with it.

Mr Nockels : Calendar year, up until today?

Senator KIM CARR: Yes. There is this issue about the overseas medical referral committee that has to actually approve medical transfers. Is that the case? Is there a new process in place?

Ms Newton : There's an ongoing process that's in place for referrals to take place from the provider, which is ICSA, through to Australia.

Senator KIM CARR: How long has that process been operating?

Ms Newton : For quite a long period of time. I'd have to check on the date that it actually commenced but that process hasn't changed.

Senator KIM CARR: Who has the final say about whether or not people are transferred to Australia or anywhere else for medical purposes?

Ms Newton : That comes back to the department. There's a clinical advisory team within Health Services and Policy Division, and reviews of the incident—or, if somebody's ill, the assessment via the medical movement—will come to that group for assessment and decision, incorporating clinical advice about the case for consideration by the transitory persons committee.

Senator KIM CARR: How many requests have there have been in the last few months?

Ms Newton : How many months would you like information on?

Senator KIM CARR: What do you have in your folder? Tell me how many you have in front of you.

Mr Pezzullo : We're not giving you our folders.

Senator KIM CARR: We can go through this the long way or the short way. You've been very helpful this morning. You went through the list of contracts and it's saved us all a lot of time.

Ms Newton : Medical transfers from 1 May to 30 September, via air ambulance, were four. That might also be from Manus to Port Moresby.

Mr Pezzullo : Are those requests? I think the senator was asking about requests. Senator, could we just be clear about the question?

Ms Newton : These are actual transfers.

Senator KIM CARR: Were those four initiated by patients or by the medical staff?

Ms Newton : By medical staff, through IHMS. They actually have to be initiated formally through a medical process.

Senator KIM CARR: There's a particular issue in regard to terminations. Were there any involving terminations, in Nauru?

Ms Newton : Yes. Three refugees have been transferred for termination of pregnancy, between 1 May and 30 September, and one transferee—for the same reason: termination.

Senator KIM CARR: Who makes the decision on those matters?

Ms Newton : I will refer that to Mr Kingsley Woodford-Smith, because he's the final decision maker.

Mr Woodford-Smith : Referrals from IHMS or the governments of Nauru or PNG go to a transitory persons committee for review, and then that recommendation is made to my position, who then authorises the transfer to a third country, to Australia—whatever it may be—depending on the circumstances—

Senator KIM CARR: So you make the recommendation?

Mr Woodford-Smith : No, I make the final decision.

Senator KIM CARR: Sorry, the decision. Do you make it on the basis of medical advice?

Mr Woodford-Smith : That's correct.

Senator KIM CARR: Only on medical advice?

Mr Woodford-Smith : That's correct.

Senator KIM CARR: Have you refused any?

Mr Woodford-Smith : There would be cases that I have refused at different times, and that's simply because the medical help or support has actually been able to be brought to that particular country.

Senator KIM CARR: So, the local medical team have actually recommended a transfer and you have said, 'I would rather bring personnel in to the patient'?

Mr Woodford-Smith : Absolutely. The key issue for us is achieving the medical support and the medical care, and there's many ways to do that.

Senator KIM CARR: How many times have you done that?

Mr Woodford-Smith : I can't tell you right now how many times that particular occurrence has occurred.

Mr Pezzullo : We'll have to come back to you on that.

CHAIR: We'll leave that there. Senator Hume.

Senator HUME: I want to ask some questions about Operation Sovereign Borders, but, before I do, can I go back to the closure of the Manus RPC. I'm trying to wade my way through Senator McKim's politically motivated melodrama. For the sake of clarity for me, can you please confirm that this is not some secret plan? The move from the RPC to the East Lorengau Refugee Transit Centre has been an entirely transparent process and it's out in the open, yes?

Mr Pezzullo : The two prime ministers, just to briefly recap, came to agreement on or about 8 April, I think was the evidence stated before. At about the same time, both the minister publicly, and the service providers privately, were advising the residents of the intended closure date, being 31 October. Over the course of—Ms Newton will help me out here—April, and May, I do recall, an enhancement of and intensification of that messaging occurred, saying, 'This is what is going to be happening. There will be a transit centre here and there will be other accommodation, depending on your status,' because there is a differentiation here between refugees finally determined, those found not to be owed protection, those who have taken up assisted voluntary return pathways, those who are refusing to return, even though they have been found to be not owed protection—so there are different categories of people. And I think that Ms Newton is right to say that that messaging has been occurring fairly consistently, if not from April, then certainly from about May. Is that right?

Ms Newton : From 15 May people formally got notification, in the regional processing centre, from the Immigration Department in PNG that closure would take place—alternative options that would be provided to people. That has occurred on a continuous basis in every language that is used within the centre, with flyers to individuals, as well as room allocation and specific directions to each person in the centre as to where they will be accommodated and what services will be provided to them in the future. There's also been meetings held with Immigration, residents in the centre, and those people who are the opinion leaders in the group, to discuss how we can encourage people to move from the centre, as well.

Senator HUME: Let's be very clear about exactly what services are available at the new ELRTC. Obviously, there is food, yes. There are medical services. There is obviously electricity and water; what else is there?

Ms Newton : Yes, electricity, water, medical services, and full accommodation arrangements will be in place, air conditioning, in a number of instances, as well as those people having vehicle services or bus services to move them into town as they need to move into town, and full security services.

Senator HUME: Are the services as good if not better than they were at the RPC?

Ms Newton : Yes; in fact, all of the accommodation is hard-walled accommodation, in comparison to some in accommodation at the moment that are in marquees.

Senator HUME: So in the department's view, are there absolutely no concerns whatsoever with either the security or the provision of services at the new transit centre?

Ms Newton : No, we're ensuring that all of those people have adequate services to continue on with their lives and to make decisions about their future.

Senator HUME: What, then, are the alternatives for those who are at the RPC? If they can't stay there—clearly—and they can't come to Australia, where can they go?

Ms Newton : There are no other alternative services. People can choose to go home, back to their own country; particularly those that are non-refugees are more than welcome to nominate to return home. Those offers are being made at the moment to assist those people in moving home if they wish to go. Also, Nauru is another option—refugees are being asked if they're interested to go to Nauru while they await any outcomes associated with the US process.

Senator HUME: Thank you, I think that clarifies an awful lot. I turn now to Operation Sovereign Borders—

CHAIR: Just before you do, could I interpose in Senator Hume's time. This decision to close this centre resulted from a court action. Is that correct?

Mr Pezzullo : It flowed from a court action, yes.

CHAIR: Who took the court action?

Mr Pezzullo : I can't quite recall who the plaintiff was. It's called Nama's case, and it was a case brought in the Supreme Court of PNG.

CHAIR: Was it the leader of the opposition in the PNG parliament?

Mr Pezzullo : It might have been, yes—at the time.

CHAIR: Do you recall if any Australian political party warmly applauded the decision of the Papua New Guinea supreme court to close the centre?

Mr Pezzullo : I've got no recollection of any particular party. I'd have to do a bit of research on that.

CHAIR: Senator McKim might like to comment on that, because I thought he was one of those who warmly applauded the closure when the supreme court made the decision.

Senator KIM CARR: Is that really a role for the department?

CHAIR: No, it's not; you're quite right, Senator Carr. I'm editorialising, which I don't like others doing. But I just wanted to be clear about why the centre is being closed.

Senator McKIM: Because it was illegal.

Mr Pezzullo : As I said in my earlier evidence: in the immediate aftermath of Nama's case being settled—

CHAIR: We should take Senator McKim's interjection—because it was illegal.

Senator McKIM: Because the Supreme Court of Papua New Guinea found it to be unconstitutional.


Mr Pezzullo : Senator McKim's interjection is accurate: the court found that, unless you've got a definitive plan in place—including in relation to the physical arrangements—to determine a person's refugee status, to either find them a resettlement outcome or to return them if they are found not to be owed protection, you are in violation of particular provisions of the PNG constitution.

CHAIR: Did the Supreme Court make any rulings as to timings? Or were the timings a matter of agreement between Australia and PNG?

Mr Pezzullo : No, the court did not bring down any specific orders, but the Chief Justice, if I recall correctly, and other justices made it very clear that they would expect that the matter be dealt with as quickly as possible. So the executive of PNG, the government in its own right, decided to undertake, effectively—Ms De Veau will correct me where I get this wrong—a two-part remediation strategy. One was to open the centre, and I have given evidence about this over the last 18 months, so I won't recap that. So the very act of opening the centre meant that you rendered it legally safer, in terms of it being a correction-style environment where no-one has been found to be guilty of any charges. That was the essential constitutional issue, in summary. And then, separately, the two governments embarked—through officials initially, but ministers and prime ministers have been involved as well, of course—on a discussion about having regard to prospects for resettlement in third countries—because they weren't coming to Australia—having regard to the case load and the period of time that the PNG immigration authorities would take to work through cases, and what was a logical closure plan—that took a period of time to work through. The two Prime Ministers met, as we gave evidence earlier.

CHAIR : Yes, we've heard about that.

Mr Pezzullo : And that's how we find ourselves—

CHAIR : Well, we've got that evidence on the record. Could you just remind me when the judgement was made in this PNG court case?

Mr Pezzullo : Was it April 2016?

Ms de Veau : The decision was in April 2016.

CHAIR : 2016?

Ms de Veau : Yes. To confirm the secretary's evidence in the first session, the thrust and the central tenet of the decision goes to detention. So it's not that the Manus centre is unlawful; it is that the detention of people who are going through the process didn't have a constitutional head specifically authorising that. There had been an amendment to the constitution, and the court found that that amendment had not been validly made. So it really goes to the detention, regardless of the location. So the order of the court in April 2016 was not necessarily that the Manus centre had to close, but that, forthwith, the PNG government should not be detaining people. So immediately thereafter they made arrangements for an open centre to be made, so that they could be said to be complying with the order of the court. It has then been a matter for the governments as to how they then manage the housing of people and the use of Manus thereafter, in part, and as I think the secretary has appropriately said, driven by the decision. But the decision primarily goes to detention.

CHAIR : So that decision was made 18 months ago. Do you have any dates or approximate dates for when the decision to close the centre and establish this alternative accommodation was made.

Mr Pezzullo : It was announced as a result of final discussions between the Prime Ministers in April of this year.

CHAIR : So that's six months ago.

Mr Pezzullo : Approximately.

CHAIR : But it had been spoken about, is my recollection of the newspaper reports, prior to that?

Mr Pezzullo : And, indeed, we might well have given evidence prior to April 2017 that we were in discussions about the future of the centre, having regard to all of the factors that Ms de Veau has just articulated.

CHAIR : Yes, okay; I just wanted to clarify that. Thank you. Sorry, Senator Hume.

Senator HUME : That's all right.

CHAIR : You've got another five minutes.

Senator HUME : I'll quickly cover my questions on Operation Sovereign Borders. The last I looked, there were no boat arrivals for over 1,000 days. Is that right? Can anyone give me an update on how many days it's been?

Mr Pezzullo : I might immediately refer that to Air Vice Marshal Osborne, who will take your questions.

Air Vice Marshal Osborne : In short, the answer to your question is that it's been well over 1,000 days; in fact, closer to 3½ years since we've had a successful arrival.

Senator HUME : How many ventures to Australia have been successful since the policy of the turnbacks commenced?

Air Vice Marshal Osborne : How many vessels have we returned?

Senator HUME: Yes.

Air Vice Marshal Osborne : As of this date, we've returned 31 vessels, which includes 771 people.

Senator HUME : So 771. When was the most recent one of those turnbacks?

Air Vice Marshal Osborne : We had one in June of this year, which is the only one that we've had since our last estimates hearing.

Senator HUME : What were the details of that one?

Air Vice Marshal Osborne : Fundamentally, there were six people involved in that. They were intercepted in Australian waters. We owed them no protection obligations, and we negotiated to return them—in this case, to their place of departure in Sri Lanka.

Senator HUME : On the disruption and deterrence operations under Operation Sovereign Borders, can you explain to me exactly what they are and where they are targeted specifically geographically?

Air Vice Marshal Osborne : Our deterrence and disruption form a significant element of Operation Sovereign Borders—particularly so, because whatever we can do to prevent people getting onto vessels and placing their lives at risk or their financial futures at risk is always better than actually having to prevent the problem once the vessels are at sea. So, to that end, we work with a number of countries in the region in all sorts of ways—law enforcement, for example, with other countries. It also extends to strategic communications, in which we take effort to explain the government's strong border policies, as well as the very negative consequences of engaging the people smugglers. So there's a wide variety. It's across the region. Probably one of the most obvious ways is through the Bali Process, which we use to discuss means of addressing the threat of people smuggling. As we know, the threat is not limited to Australia. Indeed, it's not limited to the region.

Senator HUME: I was going to ask you about that. What has happened to the people smugglers? Surely, they haven't all just packed up shop and gone home.

Air Vice Marshal Osborne : I wish I could say that, Senator, but unfortunately no. There is no doubt that we have been very successful in, what I would say, suppressing them. But we do know they remain active. We do know that they watch events in Australia and around the world very, very carefully and we do know that they are keen to get back into business if given half a chance.

Senator HUME: Maybe you can give me an idea of the number of potential illegal immigrants that must be in transit in various countries. They must still be there. Where are they going instead?

Air Vice Marshal Osborne : There are literally thousands of people throughout the region in many areas close to Australia. For example, in Indonesia there are roughly in the order of 14,000 registered with the UN, but there are also many thousands in Malaysia, Thailand and India. Throughout the region there are thousands of people who could fall prey to people smugglers.

Senator HUME: With these policies and operations in place, is Australia still an attractive destination?

Air Vice Marshal Osborne : As a productive, friendly and relatively safe first-world nation, I would have to say: yes, of course Australia would be an attractive destination.

Senator HUME: But these policies are, essentially, deterring any new arrivals—or potential arrivals?

Air Vice Marshal Osborne : Fundamentally, OSB has stood up to secure the borders of Australia, to dismantle the people-smuggling model and to stop people putting their lives at risk by taking to boats. The short answer is: yes, we're achieving that aim.

Senator HUME: It's been a very successful policy.

Senator KIM CARR: I just want to come back to where I was pursuing this question of the medical transfers. How many people on the waiting list have medical transfers?

Mr Pezzullo : I will ask the assistant commissioner to rejoin us. I'm not sure if it's a question of there being a waiting list, because they're not like elective matters. It's a fairly binary choice—you either come here or you don't. The assistant commissioner can explain that.

Senator KIM CARR: How many people are seeking to have transfers either individually or by medical request?

Mr Woodford-Smith : I don't have the actual number currently on hand right at the moment.

Senator KIM CARR: I think the deputy commissioner would like to assist you here.

Mr Woodford-Smith : A slightly different question—from my perspective, I don't have the number. There are a number of requests for medical movement. They change every day.

Senator KIM CARR: I will put it to you this way. On 21 August—it is reported in The Guardian—there were nearly 50 refugees or asylum seekers held on Nauru, including three women seeking to terminate a pregnancy, who were being refused or not considered for overseas medical treatment, in defiance of doctors' recommendations. Is this correct?

Mr Woodford-Smith : There are a number of requests for medical movement that are currently being considered by the transitory persons committee. I'm not sure if it refers to the three that you've just mentioned, but—

Senator KIM CARR: I said 50, including three. Is it true there are 50 people seeking medical transfers at this time?

Mr Woodford-Smith : I would have to go back and take that on notice. I don't know how many are actually on the RMM schedule. I say that because the Request for Medical Movement schedule changes from day to day. Some of those—

Senator KIM CARR: So what advice have you got before you? In the last three months, for instance, how many requests have you had? You've told me how many have been approved. How many requests have you had?

Mr Pezzullo : I think he previously took it on notice.

Mr Woodford-Smith : Yes. I've got to take that on notice.

Mr Pezzullo : Well, you already have in the previous exchange.

Senator KIM CARR: You don't know how many requests you've had?

Mr Woodford-Smith : I don't have that.

Senator KIM CARR: You don't have that in front of you?

Mr Woodford-Smith : I don't have that in front of me.

Senator KIM CARR: Deputy Commissioner, you indicated before that the process for the approvals had been in place for some time. It's been put to me that that's been in place since July of this year. Can you confirm with me at what point the process of medical transfers being approved by the Nauru Hospital overseas medical referral committee came into place?

Mr Woodford-Smith : The overseas medical request, which I think is what you're referring to, which is a process that was put in place by the government of Nauru, has certainly been in there, that I'm aware of, since July 2015. It might have been in before then, but that's certainly to my—

Senator KIM CARR: July '15? You want to be clear about—

Mr Woodford-Smith : July 2015—the overseas medical referral process for the government of Nauru has been in place, that I'm aware of.

Mr Pezzullo : Just be clear that the current form of the arrangements were put in place at a particular point in time, but there would have been antecedent arrangements.

Senator KIM CARR: I know that, and I'll get to that point. It's been put to me that, in July of this year, this department—that is, your department—mandated that all medical transfers be approved by the Nauru Hospital overseas medical referral committee. Is that correct?

Mr Woodford-Smith : I don't think that's correct, the way you're phrasing it.

Senator KIM CARR: Then how would you phrase it?

Mr Woodford-Smith : There have been changes to the overseas medical requests from the government of Nauru, and there were changes earlier in the year, particularly around terminations of pregnancies, but the process has been in place for a significant period of time in one form or another.

Senator KIM CARR: You said there were changes this year. Please describe to me what the nature of the changes are.

Mr Woodford-Smith : The change is that all requests for medical transfers to do with refugees on Nauru go through the Nauru government process of the overseas medical referral.

Senator KIM CARR: And when was that system put in place?

Mr Woodford-Smith : The slight change to that would have occurred around the middle of the year. I'd have to take that on notice.

Senator KIM CARR: The proposition I put to you a few moments ago of July this year doesn't seem to me to be too far from the truth.

Mr Woodford-Smith : It could be close in terms of that change.

Senator KIM CARR: It's a rather tortuous process we're going through at the moment, Assistant Commissioner. I just want to get to the matter. In July of this year—I'll come back to it again—were there changes put in place whereby approval processes were changed?

Mr Woodford-Smith : I don't know the exact date. I would have to take that on notice.

Senator KIM CARR: Were there changes made in the middle of this year? We can go through this if you like, but were there changes made in the middle of this year?

Mr Woodford-Smith : Senator, I'm trying to be helpful.

Mr Pezzullo : I think the officer is not recalling the details—

Senator KIM CARR: I can tell.

Mr Pezzullo : Could you perhaps allow him to go off and refresh his memory. I'm sure that he'll come back with a clean and clinical answer.

Senator KIM CARR: That would be very helpful if you could check your brief over the break. I'd like to know: is it is correct that there are 50 people, however you define them, seeking medical assistance off island?

Mr Pezzullo : Or who were at the time of the newspaper report that you referred to?

Senator KIM CARR: As of 21 August, was that the case? If that's not the case, how many? I'd like to also know when the minister was briefed on this change in process.

Mr Woodford-Smith : I don't believe the minister was briefed on the change of process. I'd have to go back and confirm that. But, as far as I'm aware, he wouldn't have been briefed.

Senator KIM CARR: Wouldn't have been briefed at all?

Mr Woodford-Smith : I don't believe so.

Senator KIM CARR: You don't want to check your notes on that as well?

Mr Pezzullo : I think as part of the general checking of the facts here, we'll take on notice the brief of the minister.

Senator KIM CARR: I would like to know the date the minister was briefed, who actually approved the change and at what level within the department or the government the changes were approved. I'd like to also know: can the overseas medical referral committee overrule the Chief Medical Officer or the Surgeon General?

Mr Pezzullo : I'll answer that as a matter of principle and then perhaps elucidate some of the points that the assistant commissioner can look at through the course of the day, and if we can come back to you through the course of the day I'll give you this absolute assurance that we will. The medical committee, whether it's led by the Republic of Nauru—and I think you'll find that the material change here related to the fact that as Nauru's capability increased they wanted to have a greater say in who got treated within their facilities versus who was the subject of a request to come to Australia. In the end, to get to Australia you still need a visa, and your medical condition is certainly part of that consideration. But, as you heard in evidence previously given—and I know this to be a fact, because it goes back certainly over the three years that I've been the secretary of the department—in some cases we will expend the resources and the funds required to actually provide that support forward, to obviate the need for people to come to Australia. So, it's not a straight matter that the clinical advice is X and therefore the action is X. If the treatment can be rendered in Nauru, either through the Australian contractor or through the Republic of Nauru hospital, that is what is done.

Frankly, one of the risks you're dealing with here—and no-one wants to place anyone's life at risk and no-one wants to create the circumstance of the potential risk of permanent impairment—is that once folks turn up here it has occasionally been the case that once their medical treatment has been dispensed with through legal action, including legal undertakings that we take ahead of the almost inevitable injunction, we can't readily and easily return people back to Nauru. Regrettably, this becomes a medico-legal issue, almost—or a legal-medical issue is perhaps a better formulation. We have to have regard to Australia's sovereignty and the protection of the integrity of our own visa system. So, if the assistant commissioner can possibly arrange for the service to be provided in situ, noting that it's a sovereign country and people in the community attend hospitals, those factors also have come into play.

It seems to me that the best way to answer your questions that go to, if you will, chronology—and the assistant commissioner will take a careful note of this, no doubt—is to go right back to the start of the agreement: what were the arrangements entered into? We won't make this long and laborious; we will try to answer this today.

Senator KIM CARR: I appreciate the assistance you're providing, but—

Mr Pezzullo : But absent that history, if I may—

Senator KIM CARR: I understand that, but it's a simple proposition. There's an article that appears in a newspaper that basically says that we're now subverting the medical processes—

Mr Pezzullo : Subverting what?

Senator KIM CARR: We're subverting the medical process—

Mr Pezzullo : How so?

Senator KIM CARR: Insofar as you're now indicating—and I think it is the claim made in the article—that for legal reasons we don't want people to come to Australia to get medical treatment in case they use the legal system.

Mr Pezzullo : If we can treat them in situ, as I said. I'd appreciate the full—

Senator KIM CARR: But that's the thrust of the argument. Now, it goes further than that, because it then goes to suggest that the reason the—

Mr Pezzullo : And you can understand the perverse incentives that would be created—

CHAIR: Mr Pezzullo, this is not a debate. Perhaps you could let Senator Carr finish his question, and then perhaps he would let you give an answer to the actual question.

Senator KIM CARR: Thank you.

Mr Pezzullo : Thank you.

Senator KIM CARR: You see, it goes further than that, because the allegation then goes to the proposition that the Surgeon General of the Australian Border Force resigned because his capacity to do his job had been interfered with as a result of these changes.

CHAIR: The question is?

Senator KIM CARR: The question is: is that true?

Mr Pezzullo : No.

CHAIR: Okay; thank you.

Senator KIM CARR: And that's what I'm anxious about. If this article is true, that there are 50 people—and Mr Assistant Commissioner, you're going to have a look at your notes over the lunch break—

CHAIR: Well, Senator Carr, Mr Pezzullo said it's not true.

Senator KIM CARR: Well, hang on. That's one question I've asked. I've asked a series of questions. Mr Pezzullo, you're telling me that the Surgeon General at no point expressed to you his anxiety about the changes that are being made to the approval process for medical transfers.

Mr Pezzullo : He did not raise any anxieties with me, as my professional medical adviser. I've got legal advisers; I've got all sorts of advisers. He was heard in terms of the advice to be provided on a whole range of factors that have to be taken into account, and it's my job to balance that advice and to make decisions.

Senator KIM CARR: That's fair enough, but you're saying to this committee that the Surgeon General at no point expressed his reservations about these changes and that was no part of his decision to resign.

