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Legal and Constitutional Affairs Legislation Committee
Department of Immigration and Citizenship

Department of Immigration and Citizenship


CHAIR: We are going to continue with the examination of the Immigration and Citizenship portfolio, beginning today with outcome 4. You will see from the program that at 11.30 am we will go to the Office of the Migration Agents Registration Authority and then to outcomes 1, 5 and 6. I welcome Minister Lundy and officers of the department to the table. We probably do not have any opening statements or anything further to add today.

Senator PRATT: There has been an announcement regarding the targeted analysis of Australia's student visa program following allegations of links to the sex industry. I would be interested to know the results of that analysis and what, if any, links were in fact found.

Mr Callanan : The analysis was conducted over the last year by my colleague Mr McCairns's division, Risk, Fraud and Integrity, but I have responsibility for student compliance. I think it would be correct to say that, generally, the scan, which covered data from about 1995 through to 2011, showed a low incidence of students working in the sex industry and, similarly, a very low incidence of people who were referred in respect of possible trafficking. On top of that, our compliance network reports that from their field activities they generally find there is very low incidence of noncompliance of students who might be working in that industry.

Senator PRATT: Clearly there have been debates for some time about people's primary reason for accessing a student visa not being study but largely just to access the labour market. I suppose, in that sense, the sex industry may not actually be that different when that demand may be there.

Mr Callanan : That is right. The commercial sex industry is legalised in Australia and students can work in the industry. They have a limit on the time they can work. That is 40 hours a fortnight. But, as I said, our compliance field staff report that generally they are abiding. That is a difficult thing to prove, of course.

Senator PRATT: When work is incidental to study is different to those who are seeking to access to the labour market. Is there any work the department might do with the AFP in identifying where there may be criminal elements?

Mr McCairns : Just to recap what my colleague Mr Callanan said, no matter how distasteful some of us may feel some of this is, if you are working legally in that industry you are not breaching your visa conditions. Visa issues are quite small. So what I tend to concentrate on is: are there organised criminal elements here? Is there organised trafficking? Is there exploitation? That would be the place I would take that.

First of all, the AFP are the lead agency here. We would absolutely work hand in glove with the Australian Federal Police. In fact, I have offices seconded into AFP units on this very type of thing.

Senator PRATT: What are the elements of that? I assume that that is about making sure that students come to Australia to be students and that there is not some other arrangement or deal that has been made with someone else and it is about what kind of labour market they will be working in.

Mr McCairns : That is right. So if someone comes as a student they are allowed to work 40 hours a fortnight. As long as they are studying and passing their exams and attending their courses and working 40 hours a fortnight they are of no interest to us, assuming the industry they are working in is legal. Chris would be interested in breaches of that, obviously, but what I would be interested in is—and it is something that is extraordinarily difficult to prove and, as I say, the AFP would be the lead agency to go through this—whether someone has been exploited in some way. Have they been brought over in some way that exploits them or victimises them and are they being treated in such a way that they are not acting of their free will? As I said, that is an extraordinarily difficult thing to prove, so we would have people in the Australian Federal Police. If we do operations on brothels, for example, they would always be in conjunction with the AFP. They would be the lead in doing that. We would support them et cetera. We would have linkages to the government's Support for Victims of People Trafficking Program run by FaHCSIA. But what we are really interested in is being a second fiddle and playing a support role to the Australian Federal Police by bringing all of our migration data together, everything we are interested in, and offering that to the AFP to see if there is exploitation happening.

Senator PRATT: I suppose in that sense when students come here it is about their level of knowledge about what kind of labour market they may be choosing to work in and whether they have full awareness of the arrangements that they may have made.

Mr McCairns : Yes, there is that, but there is also people who may be quite happy to be working longer hours in that industry, so they are willing victims, if I could put it that way.

Senator PRATT: I did not use the word victim.