Mr Pezzullo : That's right. And further, I've stated, I don't accept the claims—I've got a recollection of that article; I'd like to refresh myself as to its precise claims. I remember at the time that elements of it, if not all of it, seemed far-fetched. But I'm happy, when the assistant commissioner goes back through the chronology of these matters, to reacquaint myself with what The Guardian claimed at the time.

Senator KIM CARR: There's also a report here in regard to one case—the provision of on-island medical facilities—where:

… in 2015, a government health contractor advertised on LinkedIn for a neonatologist to fly the very next day to Nauru to oversee a complex birth. The ad even invited doctors to nominate their salary for a week's work. Doctors told the government the mother should be flown, with the baby in utero, to a tertiary hospital. The woman ultimately gave birth on Nauru.

Is that true? Was that the circumstance that actually occurred?

Mr Woodford-Smith : I'd have to take that on notice, around that particular case.

Senator KIM CARR: Thank you. Now, if that's becoming the circumstance, my concern goes to this, Mr Pezzullo: if it's becoming the circumstances whereby proper medical treatment is being denied for people, to prevent them exercising legal rights on the—

Mr Pezzullo : Sorry—legal rights?

Senator KIM CARR: To prevent them, hypothetically—because we don't know what they're going to do if they come to Australia—exercising, potentially, a legal right, including having access to proper psychiatric facilities, then it does seem to me to be a fair stretch.

CHAIR: What is the question?

Senator KIM CARR: My question is: is that an appropriate use, a proper policy position for this government to be able to pursue?

Mr Pezzullo : As a matter of policy, the chronology—you've asked lots of sub-elements in terms of dates, times and places—I can tell you; I don't need to research this myself, because I know what the policy is. The policy is that, wherever possible, if the medical assistance can be provided either in situ or by way of a third-country arrangement, that is always, as a matter of policy, preferable. In cases where—and indeed the former Chief Medical Officer and I had extensive discussions about this, because I was relying on his advice as to how to frame these parameters so I could best support the government in their execution of its overall policy—other than there being the case of threat to life or permanent physical impairment, as occurs with anyone in Papua New Guinea or Nauru separately, where they have local populations there who endure both chronic and acute medical conditions, wherever possible, even if we had to supplement the assistance on the ground, that assistance would be best delivered locally or by way of a third-country arrangement. We have some third-country arrangements. I just can't quite recall whether we've ever publicised them, so I'm not going to—

Senator KIM CARR: Fiji—

Mr Pezzullo : I just can't quite recall—

CHAIR: Senator Carr, this will have to be your last question for this area.

Mr Pezzullo : I can't quite recall whether we've nominated those countries, and out of respect for our diplomatic engagement with them I'm not going to just rattle them off, off the top of my head. But yes, if possible, the policy is to provide the medical assistance in situ or by way of a third-country option. That is the policy, absolutely. I don't need to research that.

CHAIR: All right. We've got two minutes left, which I might take as the government's time. You touched on the question I want to ask, Mr Pezzullo: what happens to residents of PNG who have those sorts of medical problems? What happens to residents, citizens of Nauru who have similar sorts of problems? What's the normal medical arrangement—if, I might say in many instances, there is any at all—in those countries?

Mr Pezzullo : I'm not an expert on such matters. Certainly in the case of Nauru especially, but PNG, I do recall that there might be some facility for treatment in hospitals in Queensland, but I don't want to mislead you otherwise. I do recall that. But generally speaking, if you're a citizen or a resident of those two sovereign jurisdictions your health needs are met by those two jurisdictions.

CHAIR: Do we medivac people from Nauru to Port Moresby for treatment in their—

Mr Pezzullo : As part of third-country support, yes, I believe we do.

CHAIR: Ms Newton, do you have any information on that?

Ms Newton : Yes. There are currently five people from Nauru who are being transferred to Port Moresby Pacific International Hospital and are receiving treatment at this time.

CHAIR: Pacific International Hospital—that's a private—

Ms Newton : Yes, it is.

CHAIR: reasonably well-equipped hospital, if my local knowledge serves me well. Is that right?

Ms Newton : Yes, that's correct, and there have been 10 transfers from Nauru to that hospital since 1 May 2017.

CHAIR: Do any go to the Port Moresby General Hospital, where most PNG residents find their health needs met?

Ms Newton : Normally they require specialist support or services or an operation to occur, so we actually seek the most suitable medical treatment for them with specialists, and that's why they are transferred to Pacific hospital.

CHAIR: Okay, but residents of PNG? Perhaps you don't know this; perhaps it's unfair to ask you. But residents of PNG: are they able to get to the Pacific International Hospital—unless they're very, very wealthy?

Ms Newton : If they have insurance they'd be able to use that hospital.

Mr Pezzullo : It's a private hospital.

CHAIR: Otherwise they would go to the Port Moresby General Hospital?

Ms Newton : That's correct.

CHAIR: All right. We might leave that there. We have, according to our program, now finished with corporate and general matters.

Senator KIM CARR: No, we haven't. I haven't finished.

CHAIR: Well, according to our program, we are now finished with corporate and general matters. We have from 1.30 until 3 pm, according to the program, which has been set by the committee—and I might say by Labor and Greens members of the committee principally—to finish that by 3 pm. Now, a lot of what we're doing in corporate and general is really matters that would normally have been in outcome 1—border enforcement, border management, compliance, onshore management and offshore management. So, hopefully we can finish that by 3 pm and then move onto outcome 2 so that we can finish the program, and we can try to give all senators who might have an interest in these other matters the opportunity to ask those questions.

Proceedings suspended from 12 : 32 to 13 : 35

CHAIR: Can the committee agree that we've finished with corporate and general, bearing in mind that most of the things that we've been dealing with—

Senator KIM CARR: No, the committee hasn't agreed.

CHAIR: Do you have non border management questions?

Senator KIM CARR: No, I have questions running through the whole program, but we're in the middle of a series of questions, and I'm waiting on answers from the department.

CHAIR: No, you're not listening.

Senator KIM CARR: I'm listening alright.

CHAIR: If it's related to border management, offshore management, regional cooperation, we've been dealing with it in corporate and general, because it was mentioned by both of the leaders who've given statements on their departments. This is not my program; this is a program adopted by the Labor Party and the Greens, which I'm happy to deal with. The program said we'd do corporate and general until 12.30 and then move on to outcome 1. We can continue with the offshore management issues, which is all that has been talked about so far, through till three as part of outcome 1, but unless anyone has particular corporate and general matters—

Senator KIM CARR: I have corporate and general matters, and I'll continue to ask the questions I'm asking.

CHAIR: Can you give the committee some idea how long you might be?

Senator KIM CARR: It depends on the answers. I have a series of questions I want to pursue.

CHAIR: You know what this is all about.

Senator KIM CARR: I know exactly what this is about.

CHAIR: This is your program, adopted by your party and the Greens, and it just means that those other senators who want to ask questions later in the program don't get a chance, because you—and others; not just you—have spent up until now on offshore management. I'm happy to do this. You know the rules.

Senator KIM CARR: Exactly: we know the rules. Now you're wasting time.

CHAIR: I'd like to try to let other senators know, as a courtesy, how long you think you might be on corporate and general matters.

Senator KIM CARR: It'll depend on the answers.

CHAIR: If that's your attitude, so be it. Your peers in the Senate can make their own judgement.

Senator McKIM: Mr Pezzullo, before the lunch break we had an exchange about whether or not Australia was involved in torturing people. Are you aware of a report of the United Nations Special Rapporteur on torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Mr Juan Mendez, from March 2015? He found, inter alia:

… the Government of Australia, by failing to provide adequate detention conditions; end the practice of detention of children; and put a stop to the escalating violence and tension at the Regional Processing Centre, has violated the right of the asylum seekers, including children, to be free from torture …

Mr Pezzullo : I'm aware of his report.

Senator McKIM: And you still deny that the department's involved in torturing people?

Mr Pezzullo : The government, then and now, doesn't accept his conclusions.

Senator McKIM: So Mr Mendez is wrong in his conclusions in your view?

Mr Pezzullo : We don't accept his conclusions.

Senator McKIM: Are you aware of the commentary from the Human Rights Committee of the United Nations in Geneva last week, which found that Australia was chronically noncompliant with recommendations of that committee?

Mr Pezzullo : Are these findings, or obiter dicta made during the course of proceedings?

Senator McKIM: These are comments made by the committee vice-chair.

Mr Pezzullo : He's entitled to make his comments, but I don't believe the government has accepted his commentary.

Senator McKIM: Specifically do you have a response to the comments of the vice-chair, Professor Yuval Shany, which raised concerns about: Australia's noncompliance with the principle of non-refoulement, the highly punitive nature of detention and offshore facilities, the length of migrant detention, inclusion of children and unaccompanied migrants in the mandatory migrant detention, poor safety conditions in offshore detention facilities, the failure of the government to take responsibility for the regional processing centres in Papua New Guinea and Nauru, and attempts to create a veil of secrecy about conditions in those centres?

Mr Pezzullo : I don't believe the government, then or now, accepts those findings and conclusions.

Senator McKIM: Is the department aware if any of the people seeking asylum at the moment in the centre on Manus Island are gay?

Mr Pezzullo : I'm not personally aware. I would assume that some are gay or LGBTI generally, but I might seek the deputy commissioner's assistance.

Ms Newton : We understand that some people within the centre are gay and other people have other various interests, sexually, as to how they determine who they are.

Senator McKIM: Do you know how many people identify as gay?

Ms Newton : No, I don't.

Senator McKIM: Does the department have that information on record?

Ms Newton : I'd have to take that on notice.

CHAIR: Surely you don't inquire of people's gender.

Mr Pezzullo : No, we don't, but it might be that the information has somehow incidentally come to our notice. We don't determine their statuses. It is possible that we might know.

Senator McKIM: You've taken that on notice, so thanks for that.

Mr Pezzullo : Yes.

Senator McKIM: But have you accepted that there are some men in that cohort who are gay?

Mr Pezzullo : I've said I think it's likely that there would be.

Senator McKIM: Ms Newton accepted that. Do you believe that, by kicking them loose into the PNG community, where consenting sex between men is illegal and punishable by a term of imprisonment up to some years, Australia is involved in violating their human rights?

Mr Pezzullo : Well, everyone has to—

CHAIR: Whether you believe that is not relevant to this committee; it's a matter of opinion and is not something you have to answer here, or should answer.

Senator McKIM: Has the department sought any advice as to whether the department, the minister or the government are involved in breaching people's human rights because of the circumstance that I have just outlined?

Mr Pezzullo : I don't believe we've sought advice of that character, no. I'm happy to have that checked.

Senator McKIM: Would you do the same for Nauru, please, as to the number of people that the department might be aware of who are LGBTIQ?

Mr Pezzullo : We'll check the same question.

Senator McKIM: I accept that it's a slightly different circumstance, but there are still cultural mores in Nauru with regard to LGBTIQ people, notwithstanding the very recent change in the law. I want to tidy up one other matter, if we can, in relation to Manus—that is, the recent death of Hamed Shamshiripour. Does the department have a copy of the autopsy report?

Mr Pezzullo : I don't know personally. I might inquire of other officers as to whether they have an answer for you.

Ms Newton : My understanding is that currently is still a matter for the coroner.

CHAIR: Which coroner?

Ms Newton : The PNG coroner.

Senator McKIM: Is the department aware of whether an autopsy has been conducted?

Mr Pezzullo : It might be that the assistant commissioner can assist with this question.

Mr Woodford-Smith : I believe that an autopsy has been completed. I believe the coroner has completed his report, but I haven't personally seen that.

Senator McKIM: By 'completed his report', would that include making his report public?

Mr Woodford-Smith : That would be a matter for the PNG government. I don't know.

Senator McKIM: You're not aware if that report has been made public?

Mr Woodford-Smith : I'm not aware of it.

Senator McKIM: But you've given evidence that you are aware that the autopsy has been completed?

Mr Woodford-Smith : That's correct.

Senator McKIM: Is the department aware of who conducted that autopsy?

Mr Woodford-Smith : I don't know who actually conducted it, but the autopsy was undertaken by a PNG authorised officer.

Senator McKIM: Did the department have any of its medical people present at the autopsy that you're aware of?

Mr Woodford-Smith : No. I'm not aware of any of our medical officers being involved in that autopsy.

Senator McKIM: Has Mr Shamshiripour's body been repatriated to his family?

Mr Woodford-Smith : Yes, it has.

Senator McKIM: Who paid for that?

Mr Woodford-Smith : The department paid and supported the government of PNG, after a request for support.

Senator McKIM: Has a bill been sent to his family for the repatriation of his body that you're aware of?

Mr Woodford-Smith : Not that I'm aware of. I don't think we would be.

Senator McKIM: You don't think what?

Mr Woodford-Smith : I don't think we would be sending through an invoice for his repatriation. I believe the department has paid for that.

Senator McKIM: You're not aware of the PNG government seeking any recompense there? I guess, given your evidence that the department paid for that, the PNG government would have no claim on the family for costs of repatriation in that case, would they?

Mr Woodford-Smith : That would be a fair assumption.

Senator McKIM: Have there been any inquiries as to why Mr Shamshiripour was not medevaced to Australia before he died?

Mr Woodford-Smith : Not that I'm aware of.

Senator McKIM: The department hasn't conducted a review of that case? The CMO, or the acting CMO, hasn't caused a review of those circumstances to occur?

Mr Woodford-Smith : I'd have to check with my colleagues, but I'm not aware of a review or a request for Mr Shamshiripour to come to Australia.

Senator McKIM: You're not aware of a request for Mr Shamshiripour to come to Australia. Are you aware of third-party requests that were made for Mr Shamshiripour to be medevaced to Australia on the basis of his severe mental illness?

Mr Woodford-Smith : I understand that there was some correspondence, potentially, with the Chief Medical Officer, but I'm not aware of the detail of that.

Senator McKIM: Would you please take on notice these questions: what requests were made in regard to Mr Shamshiripour's being medevaced to Australia? What was the department's response to those requests? Could you also provide an explanation as to why someone who was obviously incredibly mentally unwell was not medevaced to Australia. Also, what supports were put in place around Mr Shamshiripour, if any, to monitor his wellbeing on Manus Island?

Mr Woodford-Smith : We'll take those on notice.

Senator McKIM: I'm going to Nauru now. You've announced that Canstruct Pty Ltd has been granted a contract worth approximately $8 million for garrison and welfare services on Nauru. Is that correct?

Mr Pezzullo : I'll just check with the deputy commissioner as to whether the provider has been identified and the value of the contract, which are the two questions.

Ms Newton : At this point in time we haven't announced that a contract is completed and finalised with Canstruct Pty Ltd.

Senator McKIM: Have you completed and finalised a contract with Canstruct?

Ms Newton : No, we haven't.

Senator McKIM: Are you working with Canstruct on a contract for the provision of garrison and welfare services?

Ms Newton : Yes, we are.

Senator McKIM: Are you working with any other company on a like contract?

Ms Newton : No, we're not.

Senator McKIM: So it's Canstruct or bust?

Ms Newton : It's Canstruct—we're negotiating with one provider at this point in time and expect to complete on that very shortly.

Senator McKIM: You expect to complete on that shortly? Is that what you said?

Ms Newton : Yes. I said that we expect to complete and finalise that contract very soon.

Senator McKIM: Do you have a more specific time frame?

Ms Newton : No, I don't, sorry.

Senator McKIM: Does Canstruct have any previous experience delivering garrison and welfare services, because they're a civil construction company, are they not?

Ms Newton : Yes, predominantly, but they have considerable experience operating on Nauru and have operated there for some time.

Senator McKIM: Yes, my question was specifically: have they got experience in garrison and welfare services?

Ms Newton : I'll ask Mr Nockels to respond to that?

Mr Nockels : Senator, the answer is yes. Canstruct, although predominantly a civil construction company, has extensive experience in managing mining camps. So they have experience delivering the garrison-type services that we require.

Senator McKIM: Mining camps, Mr Nockels.

Mr Nockels : Garrison support—so, feeding, cleaning, et cetera, facilities maintenance and the like. That's what you would expect to see in a garrison support contract.

Senator McKIM: That's garrison.

Mr Nockels : They have experience doing that.

Senator McKIM: What about welfare? Do they have any previous experience in delivering welfare services?

Mr Nockels : Not directly. But, as we transition from BRS to Canstruct—which is the process that we are undergoing and which is what the deputy commissioner responded to in terms of, in the next few days, we'll move to signing a contract, we hope—they will be using a significant portion of the staff who currently deliver some of those services on Nauru. So part of the transition was about ensuring that it was relatively smooth, and that involved taking up a significant portion of the staff who conduct those services at the moment.

Senator McKIM: So that I'm clear: you're about to award a contract for the delivery of garrison services and welfare services on Nauru to a company that has no experience whatsoever in delivering welfare services. Is that accurate?

Mr Nockels : We are working with Canstruct to deliver—

Senator McKIM: That's accurate, isn't it? What I've just said is accurate?

Mr Nockels : In many of these cases, Senator, we would go with the prime contractor, who, in turn, would subcontract in appropriate services. In this case, for instance, security is one that they might be subcontracting in. So we are going with a prime contractor to deliver a range of services, where the prime will have significant experience of and input into them, but not necessarily all of them.

Senator McKIM: I'll just be clear about my question, and this is with regard to the prime contractor, Canstruct. You are in the final stages of negotiating a contract with them for the provision of welfare services on Nauru when they have no experience at all of the delivery of welfare services. Is that correct?

Mr Nockels : They will be taking on some aspects of that, but at the moment the majority of the welfare services provided to refugees on island sits under a contract that's run by the government of Nauru, with an organisation called HOST. So they deliver the majority of the welfare services in terms of case management.

Senator McKIM: I'm aware of HOST. I'm not sure why this is a bit like pulling teeth, Mr Nockels, but I will ask you again—

CHAIR: This might have to be your last question.

Senator McKIM: are you in the final stages of negotiating a contract for the provision of welfare services on Nauru, with a company that has no—and I mean 'zero'—experience of delivering welfare services? That's accurate, isn't it?

Mr Nockels : The scope of the services that we're requiring from Canstruct is quite broad, as we just discussed a second ago, and the majority of it is around garrison support, and that includes facilities management—so ensuring that maintenance of the buildings is kept up—and also involves the provision of catering services in terms of feeding people at the centre—

Senator McKIM: That's all in 'garrison', though, isn't it? That's garrison. I'm asking about—

Mr Nockels : The breadth of our contract is quite broad, of which one aspect is welfare, as is security of the centre, et cetera. I go back to the point I made a short while ago: we're asking the prime contractor to deliver a range of services, and they would in turn potentially bring in subcontractors to deliver on that.

Senator McKIM: I thank you for all the extra information, Mr Nockels, but the question remains: is it correct that you are in the final stages of negotiating a contract with Canstruct for the provision at least in part of welfare services on Nauru when Canstruct has never delivered welfare services in its existence and has no experience of the delivery of welfare services? Is that accurate?

Ms Newton : Canstruct are working with Broadspectrum on transitioning across all of the supporting capabilities, practices and procedures associated with the delivery of services that they will be taking on. They will also look at transitioning staff that have been delivering those services for some time. So there will be substantial capability—

Senator McKIM: I'm not asking about capability.

Ms Newton : on the ground with Canstruct.

CHAIR: Senator McKim, I indicated that was your last question.

Senator McKIM: We'll come back to it. You can run but you can't hide.

Senator GRIFF: Mr Pezzullo, I would like to go back to facial recognition where we had asked a couple of questions prior to the break. I understand there is a tender process. Where is that currently at?

Mr Pezzullo : I wasn't quite sure of where you wanted to go with this so I'm not sure that we have summonsed officers from other locations, but perhaps the Assistant Commissioner can start and if there is anyone otherwise in the room they can assist the Assistant Commissioner.

Mr Williams : Senator, can I clarify that you are referring to the contract in relation to airport arrival technology?

Senator GRIFF: Yes, correct.

Mr Williams : At the moment the services have been split into three parts, and the first part is for an integrator and a provider of new gate technology for incoming processing of passengers. There are a couple of other parts to the contract around managing the flow of information through the inwards process as well as the back-of-hall examination process particularly around customs and baggage inspection, which have not yet been awarded. So at this stage we've got a gate provider, which is starting to begin its work to prepare for roll-out of new gates.

Senator GRIFF: Which is Vision-Box?

Mr Williams : That's correct.

Senator GRIFF: Okay. When do you see that you'll be issuing for the other two?

Mr Williams : Pretty soon, actually. We're just in the process of going through the tender evaluation.

Senator GRIFF: Okay. So, the solution that you have, is it off-the-shelf to a certain extent or is it very much customised?

Mr Williams : For the new gates, off-the-shelf, given it's a fairly niche product, I guess, is probably a stretch to suggest, although it is a company that's experienced with delivery of gates in various countries, including Australia. That company has also delivered our outwards gates that have been recently installed and completed around the country quite successfully. You asked about it before the break, and we're now processing 73 per cent of travellers through the gates on outwards and also have been able to eliminate the use of the old outward passenger card because we've collected that information in different ways and we don't need to collect that anymore. The outward process is now much more efficient and quicker for just about everybody. We are hoping to replicate that kind of approach to the inwards.

Senator GRIFF: I know it's probably a bit of a difficult one to answer, but how do you stop this system from being hacked? How do you protect it and isolate it?

Mr Williams : The system has a bunch of fail-safes. There is a human element to the management of the system. If you look at the way we currently operate our outwards gates, we have a bank of about six gates with two or three human operators, people, working in order to make sure that the gates work efficiently and pick up any instances of attempts to circumvent it. Where the software isn't able to give us sufficient satisfaction about the facial recognition element of the processing it's referred to a person and the person's job is to consider both the facial recognition issue and any other factors that the passenger might present. As well as that there are some technology back-ups and fail-safes, which I'm not 100 per cent qualified to speak on, but are intended to prevent people dialling in and trying to hack the actual system as such.

Mr Pezzullo : I think, Assistant Commissioner, the senator's question goes precisely to that point. I certainly wouldn't be comfortable with, nor would authorise, the giving of any evidence to this committee that in effect—and I know you are not seeking this, Senator—would give our adversaries any kind of clue as to how to circumvent those controls. All I will repeat is evidence from earlier appearances, not today but prior, that we have considerable investment in cyber-security technologies, some of which relate to the headline measures that we're all obligated to have in place as Commonwealth agencies, some of which are more robust than that, which include operating the backend of the technology within a very secure enclave or secure perimeter. That is about as much as I'm willing to say in an open session, which doesn't just mean at the gate level but the network itself, and other controls that I'm not prepared to talk about, which are away from the gate, are kept as secure as possible. In this day and age, with everything being connected to everything else, it's a constant battle with our adversaries in terms of malicious coding that people try to deliver into any government—or indeed private sector network—and that's why we employ quite a number of people and spend quite considerable resources on defending.

Senator GRIFF : Just on that, the media has reported that the automated solution will actually match travellers against, and I quote:

… a database of facial images collected from airlines' advanced passenger processing systems …

Can you explain how that works?

Mr Pezzullo : Unless the assistant commissioner can explain that in sufficiently plain English but also unclassified terms, I'm not prepared for a lot of evidence to be given on this point.

Senator GRIFF : But, in the first instance, what information is collected by airlines, and then how does it come to you?

Mr Pezzullo : If the assistant commissioner can answer you in public record terms, he will; otherwise, he might need to take some guidance from me. I think some of this can be put on the public record; other elements cannot.

CHAIR : You might, if it were appropriate, offer Senator Griff a private briefing sometime offline—anyhow that's up to you.

Mr Pezzullo : We'd be delighted, I'm sure—but we'll see how the assistant commissioner goes in the first instance.

Mr Williams : In public terms, I can provide a little bit of information. Information is provided to the department by airlines as part of the process of checking in and transporting passengers in advance of their arrival. So that's well known as—

Senator GRIFF : So this is cameras in airports as they're processed?

Mr Williams : No. It's information provided and collected from passengers as they book and check in to travel. That's provided to the government in advance of their travel so that we can undertake certain processes. Then, on arrival, we make sure that the expected person is the person who arrives.

Senator GRIFF : But the actual facial images, which is what I quoted there: a database of facial images collected by airlines?

Mr Williams : At the moment, there is an opportunity to collect facial images at that stage, through the check-in process. But, at this stage, we collect the facial image at different points of the process, but not—

Senator GRIFF : So are you aware how airlines are actually collecting that information? Is it at check-in?

Mr Williams : It's possible to collect it at check-in. But airlines use facial images and other, I would say, passenger identifiers for different parts of their process—to link passengers to their bags, for example, and things like that—and it's possible that some of that information might be available.

Senator GRIFF : I would imagine very few members of the public would be aware that this is the case, and I think there would be privacy issues that the press would consider.

Mr Williams : That's correct.

Mr Pezzullo : All the information that we rely upon, Senator, has been lawfully collected and lawfully shared with the Commonwealth. We place great store on the use of that information within strict privacy limitations, I can assure you.

Senator GRIFF : So that information is coming to you from airlines, and you're then incorporating that with passport and other information that you may have?

Mr Williams : That's correct, Senator.

Senator GRIFF : Do you actually have access to these airline databases now—or the facial recognition databases?

Mr Williams : The access that we have complies with the legislation that we're operating under. We don't have unfettered access to databases in that sense, Senator. There are strict rules around the pushing and pulling of data between commercial entities and the department in those circumstances.

Senator GRIFF : But do you have access to these facial databases now from airlines, or is that going to be part of the new process going forward?

Mr Outram : I'm not aware of any facial databases, Senator, that the airlines keep and retain. We're interested in the passengers that are coming out by making sure we can identify who they are, and the biometrics is one way we can do that. So, if we've got an image on a passport, of course, on file, then we can check when they come in. But I'm not aware of any airlines retaining images of passengers in a database.

CHAIR : But doesn't the passport contain a photograph?

Mr Outram : Yes, Chair.

CHAIR : And is that what you check against?

Mr Williams : We do, Senator.

Mr Outram : Essentially, yes.

CHAIR : Can I just tell you I've just come in and out of overseas for the first time—not the first time—and my coming back through the SmartGate worked perfectly. It doesn't always work for me, so well done. Going out, though, they didn't like my face so they sent me to a person. In each case, it doesn't worry me, because I'm more interested in making sure that I'm safe on the trip. I don't care what you do to recognise me or anyone else, as long as I'm safe on the plane, so well done.

Senator GRIFF: Do you pay a fee for this information from airlines?

Mr Williams : No.

Senator GRIFF: And how long do you store the information that you receive from them?

Mr Williams : I would have to check how long we retain information provided through the advanced passenger processing facility. I don't know, I would have to take that on notice.

Senator GRIFF: That would be great. And do you share this data with other government agencies?

Mr Williams : Again, I probably would have to take that on notice.

Senator GRIFF: If you can get that on notice, that will be fantastic.

Mr Pezzullo : Senator, if I can be very clear, to reinforce the acting commissioner's evidence, we have access through our Customs authorities to the information that is chipped on the passport, both Australians coming and going—the chairman just referred to his own experience—as well as those with whom we have agreements to access their chipped information. I'm not personally familiar with that extending to any holdings that airlines might have. I would be very surprised. I'm not quite sure of the basis of your—you're reading from a document. I'm not sure if it's a government document or something that you've otherwise found on the internet. I'm not sure of airlines separately collecting, retaining, storing, disseminating facial images which are separate from the information that we've all got lawful access to, which is your chipped passport information.

There is a lot of biodata and biometric information collected as part of your passport, and that's the reconciliation that the acting commissioner referred to. When you present at the gate, if the machine recognises the biometric and biodata features—regrettably, it didn't happen in the chairman's case; perhaps he was wearing his glasses and perhaps the photograph in the chip was separate—that's how it's reconciled. Unless I'm advised otherwise, there is no other global repository of facial images that is not held in government control or available to governments.

Senator GRIFF: Can people opt out of the biometric information?

Mr Pezzullo : If you don't want to travel, I suppose, but increasingly passports are all chipped. And it's a condition of you gaining your passport that you agree to certain information. In relation to an Australian passport, I would refer you, for the detail, to our colleagues in Foreign Affairs because they manage that. Globally, it is a condition of gaining access to a passport.

Senator GRIFF: I understand the aim of the department is to have 90 per cent of international travellers processed by automated means by 2020.

Mr Pezzullo : Yes.

Senator GRIFF: Does this mean that the automation will reduce the number of ABF staff needed for processing at airports?

Mr Pezzullo : It would mean that fewer staff are required to undertake what I would call the teller function, if you think of it in banking terms, or the retail function, and those staff are then available for other duties where their skills, expertise, field intuition, can perhaps be better targeted.

Senator GRIFF: How many staff would you imagine this is?

Mr Pezzullo : How many staff?

Senator GRIFF: That would have to be redeployed or perhaps made redundant. How many staff as a result of this?

Mr Pezzullo : We're not looking at redundancies directly arising from the rollout of automated technology. We have government targets that we have to manage, too, both in terms of budget or FTE, full-time equivalent, employees, and the chief finance officer will assist me in this. In fact, I would request that the chief finance officer attend to assist me just so I get the numbers right. Over the forward estimates, we've got a fairly steady workforce number in both the budget year and the three years going beyond it. There might be some reductions but they're not specifically tied to, 'That measure means this fewer number of people; that measure requires this many more people.' It's a netting activity. But the chief finance officer is very erudite in these matters and is happy to give you evidence on this matter.

Mr Outram : Senator, while the chief financial officer settles in, I would mention as well that the volumes of passengers coming through the airports are rising, significantly, at each international airport. Most years, it is in double digits every year, 10 per cent-plus every year. So we need the technology to allow us to manage the increase in volumes. It's not as though it's a static number and we're just managing the same number of passengers with technology. We're using the technology to allow us to process more people every year, which is a good thing, of course, but the volumes are increasing significantly.

Mr Pezzullo : Mr Groves, the senator is asking about future ABF employment trends.

Mr Groves : We were funded for this as part of the 2014-15 budget under the customs reform program. There were no staff reductions budgeted as part of that particular measure. It very broadly encompassed a whole range of activities, including the rollout of the new gates. I was actually going to say exactly what the acting commissioner just said, that we actually don't expect there will be staff losses; it's actually maintaining current staff levels to deal with the volumes that are increasing over time.

Senator KIM CARR: On the Nauru matter, Mr Pezzullo, you were saying before that contract negotiations are underway for Canstruct. Is it the case that Canstruct have been able to secure a $8 million contract for a six-month contract?

Mr Pezzullo : I think the deputy commissioner gave evidence to the effect, and she will speak for herself, that we are in the final stages of closing that contract.

Senator KIM CARR: Is that the same contract?

Ms Newton : Yes.

Mr Nockels : The $8 million is associated with a letter of intent.

Senator KIM CARR: So a letter of intent has been issued. What date was that?

Mr Nockels : 28 September. That letter of intent was to commence transition activities.

Senator KIM CARR: And that's to take over Broadspectrum's work?

Mr Nockels : Correct.

Senator KIM CARR: Was that undertaken by tender?

Mr Nockels : Correct, limited tender.

Senator KIM CARR: Limited to who?

Mr Nockels : To Canstruct.

Senator KIM CARR: To one?

Mr Nockels : Correct.

Senator KIM CARR: Isn't that what the Auditor-General drew our attention to in the past about these arrangements, about not having open contracts for these contracts?

Mr Nockels : The Auditor-General has issued some reports on the garrison support contract; that's correct.

Senator KIM CARR: Has he complained or made observations about limited tenders of these types?

Mr Pezzullo : I think it's best if I take that question. As we've covered in these proceedings before, the Auditor-General has made the very proper and self-evident point that, all things being equal, as long as there are no other exigencies in play, you should always go for an open tender. But the Commonwealth always has to have regard to exigencies—are there diplomatic factors, are there factors to do with on-the-ground matters?

Senator KIM CARR: They are the standard questions that have been raised.

Mr Pezzullo : Yes.

Senator KIM CARR: In this case—

Mr Pezzullo : In relation to those exigencies, if you can justify why you have gone for a more restricted process, you need to be able to document both your rationale—

Senator KIM CARR: So you will be able to tell the committee why you've gone for a limited tender in this case?

Mr Pezzullo : Yes, they pertain to the exigencies that we're confronted with. Mr Nockels can add to that.

Mr Nockels : The Commonwealth procurement rules are what, as Commonwealth officers, we need to follow. Those rules talk about the fact that if the Commonwealth has gone to market, which we had in this case, and the market has not been able to come back and deliver us with a candidate, a preferred tenderer, then we can move to a limited tender.

Senator KIM CARR: So these were the only people available; is that the nub of it?

Ms Newton : Yes, we've made expressions of interest in addition to having gone to tender and there was nobody else in the market that was actually interested in the contract. So we went directly to Canstruct.

Senator KIM CARR: I've got it. That's your explanation, that Canstruct are the only ones who presented themselves. So it is a six-month contract for $8 million?

Ms Newton : No, that's incorrect.

Senator KIM CARR: Not correct?

Ms Newton : No. The letter of intent was about transferring services and staff, potentially, from Broadspectrum across to Canstruct so that they had adequate people as well as the information technology and skills to be able to perform the contract. That was $8,199,160 that was paid up-front as that letter of intent whilst we completed on the final contract negotiations.

Senator KIM CARR: So the $8,100,000 is an up-front payment?

Ms Newton : For them to prepare and be ready to take on the contract as well as make offers to staff so that they will be available and ready to commence the contract as of 1 November.

Senator KIM CARR: This is transmission of business, is it? So you've got to pay out redundancies and the like, do you?

Ms Newton : That's Broadspectrum's role in terms of ceasing their contract.

Senator KIM CARR: You don't make any payments for those?

Ms Newton : My understanding is no.

Mr Nockels : No. That's a matter for Broadspectrum, so, when staff depart from Broadspectrum, they would pick that up or the transfer to Canstruct.

Senator KIM CARR: But there's no question about the department having responsibilities? The $8 million is an up-front payment to the new entity so they're ready to roll?

Ms Newton : Broadspectrum were providing notice of four weeks or five weeks to their staff before leaving. It was enabling those staff to transfer across and have continuity of employment.

Senator KIM CARR: And you're not ready to sign a new contract yet? Is that the case?

Ms Newton : We're in the final stages of being able to complete that contract, but of course we also have to consult with the government of Nauru.

Mr Pezzullo : But it's imminent, isn't it?

Ms Newton : Yes, it's imminent.

Mr Pezzullo : I would say it's imminent.

Senator KIM CARR: So the approval authority is who?

Ms Newton : It's me.

Senator KIM CARR: You're the officer?

Ms Newton : Yes, I am.

Senator KIM CARR: You actually sign off, not the minister?

Ms Newton : Yes. I'll be signing off on the contract.

Senator KIM CARR: The minister is not required to sign off on it?

Ms Newton : No.

Senator KIM CARR: Are there any additional services to be provided?

Ms Newton : No additional services over and above what Canstruct is taking on from what Broadspectrum was delivering.

Senator KIM CARR: How did you calculate $8 million as an up-front payment?

Mr Nockels : I would have to come back to you, Senator, with some details on exactly what elements of the transition relate to that $8 million.

Senator KIM CARR: Thank you. Are you able to tell me what the term of the new contract will be, how long it will take? What are your intentions?

Mr Nockels : At this stage, obviously we are still in the final throes of contract negotiations, but we're looking for a 12-month contract.

Senator KIM CARR: Twelve months?

Mr Nockels : That is correct, with—

Senator KIM CARR: With extensions, the right for extensions.

Mr Nockels : Yes.

Senator KIM CARR: Is it the case that Broadspectrum actually wanted to get out of the contract earlier but the department insisted on it staying on?

Mr Nockels : No. Broadspectrum's ownership changed quite some time ago, nearly 12 months ago, I think, and Ferrovial, the new owners, assured the department that they're happy to fulfil the full term of the contract.

Senator KIM CARR: In the discussions with Canstruct, were you made aware that Canstruct had been a donor to the Liberal Party?

Mr Nockels : I beg your pardon?

Senator KIM CARR: Were you made aware that Canstruct was a donor to the Liberal Party?

Mr Nockels : No, I was not aware.

Senator KIM CARR: I understand that in 2009 they were a donor to an associated entity of the Liberal Party in Queensland, Forward Business Leadership. In terms of the government procurement guidelines, where does that fit in?

Mr Nockels : I would have to take some advice on that.

Mr Pezzullo : I'm not sure that there's any prohibition per se. Most of these matters are always managed at arms-length from ministers. This sort of contract—even though it's a large sum of money, we're very careful with every single dollar of the taxpayers' money that we get.

Senator KIM CARR: Of course you are, but has a conflict of interest been declared?

Mr Pezzullo : I was going to go on to say that it's well within the appropriation and the limit of the funds that Ms Newton can consider, but you've asked a question directly about, I think, political donations and whether there is any rub or conflict with the procurement guidelines. They're managed, of course, by the Department of Finance, but we'll take that on notice.

Senator KIM CARR: But if you're not aware of it—

Mr Pezzullo : We have probity advisers. All relevant legal and probity checks would have been undertaken. If there's a box that appears on the probity check that says, 'Is the entity a donor to the Liberal Party, the Labor Party or any other party?' and you've got to put a flag up, or you've got to get a special approval or it's denied or it's not able to be proceeded with, I'm sure the probity adviser would have otherwise advised us.

Senator KIM CARR: But the probity adviser—is there a question?

Mr Pezzullo : We will take on notice both what the guidelines require at the Commonwealth level—and I'm sure Mr Nockels would have been fastidious in ensuring that those guidelines—

Senator KIM CARR: I've got no doubt he was, but he was not aware that this donation had been made.

Mr Pezzullo : Presumably, because it's not a factor that you need to check against. If you knocked out all entities that donate to political parties, you would have two types of providers: those who have provided to—I think you said—an associated entity in this case; those who have provided directly to a political party or an associated entity. And I don't know where that stops in terms of non-government groups and trade unions. So you would have one class of providers and another class. I'm just not aware that that is a check that we have to conduct.

Mr Nockels : Secretary, I'm unaware as well.

Mr Pezzullo : Have you ever conducted such a check otherwise?

Mr Nockels : No, but, as the secretary just said, we've had an independent probity adviser providing advice on this process from the get-go, so I'm sure, given their independence, they would have raised an issue if they felt there was one around the project.

Senator KIM CARR: I'm sure that will come up with the relevant answers. Thank you.

Mr Pezzullo : We will check two things: what are the general rules, and how were they applied in this instance.

Senator KIM CARR: Thank you very much. Can I turn to the question of—the Border Force Commissioner is on leave?

Mr Pezzullo : Yes, he is.

Senator KIM CARR: Is the commissioner still on leave?

Mr Pezzullo : Yes, he is.

Senator KIM CARR: I take it he is being paid? He is on paid leave?

Mr Pezzullo : Yes, he is.

Senator KIM CARR: Has the minister been briefed?

Mr Pezzullo : On occasions, as the minister, he has been briefed. I don't know what his state of knowledge is at the moment, and I would have to ask him.

Senator KIM CARR: Mr Secretary, you, as secretary, are required to brief him on something like this, I would suggest.

Mr Pezzullo : Not necessarily, if there is a matter that is the subject of an investigation by a separate statutory body.

Senator KIM CARR: Sure. When was the last time you briefed the minister?

Mr Pezzullo : I keep him regularly up to date as to what the leave arrangements are—when that leave is going to expire and the fact that I've authorised that leave to be undertaken on a paid basis. They are all within my authorities, but, otherwise, the agency conducting the investigation reports independently and not to me.

Senator KIM CARR: I see. So what is the policy of the department in regard to these questions that are under investigation?

Mr Pezzullo : The policy in relation to the integrity question or to the employment question?

Senator KIM CARR: The employment question.

Mr Pezzullo : In relation to employment conditions, they are set by the Remuneration Tribunal—as part of the commissioner's entitlements, I think they are the same as all statutory officers. The question of paid and unpaid leave are matters where the relevant departmental policy applies—variously described as 'miscellaneous leave' or 'event leave'. In this case, I've determined that 'event leave' was applicable, so I've authorised the payment of leave on that basis.

Senator KIM CARR: I see. And who is actually investigating the allegations against the commissioner?

Mr Pezzullo : The Australian Commission for Law Enforcement Integrity.

Senator KIM CARR: How long do they expect this investigation to be undertaken?

Mr Pezzullo : I don't know.

Senator KIM CARR: How long has it been?

Mr Pezzullo : Well, the leave commenced in—I would have to refresh my memory—the latter part of May or possibly the early part of June. I will need to refresh my memory.

Senator KIM CARR: The allegation is with regard to a relationship between staff members; is it not?

Mr Pezzullo : I've seen press reporting to that effect. I'm not going to comment on that press reporting.

Senator KIM CARR: What's the policy of the department in regard to that matter?

Mr Pezzullo : In relation to?

Senator KIM CARR: Is there a departmental policy on that matter?

CHAIR: Well, I would have thought the policy would be not to make comment while the matter is under investigation.

Mr Pezzullo : That certainly is the case in relation to—

Senator KIM CARR: You said that. But is there a departmental policy on a relationship between senior officers?

Mr Pezzullo : Leaving aside the question of the investigation and leaving aside any comments that you may wish to impute that I might—when I'm speaking about general policy, I'm not going to simply comment on an ongoing investigation. As to relationships within the workplace, we have a general policy that is applicable to everyone, from myself down—the commissioner down—that all such relationships are to be declared to ensure that there is no conflict of interest.

Senator KIM CARR: And is there a Twitter account still being operated by the commissioner?

Mr Pezzullo : I will need to take advice on that. I know there is—I'm going to get my term wrong here—a Twitter handle that is the official handle of the commissioner, but, whether that's active or not, I simply don't know.

Senator KIM CARR: Is there anyone here who does know?

Mr Pezzullo : I will check. I'm advised that the handle—I think that's the right terminology; I don't have one of those, so I don't quite know whether I am—

Senator KIM CARR: I wouldn't know what they were anyway, but tell me.

Mr Pezzullo : Both of us are having a dialogue of the less than fully informed.

Senator KIM CARR: But I'm advised that such a thing exists and I'm also advised that someone has been using it.

Mr Pezzullo : I've seen a reference to that and, indeed, I had occasion—Ms Moy will assist me with this part of my evidence, but we've had occasion to ensure that that usage is being checked as to who might have been actively using that handle whilst the commissioner is on leave.

Senator KIM CARR: And what is your discovery here?

Mr Pezzullo : I will ask Ms Moy to advise me what I've discovered here. Ms Moy is the head of our integrity division.

Ms Moy : In regard to the Twitter account, Senator, the department is looking and still investigating the matter of the use of the account. The account is now locked down. The matter that you refer to in regard to a particular like, we are unable to—

Senator KIM CARR: 16 July.

Ms Moy : Yes. We are unable to identify at this stage the user of the account at that time, or whether in fact it was an official user, so we are still investigating that matter.

Senator KIM CARR: Are you suggesting it could have been hacked?

Ms Moy : Look, I really can't tell you. It's possible to—

Senator KIM CARR: Either it is an official user or it's not.

Ms Moy : Yes, it's possible to hack a Twitter account. Which way it will go, I'm unable to determine at this stage and we don't have any information.

Senator KIM CARR: It is a pretty serious proposition.

Ms Moy : It is a serious matter which is why we're investigating it.

Senator KIM CARR: How long have you been investigating it?

Ms Moy : When it came to our attention—

CHAIR interjecting—

Senator KIM CARR: Sorry, I didn't quite catch that.

Ms Moy : When it came to our attention in regard to—

Senator KIM CARR: I'm asking you how long you've been investigating it.

Ms Moy : From the date it came to our attention, which was—

Senator KIM CARR: No, that's the chicken and egg argument. When did it become—

Ms Moy : If you just—

Senator KIM CARR: When were you made aware?

Ms Moy : Yes, we were made aware—

Senator KIM CARR: When?

Ms Moy : If I could just finish my answer, sorry, Senator. The department was made aware via a contact from media. I would have to get the exact date, but it was some time after the event, around September.

Senator KIM CARR: And it has taken you this length of time to establish who used the account?

Ms Moy : It is an investigation that is not necessarily something we can do by ourselves, so we need to—we've engaged ACLEI, Australian Commission for Law Enforcement Integrity, and we are also talking to Twitter.

Senator KIM CARR: And I presume the commissioner has told you he hasn't used it. That would be a simple answer: yes or no.

Ms Moy : I'm not aware of who the actual user was at the time.

Senator KIM CARR: But the commissioner has said he hasn't used it. Is that the case you are putting to the committee?

Ms Moy : I'm not putting any case to the committee, Senator. I'm saying that we are investigating.

Senator KIM CARR: But wouldn't you ask that question? Was it the commissioner? The answer is surely yes or no.

Ms Moy : Well, at this stage I'm not aware if it was or wasn't, because we are unable to determine who used the account.

Senator KIM CARR: You have asked the commissioner?

Ms Moy : I haven't personally, but I understand the commissioner has been asked. Yes.

Senator KIM CARR: Well, it is a hell of an investigation if you can't answer that.

CHAIR: Well, that's not a question.

Senator KIM CARR: Well, it is a question. Have you asked the commissioner?

CHAIR: Well, that has been answered.

Ms Moy : I just mentioned that the commissioner has been asked, and he says he hasn't used that particular account.

Senator KIM CARR: I would expect him to say that. The question is—but I'm troubled that you've known this since early September, and you can't tell us who has used it?

CHAIR: So what is the question? And it is your last question.

Senator KIM CARR: Who had authorisation to use that account?

Ms Moy : There was approximately six staff within the department who had authorisation to use the account at the time.

Senator KIM CARR: And they've all said they didn't?

Ms Moy : That's correct.

CHAIR: Okay. We will have to come back to you on that one, Senator Carr. Senator Leyonhjelm.

Senator LEYONHJELM: Thank you, Chair. I would like to take up from where Senator Griff was in relation to the facial recognition program. I'm still confused about the response to his question about airlines collecting photos. I understood the assistant commissioner to say that the airlines were doing that and that that was contributing to security processes. Is that right or not?

Mr Pezzullo : They certainly have to compile what, in the old days, used to be called manifests, now advanced passenger processing information. But the assistant commissioner can take up the tale from that point. I'm certainly not aware of a separate collection of facial data separate from what's already chipped into your passport.

Mr Williams : No, Senator. Apologies if I wasn't clear. Airlines do collect some information. It's largely biographic text based information, which they provide under the advanced passenger information process. They don't collect photographs and pass those to us.

Senator LEYONHJELM: I see. In anticipation of perhaps broader use of the facial recognition data, I'm going to return to another aspect which was raised earlier, and that's security of your data. There was a media report last week of a former model—obviously a pretty lady—whose personal details—

Mr Pezzullo : Sorry, a model?

Senator LEYONHJELM: A model, yes, whose personal details were accessed by Queensland Police, by 258 separate, individual officers more than 1,400 times. New South Wales Police have a fairly grim record on this issue as well of accessing data—

Mr Pezzullo : Sorry, Senator, I'm trying not to be obtuse here. Are you speaking about Immigration and Border Protection data?

Senator LEYONHJELM: Well, where I'm getting to is—

Mr Pezzullo : I do apologise.