Mr McCairns : I suppose I was looking at a sort of victim of crime kind of model. What we are trying to do now—and we have not done this yet, so please forgive me—is a piece of work called 'flight analysis'. I do not mean flight in terms of running away; I mean flight in terms of aeroplane flights. We are working with Customs and people travelling to Australia to see if we can start to spot patterns of who is sitting beside whom on a plane, who might be coming regularly from various countries et cetera and whether there are what I might call couriers or escorts. We have not really got to that stage yet, but one of the things we want to look at over the next six months or so is whether we can begin to predict using patterns of flight, who might be sitting beside whom or who might be involved in that. In other words, if there is usually a man, gentleman X, and lots and lots of young students and it is a regular occurrence, does that tell us anything? It is called predictive analytics—it is quite a new science. It is very fraught because you are trying to predict the future by looking at the past, as it were, but that is the space we want to try to take so we can have what I might call early warning systems to advise the AFP if there is something that they may be concerned about.

Senator PRATT: That would imply that there was a level of coercion.

Mr McCairns : Or at least organisation.

Senator PRATT: I note that the South Korean government has raised concerns about potential exploitation in this area. What is the nature of those concerns and how does it compare to other countries?

Mr Callanan : Prostitution is illegal in the Republic of Korea, so they have concerns from that perspective. There is obviously a concern around exploitation, but I think it mainly stems from the fact that the industry is not legal in Korea. But, of course, as I said before, it is legal here. Their concerns are particularly around working holiday-makers, but, once again, working holiday-makers are entitled to work within certain conditions. We have had a few allegations referred to us by the Koreans. We have investigated those and there has been no basis to them. We have to be careful around singling out particular nationalities for exclusion given that the industry in Australia is legal and there is potential there that we might run up against both racial discrimination and sex discrimination legislation.

Senator PRATT: It has a varied legal status through different states. Notwithstanding that, I would support its legalisation, so I am not arguing that point. Does the department have arrangements with other countries to prevent exploitative arrangements as opposed to those that are, I suppose, knowingly and consensually entered into?

Dr Southern : As part of our broader integrity network, we have officers posted overseas whose particular role is in relation to people trafficking. That was part of the government's response some years ago to broader concerns about people trafficking. So we have people posted in three countries overseas where the risk factors are high around possible trafficking for the sex industry and for other industries. Our field compliance officers are all trained to recognise indicators of trafficking so that when they are on a field operation part of their job is certainly to look for those indicators. If they see or find evidence of any of them, they are immediately referred to the Australian Federal Police.

Senator PRATT: Would it be fair to say that in instances where the industry is not legal it is hard to tell the difference between those who are trying to legitimately access the labour market and those who are being trafficked and exploited?

Dr Southern : Do you mean from the application?

Senator PRATT: From a migration point of view.

Dr Southern : One of the responses to the Knight review of the student visa program was to introduce what we call the genuine temporary entrant criterion, which is something that our decision makers take into account when looking at student visa applications. Again, they are looking for indicators that someone is not a genuine student coming to study. As we have said, they do have access to limited work rights—a number of hours—but our primary criterion these days for assessing student visas is that we believe that they are coming to Australia genuinely to study and that is their primary purpose. So it is another integrity measure, if you like, that we are wrapping around the student visa program.

Senator PRATT: Separate to the student visa issue, we do create complexities in deciding who is a willing participant in the labour market versus those who are unwilling, because they cannot access a visa that would enable them to participate in the labour market. How does the department manage that issue?

Dr Southern : Are you talking about illegal workers, those who do not have work rights?

Senator PRATT: Yes. How do you distinguish between them? There is trafficking and exploitation and there are those who are simply trying to access the labour market, despite the fact that it may well still be illegal because they do not have appropriate work rights.

Dr Southern : A working visa. Again, I guess it goes back to our broader integrity measures when assessing visa applications. We do that at various points in the application process. My colleague Mr McCairns can talk more broadly about the layered approach to our security and integrity measures, but basically it starts at the point when someone applies for a visa, and we continue those checks through their period of travel to Australia, including at the border. As you would probably be aware from watching Border Security on television, there are a number of turnarounds at the airport where we feel someone has come here not as a visitor, which may be the visa they hold, but rather to work or to seek employment. I guess the answer to your question is that there is a layered approach to integrity which starts with the visa application and assessing the genuineness of the traveller to Australia.