Senator LEYONHJELM: security of data.

Mr Pezzullo : Right, sorry, okay. So you're using examples of what's happened in other jurisdictions?

Senator LEYONHJELM: Correct.

Mr Pezzullo : But with their data, not ours?

Senator LEYONHJELM: Not your data—that's exactly where I'm going.

Mr Pezzullo : When you started speaking of those numbers, I had a slight sinking feeling, but I'm rising back up again.

Senator LEYONHJELM: I'm sorry to scare you. Where I'm heading with this is to get some comfort as to what you and your department are going to do to ensure that a pretty girl who is of some interest to your staff doesn't find her facial image being looked up to find out her details. The Queensland Police, as I said, with just one pretty girl, have done this in the case of this model 1,400 times by 258 separate police officers. There are quite a number of New South Wales cases where somebody—usually a young woman—has been identified on cameras as of interest to the police officers and they have checked her out, found out where she lives and all sorts of information about her.

Mr Pezzullo : I understand where you're leading.

Senator LEYONHJELM: This is an exceedingly dangerous activity, and there's no reason to believe that there wouldn't be the same interest in pretty girls in Australian Border Force as there is in the Queensland or New South Wales Police. So where I'm heading with this is: what are you going to do to ensure you don't go down that path too?

Mr Pezzullo : Can I give you and the committee an absolute assurance—and this is irrespective of gender, age, sexual orientation, any other distinguishing features—everyone is entitled under law to their privacy being protected and those legal requirements are very clearly set out in Australia's Commonwealth privacy legislation, and there is of course a statutory commissioner who checks on those things. We already have a situation where—forget about the introduction of new facial technology, facial recognition technology or other data analytics capabilities—whether in the immigration part of our historical business or in the customs side of our historical business, from the very time that computers started to be used en masse and images started to be collected, but beyond images, residential address, marital status, any identifying features around sexual orientation, all of that information is protected information. Officers can only access that information in the performance of their lawful duties. We have systems checks which other officers can speak to in more detail. There are audits undertaken to ensure that person who have accessed a database—I'm searching for the term here, a sort of a general interest in looking at the movements of—I think you referenced someone whose employment is a model. We wouldn't distinguish on the basis of any ground, whether you're a politician, a celebrity, a famous person, a not-so-famous person, whatever your line of employment—officers will only look at your details in the performance of their duties. If they don't, we have a very strict integrity regime that's underpinned and backed by systems checks, including audit trails about logged activity—who logs on, who pulls the particular file. There are members in this committee, in this very room, who I'm sure are well-known, their travel movements would be of interest. We're starting to get into sackable offences—I might ask Ms Moy to return to the table—both by way of mandatory reporting—that is, they are obligated to under a secretary's direction—colleagues say, 'Officer such and such was peddling this information or inappropriately downloaded it and showed it to me,' that would be one line of reporting. There are systems checks, there are audit logs that go to who has accessed the information and for what purpose—and if it doesn't, in the case of the Border Force, and the Acting Commissioner can speak to this. If it doesn't relate to an investigation that that officer is pursuing, or some other lawful activity that they're pursuing—all things being equal, and of course subject to due process, it could well result in their dismissal. But perhaps Ms Moy in the first instance can speak to the checks that we undertake. And you're making a reference here to the Border Force. I might ask the Acting Commissioner to add to my answer, but perhaps we might go to Ms Moy first.

Ms Moy : The secretary has covered quite a bit of it, but we would refer to the issue as browsing. If a staff member of the department, be that Border Force or the department, accesses a file or information that they're not entitled to in the course of their duties, we would look upon that quite severely and be undertaking an APS Code of Conduct, so the Public Service Act. One of the many sanctions under that Act is termination of employment. As an example, we've recently gone out to staff, as part of our normal communications around the integrity framework, with a case that was very similar. Through our data analytics, in the case that you've mentioned, we would pick that up under our data analytics—because there was a number of continuous hits to a particular file. As we run the checks through our system, we would pick that up and ask, 'Why is this particular file being looked at by a number of people?' So we would have picked that up quite early in the process.

Senator LEYONHJELM : The Queensland Police also have that system. According to this media report, there was an 18-month internal affairs investigation, but then no officers faced criminal charges and only two were offered managerial guidance. What would be the consequences if Border Force staff accessed or browsed, as you call it—the article here calls it 'perving'—if Border Force staff engaged in that activity?

Ms Moy : Well, whether it was a Border Force—

CHAIR : Look, it's almost hypothetical, and the trouble with this is I guess it would depend upon the gravity and the—

Mr Pezzullo : It would turn on the—

Senator LEYONHJELM : Chair, it's important because COAG has recently agreed to share facial recognition.

CHAIR : It might be important, but it is hypothetical.

Mr Pezzullo : Mr Chairman, it would turn entirely on the facts of the matter. People would be entitled to—

CHAIR : And that's why you don't ask hypothetical questions. It depends on the facts of the matter.

Mr Pezzullo : People would be entitled to natural justice, and due process.

CHAIR : I think it's better, Mr Pezzullo, if we leave it that it's a hypothetical and shouldn't be asked.

Mr Pezzullo : Thank you, Mr Chairman.

Senator LEYONHJELM : I don't think there's any prohibitions on hypothetical questions.

CHAIR : Yes, there is.

Senator LEYONHJELM : Is there a criminal offence involved in accessing this material?

Mr Pezzullo : I can answer that, not in the hypothetical, that inappropriate use—well, access and use of information, not quite in the example that you postulated in your question, but more to do with then passing that information on to others who don't have a right to know that information, including support of their criminal activities—has resulted in criminal charges being laid. Whilst I don't wish to address the hypothetical situation of someone browsing—or whatever verb you choose to employ—the commissioner and I would certainly apply a very strict threshold here. Unless there was a reasonable excuse, and it would turn on the facts—and everyone is entitled to natural justice and the presumption of innocence—but the breach of faith in the first instance and then the sanction for that breach would be at the heavier end of the scale. But it would always turn on the particular facts and it would turn on what came forward through due process.

Senator LEYONHJELM: Acting Commissioner, do you want to add to this discussion?

Mr Outram : I can't make comment on Queensland Police or New South Wales Police and those other cases. From my experience of many years in law enforcement, there have been numerous cases down the years where officers who have accessed information or shared inappropriate information on police systems have been sacked. I can remember a case in the last five or six years where that has occurred. So police forces, by and large, take that very seriously. To characterise our culture in the Border Force and to say, 'It's obviously a problem for them; it must be a problem for you,' I don't necessarily accept the premise of that statement.

Those in our workforce are very acutely aware of their obligations in relation to privacy. We drum into them the importance of our information in relation to its sensitivity. Many, many of our staff receive security clearance vetting from the government agencies to appropriate government standards. All our systems are classified appropriately—whether that be 'protective', 'secret' or 'top secret'. We put all of our employees through employee suitability tests before we employ them. We have a lot of compliance activities, as has been spelt out to you, ongoing. Our workforce isn't just a load of blokes who like to look at pictures of pretty women—that's the way you've characterised it. We have a lot of women in our workforce and lot of people from diverse and other sorts of backgrounds. We're quite a diverse organisation. If anything, we value that diversity and we push hard to become more diverse. We have a lot of mechanisms by which people can report wrongdoing so that we become aware of it. So I challenge the notion that we must have the same sort of culture in our organisation.

In every organisation, of course, you get some people who let you down. And I wouldn't say we're immune from that. But it would be wrong to characterise what is a very dedicated and professional workforce in the Border Force in that way. We would look very seriously at any sorts of breaches that have been talked about.

Mr Pezzullo : I would add, if I may, that, in addition to the officers themselves being under all of those integrity injunctions, it's a requirement by lawful direction from the secretary that there's mandatory reporting of any instances of wrongdoing and misconduct that people come across. So not only are individual officers prohibited from engaging in the conduct that you've just described but if other officers become aware of it—you talked about sharing, for instance, and people viewing this material—they themselves would be in breach of our integrity standards were they not to report it and they themselves would, thereby, expose themselves to similar breaches and ultimate sanctions, which could include termination of employment. In other words, you can't passively say, 'That's happening in one part of my workplace; I'll just let it keep going.' You yourself become exposed to potential sanction if you don't report that action.

Senator LEYONHJELM: I have some questions about a particular import product. Is that outcome 1 or 3?

Mr Pezzullo : Imports, Mr Chairman, through you, would be under program 3—probably 3.2 to be precise.

Senator LEYONHJELM: Okay. Thanks. That's all, Chair.

Senator KIM CARR: There is a direct question that follows up from what Senator Leyonhjelm was raising. Mr Pezzullo, you say that you take up these questions where there are clear breaches.

Mr Pezzullo : Yes.

Senator KIM CARR: In a previous answer to a question on notice, there were six examples of AAT decisions being leaked to the Herald Sun. You said in the answer—this is BE17/011—it was under consideration and review by the department. That's some time ago. What's the outcome? What's happened?

Mr Pezzullo : I'm not sure that we would be directly investigating the leaking of confidential—

Senator KIM CARR: This is confidential material from this department—matters raised through the AAT?

Mr Pezzullo : Of their decisions, did you say?

Senator KIM CARR: Yes. The claim was made that some refugees were getting free stays in big homes in costly inner-city Melbourne suburbs. In the detail were street names, street numbers, suburbs and photos of houses that these people were allegedly living in. How did the Herald Sun get that information if it wasn't from your department?

Mr Pezzullo : I have no idea. If the information's been processed through the AAT, I don't know if other parties have access to that. Certainly to the extent that there's any disclosure by departmental officers, it's something that I would take a very dim view of.

Senator KIM CARR: I've got no doubt that's true, but given what was just put to us—

Mr Pezzullo : Can I just have a look at these questions—

Senator KIM CARR: This is the estimates hearing on 22 May.

Mr Pezzullo : And we've come back on notice.

Senator KIM CARR: You've come back on notice and said, 'The matter is currently under consideration and review by the department.' It's been some time since that question was asked. I have read from the question—budget estimates, 22 May 2017—and there was obviously a further report on 14 September. So there are two separate reports. Clearly, there are breaches.

Mr Pezzullo : Clearly. You talk about six instances—

Senator KIM CARR: The AAT and then there's this further example of the Herald Sun on 14 September.

Mr Pezzullo : Ms Moy will no doubt assist me. The assessment would go to how many people would have access to that information, how widely it would have been known and whether it is information solely in the control of and privy to the department or whether other entities, such as service providers and other people, have access to that information about where people live residentially if they are living in the community on various forms of visas. Ms Moy can advise where that matter is currently at. I always take all of your quotations on trust but also on a verified basis, and you are right—it does say, 'The matter is under consideration and review by the department.' So Ms Moy can update us both.

Ms Moy : I'll just have to go back and check on notice, but I can do that before the dinner break. My understanding at this stage is that there was no indication that the disclosure came from the department. We ran quite a number of tests to determine if there were any emails leaving the department et cetera.

Senator KIM CARR: I'm familiar with that methodology. I once had someone that dropped a contract and I didn't realise that they had also been looking at some unauthorised sites and they got the sack. I asked the secretary at the time, 'Who dropped the contract?' I know that departments can check every keystroke from a departmental computer. Is that still the practice in the department?

Ms Moy : That's correct.

Mr Pezzullo : Everything is logged.

Senator KIM CARR: The point here is that my colleague has asked you a series of direct questions about the misuse of information and we've got examples of what's been happening, but it's always under review and no-one ever seems to be held responsible.

CHAIR: What is the question?

Senator KIM CARR: My question is: why not?

Ms Moy : To be able to refer anything to the AFP, we would have to have evidence that it was actually disclosed by the department. In the instances where we have evidence that something is disclosed from the department that should not be, we refer that to the AFP and we undertake action with the Australian Commission for Law Enforcement Integrity and also through the code of conduct. In this case, and in many others, there is no evidence that the information came from the department or left the department's holdings to go to another party, a third party.

Mr Pezzullo : Or that it was necessarily classified. That interjection relates to the fact that I do recall this now. Senator Pratt asked me about it. What puzzled me at the time and perhaps still continues to puzzle me is that it relates to the 'leaking', as it is described in her question in the heading, 'AAT decision leaked'. I'm not sure if there are secret decisions that are leaked. So I'm sure what the confluence is between what the AAT heard and what it promulgated in terms of its findings versus what has come out of our systems.

Senator KIM CARR: So your point is that you need to be able to demonstrate that a crime has been committed—

Mr Pezzullo : Prima facie.

Senator KIM CARR: Prima facie, sufficient, presumably to get a prosecution?

Mr Pezzullo : Sufficient for the AFP referral mechanism to accept it. It's a slightly different test but it's in the ballpark.

Senator KIM CARR: The old plumber's test: how do you fix a leak?

Mr Pezzullo : I'm not familiar with that terminology.

CHAIR: Well, it's not a question, Mr Pezzullo.

Mr Pezzullo : I'm a bit younger than Senator Carr, so it's not something that—

CHAIR: Are you finished? You're five minutes through your time.

Senator KIM CARR: I appreciate that. In regard to the Nauru contracts, recently there was a notice displayed on Manus to say that people on Manus could volunteer to go to Nauru; is that correct?

Mr Pezzullo : That's the case. As I mentioned in my opening statement, and as Ms Newton has mentioned on a number of occasions today, there is a mechanism in place now that relates to men on Manus availing themselves of that opportunity.

Senator KIM CARR: How many have taken up that opportunity?

Ms Newton : At this time, we've requested an expression of interest for anybody that's interested. We've got two refugees that have expressed an interest and one non-refugee that would not be eligible.

Senator KIM CARR: That's three?

Ms Newton : That's correct.

Mr Pezzullo : You have to be a refugee, right?

Ms Newton : Yes, you have to be a refugee to be eligible to go.

Senator KIM CARR: Is it the case that the expression of interest had to be completed by 5 pm today?

Ms Newton : We were seeking initial interest as early as today to be able to respond. It doesn't mean that anybody that expressed an interest after this time wouldn't be given an opportunity.

Senator KIM CARR: I'm sorry, the notice actually said, 'The expression of interest must be completed and submitted before 5 pm Monday, 23 October.

Ms Newton : Yes, we were seeking to find out how many people were interested in—

Senator KIM CARR: That's not right then?

Ms Newton : Well, the expression of interest at this time, but if somebody came back at a later time and showed an interest in going to Nauru, we would still consider that option.

Senator KIM CARR: Okay, it's just that's not what the notice says.

Ms Newton : The notice was to actually see how much interest there was, prior to the RPC closing on Manus, in moving to Nauru so that we could manage the logistics associated with transfer. We have to work with Nauru on their agreement as well as health checks and other things for people to transfer, and security.

Senator KIM CARR: Why have you offered this to men on Manus?

Ms Newton : Because it gives them a further opportunity for alternatives other than staying in PNG.

Senator KIM CARR: Are you surprised that only three have accepted it?

Ms Newton : I'm a little surprised at this time. I thought there might have been further interest.

Senator KIM CARR: What's behind that view?

CHAIR: Ms Newton, you are being asked—

Senator KIM CARR: It's not a trick question.

CHAIR: You are asking for her opinion, which as you know is not relevant to estimates committees. In fairness to yourself and—

Senator KIM CARR: Mr Chairman, I have asked this officer who is an expert in the field whether she is surprised by the fact that only three men have taken up the offer. She indicated, quite frankly, quite properly, that she is.

CHAIR: That's her opinion and it's not allowable. The question won't be allowed. That is made clear at the beginning of every estimates.

Senator KIM CARR: You have said that the refugees transferring to Nauru will have the same access to services and resettlement arrangements as other refugees on Nauru. What does that involve?

Ms Newton : They will be eligible for the US process. They will have an option of the consideration of Cambodia.

Senator KIM CARR: What payments would be involved?

Ms Newton : No payments to the refugees to transfer there. They would move there and they would be under the normal living conditions—

Senator KIM CARR: There would be allowances and other types of payments if they were to travel?

Ms Newton : Initially, they would most likely to go into the regional processing in Nauru, where they would have meals provided and all of the other services—very similar to Manus.

Senator KIM CARR: That's right. So there wouldn't be any loss of financial benefits for them to move?

Ms Newton : No.

Senator KIM CARR: That's why I asked the question: are you surprised, and they wouldn't lose any capacity to apply for the United States?

Ms Newton : No. It gives them additional options, potentially, for Cambodia, as well as the United States.

Senator KIM CARR: Is that why you were surprised?

Ms Newton : I was surprised because I thought there might have been more people who could have been interested—from the conversations that we've been advised of over time about people who might wish to go to Nauru.

Senator KIM CARR: How much is Australia paying per refugee on Nauru at the moment?

Ms Newton : I don't have the detail of the individual cost for every refugee on the island.

Senator McKIM: A lot.

Senator KIM CARR: Yes.

Ms Newton : I'm sure we could extrapolate that and provide it to you.

Senator KIM CARR: Thank you. If you would, please.

Mr Pezzullo : I think we've provided an average cost before and we can—

Senator KIM CARR: Yes; it won't be hard to find. That hasn't increased much, has it? It's been pretty static?

Ms Newton : Yes.

Mr Pezzullo : The per unit amount has been fairly stable for quite some time, yes.

Senator KIM CARR: It would be the same amount per month for a person who's moving from Manus to Nauru for those three?

Ms Newton : It would be a slight variation to their allowance potentially of what they receive at the moment on Manus for personal effects that they might choose to buy, which is a very small allowance. It was a point system on Manus that they were receiving so that they could buy their cigarettes and other things. On Nauru, depending on the accommodation, we'll determine what allowance they receive, but it would be a similar equitable amount to undertake their normal living expenses.

Senator KIM CARR: Who initiated this proposal? Did it come from the government of Nauru or was it the Australian government?

Ms Newton : The Nauru government, the Papua New Guinea government and the Australian government have all agreed with the process taking place.

Senator KIM CARR: But who initiated it? Did the Australian government approach the Nauruan government?

Ms Newton : The Nauru government has showed interest for some time in taking any refugees from PNG if they wished to transfer. Australia agreed with that position.

Senator KIM CARR: I see. So the initiative came from Nauru.

Ms Newton : There have probably been discussions over a very long period of time about transfer of people between the two countries.

Senator KIM CARR: In this particular circumstance it was the Nauruan government that was seeking to take additional people?

Ms Newton : The Nauru government had indicated they would take additional people. The Australian government went to both Nauru and PNG and asked what their interests were.

Senator KIM CARR: Deputy Commissioner, I'm seeking to find out, in this particular occasion, if it was the Nauruan government that sought additional people from Manus—not that they were willing to take, but that they sought them out at this time.

Mr Pezzullo : I think the specifics of diplomatic engagements come into play here. I would want to reflect on how much of that to and fro between the three governments I would want to lay out here at estimates before we gave our Nauruan colleagues the courtesy of advising them in advance. We'll take it on notice.

Senator KIM CARR: Has the Australian government offered the Nauruan government any additional payments for taking additional people?

Ms Newton : The payments would be in accordance with what the visa costs were for those people to go to Nauru, which is the normal visa fee when going into that country.

Senator KIM CARR: So that's $10,000 each? They have a visa charge of $10,000, don't they?

Ms Newton : I'd have to take advance on exactly that amount. You're quite possibly right, Senator.

Senator KIM CARR: It's in that vicinity, isn't it? Is there a visa charge of $10,000 if you want to go to Nauru?

Ms Newton : I'll answer that in a moment when I get clarity on the price of the payment.

Senator KIM CARR: If you could, thank you. But there are no other payments?

Ms Newton : The payments are associated with what the costs are for the provider, which would be for Canstruct to deliver the services on island, as well as anything to do with Host, which is the provider for welfare services.

Senator KIM CARR: If you could, please—to whatever costs are involved.

Mr Pezzullo : I think the senator is asking, over and above, what might be, if you like, the volume.

Senator KIM CARR: Yes.

Mr Pezzullo : If there are more people, the greater the outlays, presumably offset by lesser outlays elsewhere. I think the senator is also going to: are there any particular and specific payments that attach themselves to men going from Manus?

Ms Newton : There are no payments to the Nauru government for individual men that move to Nauru. The visa fees are $2,000 for a refugee and $1,000 for a transferee.

Senator KIM CARR: So it's just $10,000 for journalists!

Ms Newton : It may well be.

Mr Pezzullo : We don't know. That's a matter best asked of the Nauruan government. We don't have a relationship with them over what they charge journalists or, indeed, any other person.

Senator KIM CARR: The fact sheets state that the government of Nauru will then decide which refugees can transfer. Are you able to advise the committee on what criteria will be applied to pick which refugees?

Ms Newton : In particular, Nauru want to ensure that their health is appropriate and that people don't have, for example, tuberculosis and other diseases that might be communicable on Nauru. They also want to ensure that there are checks associated with their security arrangements and whether they have any criminal backgrounds as well and that their overall mental health is suitable to transfer.

Senator KIM CARR: Have there been any rejections of the three?

Ms Newton : We've only sought an expression of interest. That material hasn't gone to Nauru yet. But, of course, one of those people is not a refugee, so therefore they will not be eligible and they are still preparing documentation for advice to Nauru.

Senator KIM CARR: Did the Nauru option come about because there aren't any other third-party countries that are taking refugees?

Ms Newton : Nauru has come about because both PNG and Nauru are comfortable with an arrangement of refugees moving between the two countries.

Senator KIM CARR: Which other countries is the government currently engaged with in terms of identifying third-party resettlement?

Ms Newton : I'm not in a position to discuss that.

Senator KIM CARR: Mr Secretary, are you able to advise the committee?

Mr Pezzullo : I'm sorry, Senator; I really do apologise.

Senator KIM CARR: Are you able to advise the committee which other countries Australia has had discussions with regard to resettlement of refugees from Manus and/or Nauru?

Mr Pezzullo : Over what time period?

Senator KIM CARR: Since the last estimates?

Mr Pezzullo : No, I'm not.

Senator KIM CARR: Why is that?

Mr Pezzullo : Firstly, because those conversations would be highly confidential and I would in that case claim the standing immunity that attaches to those conversations. Secondly, in any event, I'd want to refresh my memory as to precise dates.

Senator KIM CARR: Do you want to take it on notice or are you claiming public interest immunity?

CHAIR: In both cases, you should perhaps do it on notice.

Mr Pezzullo : It's a mixture. I'll take it on notice, but I do so advise that I don't think that there will be a very specific answer coming back to you.

Senator KIM CARR: Do you think the establishment of the new department of home affairs will actually lead to a higher priority being given to third-party resettlement?

Mr Pezzullo : It's hard to see—

Senator KIM CARR: It couldn't give it a lower priority, could it?

Mr Pezzullo : I was going to say that it's hard to see how we could afford it a higher priority. We've been engaged with a number of countries, and we've given evidence on this over the years. It remains of paramount concern in terms of our bilateral commitments with the governments of Nauru and PNG, where we've committed to assist them in finding durable solutions for everyone—not only those who are owed protection and therefore a resettlement outcome, other than coming to Australia. The establishment of the home affairs department will make no difference in that regard.

Senator KIM CARR: I see. New Zealand has a standing offer on the table to take 150 people. Are you considering that to be a viable offer?

CHAIR: Just before you answer, I would advise you, Senator Carr, that that's your actual 20 minutes. I've been remiss, but this can be your last question for this time. We are then going to afternoon tea at 3.15. I think the government has a question or two. Senator McKim and Senator Leyonhjelm, do you have more.

Senator LEYONHJELM: I will just check which section my question should be in, but I don't think I'll be very long, though.

CHAIR: Senator Hanson, you're right at the moment? We are supposed to finish, according to the schedule set by the committee, this by 3.15. That is outcome 1 as well as the corporate and general matters, which we sort of combined. Is that time, the next 15 minutes, likely to be convenient to everyone—mainly you, Senator Carr, I should imagine?

Senator KIM CARR: I think we might be able to move on. As you know, the program is only indicative, as you've indicated on several occasions.

CHAIR: Yes, I have, and it is. But the reason for having it indicative is so that other senators who can't be here all the time can look at it and say, for example, 'Well, I'll come along at five o'clock because that's when I will ask questions about outcome 2.' That's the only thing. Anyhow, let's carry on.

Senator KIM CARR: Thank you very much. Mr Pezzullo—

CHAIR: You're finished, or you had this last question.

Senator KIM CARR: No, I was halfway through a question.

CHAIR: Yes, you were.

Senator KIM CARR: Mr Pezzullo, the question I want to put to you is regarding New Zealand. There is a standing offer from New Zealand of 150 refugees, 150 people, otherwise from Manus. The new Prime Minister stated during the campaign that she stands by the commitment by the former Prime Minister. Maybe this is a question for the minister and I'm happy if the minister wishes to take it: is the department or the government prepared to re-engage with their New Zealand counterparts on this matter?

Mr Pezzullo : Minister, if you wish, I'm happy to commence the answer.

Senator Cash: Please do.

Mr Pezzullo : I'm aware of the comments made by the then opposition leader, now Prime Minister-elect—and sorry if I've got that wrong if she has been sworn in today—but certainly the Prime Minister-elect. Subject to the direction of the government of the day, we will always engage with one of our closest allies, partners and friends. I've given evidence on this question before that a number of matters would have to be examined, including the onward travel rights of any persons captured by such an agreement. I've given evidence on that in years past, and if the new Labor coalition—I think I'm referring to it correctly.

CHAIR: Just call it the new government.

Mr Pezzullo : The new government, indeed. If it wants to formalise the comments that the then Leader of the Opposition made, we will of course always engage diplomatically with our partners, friends and allies in New Zealand. Unless the minister wishes to add to that, that is the position.

Senator Cash: I think that covers the matter.

Senator KIM CARR: So it is not being rejected out of hand?

Mr Pezzullo : We would never not engage with New Zealand. We would always have a discussion with New Zealand. It is a very frank, full and very close and intimate relationship, and I can't imagine that we would do anything other than engage with them very earnestly on any matters that were on the minds of their Prime Minister or other members of their government.

CHAIR: Okay, thanks. Mr Pezzullo. Senator McKim, are your questions likely to take long?

Senator McKIM: Are they likely to take?

CHAIR: Well, five minutes, 10 or 15?

Senator McKIM: Probably closer to 15, I think, Chair.

CHAIR: In that event, I might go back to Senator Leyonhjelm who I understand has one question or one topic—

Senator LEYONHJELM: Yes, one topic.

CHAIR: and then we can finish with Senator Leyonhjelm and then go to afternoon tea and come back to you for 15 minutes when we return, Senator McKim.

Senator McKIM: Righto.

Senator LEYONHJELM: Thank you, Chair. My questions relate to the importation of Airsoft products.

Mr Pezzullo : Importation of?

Senator LEYONHJELM: Airsoft.

Mr Pezzullo : If the Acting Commissioner can assist me.

Mr Outram : I'm sorry. Airsoft?

Senator LEYONHJELM: You don't know what it is either?

Mr Outram : It is a brand, Senator?

Senator LEYONHJELM: No, it is a style of plastic firearm similar to paintball.

Mr Outram : Oh, I see.

Senator LEYONHJELM: I'm not entirely sure whether Border Force or the department has responsibility for the policy on it or whether it is the Attorney-General's Department that has policy responsibility. I do know who implements the policy; it is Border Force.

Mr Outram : Indeed, sir, if an import becomes prohibited in any way, and listed in the Customs regulations of prohibited imports—I think it is regulations of 1956 or wherever—then we are responsible for enforcing that law at the border. The policy, though, behind why something might be banned because it contains a chemical or because it is dangerous to children, wouldn't be our lead. We do of course engage across a whole lot of different government departments in relation to those policy discussions.

Senator LEYONHJELM: The gentleman to your left has something to contribute.

Mr Chandler : If it's a firearm, then the Attorney-General's Department has lead policy responsibility for that.

Senator LEYONHJELM: They look like firearms, yes, but they're plastic. They are imported for the Defence Force, the ADF. Do ADF imports go through you guys or are they able to do their own thing?

Mr Chandler : Sorry, Senator, when you say 'do they have to go through us'?

Senator LEYONHJELM: Are they subject to your scrutiny on the way in and therefore they're exempt? And are they exempt under your rules, or do they import them directly because they don't have to deal with you?

Mr Chandler : If it were a weapon and it required a permit for import, it would need to come through us.

Senator LEYONHJELM: So the ADF is importing airsoft equipment, but nobody else can import them. What's the policy background to that? How does that work?

Mr Outram : Perhaps we could take this question on notice, because none of us are aware of the background of this particular product.

Senator LEYONHJELM: I'm just wondering if I might be making it too hard for you by not having the right people here.

Mr Pezzullo : No, the right people are here. The point of principle is straightforward. The Defence Force can purchase fully automatic machine-guns. They're the defence force of the country. Those weapons are permitted and, when they cross the border, the Defence Force has the authority to import them through the Customs Act like any other entity. The Crown binds itself in law, as you all know, but because they're the Defence Force, it's part of a supply chain and they will let us know they've got a shipment of whatever coming in, I don't think Mr Chandler's people—who are the right people, by the way; they're sitting at the table—would say, 'We're going to have a look at whether the country's going to be defended.' No; if it's an authorised purchase made by the Defence Force—I'm not sure what the licensing and permitting requirements are, Mr Chandler—Border Force would say: 'We know about this importation coming in. It is a of machine-guns'—or a batch of grenades—'and it's the subject of collaboration between the ADF and the ABF.' Have I captured that, Mr Outram? We don't want any room for ambiguity here. The ADF isn't some sort of bootlegging organisation that can get around the Customs Act—let me be very clear about that.

Mr Outram : And there are processes in place with the ADF where they seek specific exemptions for certain things, so it's not an unregulated thing.

Mr Pezzullo : Missiles, torpedoes—what else, Mr Chandler?

Mr Chandler : Tanks and fighter aircraft.

Mr Pezzullo : Airsoft is probably at the gentler end of what they're allowed to get.

Senator LEYONHJELM: Very gentle, Mr Pezzullo. What I'm looking for is to find out which department is primarily responsible for the policy rather than just implementing the policy.

Mr Pezzullo : I think, as Mr Chandler stated, it depends on the nature of the goods. Therapeutic goods, obviously, comes under one act of parliament. In this case, it's a weapon or weapon-like importation. The minister was good enough to pull something up on her website. Perhaps you can help me out here—they look like very good replicas, but I presume they don't have a ballistic capability, and that's maybe the reference to 'air' and 'soft' being conjoined in the same phrase. Mr Chandler will check this during the proceedings, but they would still nonetheless have to be permitted. I have to say, if someone was just wandering around the streets with a firearm-like weapon that looked remarkably like an M4 carbine or an AR-15—and other weapons that those of us who have served in various capacities, full-time or reserve know—they look like pretty heavy-duty weapons, and the constabulary would not want to be simply thinking to themselves: is that an airsoft or is that the real thing? So I'm sure there are—

Senator LEYONHJELM: So there is a policy issue here in relation to distinctions between these and paintball. What I want to know—

Mr Pezzullo : Sorry, Senator—sorry to interrupt: firearms policy, as Mr Chandler indicates, is with the Attorney-General's Department. The relevant minister is the justice minister and then the Comptroller-General of Customs and the head of the Border Force, Mr Outram, then executes that policy. I'm looking at the airsoft now—they look like pretty serious weaponry, so I can't imagine that they wouldn't be the subject of—

Senator LEYONHJELM: They're very lightweight plastic and they shoot these tiny little orange plastic things about two metres.

Mr Pezzullo : But if someone doesn't know that, Senator, they might think otherwise.

Senator LEYONHJELM: In any case, if there was going to be any justification offered for the current policy, it wouldn't be from you; it would be Attorney-General's, I think you're saying.

Mr Pezzullo : That's right.

Senator LEYONHJELM: That's fine; I'll leave it there.

CHAIR: Before we break for afternoon tea, Senator Singh has a few questions on the same area.

Senator SINGH: I just want to ask: what is the name of the contractor the government is paying rent to for the Lorengau transit centre?

Mr Pezzullo : The owner of the—

Senator SINGH: Yes.

Mr Pezzullo : The person to whom any payments are made. I'm not sure that we are paying rent. I will just need to check that. Mr Nockels will know.

Senator SINGH: Okay. I presumed that, if we didn't own the transit centre, we would be paying rent.

Mr Pezzullo : No; but it might be public land. We'll just check.

Mr Nockels : That's correct, Secretary. The land that the East Lorengau Refugee Transit Centre is on is PNG crown land, so there is no rent paid.

Senator SINGH: There is no rent paid at all? So there is a facility there on that PNG crown land—

Mr Nockels : Yes.

Senator SINGH: and we don't pay any rent. There is no contract then?

Mr Nockels : There is no rent contract or leasing contract.

Senator SINGH: At all? Are there any other transit facilities that we're engaged with which we're paying any contractual fees for?

Mr Nockels : No. The Commonwealth doesn't have any leasing arrangements in Manus. If we were to have leasing arrangements they would be through service providers, so the Commonwealth wouldn't hold that contract directly.

Senator SINGH: At Lorengau, there is just the one transit centre? Is that right? Or is there more than one?

Mr Nockels : There is a transit centre called the East Lorengau Refugee Transit Centre—often referred to as ELRTC.

Senator SINGH: That's the only one?

Mr Nockels : At the moment—

Senator SINGH: Is there another one proposed?

Mr Nockels : It was mentioned earlier this morning that, yes, there are a range of other centres that will be brought online in the next few days.

Senator SINGH: So perhaps it is these other centres that I'm asking about?

Mr Nockels : Possibly; but, again, the Commonwealth won't hold any leasing arrangement. It will be through service providers, who actually hold leasing arrangements.

Senator SINGH: When you engage with the service providers that hold the leasing arrangements, do you look at who they are holding those leasing arrangements with? As a government, do you look at who the service providers are holding leasing arrangements with?

Mr Nockels : Our expectation with our service providers is that, depending on the range of services we are requiring, they abide by PNG law. So, if there were a requirement to hold a lease, to pay rent et cetera, they would be doing that under PNG law. That's where we would engage with our service providers to ensure that the leasing arrangements were appropriate.

Ms Newton : Senator Singh, for every one of the facilities there has been an agreed location with the PNG government. They have authorised us to progress activity. Whether it's at Hillside House for nonrefugees—there has been consultation with the PNG government for that facility—the provider then goes through the process of lease arrangements with the local community landholders and puts in place the costs. Of course, with the facilities that are in place there at East Lorengau, a lot of that construction originally occurred with the department. Broad Spectrum provided the lease operations for that location.

Senator SINGH: Who are these local community landholders that the leasing arrangements are through?

Ms Newton : I don't have the details of exactly who owns the land.

Senator SINGH: That's what I would like to know. Can you take that on notice?

Mr Pezzullo : We'll take it on notice.

Senator SINGH: Or can you provide it later today?

Ms Newton : We'll see if we can provide it today, yes.

Senator SINGH: Thank you.

CHAIR: That's it, Senator Singh? We will break for 15 minutes and come back at 3.35. I will go to Senator McKim, and then Senator Carr has another question about corporate and general. Hopefully, we will be able to finish with that and move on to outcome 2.

Proceedings suspended from 15 : 18 to 15 : 38

CHAIR: We will resume the committee's inquiry into the additional estimates for the Department of Immigration and Border Protection. We are just finishing up with outcome 1, and I will go firstly to Senator McKim and then to Senator Carr.

Senator McKIM: Mr Pezzullo, have you had any luck chasing up the veracity of the notice that I tabled a translation of earlier?

Mr Pezzullo : Indeed—I'm not sure that I've had luck, but I've certainly been advised that notices that broadly follow that translation have been posted on the authority of the Immigration & Citizenship Service Authority of PNG.

Senator McKIM: When you say they 'broadly', I think you said, 'follow', you're not suggesting that the translation is significantly inaccurate in any way, are you, Mr Pezzullo?

Mr Pezzullo : No, no. I've read the English version, and I don't speak or read Farsi, so I'm taking it that it's a good-faith translation.

Senator McKIM: Yes, it's done by an official translator, obviously. Thank you. I want to follow up on some questions on the three facilities mentioned there. I do apologise if this ground was gone over before afternoon tea, but I took the chair on face value that we'd be going to Senator Leyonhjelm and then afternoon tea. I now understand Senator Singh popped in for 10 minutes or so before afternoon tea. So, again, apologies, if this ground has been covered. I'm specifically asking about Hillside House and West Lorengau house—neither of which, I understand, are ready to receive people as yet, should anyone decide to go there. I understand this has been asked so apologies, but who owns the facilities and who owns the land on which those facilities stand?

Mr Pezzullo : I'll ask the deputy commissioner to briefly summarise any evidence that she's already given and then to address your questions directly.

Ms Newton : Hillside House will be available for accommodating people from tomorrow. It's now met all of its requirements today to be able to proceed and have people living in that facility.

Senator McKIM: That's for nonrefugees, Ms Newton—is that right?

Ms Newton : Yes, that's correct. Site management services is an NKW Holdings-related contract, and we were asked a question by Senator Singh just before the break—I don't have the details associated with who owns that land because it's a contract that occurs between the contractor and the landholder. We're following up with further details on that on notice.

Senator McKIM: Does the new governor of Manus island have any interest in that land, to your knowledge?

Ms Newton : Because I'm not aware of who owns that land, I'm unable to answer that question.

Senator McKIM: So that's Hillside House. What about West Lorengau house?

Ms Newton : West Lorengau house—I also don't have the details of who owns that land, and we're following up on that information.

Senator McKIM: Thank you. What's the nature of the facilities at Hillside House—is it tents?

Ms Newton : No, it's fully contained hard-sided accommodation.

Senator McKIM: Is it shipping containers?

Ms Newton : At this point in time, there are some containers. There will be air conditioning available and other accommodation, which is transferable accommodation, for that site.

Senator McKIM: So you've got some containers on-site. You said this will be available tomorrow so presumably, as you'll be ready to go within a matter of hours, not days, to receive people. Is the air conditioning installed?

Ms Newton : All of the services are being installed. That's why it's operational from tomorrow.

Senator McKIM: So we've got some shipping containers. Are there any other accommodation units on-site at the moment apart from shipping containers? And, if so, what are they?

Mr Pezzullo : They call them transferable.

Ms Newton : Transferable accommodation containers which people can live in with adequate services being provided.

Senator McKIM: Do they have windows?

Ms Newton : I would assume they have windows, yes.

Mr Pezzullo : We'll check the details.

Senator McKIM: So to be clear, I'd like a—

Ms Newton : We'll provide you with further advice as to the details of what that accommodation looks like.

Senator McKIM: And same for West Lorengau house?

Ms Newton : Yes.

Senator McKIM: I'm aware of the East Lorengau transit centre scenario—we covered that reasonably comprehensively during our last estimates. I want to go back to the situation on Nauru. We had a bit of a farcical exchange before when I was putting what I thought was a non-contentious proposition and couldn't get an answer. So I'm just going to ask it again; aren't you in the process of awarding a contract to Canstruct that is in part for the delivery of welfare services when Canstruct has zero experience at providing welfare services?

Ms Newton : Senator, I understand I've answered that question to say that Canstruct will have people suitably skilled to provide welfare services and will be taking on practices, policies and procedures that Broadspectrum had in delivering those services. There will be a continuity of service—

Senator McKIM: The problem is, Ms Newton, that you're answering a different question to the one I asked. I will ask you again: does Canstruct have any experience in the delivery of welfare services?

Ms Newton : They'll have experience from day one when they have people there delivering those services—

Senator McKIM: As of now, Ms Newton?

Ms Newton : from the time that they commence—

Senator McKIM: No: you're answering a different question again. It's pretty simple. As we sit here now, does Canstruct have any experience in the delivery of welfare services?

Ms Newton : At this point in time, we don't actually have a contract with Canstruct, if we're talking about the capability at this time.

Senator McKIM: You have exchanged a letter which commits you to giving them over $8 million—I think just under $8,200,000. You have exchanged that letter, if you want to call it that, with them. The question is, again, Ms Newton, as we sit here now, when you have given evidence that the department is providing over $8 million to Canstruct for the provision of garrison and welfare services, as we sit here now, does Canstruct have the experience in the delivery of welfare services?

Ms Newton : I would expect the transfer of those people to Canstruct would give them experience in welfare services.

Senator McKIM: I am happy to sit here all night. So I will ask you, Mr Pezzullo, and see if we can get some sense out of you. As we sit here now, does Canstruct have any experience whatsoever in the delivery of welfare services?

Mr Pezzullo : We will contract them on the basis that they have that capability at the time that the contract is effective.

Senator McKIM: No, you are answering a different question again.

Mr Pezzullo : Well, as you said—

Senator McKIM: You don't get to pick and choose what questions I ask, so it is my—

Mr Pezzullo : I understand that.

CHAIR: Yes, but you do get to pick and choose your answer, and you've given an answer.

Senator McKIM: No, they have not given an answer—about five or six times. There are remedies available to the Senate. I would prefer not to have to use them.

CHAIR: Don't go on with your quarterly threat! It doesn't worry me.

Senator McKIM: Remember what happened last time you tried to boot me out?

CHAIR: It doesn't worry me.

Senator McKIM: Do you remember what happened last time you tried to direct me on what sorts of questions I could ask?

CHAIR: It doesn't worry me. I'm saying to the witnesses, 'You've given the answer, and you can keep repeating it until the cows come home.' It's a sufficient answer. I would have thought it was very reasonable. Anyhow, if Senator McKim wants to waste his time asking the same question and getting the same answer, that is up to him.

Senator McKIM: As we sit here today, Mr Pezzullo, does Canstruct have any experience in the delivery of welfare services?

Mr Pezzullo : We have to have regard to whether they will have the capability and capacity. That is the obligation that we have under the procurement guidelines.

Senator McKIM: So, basically, you're in the process of contracting someone who's got zero experience in the delivery of welfare services, and you are going to outsource to them the responsibility for delivering welfare services to men, women and children who Australia has been torturing on Nauru for over 4½ years? That is a disgrace.

Mr Pezzullo : We haven't been torturing anyone.

Senator McKIM: You have been torturing people.

Mr Pezzullo : It's my practice not to allow you to simply—

Senator McKIM: I'm simply relying on the United Nations Special Rapporteur on Torture

Mr Pezzullo : You know that answer I gave you on that previously.

CHAIR: Do you have a question, Senator McKim?

Senator McKIM: For anyone who is watching, it would be abundantly clear—

CHAIR: You and GetUp! might think so, but nobody else does.

Senator McKIM: that the department is refusing to answer that question, because it doesn't want to embarrass itself.

CHAIR: That's not true; they've answered that several times.

Senator McKIM: They have not answered that question. I now want to ask about people who are being held on Manus Island and Nauru and who have spouses or children in Australia. I'm not sure if you need to get someone else up for that.

Mr Pezzullo : Who have spouses?

Senator McKIM: Yes, spouses and/or children. Do you know how many people fit within that category? That is, people on Manus Island and Nauru within the cohort that we are discussing—that I would argue Australia has responsibility for—who have either spouses or children, or both, in Australia.

Mr Pezzullo : We will be assisted in this evidence by Ms Hampton. Yes, there are persons who have been transferred to Australia, or who might have arrived in Australia through other lawful means—they're not necessarily medical transferees. And yes, I'm certainly aware there are some people here who have direct family relationships—I think principally on Nauru, but I might be mistaken in that.

Ms Hampton : There are 421 people in Australia who are transitory people, at the moment, who have transferred from Manus or Nauru to Australia for the purposes of medical services. I'm trying to find the information about how many of those people have family back on Nauru. If you can just give me a second, I will see if I can find that number for you. Can I get it for you in the break?

Senator McKIM: Yes, sure. I might park that line of questioning, if that is alright, and I'll come back to—

Mr Pezzullo : To ease enquiries, so we don't have to come back to you afterwards, you referred to spouses. Did you also make reference to children?

Senator McKIM: Yes. Spouses and/or children.

Mr Pezzullo : So, effectively, what we would define as a direct family relationship? Is that appropriate.

Senator McKIM: Yes.

Mr Pezzullo : Direct family relationships, thank you.

Senator McKIM: My next question was going to be how many specifically are currently separated—so where there is one member of the family offshore on either Manus or Nauru—

Mr Pezzullo : And other members of the family. We'll get you that information.

Senator McKIM: I want to go back to Canstruct briefly. I understand the contract's just been finalised, but you said it is imminent, so you are a fair way down the track, obviously. Is it intended that the contract will permit Canstruct or employees or subcontractors to use force against detainees?

Mr Pezzullo : I'll have Ms Newton and Mr Nockels speak to the scope of the contract. If they're subcontracting security services, I presume there are use of force provisions.

Ms Newton : Yes, it does include security services. That may require the use of force associated with a fight that might be going on within one of the RPCs, the requirement to detain somebody if they're attacking somebody else or, if there's a mental health issue, to transport them. In the main, that activity will be undertaken by the Nauru police wherever possible to follow up after an initial response.

Mr Pezzullo : This doesn't involve any additional security powers—

Ms Newton : No, it doesn't.

Mr Pezzullo : over and above what the Broadspectrum subcontractor would've had.

Ms Newton : No. It facilitates, really, stopping a breach of the peace occurring.

Senator McKIM: Do the use of force provisions in the contract differ substantially from the use of force provisions in the Broadspectrum contract?

Ms Newton : No.

Senator McKIM: Does Canstruct have any experience in using force against vulnerable people?

Ms Newton : Our understanding is that they'll be working very closely with the previous subcontractors providing those services historically to Broadspectrum, so, yes, they will have experience in terms of ongoing service provision on Nauru of people that have been performing that role now for some time.

Senator McKIM: I'm not going to go around this merry-go-round with you again, Ms Newton. You've again answered a question that wasn't asked. I didn't ask about the future; I asked about now. Does—that's present tense, for your assistance—Canstruct have any experience, as we sit here today, using force against vulnerable people?

Ms Newton : As I said, we are progressing the contract on the basis that there is a requirement for them to have that capability to deliver, as part of the contract on Nauru.

Senator McKIM: We'll take that as a 'no' as well despite the fact that, for whatever reason, you don't want to admit it. Can I ask if the department's aware of which companies Canstruct intends to be subcontracting to in this contract?

Mr Nockels : Perhaps I could take that.

Senator McKIM: Thanks, Mr Nockels.

Mr Nockels : The deputy referred to the fact that the previous subcontractor to BRS, Wilson's, from a security perspective—

Senator McKIM: So they will be subcontracting Wilson's?

Mr Nockels : That's the intention for Canstruct. As it comes to the range of other services, I mentioned earlier in my evidence that a significant number of BRS staff will work for Canstruct—

Senator McKIM: Did you say BRS?

Mr Nockels : A significant number of BRS staff who are currently with BRS, but soon won't be, will be transferring into the employment of Canstruct. That suite of services that we described earlier will be delivered by the people who are currently delivering them.

Senator McKIM: So is it right to say that at the moment the department's only aware of one potential subcontractor, which is Wilson's?

Mr Nockels : That's correct. I'd need to go back and check, and no doubt Canstruct will have a range of smaller subcontracting arrangements in terms of their logistics chain, et cetera. For purchase of food in Australia, they will no doubt need to have some subcontracting arrangements with Eigigu Holdings Corporation, which is a government of Nauru state-owned enterprise which focuses on bringing goods onto the island. There may well be a range of smaller subcontracts, but I would have to go back and check on those.