Senator PRATT: My other questions are on a different topic and I want to return to the discussion which we touched on last night about the onshore detention network. I know some of these things are already on the record, but I want to put them in the context of my later questions. As I understand it, the latest version of the policy changed in about October 2010. I am interested to know how many people are in community detention. I assume it is the same number of people as have currently been granted?

Mr Bowles : Basically in community detention, as we mentioned yesterday, there are 1,601 people, and 362—

Senator PRATT: Yes, I heard that on the radio this morning. How many of those are children or unaccompanied minors?

Ms Pope : The total current number in community detention is 1,601. There are 499 children in total, including 85 unaccompanied minors. We have a large number transferring in at the moment, 362, of which 186 are children, and 87 of those are unaccompanied minors.

Senator PRATT: So 362 are newly arrived.

Ms Pope : Transferring in, yes.

Senator PRATT: So that it is in addition to the 1,601?

Ms Pope : That is right.

Senator PRATT: And the 499 children are a subset of the 1,601?

Ms Pope : They are.

Senator PRATT: What it is the average period of time that children have been in detention before moving into these community arrangements?

Ms Pope : At the moment unaccompanied minors who arrived before 22 February this year have been moved into community detention apart from a few who are ineligible because of risk or security issues; and for children in families it is 10 February. It is around 90 days at the moment.

Senator PRATT: Are those times getting longer; shorter?

Ms Pope : They have been getting shorter, but it is determined by the level of arrivals to a large extent.

Senator PRATT: The time has come down in the last 12 months?

Ms Pope : Yes.

Senator PRATT: That is due to there being a manageable cohort of people that you can move more quickly.

Ms Pope : It is about the ability to obtain accommodation for people to live in and for carers for the unaccompanied minors. It has been building up the capacity of the community detention service providers to deliver the numbers we need for placement.

Senator PRATT: In the sense that the policy has been in place since October 2010, it would seem now that the time that it is likely to take in the future, should there be more arrivals, is that there is a fairly transparent process in terms of being confident of how long on average it would take to process families and children.

Ms Pope : Confident to the extent that we have now got a fairly large number of properties that rented and, as protection visas are granted, space is created for people to move in. If the numbers were to exceed the rate of protection visa grant, then we would need to rent more houses. Those are the sorts of efforts that take a bit longer. If we suddenly saw a much greater number of unaccompanied minors and we had to find more carers, then that could be a constraint. But largely speaking, yes, and as I said to Senator Cash last night, I believe we are working our way towards a point of, if not equilibrium, at least of being able to meet most of the need.

Senator PRATT: A manageable flow. I understand there was a decision taken to reduce the amount of financial support to people in community detention?

Ms Pope : Yes.

Senator PRATT: I am concerned to know how much that was reduced by and why.

Ms Pope : When we first looked at expanding the program, we had to consider a whole lot of policy decisions and framing around the way that it would be implemented. At the time, we made the decision to rent accommodation for clients on the basis that, if we did not do that, the capacity to take a lot of people into community detention would be quite seriously constrained. The decision was taken in consultation with the minister's advisory group on these issues to pay the rent of the properties we are using. The amount of assistance that was provided in the past to people in community detention when it was a very small program was 89 per cent of the relevant Centrelink benefit and that is how we set out with the program. Having got around about 12 months in and recognizing that people in CD were—because the rent was being paid—likely to be financially better off than someone on a visa, we needed to make an adjustment to the amount of income support to reflect a post accommodation or post rental income. It was to bring people in community detention into line with people on bridging visas—and on permanent visas for that matter—so that the amount of disposable income they had left after paying their rent was about the same.

Senator PRATT: It would not be a fair thing to give people a distorted sense of long-term income—

Ms Pope : That is right. It was about horizontally aligning the various programs and different status that people can have in the community.

Senator PRATT: Particularly when their circumstances become more constrained in the future. You do not want to—

Ms Pope : Build an unrealistic expectation indeed

Senator PRATT: I wanted to ask about incidents in the detention network since Christmas Island last March or Villawood last April—have there been any significant incidents? If not, why not? How is the state of the detention network in terms of that stability currently being managed?

Mr Moorhouse : There have been a number of major incidents, but the incidence of major incidents has declined in this financial year compared to the previous financial year. I am talking here about incidents that involve significant amounts of damage. I will see if I can get some statistics for you. I apologise for my hesitation, but there are issues in terms of what we consider to be disturbances and what we consider to be major incidents. For us a major incident is one where there is significant damage. The last major incident where there was significant damage was in the Northern Immigration Detention Centre in August last year. Prior to that there was significant damage done at an incident in Christmas Island in July last year. Since then, we have not had what we consider to be major incidents. Since August last year we have had a number of disturbances, but if I can distinguish those, they have generally involved what you might call an emotional reaction to a particular event, a flare-up of behaviour when you have got large numbers of people in detention. But the amount of damage to a facility or a sustained period of disobedience has not been comparable to what we saw until about August last year.

Senator PRATT: What improvements have the department made in the management of the detention network that influences such events?

Mr Moorhouse : A number of improvements. I guess the key issue for us has been the availability of additional facilities and the pace at which we are able to process people who are eligible for a visa and grant them the visa for which they are eligible. What we saw, essentially starting in September, was the expansion of the network. For example, the opening of Pontville in Hobart was a really important event for us because it allowed us to take pressure off other detention facilities and allowed us to undertake a more strategic placement of people within the network—in other words, placing people according to their needs and according to their behaviours. Taking the pressure off the network in that way allowed us to place some vulnerable people into facilities where they were able to get better care and better support from the community. For example, we were able to use a lot of the APODs like the MITA, the Melbourne Immigration Transit Accommodation, for vulnerable single adult males, so they were able to get much better support from the community.

The availability of additional accommodation allowed us to engage in more strategic placement of people. At the same time we also had a more active management of people who were misbehaving, in a sense. So, for example, we were able to place those people in more appropriate accommodation rather than having them mixing with large groups of people. I do not want to make this sound like punishment—that is not what we did. But, by being able to place people who were misbehaving in more appropriate accommodation, what we have seen is actually a very sharp reduction in that type of misbehaviour and a much greater incentive for people to be compliant and to work with us in order to resolve their applications. As Mr Bowles mentioned yesterday, what we have seen is a substantial reduction in rates of self-harm as well. So not only have major incidents declined; we have had a significant level of reduction in self-harm.

Senator PRATT: Good.

Mr Bowles : Can I just add to Mr Moorhouse's comments. The freeing up of detention facilities and the better placement, back in the latter part of 2011, also then led into the starting up of the bridging visa program and the better flow-through of clients through the entire system. It actually has taken the pressure off the held detention network to quite a significant extent, which has led to the outcomes that Mr Moorhouse has talked about. We need to be very careful about how we describe this these days, because it is not as simple as everyone being in one spot. We now have different ways of looking at held detention; we have clearly moved to a new level in community detention; and, with the introduction of bridging visas in November last year, we have seen ourselves move to another level yet again. So the pressure on the entire system is spread across, in particular, those three categories. The fourth category, of course, is the grant of protection visas as they flow through the system. As in some of the evidence we put yesterday, even out of our detention network, out of our community detention network and out of our bridging visa cohort, people are still moving through to the protection visa stage.

Senator PRATT: So the composition of the IMA case load between detention, community detention and bridging visas is making that much more manageable?

Mr Bowles : Absolutely, and, as I said yesterday in my opening statement, I probably see the move to more of that, particularly into the bridging visa space.

Mr Moorhouse : Could I just add a comment, Senator. On reflection, when you asked me the question about the contributing factors, I tended to focus on things that the department has done, and I think that is quite unfair.

Senator PRATT: That is what I asked.