Senator McKIM: So you've taken that on notice, Mr Nockels. Are you offering to take that on notice?

Mr Nockels : I will take that on notice.

Senator McKIM: How many companies, apart from Canstruct, were approached by the department when you were beginning the process of deciding who would take this contract?

Mr Pezzullo : I should probably refer to our earlier evidence, but for the benefit of the senator it might be worthwhile summarising that.

Mr Nockels : I responded to a question from Senator Carr on that. We conducted a limited tender and Canstruct was the company we approached.

Senator McKIM: I understand that. I was here when you gave that evidence. I don't think from memory my question has been asked or answered, so I will ask it again. How many other companies did the department approach or did you only approach Canstruct?

Mr Nockels : If you're talking in terms of the most recent activity, it's only Canstruct.

Senator McKIM: You only approached Canstruct.

Mr Nockels : For this limited tender, that's correct.

Senator McKIM: Were any other companies approached prior to the commencement of the limited tender for this contract to ascertain—surely, you'd do some due diligence and give a few people a call to see if they'd be interested. You don't need me to give you a lecture on competition but they've got you totally over a barrel, Canstruct, and they're going to screw the Australian taxpayer, I have no doubt.

Ms Newton : We went to the market some two years ago to test the market to provide services, knowing that Broadspectrum would be finishing up their contract. In going to the market, negotiation took place with two different companies at that time. Both companies chose not to progress through to finalisation of negotiations. We undertook an expression of interest in the market, and there was no interest in the market more broadly.

Senator McKIM: When you say you did an EOI to the market, is that subsequent to the process that you've just given evidence the two companies expressed interest through?

Ms Newton : Subsequent to those two companies making a decision, they didn't want to proceed with having contracts on Nauru.

Senator McKIM: Subsequent to that, did you again put out an EOI?

Ms Newton : We went out to the market to test who might be interested in the market. We received no responses that were positive.

Senator McKIM: Is it fair to say you went to the market twice? The first time you received two expressions of interest, neither of which materialised into a company that was prepared to take it on, and you went to the market the second time and there were no expressions of interest. Have I categorised that accurately?

Ms Newton : They're slightly different processes.

Mr Nockels : Perhaps I could clarify. As the deputy said, a while ago, nearly two years ago, we went to market. There was an expression of interest. A range of organisations put forward bids. We then moved to a process of evaluation. A preferred tenderer was identified and there was a secondary. We moved into a request for amended tender; this is the subject of the ANAO report around procurement with the garrison support contract offshore. At that process, around the request for amended tender, the preferred tenderer and the secondary declined to continue in that process.

Senator McKIM: Who were they?

Mr Nockels : In the first instance it was BRS and in the second it was Serco.

CHAIR: Do you have much more on this line, Senator McKim? If you do, I'll have to go to someone else and come back to you.

Senator McKIM: Not on this line, but I would just remind you that we are waiting for some information to come back in regard to family separation. That's in the same group of this estimates committee, but it's a slightly different line of questioning. We've agreed to park that while the information's being provided. So I'm happy for you to go, Senator Carr, if you come back to me.

CHAIR: I'll go to Senator Carr now and come back to you after Senator Carr. I think Senator Hume has some questions too.

Senator KIM CARR: Mr Pezzullo, I understand that the department has awarded $26 million over the past two years to Boston Consulting Group. Is that correct?

Mr Pezzullo : I don't know if it's quite that amount. I've seen a breakdown in preparations for these proceedings, but I'll get some colleagues, here, who can give you a somewhat more accurate breakdown. It certainly is an amount of money that is in the order of some $20 million, but I want to be very precise, here, in my answers. As my colleagues gather themselves and come to the table, principally, it is related to the pre-design work for what's known as the visa reform program, which is currently the subject of a market-testing and expression-of-interest process that Ms Golightly or others might attend. That's a program of work that will eventually involve the expenditure of several billion dollars worth of expenditure. I'd classify most of the BCG work as being in the realm of predesign to support that process. The chief operating officer and Ms Golightly can explain it in more detailed terms than I can.

Ms Golightly : As the secretary has just mentioned, BCG was contracted to assist us with the early stages of planning and design of the new visa reform program. That involved assisting with planning out the various phases of work that would need to be undertaken, helping us with market testing that's been undertaken and the design of those documents, and also into building, co-design and other scenario-testing strategies going forward. That's not the 26; it's much less than that. I can come back to that in two seconds.

Mr Pezzullo : Perhaps Ms Connell has the breakdown.

Ms Connell : You're referring to the article that stated $26 million over the last two years? The total was actually $25.8.

Senator KIM CARR: $25.8?

Ms Connell : Was the reported AusTender commitment. The actual cost was about $20.9 million over that period.

Senator KIM CARR: I didn't catch that.

Ms Connell : The actual expenditure for that period as of 30 September was $20.9 million.

Senator KIM CARR: Does that include GST?

Ms Connell : It is exclusive of GST.

Senator KIM CARR: What is it with the GST? What's on top of that—another 10 per cent, is it?

Ms Connell : Correct.

Senator KIM CARR: It's normally expressed with the GST, isn't it? Would that help get the two figures closer together?

Mr Groves : The contracted amounts of 25.8 were GST inclusive. What Ms Connell was quoting was the actual spend over the same period, over 2015-16 and 2016-17.

Senator KIM CARR: I see.

Mr Groves : It was over two years.

Mr Pezzullo : We reported contract value in the normal—

Mr Groves : In AusTender, yes. It's the contract value.

Senator KIM CARR: It's a standard practice. I take it that that wasn't a limited tender?

Mr Groves : No. I believe it would have been off one of our existing panels that are all done through an open market process.

Mr Pezzullo : We will absolutely confirm that, but my recollection is that it was a panel procurement.

Senator KIM CARR: The Australian actually reported it as being for consulting services relating to restructure of the department.

Mr Pezzullo : No. They might have chosen to have that checked. The majority of the work—and Ms Goligthly might have the breakdown now—related to the preliminary design work involved in advising us on what a digital platform would look like. Effectively, the visa reform program that both Ms Goligthly and I have spoken about is to move the visa system, with a few notable exceptions around things like refugees, onto a global digital platform. It's a very intricate, complex and significant undertaking because it will involve—it's the kind of reform that you see in places like banking and elsewhere, where you have to change your service delivery model, retrain your staff, rebuild your computer system and secure the data in the back office. You get the general idea. Rather than plunging into that on a whim, as it were, doing some predesign work before you go to government with a preliminary business case is always a sensible and prudent thing to do.

Senator KIM CARR: What caught my eye though was that—

Mr Pezzullo : I should be clear: the value of those works—as Ms Golightly can better express; I do apologise. We're now in-between business cases. We had a preliminary business case that the government approved that authorised some market testing, which has now been refined to an expression of interest around a particular bundle of work to do with effectively digitising—all temporary visas, isn't it?

Ms Golightly : That's right; temporary visas.

Mr Pezzullo : And then we're on the hook, as it were, to go back to government with the definitive second-pass business case. At that point, government will consider the value-for-money merits, the security and other considerations that no doubt the government will wish to apply, and that will then authorise the definitive procurement. That program of work, which will extend, I suspect, many years into the future—

Ms Golightly : Absolutely, yes.

Mr Pezzullo : would be worth many multiples of that.

Senator KIM CARR: Can I be clear about this: the 20.9 actual that you're referring to is for one contract?

Mr Pezzullo : No. It's for a number of packages of work and either of the two deputy secretaries—

Senator KIM CARR: But it's for the same program? It's for the visa reform program?

Mr Pezzullo : No. As I said, the majority of the work pertained to visa reform. I know there were some other packages of lesser import, not in terms of their profundity but in terms of their magnitude. Perhaps Ms Connell has that breakdown for you.

Ms Connell : I'm advised that there were about 15 contracts but there were five main contracts. The one the secretary is talking about was for the visa reform phase 1, which was $13.5 million.

Mr Pezzullo : Of actuals?

Ms Connell : Yes. That was until 2 September of this year.

Mr Pezzullo : So 13 out of the 20—

Ms Connell : Correct. In actuals out of the 20.9.

Mr Pezzullo : in actuals were connected to visa reform.

Ms Connell : There was an amount of $1.3 million in 2015-16, which was strategic guidance and support for the ABF in the preparation of an ABF 2020 strategy. There was a total spend of $2.1 million in 2015-16, which was for our ICT reform activities, and there was a further reform activity in 2015-16 for $3.7 million.

Senator KIM CARR: What was that for?

Ms Connell : Strategic advisory services across a broad range of forms, people, technology and process.

Senator KIM CARR: But that's another strategic advice. There is a couple of strategic advices in there.

Ms Connell : That's their specialty.

Mr Pezzullo : That's what BCG does.

Senator KIM CARR: One of the contracts appears to have been upgraded from $370,000 to $2.8 million. Is that correct?

Ms Golightly : They are components of the $13 million that we just mentioned. The $370,000 was for a two-week package on the high-level scoping around setting out what would then follow. The second roughly $2.5 million was for the approach to the market that we've already done, and, as the secretary was talking about, was helping us refine, now going forward based on the information we're getting from the market, our business case.

Senator KIM CARR: Ms Golightly, is it correct that you said $370,000 for a two-week package?

Ms Golightly : Yes, that was for a very high level scoping package. Yes.

Senator KIM CARR: A very high level scoping package?

Ms Golightly : Yes, for setting out how we would then approach the market and then the next phases of the project, which I just mentioned.

Senator KIM CARR: That was an open tender too, was it?

Ms Golightly : No, as we've mentioned, these were selected off the panel arrangements.

Senator KIM CARR: So these were all panel?

Ms Golightly : Yes.

Senator KIM CARR: None of these were open?

Mr Pezzullo : Panels are authorised—

Senator KIM CARR: Yes, I know what a panel is, but I want to be clear: are they all off the panels or all are they all open?

Mr Groves : They are all off the panels, but, certainly, there's still a requirement that we test the panels on who's available and who's providing the best value for money for work.

Senator KIM CARR: Which panel is this?

Mr Groves : I don't have that. We've gone out for a consulting panel for consultant services, I think, unless we've piggybacked off another government entity.

Senator KIM CARR: Perhaps you could tell me that. Which panel is it?

Mr Pezzullo : We'll check.

Senator KIM CARR: Who's on the panel? How do you get on a panel like this? This is a hell of a lot of money.

Mr Groves : There would be many firms on the panel.

Senator KIM CARR: I'm sure there would be, but exactly how many and who are they?

Mr Pezzullo : Mr Groves will check for you.

Senator KIM CARR: There was a time when the Public Service could do this sort of thing, wasn't there?

Mr Pezzullo : I've been in the Public Service a long time. We've often used contractors for high-level business cases, but, as I alluded to—perhaps a bit too Delphically—when you've got complex interactions between technology, keeping current back office systems running, it's prudent to get advice on how this is done in other sectors. Banking is one example. I don't ever recall a time when the Public Service had fully formed, within itself, complete and absolute knowledge about how the private sector works in these sorts of areas. I understand the point I think that you're going to, Senator Carr. The public service doesn't relinquish control—never has and I think it'd be a dismal day if it ever did—of the overall policy, the strategy and the development of the business case. But as the internet of things comes online and as globalisation of technologies comes online, we are increasingly having to compete globally. You want to introduce best practice, data analytics and data management being two examples, and companies like BCG, though there are others, have got global comparators and they can access like standards across the world.

Senator KIM CARR: I understand the argument, Mr Pezzullo. But you've upgraded this contract from $370,000 to $2.8 million.

Mr Pezzullo : I'm not sure 'upgrade' is the right verb.

Senator KIM CARR: Was it changed?

Mr Pezzullo : There are packages added to as you go through the evolution of a business case. I'm not sure that upgrade is quite the—

Senator KIM CARR: How do you want to describe it then? I've said it's an upgrade. What were you going to call it—a downgrade?

Mr Pezzullo : No. It's not about the direction of travel; it's about, at particular points in time, as particular pieces of work need to be done, who is best placed to do that work. How would you describe it, Ms Golightly?

Ms Golightly : That's exactly it. One piece of work was $370,000; the next piece of work was $2.4 million.

Senator KIM CARR: So they're separate pieces of work?

Ms Golightly : Yes.

Senator KIM CARR: I see. Are there any ex-departmental officials now working on these contracts?

Mr Pezzullo : For whom?

Senator KIM CARR: For Boston Consulting Group being paid over $20 million—nearly $21 million actual, GST-exclusive.

Mr Pezzullo : I'm not sure about former officers.

Senator KIM CARR: Former officers of the department, transferred across to Boston Consulting Group and presumably earning a great deal more than they did as public servants.

Mr Pezzullo : I'm not aware of any cases, but we'll check. You wouldn't transfer, in any event. If you leave the employment of the Public Service, you resign.

Senator KIM CARR: No, you don't transfer. You just end up working on departmental work at a higher salary.

Ms Golightly : I'm not aware of any ex-officers working on the visa reform for BCG.

Mr Pezzullo : But we will check.

CHAIR: Would you know?

Senator KIM CARR: They'd know alright.

Mr Pezzullo : Possibly, yes, as part of separation of employment—

Senator KIM CARR: They're sitting in the same room. They'd know.

Mr Pezzullo : To Senator Carr's point, the team might well be saying, 'Such and such is back but with the contractor.' We would know, and I'd have an interest, in any event.

CHAIR: Are they sitting in the same room?

Mr Pezzullo : Possibly—if that were to occur. I'd have my own interest in terms of how that—

Senator KIM CARR: It's not uncommon, is it.

Mr Pezzullo : I wouldn't say it's common, but, as you know from defence industry and other industries, people do join the private sector, and they've got a perfectly lawful entitlement to do so, subject to their separation being appropriately managed.

Senator KIM CARR: Who signed off on these contracts? Who was the authorising officer for all of these contracts?

Mr Pezzullo : That I don't know, but it would've been at a relatively high level because of the amounts of money involved.

Senator KIM CARR: But the delegated officer would be either you or your delegate?

Mr Pezzullo : They're not signed at my level—I can assure you because I haven't signed any of these contracts—but it would be at a relatively high level. Ms Connell or Ms Golightly?

Senator KIM CARR: But on your delegation—would that be right?

Mr Pezzullo : Always, yes, of course. All delegations flow through the PGPA accountable authority.

Ms Golightly : We can check that for you—who signed it.

Senator KIM CARR: I'd like to know who it was in each of those cases. Has the Boston Consulting Group provided any advice on the department of home affairs?

Mr Pezzullo : Not to the department. Whether they've spoken to other people, I don't know, but there is no consultant that has provided advice to the department on the creation of Home Affairs—at all. I only caveated that because, to the extent that BCG speaks to people, I don't know to whom they've spoken. To my department—

Senator KIM CARR: That you're aware of, to the current department as you know it. It may well be that they've provided advice to PM&C or other agencies.

Mr Pezzullo : It gets complicated, so I'll need to put a caveat on my answer. Once they were advised, for instance, that these were reformed as part and parcel of being part of immigration and border protection transitioning into home affairs, I can imagine that Ms Golightly's offices in particular would be having discussions with BCG in these terms: 'We're going to become Home Affairs-the entire immigration program will transition into home affairs. Bear that in mind as you go about thinking about both the market phase that we're in now and what this will look like as an integrated change program post consideration by government of the business case.' I can't imagine, Ms Golightly—because I don't wish to mislead the committee—that reference to Home Affairs would not have arisen in that strict context?

Ms Golightly : That is correct, Secretary. In fact, BCG has been given a briefing on the Home Affairs construct, as we know it, and exactly to the point that the secretary has just made, that the whole visa reform and visa process moves over into Home Affairs holus-bolus, but we need to put that lens over it as we're going forward with the future design.

Senator KIM CARR: Thank you for that. Mr Pezzullo, for the Hansard record, can you indicate to me when the department will be ready to answer the questions you've taken today in regard to the approval processes for medical treatment?

Mr Pezzullo : The assistant commissioner advised me as we were coming back from the break that it would be closer to 6.00 pm or thereabouts.

Senator KIM CARR: I will have to apologise in advance, because I have another commitment at that time. I guess someone else will have to take that up in that regard. I know other senators may have other matters, but I have questions in 1.1.

CHAIR: We are dealing with outcome 1, which includes 1. 1. Your time for questions has finished, unless it's—

Senator KIM CARR: All right. I'll come back to it.

Mr Pezzullo : Can we get a preview of this question?

Senator KIM CARR: I'm sure you will be able to predict them.

CHAIR: Senator Hume.

Senator HUME: I have questions for outcome 1.3.

CHAIR: That's all right.

Senator HUME: My questions are about the legislation that's been introduced on prohibited items in detention. Who do I ask about that?

Mr Pezzullo : The acting commissioner, noting that—and I will be guided here by the chairman—with live legislation that is before the Senate particular norms and practices are followed, but I think factual responses on matters can be proffered to the committee. But obviously we don't want to get into the situation where we are debating the legislation.

Senator HUME: No. I won't drag you into the weeds, I promise.

Mr Pezzullo : It's more about whether we're debating the merits of the legislation, which are properly matters for parliamentarians, of course.

CHAIR: You wouldn't be doing that anyhow.

Senator HUME: I'm more interested in exactly what types of things you are trying to prohibit. What are the prohibited items you're talking about?

Mr Outram : The bill strengthens the ability of authorised officers to conduct searches and seize things, primarily, in order to restrict those certain things from entering the detention environment that might undermine the health, safety, security and good order of detention facilities. This includes things that can be used to facilitate criminal activity, escapes or organise disturbances. That is the general thrust.

Senator HUME: So we are talking here about search and seize powers. My understanding is that mobile phones potentially are included in these search and seize powers? Is that correct?

Mr Outram : Yes, we've had issues with mobile phones and food within the detention environment creating risks for the safety and security of those establishments.

CHAIR: Senator Hume, I would prefer you didn't talk about the legislation but rather talked about whether there are problems with phones or food or something.

Senator HUME: That's what I wanted to ask about. What's the current status in terms of mobile phones in detention now?

CHAIR: And are there problems with them?

Mr Outram : There are indeed. We have had a number of instances where major disturbances, attempted escapes, protests and other serious incidents, including the introduction and distribution of contraband and illegal drugs, have been linked to the use of mobile phone in our detention facilities. You might be aware that an unusual situation arose whereby one cohort within detention was allowed to have mobile phones and one was not, depending on whether or not you were an IMA. So they became, if you like, a currency, or had value. Because of the risks they posed in terms of the safety for everybody inside that facility, whether it be a detainee, an employee or a visitor, we took the view that it would be safer to have them removed from the environment altogether. But before we did that we wanted to make sure that we provided access to phones on site for detainees. We didn't want to restrict communication, the internet and those sorts of things. So we rolled out a program to provide those facilities in the centres. But you may be aware that the department is currently subject to proceedings that challenge that policy in the Federal Court, so we were ostensibly injuncted from proceeding with implementation of that policy.

Senator HUME: Was there any external advice that either went to the department or the ABF that suggested that that legislative change was necessary? Or was it from somebody within the detention centres that suggested this was necessary?

Mr Outram : Advice from our service provider, Serco, for one thing, and my officers on the ground. Also, of course, we collate information and intelligence about what's happening within the centres. We monitor the temperature in the centres, if you like, and we collect anecdotal information about where phones have been used for nefarious purposes. We were convinced that in order to maintain safety, security and good order we had to go down that path.

Senator HUME: Can I follow up with some questions about the mandatory cancellation provisions for criminals sentenced to terms of imprisonment of more than 12 months.

Mr Outram : Section 501?

Senator HUME: Yes. What sort of crimes has this cohort committed? Imprisonment of 12 months or more covers a fairly wide remit of criminal activity. Can you give us an indication of exactly what sort of criminals we're looking at? It's not pickpockets, is it?

Mr Outram : They are offences relating to violence—offences against a person, in other words. They could be of a sexual or violent nature. There are offences against property—theft, robbery, those sorts of things. Some offences will be particularly serious on the scale, so one offence in itself would attract a lengthy sentence. People commit serious sexual offences. Other people may attract a prison sentence because they're recidivists—so whilst one offence in itself may not ordinarily attract a prison sentence, the fact you're a recidivist offender could attract a prison sentence. There is a whole range of levels of offending on that scale.

Senator HUME: Has that cohort of detainees changed over recent years?

Mr Outram : Absolutely. I can tell you the number of people in held detention—I'll start with this. The use of detention is a means of last resort. We have about 1,257 detainees in Australia as of 30 September. When you go back to that number we spoke about earlier on—about 64,000 unlawful non-citizens in our community—it's a very small percentage. When you look at the number of IMAs that are in Australia, the vast majority of those are in the community.

There are three primary cohorts. There are people who arrive here, who we have to turn around at the border, or people who have overstayed their visas. There's a churn there; there are about a third of those. We have about a third of our people in detention who are 501 detainees—I'll get you the exact number in a moment. They're people who have been cancelled because either they've attracted the term of imprisonment that you mentioned or because the minister has determined on character that their visa should be cancelled. They would include people who are members of criminal gangs, including outlaw motorcycle gangs and those sorts of things. People can come out of prison or be cancelled because they're involved in criminal gang activity or associated with that activity. Then we have IMAs. By and large people are in detention because of the view that they represent a risk or a threat to our community in some way. We don't detain people for the sake of it.

Senator HUME: With that criminal cohort, what is the hold-up? Why are they in detention for so long?

Mr Outram : I'll take one group. If you come from New Zealand, in fact you can return to New Zealand and fight your case, in terms of the legal process, from New Zealand. But for some reason many of them choose to do that from held detention. So it's the amount of legislative checks and balances. There are a lot of legal processes to get through—for good reason, sometimes—if somebody doesn't want to voluntarily return to their country of origin. If they represent a risk to the community, and we can't involuntarily return them home quickly, then they have to sit in held detention for some time.

In terms of the cohort, I can tell you that about 446, or 35 per cent of the detention population on shore, have had their visa cancelled under section 501, and 421 of those we would rate as being high or extreme risk—by that I mean they represent a risk to the safety, security and good order of the facility, as I mentioned earlier. Out of the entire population of 1,257, 70 per cent—that includes all three of those cohorts—or 876 are rated high risk and about two per cent, or 28, as extreme risk. So 329 or 26 per cent of the overall population are illegal maritime arrivals and 195 of those are rated high risk and seven are rated as extreme risk. We have 21 detainees that are recorded as being stateless. So the cohort has changed—far fewer IMAs in held detention and far more people who have been counselled under section 501 because of criminal behaviour who are being held there.

Senator HUME: I'm assuming that there have been attacks on staff in the detention facilities?

Mr Outram : Indeed, there have. There is a good news story. We've worked very hard over the last two years to enhance the standard operating procedures for the management of our detention facilities on shore, with our service provider, Serco, and we have employed a number of ABF superintendents to go into each facility and manage the facility in a consistent way and manage our contracts there on the ground with Serco. In 2016-17, there were 98 incidents that financial year that involved assaults on Serco staff but the year before, in 2015-16, there were 194 and the year before that there were 334. Yes, 98 a year is still a lot, so we obviously want to keep bringing that number down. But the number has significantly reduced.

Senator HUME: What legal powers do the staff have to defend themselves?

Mr Outram : The common law. We don't have things like capsicum sprays and weapons in detention centres, obviously, so they have the ability to restrain people through use of handcuffs, or physical restraint, but by and large that's about it. So it's the way we manage the facilities that becomes really important. But in terms of the use of force, whereas most police officers and corrective services type officers would have a statutory authority under the law to use force to protect themselves or the facility, prevent escape or protect others, Serco officers and Border Force officers have to operate in those detention facilities under the common law. That provides less assurance to the officers before they use force in terms of the legal protection they might have.