Mr Moorhouse : I would actually like to pay tribute to the actions of our contractors from Serco and from IHMS. Serco have worked very closely with us in terms of identification of vulnerable people, working with those people, management of people who are misbehaving and so on. So Serco have had a key role in the behavioural management. Also I would like to pay tribute to IHMS, our health contractor. The more active clinical management of clients in recent times—particularly clients who are suffering from an emotional or psychiatric perspective—has also had a very significant impact. I did not want to just focus on what the department has done; I wanted to give appropriate credit to IHMS and Serco as well.

Senator PRATT: Can I ask about any evidence that the department has from medical experts or other support services about the mental health of our IMAs if they are processed in held detention versus outside detention, community detention—including on bridging visas, I guess.

Mr Moorhouse : While it was before my time in this job, there was a notable study that was conducted by the University of Wollongong. That indicated, from my recollection—and others can correct me if I am not characterising it accurately—that, in the first six months that a person was in detention, any medical problems that they identified tended to be physical, but, after six months, there was a very significant shift, so that there was a much greater preponderance of psychological or psychiatric injury as a consequence of extended detention. I am not sure if I am explaining this very well, but—

Senator PRATT: No; that make sense.

Mr Moorhouse : That is a particularly important indicator for us. If you look at what Mr Bowles has said about the availability of bridging visas, and the evidence that was given yesterday about the time that it is taking for a person to be considered for a bridging visa, which is now under six months—it is just under five months—that is, I believe, one of the very significant contributing factors to the reduction in the level of self-harm that we have seen. Whilst Mr Bowles talked about the past five months compared with the previous five months, in recent times that level of reduction in self-harm has been quite a dramatic drop.

Senator PRATT: So I guess the picture I have from what you have explained this morning is that the stability of the detention network has been well served by getting people out of detention quickly and into community detention, and by processing times coming down. And bridging visas, once security is resolved, are that final step to an ultimate outcome.

Mr Bowles : Absolutely.

Senator PRATT: Hopefully our nation's policy settings manage to stay in that direction. I have one final question in relation to detention and some of the things that contribute to people's mental health. I have still had the odd occasion when refugee advocates have advised me that they have witnessed Serco calling detainees by number and not by name. Last time I asked that question the department said there may be some appropriate circumstances in which to do that, but the incidents as described to me certainly seemed inappropriate. So I am just interested to know what recent steps might have been taken in that regard.

Mr Moorhouse : It is something that happens. It is contrary to the departmental policy and contrary to Serco policy. In the training of our staff and Serco staff it is emphasised that we need to be respectful to people in detention, and part of that respect is referring to them by their proper name. I do not want to excuse any breaches of that policy, but I would like to explain slightly. When you are working with large numbers of people, as we do in the immigration portfolio, it is very, very important that we can reliably identify people. It is tragic if we apply a sanction to the wrong person. It is frustrating if we give a benefit to the wrong person. So accurately identifying people is really crucial in any context in which you are dealing with large numbers of people. Because of that need to accurately identify people we do use an ID to reliably identify a person. So it is something that we do, but it is meant to be restricted to our administrative function, not our interactions with the client.

Senator PRATT: The incidents I have heard about were certainly not of an administrative nature. When you are looking for someone and you walk in and say, 'Is number blah blah blah here?', that would not be appropriate in my mind—unless you had two people with the same name put up their hand, and then you would try to work out which one of them you were after.

Mr Moorhouse : That is absolutely correct. What I am trying to say here is that our policies and our training are all directed towards treating clients in a respectful way, but our own quality management and our own auditing does indicate that this is a persistent problem that we are trying to address. So I am acknowledging that it does happen, that it should not happen and that we are working to try to reduce it.

Senator PRATT: What steps should people take if they witness these incidents? What is the appropriate way of reporting them?

Mr Moorhouse : I would like them to report it immediately at the time—to talk to the Serco manager or to the DIAC manager and let us know, so we can fix it, because right across the network we know it is the wrong thing to do. But, as I said, we are dealing with large numbers of staff, and occasionally they do the wrong thing. So I would prefer us to fix it quickly.

Senator PRATT: I have one last question before handing over to my colleague. We have talked about the importance of being able to get people out of detention quickly. Clearly there are incidents in which people have adverse security assessments, and their detention appears to be rather more long term. What is the department doing to manage detention for such people?

Mr Moorhouse : I would put it in a more general context. One of the things we do with all the people we have in detention is a regular risk assessment and a regular placement assessment. I might ask my colleague Ms Mackin to expand on this if necessary. SERCO are required to do a monthly risk assessment and DIAC do an ongoing review of placement of people.

Yesterday when we were talking about people who were the subject of an adverse security assessment, I discussed placing them in the most benign form of detention, given the fact that they are facing a long-term detention—that is really part of what I am saying. We try to work with the clients in detention to ensure their placement is the most appropriate one that we can provide. If clients are behaving—and most of this cohort have behaved within detention—we try to place them in an appropriately supportive environment.

We also look at other things that we can do—to some extent, these are not the full answers but I want to at least put on the record that we are looking at activities, the regular activities that are available to all people in detention. But if there are other things that people want to do, for example, forms of education or other forms of self-improvement, we will look to be as flexible as we can to enable people to undertake those placements.

The answer to your question: there is a regular review, at least monthly, of a person's circumstances, and we look to the most appropriate placement within the network and we also look to what else we can do to assist them through their time in detention.

Senator FURNER: Mr Bowles, you would be familiar no doubt with the answers provided by Mr Metcalfe to questions provided to the committee over the last two or three estimates, in particular evidence with respect to the Malaysian agreement and turning back asylum seeker vessels to Indonesia.

Mr Bowles : Yes, in the broad.

Senator FURNER: Is it still the department's advice that the most effective way to deter asylum seekers from making the boat journey to Australia is to establish a virtual turn-back arrangement like the Malaysian agreement or a similar regional arrangement?

Mr Bowles : I obviously was not here during the negotiations around the Malaysia arrangement but I have had the opportunity to have a look at the broader issue of irregular maritime arrivals since I arrived in the department. I have had the opportunity to visit Indonesia and talk with a range of agencies, and there are quite a number of agencies involved in the people-smuggling issues that come out of Indonesia and other countries. I have also had the opportunity to visit a range of detention centres to have a look at how things have actually flown through the system. Based on what I have seen to date, I believe the solution lies within a regional context. We have the establishment of the Regional Cooperation Framework, and that is quite a comprehensive process of negotiations and relationship building with countries within the framework. We have also established the regional support office which, again, I think is a really good way of having a look at this particular issue. We are not going to solve this particular issue by ourselves. There are a range of issues that flow from source countries through transition countries right the way through to Australia nowadays, and it is not as simple as one thing fixes some of these issues.

What I said yesterday in relation to Malaysia, particularly in relation to what the flow of irregular maritime arrivals in Australia has been like, was: with the announcement of the Malaysia arrangement, we saw quite a significant drop in the number of arrivals for a period of time. The High Court intervened in that process, and then there was a protracted period of discussion around: is it possible to get legislation through and things like that?

I am not going to go into that particular space but as soon as it was quite clear that the legislation would not proceed we saw quite a significant jump in activity in November and December of last year. This year what we have seen to date and, yes, while there has been a large number of arrivals this month, it has been very irregular, from as low as 110 to what we are seeing at the moment. So again it is not a simple thing but the numbers are telling me that it did have a deterrent effect at the time and it definitely played out in the way the numbers have happened.

The other thing I would say is that the people-smuggling network, if you want to call them that—I do not want to give me credit for being organised because I am not necessarily sure that is the case—is quite attuned to our approach. Quite frankly, it is not only our approach, it is the approaches of all countries, so if other countries involved in these sorts of things in our regional context make decisions they are attuned to that as well. That is why I suppose from everything I have seen to date I believe that regional approach will deliver the best results for Australia in the longer term.