Senator HUME: When you say 'use force', what's the definition of 'force'?

Mr Outram : 'Use force' is, as it says, where you actually apply force to another person without their consent. That could be as simple as grabbing somebody's arm, or pushing somebody out of a doorway or into a doorway or handcuffing somebody or physically restraining somebody. In a policing setting, using force goes all the way up to and includes the use of lethal force, of course, which is use of firearms. Use of force is everything from grabbing hold of somebody, touching somebody, restraining somebody in some physical way, all the way up to, not in our setting but in a policing setting, using lethal force.

Senator HUME: It seems incongruent to have a number of quite dangerous detainees in your care and yet be unable to do so much as put an arm on their shoulder and show them the door, or whatever.

Mr Outram : It's a very challenging environment. We still have a way to go in terms of regularising the way that we use force. We have to apply the common law, which doesn't give officers the protections they need. The data that will tell you that per 1,000 detainees we are having a big impact in terms of reducing the amount of people who self-harm, threaten self-harm, escape or are involved in violent incidents in detention, notwithstanding that change in detention population. But, still, this is an extremely challenging environment. You can imagine where somebody comes out of a prison, having been convicted of a serious criminal offence, straight into a detention environment, they bring that culture out of the prison with them. That creates a significant problem in detention, too. Criminals, whether they're in prison or in a detention facility, unfortunately a lot of them don't stop their criminal offending and networking from the inside.

Those networks and that offending and those conspiracies can continue. A lot of them are prone to violence. So, yes, we're having to work constantly to understand how we manage this. Some facilities have more capacity to handle higher-risk detainees than others. Where we place detainees is obviously critical to this, as is understanding the risk they represent; and monitoring that risk in an intelligence sense is crucial, too. So it's a constant effort. We don't want to use force. Use of force is a means of last resort, but sometimes officers have no choice. The protection they have in law is something that we have been looking at—does the common law provide adequate protection for officers?

Senator HUME: The media has reported recently on an enhanced escort position. That's not something I know an awful lot about. Can you explain to me why that enhanced escort position has been reported in such a controversial way?

Mr Outram : I'll ask Assistant Commissioner Woodford-Smith to deal with that position.

Mr Woodford-Smith : I haven't actually seen the article and I'm not sure why it would be dealt with in such a severe way. The enhanced escort position is simply an officer holding the elbow or the arm of a detainee as they might escort them somewhere. There is no form of physical restraint, as in handcuffs or some other mechanical device to restrain individuals. I'm not familiar with the article and I'm not sure why that would be so critical.

Senator HUME: You don't think it's a particularly controversial practice?

Mr Woodford-Smith : No, Senator. I think it's less invasive than actually applying mechanical restraints.

Mr Outram : To clarify that, we do quite frequently have to take detainees outside of the facilities for things like medical appointments, and some of those are psychiatric in nature, and therefore we and Serco have to look at the risk of escaping or hurting somebody. Where possible we try not to restrain by use of handcuffs. Sometimes we have no choice. This position that the Assistant Commissioner described is a lesser use of force than mechanical restraints, but still it gives the Serco officer a hold on somebody, so if they try to bolt they have a chance—

Senator HUME: Can you show me what it looks like? What does an enhanced escort position look like?

Mr Pezzullo : I'm not sure we will capture that in the Hansard.

Mr Outram : The way it's been described it would be holding on to somebody's arm like this.

Senator HUME: Do you have any sense of the effect that these new cancellation powers are having on the criminal activities of the outlawed motorcycle gangs?

Mr Outram : Absolutely. It's knocking a big hole in outlaw motorcycle gangs in Australia, there's no question about that. Some of the people we've successfully removed from Australia were very senior in outlaw motorcycle gang hierarchies—chapter sergeants at arms and those sorts of people—and they're serious criminals. If you speak to our colleagues in the Australian Criminal Intelligence Commission, Federal Police, state and territory police, they think it's been a huge success in terms of our ability to look at and profile the serious organised and transnational criminals who are resident in Australia. There are many hundreds of them, and you can work out who are Australians and who are not Australians and then use the migration act as a means by which to seriously disrupt serious and organised crime. It is having a big impact.

Senator KIM CARR: I noticed before that there was some emphasis on the number of days it's been since a boat has arrived. I saw a report in August of a boat ending up on Saibai Island. What can you tell me about that? Six Chinese nationals arrived on Saibai Island on 20 August.

Mr Pezzullo : I might ask the Acting Commissioner.

Senator KIM CARR: What happened there?

Senator McKIM: They came to mainland Australia and then they were flown out of mainland Australia.

Senator KIM CARR: I'll let the officials help me out here.

Mr Outram : I can help you out here. I'll go to the thrust of your question, as I see it.

Senator KIM CARR: Is Saibai Island still part of Australia?

Senator McKIM: They were flown out of mainland Australia.

Mr Outram : I'm not sure which question I should be answering.

CHAIR: Senator Carr, what is your question?

Senator KIM CARR: Did a boat arrive on Saibai Island on 20 August?

Mr Outram : Yes.

Senator KIM CARR: Did it involve six Chinese nationals?

Mr Outram : Yes.

Senator KIM CARR: Was there a New Guinean people smuggler involved?

Mr Outram : There was a New Guinean person on there, yes.

Senator KIM CARR: A New Guinean?

Mr Outram : Papua New Guinean.

Senator KIM CARR: Those details are all correct?

Mr Outram : Yes.

Senator KIM CARR: Why is that not an arrival in Australia?

Mr Outram : It's not an arrival under the scope of Operation Sovereign Borders, if that's what you mean.

Senator KIM CARR: I see. How do we define that?

Mr Outram : I'll go back to the genesis of Operation Sovereign Borders. In 2012, of course, what was out of control and led to the establishment of the expert panel and ultimately Operation Sovereign Borders was the number of asylum seekers risking losing their lives on the high seas, travelling from the Middle East and Asia, primarily through Indonesia—some from Sri Lanka—to Australia. The expert panel, in fact, made no reference to PNG—

Senator KIM CARR: Let me see: if they land on Saibai, that's not a breach of Operation Sovereign Borders. Is that how it works?

Mr Outram : Let me finish—except to recommend the establishment of a regional processing centre. The entire scope of Operation Sovereign Borders is to take and turn back vessels to Asian countries, not PNG. We have to draw a line in terms of operational scope. If you extend OSB into the Torres Strait then why not bring yachts that come into Cairns or Eden into scope, and why not deserters and people who come off cruise ships—

Senator KIM CARR: Indeed!

Mr Outram : who we deal with all the time; it's a business-as-usual sort of event. In fact I personally issued an operational directive in December 2016 to my people reclarifying this scope. In that command directive I made it quite clear that in the Torres Strait illegal arrivals fall to Regional Command Queensland in Strategic Border Command. Even then, in December last year, I made it clear this is not an OSB matter. In fact we wouldn't even classify those Chinese people who arrived as a successful arrival, because five of them are now back in China—they've been successfully returned to China—and one is in custody.

Mr Pezzullo : Reluctant as I am to intervene or interrupt you in full flight, the other key difference is that we have a legal return agreement with Papua New Guinea that manages—because it's a littoral area. People can get in dinghies, surf paddles—

Senator KIM CARR: They could walk across at certain times of the year!

Mr Pezzullo : I'm not sure they can walk.

Mr Outram : They can't.

Senator KIM CARR: The crocodiles would get them! There's a crocodile problem.

Mr Pezzullo : I think only one person ever managed that in human history. I don't think you can actually walk. The point is, without being very precise, that that part of our, if you will, border perimeter is managed through a mutual agreement. There's a return agreement with PNG.

Senator KIM CARR: I just want to be clear. When the minister says that a boat hasn't arrived for a thousand days, it's got to be: as long as it's not Chinese, as long as it's not through New Guinea, as long as it's not from an Asian nation—is that how we define it now?—as long as it's not on the east coast. Is that right?

Mr Pezzullo : I think that's a rather superficial interpretation of the acting commissioner's evidence. People who arrive within the scope of OSB are handled within OSB's operational procedures. People who come through the Torres Strait illegally are, under longstanding agreements and arrangements, returned—if they have no lawful basis to be in Australia—to PNG directly, or, by way of mutual discussion with PNG, we'll return them back to their country of origin at our effort and expense. So that part of the border is, if you will, sealed. OSB has to cover a lot of territory, or water, and you don't need to duplicate efforts where you've got robust border protection arrangements in place.

Senator KIM CARR: I just wanted to be clear. Just as long as we understand what a thousand days means: it doesn't mean Chinese; it doesn't mean east coast.

Mr Outram : We get illegal arrivals in Australia at the border all the time and have done for many years, as you know. The reason OSB was set up was not to do with Papua New Guinea, as I articulated; it was to do with people arriving on the high seas, primarily out of Indonesia and Sri Lanka.

Senator KIM CARR: I've got a deep interest in the boats that we build in this country. There were fast response boats that were delivered to Cairns in September 2016. Is that right? Were there some fast response boats delivered?

Mr Outram : No. We've got two fast response boats on order that we will put into operation in the Torres Strait. They are being built in the United States and they will go into operation in the Torres Strait. We'll take delivery, I'm told—and the deputy commissioner might assist me here—in late January 2018, so we would expect them to be fully operational by around Easter next year.

Senator KIM CARR: So they're late?

Mr Outram : Yes.

Senator KIM CARR: Are they on budget?

Mr Outram : I'll ask the deputy commissioner, who has the details, to take those questions.

Ms Newton : We expect delivery of those two boats around 25 December.

Senator KIM CARR: So it's a Christmas present?

Ms Newton : They are late as a result of some of the specifications having to be clarified with the US, particularly around the AMSA requirements and requirements for safety and security for Australia. We've had staff in country ensuring that all of those requirements have been met; therefore, they'll arrive in Australia at the end of December and they'll be fully operational in the Torres Strait from March next year.

Senator KIM CARR: I'm pleased to hear that. Have they been delayed before? Is this the first time they have been delayed?

Ms Newton : It has been the result of conversations previously at Senate estimates. It's one singular purpose for the delay.

Senator KIM CARR: How many times have they been delayed? When were they due originally?

Ms Newton : My recollection is that they were due originally in September this year.

Senator KIM CARR: And the problem is that they haven't met specifications. Is that the issue?

Ms Newton : In the build arrangements, the specification that the US build the boats to didn't meet the Australian requirement for the build, so, therefore, we had to ensure, for things like fuel tanks, that those specifications were met in the US and that they had priority in terms of the build process versus other builds that they were undertaking in the US.

Senator KIM CARR: Were there any other specifications that weren't up to Australian standards?

Ms Newton : They've met all the Australian standards in the build. It was ensuring that they did modify the design of the boats to meet our requirements.

Senator KIM CARR: So it's a quality assurance issue, is it?

Ms Newton : It's a quality assurance issue in us ensuring that they have built the boats to our specifications to meet Australian standards. It wasn't that they didn't meet those standards when they built it, because they built it to our standards; it was just providing clarity in the original design phase of the boats ensuring that they built them to our standard.

Senator KIM CARR: I can't understand why the delay then. If they were built to standard, why weren't they delivered on time?

Ms Newton : The original design of the boats had to be modified to meet the Australian standards. That wasn't clear in the early stages of the build, so, therefore, they had to seek clarity and agree to a design modification to be able to deliver a boat that met Australian specifications.

Senator KIM CARR: Were inspections undertaken during the build? These vessels aren't built in five minutes, are they?

Ms Newton : Inspections have taken place along the way, yes.

Senator KIM CARR: And you would have established that they weren't up to standard.

Ms Newton : The design we originally chose didn't meet our requirements once the assessment phase took place about Australia's requirements.

Senator KIM CARR: So you changed the standard?

Ms Newton : We changed the design that the US requires for things like fuel tanks to ensure they met the Australian standards when they were built.

Senator KIM CARR: And that wasn't clear in the contract? I'm trying to follow this. When was that not clear in the contract?

Ms Newton : It was to meet AMSA requirements in terms of the build of the boat.

Senator KIM CARR: Sure. What was the cost of these vessels?

Ms Newton : I'll just have to get the details of that. It's an 11.9 metre boat.

Senator KIM CARR: Metres, yes.

Ms Newton : I'll have to find the details for you and provide that on notice—the total cost.

Senator KIM CARR: When were they commissioned?

Ms Newton : In 2016.

Senator KIM CARR: They were commissioned in 2016?

Ms Newton : The contract commenced in 2016.

Senator KIM CARR: When were they commissioned? When was the decision made to purchase?

Ms Newton : I don't have the exact date that they were commissioned.

Senator KIM CARR: Why weren't they built in Australia?

Ms Newton : Because the contract provided for—

Senator KIM CARR: They were ordered from an American company. I follow that.

CHAIR: Let the officer finish.

Ms Newton : The contract was provided to a US company that was building boats that the US Coast Guard had utilised that met the purposes for a fast boat that Australia couldn't provide in the same manner.

Senator KIM CARR: But you have vessels built in Western Australia at the moment.

Mr Outram : Every environment is unique. You're right; we've had the K-class vessels built for the high seas. They're a 54-metre vessel. We have a crew of 20, and they go out for 28 days at a time. They're a large vessel. The Torres Strait, as you'd be aware, is a very shallow water environment. We need boats that can go at speed, but they need a very shallow draft because of the reefs. Because of the issues we face in terms of illegal fishing and those sorts of things, we needed a boat that was specific to our requirements in that environment. We can come back to you with the exact details of the date we went out and the process we went through with the Department of Defence. That's the appropriate—

Mr Pezzullo : Acting Commissioner, am I right in recalling that this was a foreign military sale, an FMS?

Mr Outram : Yes.

Mr Pezzullo : You might just illuminate the senator, who, I'm sure, as a former minister for defence procurement broadly is aware of FMS procedures. But you go through a procedure where you identify, in the US system at least, where there's capability in their inventory—in this case, the US Coast Guard—that can undertake the sort of fast interceptor work.

Senator KIM CARR: Yes, that's right.

Mr Outram : Exactly.

Mr Pezzullo : It goes through what's called an FMS process.

Senator KIM CARR: We didn't have the capability in Australia to build these vessels?

Mr Outram : That consideration was gone through. We can come back with the outcome—

Senator KIM CARR: Yes, thank you—if you would, please. I want to be clear about this. You're saying that the contract was commenced in 2016; it was not the delivery date?

Mr Outram : We'd have to come back to you with the exact details. The delivery date was not going to be 2016, no. That's when the FMS process was put into place, either late 2015 or early 2016—about that time.

Senator KIM CARR: I see. When was the minister briefed on the delay and the delivery of these vessels?

Mr Outram : We'll take that on notice.

Senator KIM CARR: I take it the minister has been briefed?

Mr Outram : Yes.

Ms Newton : He's been briefed on a number of occasions.

Senator KIM CARR: Can I have the dates on which the minister was briefed, please.

Ms Newton : Yes.

Senator KIM CARR: The Border Force vessel Roebuck ran aground, I'm told, on 30 September. Is that correct?

Mr Outram : That's correct—Roebuck Bay. It's a bay class.

Senator KIM CARR: How many crew members does that vessel have?

Ms Newton : There were 11 crew on the vessel at the time.

Senator KIM CARR: What were the circumstances surrounding the vessel running aground?

Mr Outram : What I'll say, Senator, is that's the subject of an investigation by ATSB. Obviously, other organisations like AMSA and GBRMPA—the marine park authority up there—have an interest, so we are working with all of those bodies. It's too early to say the exact cause. You may be aware that, with the reefs out there, there are issues with navigation charts and depths. This occurred at one o'clock in the morning. Our navigation systems rely on data and they're automated. That's all subject to investigation, so I wouldn't want to prejudge—

Senator KIM CARR: So it happened at night: at one o'clock in the morning, it ran into the reef? Is that what happened?

Mr Outram : Yes.

Senator KIM CARR: Have there been upgrades of the Roebuck in the past year?

Mr Outram : In the past year?

Ms Newton : The Roebuck was refitted and recommissioned in June this year.

Senator KIM CARR: What was the cost of those upgrades?

Ms Newton : $3.5 million.

Senator KIM CARR: Right. And where were they undertaken?

Ms Newton : In Cairns.

Senator KIM CARR: So, at the Cairns shipyard?

Ms Newton : Yes.

Senator KIM CARR: I take it that it the upgrades included navigation equipment?

Ms Newton : A range of equipment and charts.

Senator KIM CARR: But including navigation?

Ms Newton : I would have to check whether or not all of the navigation equipment was replaced. There's a substantial amount of it.

Senator KIM CARR: Was the vessel on operational duties at the time?

Mr Outram : Yes.

Ms NEWTON : Yes.

Senator KIM CARR: Did it take a while to be towed back to Cairns?

Mr Outram : Yes, it did take a couple of days.

Senator KIM CARR: How much damage has been done to the vessel?

Ms NEWTON : There's been substantial damage to the underside of the ship. We're currently assessing that damage to determine what the cost for repair is. We couldn't actually access all of our systems until such time as investigators had completed looking at it.

Senator KIM CARR: I take it there was some damage to the reef as well?

Ms NEWTON : There was some damage to the reef. There were no fuel or any other products left on the reef.

Senator KIM CARR: No pollution?

Ms NEWTON : No; no pollution.

Senator KIM CARR: I take it that the Australian Transport Safety Bureau has completed its investigation?

Mr Outram : No, that is ongoing. We were in touch with them the weekend—well, immediately or within hours—of the occurrence. I personally met with the head of AMSA. They always have an interest of course. Also, I discussed it on the phone with the head of the marine park authority who obviously have an interest, also in relation to damage to the reef. Everybody is now waiting for the ATSB investigation to run its course.

Senator KIM CARR: I take it there were a full crew on board on the day of the incident?

Mr Outram : Yes.

Senator KIM CARR: Is the department concerned about the loss of capacity in terms of policing illegal fishers?

Mr Outram : Indeed. Obviously we recommissioned, or we extended the life of this vessel, for a reason: we wanted to retain the base—

Senator KIM CARR: Yes, so how are you going to fill the gap?

Mr Outram : Primarily through our relationship with the Department of Defence. We get excellent support from Defence through something called Operation Resolute—which you may be familiar with—and, of course, they have the Armidale class patrol boats that support our operation.

Senator KIM CARR: Yes.

Mr Outram : We can maintain our posture without a critical gap, but obviously it makes us a bit thinner on the ground, so we would prefer to get this vessel back in action as soon as possible.

Senator KIM CARR: I take it that the fast-response boats are pretty important to fill that gap?

Mr Outram : They have a different capability, I would say. The Bay class is not a fast vessel. It carries a large crew. It's a larger vessel than the fast-response boats. Those fast-response boats are very much more about operations in the Torres Strait to do with illegal fishing and those sorts of things. They're a smaller, shallower craft. They are a different capability.

Ms NEWTON : The navigational equipment was upgraded as part of the refit.

Senator KIM CARR: Obviously, but not sufficiently to protect the vessel from this type of incident.

Mr Pezzullo : You can't assume that.

Mr Outram : Yes, you cannot assume that. Sometimes it may be to do with the quality of the data that you put into the navigation system. Charts are electronic. Not everywhere in the oceans, and particularly around our reefs, is well charted. Some of these charts go back many years.

Senator KIM CARR: I look forward to the explanation.

Mr Outram : Indeed, and so do I.

Senator KIM CARR: It is not a question of failure of equipment?

Mr Outram : We don't know that. That's my point: we don't know. That's why ATSB have got the investigation.

Senator KIM CARR: I will leave it there.

CHAIR: Following on from Senator Carr's earlier questions, were tenders called for that fast patrol boat, or was it decided to use the American vessel which was thought to be suitable?

Mr Outram : No, we went through the Defence procurement arrangements, as we said earlier on. We didn't go out to a tender process in the Australian market. I'll have to go back and look at the processes at the time in terms of what examination was done of what the market in Australia could produce, and similar. We would have been aware—we were aware, and I was aware—of the vessels that are used by the US Coast Guard in similar marine environments to where we intended to use this vessel and of the success of those fast boats they have over there.

CHAIR: Are they fibreglass?

Ms NEWTON : No. They are steel hull.

Mr Outram : They are steel hull, I think. Yes.

CHAIR: Steel hull? It's the oldest trick in the book, of course, to put in a quote and leave out half of the requirements, and to then come back later on and say, 'Sorry, we didn't know about that. Our quote is really more.' Someone who quoted properly on the first time round therefore misses out. Regrettably, it's an all too common arrangement with many government contracts, not necessarily this department. But that wasn't the case here; you didn't seek a price from anyone else except the ultimate deliverer?

Ms Newton : I'm following up with that detail at the moment.

Mr Pezzullo : It's possible that the market was tested by some means, which the deputy commissioner will check for you. Because the Border Force is the US Coast Guard equivalent in Australia and in the US system the coast guard is a military service, we're given access to what's called foreign military sales. Whether there was an approach to market that was either a test or potentially suspended or whether we went straight to FMS is the precise point of detail that the deputy commissioner will check for you.

CHAIR: Was the original price fixed on the basis of what you were buying?

Ms Newton : I'm not clear on that at the moment and that is why I'm seeking further information.

CHAIR: Has it increased since the original price?

Ms Newton : It cost an additional $1.5 million to meet the AMSA requirements on the boats as a result of the Australian standards.

CHAIR: Surely someone, either your department or the American manufacturers, would have made—I mean, it's boat building 101, that you find out the requirements for the territory it's going to work in. I find this very odd.

Ms Newton : It was about four years ago that this originally came up as a matter for the purchase. I will have to gather more information for the committee.

Senator KIM CARR: Can you confirm it was an open tender?

Ms Newton : That's what we need to find out.

Senator KIM CARR: Yes, I know that. I particularly want to know whether it was an open tender. One thing you can be certain of is if it's an American tender, they would have insisted it be built in an American yard.

Mr Pezzullo : I think they have legislation to that effect.

Senator KIM CARR: That's exactly right. They have quite specific legislation.

Mr Pezzullo : Understood. We operate within Australian laws.

CHAIR: The real question is: was there an Australian alternative? Our shipbuilders can build anything. I wonder if the reason it went to the United States was on price. If the price has changed, if they got it because it was cheaper, and then we find that the Australian manufacturers quoted on AMSA regulations and the Americans didn't, that's scandalous. That happens all too often, unfortunately, in a lot of government contracts—not necessarily yours. I thought you said the contract was signed in 2016.

Ms Newton : They were progressed in 2016 in terms of the build.

CHAIR: You are saying the decision was made four years previously?

Ms Newton : To actually work with the US Coast Guard on the purchase of vessels.

CHAIR: I remember there was quite a number of new boats arranged then, including the other boats you used which are built in Australian shipyards. I was very proud of that. I'm concerned to hear about this and I know we did ask about these at previous estimates.

Mr Pezzullo : You did. We'll check the history and we'll come back to you with a very concise chronology.

CHAIR: Just moving on to another matter Senator Carr raised. There is a treaty between Australia and PNG on the Torres Strait. I used to know the name of the treaty off the top of my head—the Torres Strait Treaty?

Mr Pezzullo : If it's not that, it's very close to that.

CHAIR: That has a lot of specifics about that which result from the closeness of the Queensland islands with PNG, and Saibai is about five kilometres across the ditch.

Mr Pezzullo : It might even be closer. That treaty provides for treaty monitoring to ensure that persons who transit across the strait for traditional purposes—people have been coming and going for centuries, if not millennia—those rights are respected and observed. Then there's treaty monitoring to ensure that persons return.

CHAIR: There is unabridged movement between PNG and the Torres Strait islands—

Mr Pezzullo : Which pertains to cultural rights and traditional patterns of movement and migration from the time when there was no border, as it were. I have to get the legal instruments clear in my head, but whether it's subordinate to that treaty or a parallel agreement, and others will assist me with this, there is a parallel supplementary arrangement that says if anyone else comes through that avenue, let's call it an avenue, who do not have any right to be in Australia, they will be returned under certain circumstances. That has been enforced for many years.

CHAIR: It's a very porous border.

Mr Pezzullo : No. I wouldn't say it's porous. It's certainly close. It's a littoral border that's close.

CHAIR: I can remember one of the first questions I asked in the Senate, back in 1990, was of Senator Schacht, who was then the customs minister—

Mr Pezzullo : He was the customs minister, indeed.

CHAIR: and it was whether he knew of this man with a red baseball hat who was bringing drugs across, which the locals had told me about. Senator Schacht and everyone else in the Senate laughed me out of court, but it was in fact true and it was symptomatic of a lot of—

Mr Pezzullo : Your question is in the annals of the Customs Service, I can assure you.

CHAIR: Is it really—the man in the red hat?

Mr Pezzullo : Yes. It's known as 'Macdonald's question'.

CHAIR: I only raise that to say that there has been a lot of illegal entry into Australia through Torres Strait.

Mr Pezzullo : It's a border that's policed very closely, both by the Australian Border Force and by the treaty-monitoring officers who are appointed pursuant to the treaty that our colleagues in Foreign Affairs and Trade oversee. We're also supported by the excellent efforts of the Australian Army, through the Australian Army Reserve, the Far North Queensland regiment, which does terrific work for us under lawful delegations, and there are helicopters and other sensors, some of which we talk about and some of which we don't, that help us manage that. I would never say it's a porous border, but it's certainly a close littoral border.

CHAIR: It was particularly porous when a former government removed the only proper patrol boat from Thursday Island at a time back five, six, seven or eight years ago.

Mr Pezzullo : I will take on notice, and maybe the acting commissioner has got the details—is it related directly to the Torres Strait Treaty or by some complementary agreement that we can return persons who otherwise come through that zone?

Mr Outram : The returns agreement is complementary to, but not part of, the Torres Strait Treaty. The treaty itself was signed in December 1978 and came into force in 1985. I will just give you a sense of the number of movements that occur under the treaty. In 2016-17 there were 27,309 recorded movements under the treaty.

CHAIR: Twenty-seven thousand?

Mr Outram : Yes. It's a lot of movements. In fact, the year before it was 34,000. We have border management officers stationed on Boigu and Saibai islands. They're locally employed members of the Border Force who monitor the comings and goings, because they're familiar, of course, with all the village residents and those sorts of things and know who should be there and who shouldn't. In terms of aircraft and vessels coming through, as you say, Chair, there have been a number, over the years, of illegal arrivals through the Torres, whether they be people from PNG or from other countries, and we have a separate arrangement to return those people back to PNG.

CHAIR: I notice the fisheries minister, Senator Ruston, is filling in at the moment. She'd be well aware of the PZJA and the fisheries arrangements with PNG, which are sometimes difficult to—

Senator RUSTON: Indeed.

CHAIR: Do you still look after the PZJA?

Senator RUSTON: Yes, in conjunction with the Queensland government. We have joint authority.

CHAIR: That's me now. Senator McKim had some other questions.

Senator McKIM: I wanted to resume the line of questioning I was engaged in earlier around families that have basically been ripped apart by Australia's government and by your department. We heard—

Mr Pezzullo : Sorry, Senator, and I know the chairman is going to admonish me; we haven't ripped anyone apart.

Senator McKIM: Well, you have.

Mr Pezzullo : You asked earlier about separated families. My preference, my request to you—well, I'm going to respond in neutral terms, but we're not ripping—

Senator McKIM: That's fine. But they feel like they've been ripped apart, and they have.

CHAIR: Mr Pezzullo, Senator McKim uses colourful language which is usually inaccurate. Can I just suggest that, when you do answer, you start by saying, 'I don't agree with the premise,' so it's on the record.

Mr Pezzullo : Thank you, Mr Chairman.

CHAIR: Senator McKim will continue to use colourful language no matter what you or I or anyone else says. Nobody believes him. Anyhow, that was a suggestion to try and get through this. Senator McKim.

Senator McKIM: We've heard that there are 421 people in Australia currently transferees—I guess you'd call them—from Manus Island and Nauru. Ms Hampton, were you able to source any further numbers for us in the interim?

Ms Hampton : No. My apologies. My reporting team is absolutely marvellous and is working very hard on it but I haven't been able to produce anything yet.

Senator McKIM: Chair, I wonder whether there's a mechanism here where we could come back to this if the information may be available later. I don't want to unreasonably disrupt the committee, but I do have some questions about this issue. Ms Hampton, are you able to give us any guidance as to when that information might be available, given that it's five o'clock already?

CHAIR: Before you answer, Ms Hampton, I will say that estimates, from time immemorial, asks officials questions. If they don't have the information immediately before them or if there are not officers in the room who have information, they take it on notice and get back at the earliest possible time.

Senator McKIM: All right. Well, in that case—

CHAIR: We are not making special arrangements. The department has other things to do.

Senator McKIM: Thanks, Chair. You have made yourself very clear on my time.

CHAIR: I will extend your time by that two seconds.

Senator McKIM: Thank you. Is it correct that some parents and spouses who are on either Manus Island or Nauru have been told that, in order to apply for consideration by the United States under that agreement, they have to relinquish their relationship with their family, including their children?

Mr Pezzullo : I don't believe that's occurred at all. Sorry, just to be clear—I don't know what the source of that information is—but when you say 'relinquish a relationship', you mean sort of divorce or separate from their children somehow?

Senator McKIM: Yes.

Mr Pezzullo : I can't imagine that that's occurred.

Senator McKIM: I find it hard to imagine. But that's what I'm being told—directly from the people involved.

Ms Houghton : Senator McKim, I'm not aware of that circumstance happening. We wouldn't advise people of that position.

Senator McKIM: So can I ask, is it the case that the 421 people—the transferees currently in Australia—need to go back to Manus Island or Nauru to apply for the US deal?

Mr Pezzullo : Well, I've previously given evidence to that effect in May and it's the position of the government that the persons who are here for—quintessentially, I don't think there are any other cases for medical transference reasons. Once their medical treatment has been dispensed with, they need to go back to either Manus or Nauru, as the case may be. We have, if I recall my evidence from May, allowed people to express an interest in the US program, so we haven't distinguished as between the—

Senator McKIM: From Australia?

Mr Pezzullo : I believe. I will get the deputy commissioner and other colleagues to confirm this. But, going back to my evidence in May, it was certainly our intention to expedite and make the process as efficient and as seamless as possible to ensure that people who wanted to register an interest in the US program could do that from Australia. I think that's the case. But we have not agreed, as a sovereign government, that people will be in a position where they're adjudicated—well, assessed, adjudicated and then transferred to the US from Australia. I think that remains to be the case. But they can express an interest, as I recall?

Ms Houghton : That's correct. And I understand that at this point in time 40 people have expressed an interest.

Senator McKIM: To be clear, Mr Pezzullo, the evidence you're providing to the committee is that people can express an interest from Australia—

Mr Pezzullo : Yes.

Senator McKIM: but they can't actually go through the process from Australia. They have to be on Manus or Nauru. Is that right?

Mr Pezzullo : The US teams are visiting PNG and they're visiting Nauru.

Senator McKIM: So what I just said is accurate?

Mr Pezzullo : Yes.

Senator McKIM: Thanks. What's the policy intent behind that decision? Maybe I should ask the minister, but you might be aware.

Mr Pezzullo : The minister at the table may wish to answer it. It's not her regular portfolio so it might not be entirely fair to ask her. It's to ensure that the basis of transference to Australia is observed, and the integrity of that transference is maintained. It is for medical purposes. And, when that medical treatment has been dealt with, in some cases—Ms Hampton can assist me—some people have been here for some years, and their original ailment has been dealt with, in fact it was dealt with quite early. There's an expectation that they will return to either Manus or Nauru or indeed they could decide to go home if that's what they choose to do. But Australia is not a place from which they can enter into the US program. They can express an interest, just to administratively expedite the process, but they can't commence their journey, in terms of filling in their forms, being interviewed, having screening undertaken, having adjudication—which is the American parlance. They cannot do that in Australia.

Senator McKIM: Thank you. Is it then accurate for me to suggest that there are some people who are precluded from formally applying—leaving aside the expression of interest process for a minute—for the US deal because they have a medical condition that requires them to be in Australia?

Mr Pezzullo : That would turn on the facts of the case. But no, in the context of applications, as long as the medical treatment has been dispensed with—and I understand the point of your question, that they can apply. Ms Hampton, in cases where the medical treatment is ongoing and they've expressed an interest, to answer the senator's question—I don't want to agree with the presumption they're precluded—how is their interest, if you like, lodged in the US system?

Ms Hampton : I believe that they express an interest from Australia and at the time that their medical circumstances are changed, they can return to Nauru on Manus and make their formal application at that stage.

Senator McKIM: That's what Mr Pezzullo said a moment ago. My question relates specifically to people who have an ongoing medical condition that prevents or precludes them from being returned to Manus Island and Nauru within any foreseeable time frame. What happens to them? How do they apply for the US deal?

Ms Newton : First, we have 289 of those people that have transferred to Australia that haven't had their refugee determination finalised. They would not be eligible at this time, if they're still part-way through the process. Eighty of them have been determined as refugees that are in Australia at the moment. Assessments are being undertaken as to whether people have completed their medical treatment in Australia and to their suitability to return to Nauru or PNG.

Senator McKIM: They're in Australia now, Ms Newton. I'll narrow the focus of my follow-up question to those who have been found to be genuine refugees because I understand the US isn't prepared to consider others, although I think that's hugely problematic. But my question specifically is for those who have been found to be refugees and who are in Australia. Presumably that means they've got ongoing medical needs. How do they proceed through the US arrangements if they can't go back to Manus or Nauru?

Ms Newton : If they've applied for the process, we will have to await the US deciding how they want to take those people into consideration.

Senator McKIM: They can't apply from Australia. Mr Pezzullo's just told us they can't apply from Australia.

Ms Newton : They've expressed an interest, which is what we clarify.

Senator PRATT: Would they have to go to Manus?

Senator McKIM: They do. That's the point I'm making. Basically people are being precluded from access to the US deal because they have a medical condition.

CHAIR: Senator McKim, there's no point you're making. We are here for questions.

Senator McKIM: Okay. Isn't it the case, Ms Newton, that some people, genuine refugees, are being precluded from moving through the US assessment because of their medical conditions?

Ms Newton : That's a matter for the US to determine.

Senator McKIM: But I'm asking you: isn't it the case that that's a fact?

Ms Newton : No, I don't think it's a fact. They're not precluded from the process. Forty of them have expressed an interest in the US process.

Senator McKIM: But Mr Pezzullo has just given evidence, Ms Newton, that they can't proceed through the US process because an expression of interest is just an administrative arrangement—they need to actually apply. He's also given evidence that he's previously told this committee that in order to apply, people have to be on Manus Island or Nauru. Isn't it a chain of logic that would enable this committee to form a view that there are some people who are being precluded from applying because they've got a medical condition that requires them to be in Australia?

Ms Newton : Yes, there may be some people that are precluded. There are other people that have finished their medical treatment and are choosing not to return.

Senator McKIM: For families where one spouse and a child are in Australia—and we haven't got numbers on this as yet, so I'm just going to ask about one person in particular who's a detainee on Nauru, whose name is Arash Shirmohammadi. Arash's wife and daughter are in Australia. He's never seen his daughter and Border Force has repeatedly refused his request to be reunited with his wife and daughter. His wife is unable to go back to Nauru due to her medical condition. On what basis does Border Force keep this family apart?

Mr Pezzullo : I'm reluctant to canvass specific cases. We might just speak about the principles or the background considerations that would turn on each individual case. Generally speaking, the repatriation to Australia, or the transference to Australia, is for the person who is in the need of medical assistance. If it happens to be a child—again, I'm not going to speak to the particular circumstances—then a parent or a guardian would ordinarily accompany them. Ms Hampton will correct me here, but I don't recall cases where whole families were transferred because one of the children was in need of assistance—which I think is the premise of the line of questioning. So one parent would come. I suppose in this case it was mum. I don't want to identify this family specifically by way of an inferred answer, but what would happen in a case like that is: dad has stayed behind because he wasn't subject of the transference agreement and he has no right to come to Australia in those circumstances.

Senator McKIM: Is there any assessment made of the welfare of the mother and the child in these cases in the event that the mother and the child are in Australia and the husband/father is offshore detained?

Mr Pezzullo : Any assessment?

Senator McKIM: Yes. Well, Mr Pezzullo, I'm sure you will agree—well, I don't know; maybe you wouldn't—ideally a child would be able to meet her father, wouldn't she?

Mr Pezzullo : I don't want to get into philosophy or—

Senator McKIM: We will come to your philosophies in a minute, because I read your speech that you gave for the philosophical context of the new department with interest and terror—equal parts, I might say. But, anyway, I will come to that in a minute.

Mr Pezzullo : Sorry; you were terrified?

Senator McKIM: I was terrified of your thought processes—yes. I don't like fascists and authoritarians.

Mr Pezzullo : I beg your pardon?

Senator McKIM: I thought there were some fascist tendencies that came out in that speech.

CHAIR: Senator, you will withdraw that, Senator McKim, immediately.

Senator McKIM: I beg your pardon?

CHAIR: You will withdraw that immediately, please.

Senator McKIM: All right. I will withdraw that just to help the committee through. So, Mr Pezzullo, were you going to answer the question about a mother and a child and a father?

Mr Pezzullo : As I said, ordinarily, depending on where people are—and the acting commissioner can speak about how these matters are managed onshore—the preference is always to keep families together. The issue here is that the persons who were being transferred to Australia were transferred—we're talking about a case in Nauru, I assume, here—

Senator McKIM: Yes.

Mr Pezzullo : They were transferred to Nauru on the basis of their unlawful mode of entry into Australia—and we can go over that ground, but that's what it is. During the course of their detention initially and then, once it became an open centre, their residence on Nauru, someone has gotten sick. I don't know what the circumstances are, but these are just the general principles. Either the child has gotten sick or perhaps the child at that point wasn't born. Perhaps the mother came here originally with an unborn child. That might well be the case. And, again, I'm trying to avoid direct commentary on this case. These are difficult choices. Of course, no-one denies that. But you can imagine a circumstance where there are a number of siblings. If one child gets sick, in order to keep that family together you have to bring the whole family. In this case, it sounds like a nuclear family of mum, dad and one child, but maybe I've mistaken of the circumstances.

Senator McKIM: No. That's correct.

Mr Pezzullo : You can imagine, as a point of principle, if you have to bring larger families here—and, again, I'm going to say this neutrally, Senator, particularly given your concerns about my tendencies, as you have just said—people are entitled to get legal remedies. And as we've given evidence here, we often get injuncted or, in anticipation of an injunction, the minister will agree to an undertaking that those persons will not be removed. This has been going on for as long as the RPCs have been in existence.

Senator McKIM: Yes, it has.

Mr Pezzullo : And over time you get a creeping circumstance where more and more people are in Australia. So you have to draw some lines somewhere.

Senator McKIM: So is there an assessment of the welfare of the mother and the child in this case before a decision is made to refuse the father, in this case, permission to travel to Australia to actually meet his daughter for the first time?

Mr Pezzullo : Again, we're going to avoid discussion of a particular circumstance unless we have the facts clearly before us.

Senator McKIM: Mr Pezzullo, just to try and help—

CHAIR: Hang on, Senator McKim, please. I'm not sure you should be mentioning individual names.

Senator McKIM: I have permission from this person to do so.

CHAIR: The department does not, as I understand it.

Senator McKIM: In that case, in order to progress the discussion: in a circumstance where the mother is brought to Australia while pregnant for medical reasons, and the father applies to come to Australia before and after the child is born and is refused by ABF, in those circumstances, is there a consideration given by ABF of the welfare of—I'm talking about the medical welfare—of the mother and child? It's not desirable to have a pregnant woman highly stressed, and that can impact on the health of the child as well. Is consideration given to the welfare of the mother and the child before a request is refused for the father to come to Australia and meet their daughter for the first time?

Mr Pezzullo : The only circumstances under which the decision-maker would agree—noting that this is a subsequent transference, in this type of case, generally speaking, the mother would have come here—I don't know the circumstances of the case—either to give birth or because there might have been complications associated with the birth. So that's the medical transfer. As I said, we have to draw a line somewhere and try to keep the numbers to a minimum of people who are coming to Australia to gain medical attention and then, under our law, and under the policy of the government, having to be returned to Manus or, in this case, Nauru, as soon as that medical treatment has been dispensed with. Then, any subsequent desire, application, request to come to Australia would be looked at on very strict grounds. Is this necessary for medical reasons? No doubt, the decision-makers in this case—if an actual decision has been taken, and I'm reluctant to speak about the circumstances—would take all relevant considerations into account.

Senator McKIM: Sorry, was that a yes or a no, that the welfare of the mother and child is factored in to those decisions?

Mr Pezzullo : All relevant considerations would be taken into account.

Senator McKIM: Chair, I have a number of other—

CHAIR: No, that's more than your time, Senator McKim. I will go firstly to myself and then to Senator Pratt, who has some questions on outcome 1. Mr Pezzullo, Senator McKim's questions about someone being in Australia for treatment of a medical condition and having to return to Nauru or PNG to make application to go to the United States, that is, in fact, the situation, isn't it?

Mr Pezzullo : Yes.

CHAIR: I thought you were being obtuse in answering—no criticism of you, but my understanding is that is the fixed view of the government. Is that correct?

Mr Pezzullo : Yes.

CHAIR: While Senator McKim may not like that, I think 98 per cent of Australian citizens think that's the appropriate way to do it.

Senator McKIM: You just made that up.

CHAIR: I think most Australians clearly support the government's view on that particular issue. I wanted you to be clear about that. Senator McKim was obviously trying to get you to admit that and you weren't admitting it. I want to make it clear that is the situation. If you're in Australia—

Mr Pezzullo : I think I did say that. Perhaps I used more words than you, more economically used, but that is the policy, yes.

CHAIR: And, as far as you're aware, it's not the government's intention to change that.

Mr Pezzullo : I've got a high level of certainty that it's not intending to change the policy, that's right.

Senator PRATT: I want to flick back to issues about vessels offshore. I'm told that in September this year an abandoned vessel was washed up off the reef of the coast of Cocos Islands. When did the department become aware of the vessel?

Mr Pezzullo : I will ask my friend and colleague the acting commissioner to address that.

Mr Outram : I will get you the dates, Senator, soon. I don't have those dates to hand, but we became aware of the vessel. It was inspected and looked as though it had been abandoned and derelict for quite some time.

Senator PRATT: When you did inspect the vessel?

Mr Outram : I'll have to take advice on the dates, Senator; I don't have a brief in relation to that matter.

Senator PRATT: Was a search-and-rescue operation undertaken to ensure there was no-one on board and it had not been used by asylum seekers?

Mr Outram : I don't know if you'd characterise it as a search-and-rescue operation, because the vessel looked abandoned and derelict.

Senator PRATT: It might have been abandoned and derelict, but how do you know that some months before there had not been some disaster on it—or some more recent disaster?

Mr Outram : That would be a matter for AMSA, if it was a search-and-rescue matter. From our point of view, we were satisfied that it wasn't an illegal-entry vessel—there were no people around on Cocos and Keeling who shouldn't be there. From a Migration Act and Customs Act point of view, we were satisfied we had no responsibility, but nobody called a Safety of Life at Sea issue. Acting Deputy Commissioner, do you have any more advice?

Mr Murray : I don't have any specific details, but I can assure you that, together with the Australian Federal Police who are also deployed on Cocos and Christmas islands, a search of the vessel was done when the tide allowed for a safe check. There was no evidence to suggest there was any crew at any time on that vessel. It was a derelict vessel.

Senator PRATT: What's the likely origin of such a vessel to be found derelict at sea like that?

Mr Murray : I'll take that on notice, but my recollection of the event was that it appears to be an old Indonesian fishing vessel.

Senator PRATT: Had the vessel ever been used to transport asylum seekers—was there any previous registration or previous incidents associated with that boat?

Mr Outram : We have no information to identify the vessel at all or to get to any of our intelligence or information holdings. To be absolutely sure, I'll take that on notice and we'll double-check.

Senator PRATT: That means you can't guarantee that the vessel was never a turned-back vessel as part of Operation Sovereign Borders, or you don't know?

Mr Outram : I'll take it on notice. We didn't recognise the vessel—that's my point—or identify the vessel. So I doubt very much it was anything to do with Operation Sovereign Borders.

Senator PRATT: If you can take on notice—I'm assuming, if you say you didn't recognise the vessel, that there is a—

Mr Outram : I've said that already.

Senator PRATT: record that says this is a new vessel for all intents and purposes, and you can rule out it ever having been identified as part of Sovereign Borders.

Mr Outram : I understand your question. I will go back to my answer earlier: we didn't recognise the vessel. We have no information holdings that identify the vessel which would suggest that it had been associated with any take-backs, turn-backs or Operation Sovereign Borders but, to be abundantly cautious, we'll take that on notice and check.

CHAIR: If you're taking that on notice, can I ask you to take on notice how you know for sure it wasn't full of people, who would be illegal entrants, who drowned at sea when the ship sank? How do you know that?

Mr Outram : That we couldn't be sure of.

Air Vice Marshal Osborne : Perhaps if I can—obviously, this came to our attention. We were interested for many of the same reasons that you've asked about—potential people being on it. Even if it wasn't possible people smuggling, it could've been people just in trouble anyway. So we worked and we gave information back to the Indonesians—they had no record of it; there was a name on the vessel. The actual vessel had a lot of marine growth over it. It had been at sea for a very long time. Can I give you an absolute guarantee that nobody was on board and no-one drowned? No, I can't, but we exhausted all possible reasons we could find that it was certainly not a recent event and, as far as we know, it was an Indonesian fishing vessel.

CHAIR: But it could have been one that five years ago sank with substantial loss of life long before Operation Sovereign Borders.

Air Vice Marshal Osborne : I don't think it would have been five years ago, Chair. However, like I said, I couldn't rule it out categorically, but we exhausted all possible leads and all intelligence leads. We could find no link to the vessel, no history of the vessel.

Senator PRATT: Are you able to tell us how a vessel is able to get that close to Cocos Islands—in fact, wash up on it—without being detected by the ABF?

Air Vice Marshal Osborne : The vessel could have been at sea for a very long time. It could have been low in the water. It could have been sea states. It could have been all sorts of things that would've made it—

Senator PRATT: I guess if there is no-one on board, it could come from a non-traditional direction that you wouldn't be used to seeing a boat coming from?

Mr Outram : Washed in on the tide.

Air Vice Marshal Osborne : Absolutely; coming with currents.

Senator PRATT: What do you do to monitor such vessels, whether you can see them or not? Would you have expected to see a vessel like that?

Air Vice Marshal Osborne : Not necessarily. We rely on a large range of means to look for our vessels. A lot of intelligence is involved. There are a lot of air and maritime surveillance capabilities that we employ.

Senator PRATT: Have any other boats arrived on Cocos Island or Keeling in similar circumstances?

Air Vice Marshal Osborne : Not that I'm aware.

Mr Outram : The only thing I would say is that, when a boat's under steam, it behaves very differently than—

Senator PRATT: Yes, that was my point. So an investigation by the department was conducted. What did it find? Did it simply find that it was abandoned and that there was no-one on it?

Air Vice Marshal Osborne : Senator, I've pretty much given you everything that we were able to find.