Senator FURNER: So in respect of being attuned, you are suggesting that they, like many organisations that prey on the vulnerable, are in touch with the media and are regularly keeping up to date with what is happening.

Mr Bowles : Without doubt, and, as I mentioned, I did travel to Indonesia and some of the people I spoke to and some of the people who have gotten into Indonesia knew a hell of a lot about what was going on. So the network in that context is very good. Word-of-mouth is unbelievable. I probably should not describe it this way, but the network is better than Telstra, because the network is phenomenal. It is something that we constantly come up against.

Senator FURNER: Thanks for that. Would it be a fair enough statement to suggest that the national consequences of failure to implement offshore processing in the Malaysian arrangement is (a) increased boat arrivals and (b) continued risk of people drowning at sea?

Mr Bowles : I will try and be a little bit delicate. I do not want to get into the policy debate around these sorts of issues, but I have already said that when the Malaysia arrangement was announced we saw a major drop-off in numbers. When the High Court overruled and we worked through a process, the numbers bumped back up again. So clearly there is some cause and effect there. What was the second part of the question?

Senator FURNER: Certainly in my view there has been a continual increase of risk for people drowning as a result of the lack of having a Malaysian arrangement in place.

Mr Bowles : If I take it outside the context at the moment about Malaysia, there is a significant risk for anybody getting on some of the boats that we see coming into our waters. Clearly there have been some absolute tragedies in this space over a number of years and most recently last year. Clearly the more boats that arrive the more risk, I suppose, that there happens to be on the water.

Senator FURNER: Let us look at turnbacks. I have got some questions with respect to 245F of the Migration Act, which provides the capacity for Australian government agencies to turn back asylum seeker vessels from Australian waters. Is the department aware of the Indonesian government's view? You did indicate you have been over there recently so I am sure you are attuned to this particular view of the Indonesian government position on turnback policy.

Mr Bowles : I am aware of the media reporting. I have not directly spoken to the Indonesians on turnback but I am aware of the media reporting that has been out there.

Senator FURNER: What is that media reporting that you are aware of?

Mr Bowles : That the Indonesian government do not agree that a turnback policy is the right approach.

Senator FURNER: So they do not support the policy at all.

Mr Bowles : According to the media reporting I have read, that is correct.

Senator FURNER: Have any particular government officials or ministers been reported on that basis at all?

Mr Bowles : I would prefer not to go down any discussion about government ministers or anybody else who may have had that conversation.

Senator FURNER: I think it was at last estimates—you lose track of time when you go through estimates three or four times a year—that Vice Admiral Griggs, the Chief of Navy, gave evidence before this committee in respect of this particular policy. You may also be aware that the vice admiral was responsible for ship commanders in the 2000s implementing that policy. He spoke about the danger of this policy to sailors and asylum seekers. Does that accord with the immigration department's view of implementing section 245F of the Migration Act? In recent estimates hearings, Mr Metcalfe has said, 'I do not believe that tow-backs are operationally feasible.' Do you agree with that view?

Mr Bowles : I think the overall issue of tow-backs is best handled by Defence and Admiral Griggs. I am aware of his comments, obviously. I actually worked with the admiral in my days in Defence. I am aware of the issue and was aware of it when I worked in Defence. I think the experience, from my department, is more about what we see on the ground. We have seen a range of boats that are disabled, which makes it exceptionally difficult in a practical sense to turn them around. It is still happening—we get a lot of calls from boats in distress—but, again, it is probably best handled by either Border Protection Command or the Navy, as to how that happens. An observation I have made since I have been around is that there are a lot of boats that appear to be disabled for one reason or another. I cannot speculate really on whether it is happenstance or deliberate, but there are a lot of them.

Senator FURNER: Your analogy about disabled boats is quite interesting. I was fortunate enough to be on the Armidale myself a couple of years ago. A coalition member asked a crew member about tow-backs and interception to get them to return to their shores. The response from the crewman was basically that they would damage the engine, the hull or whatever the case might be to make it near impossible to sail the boat, so it became a rescue mission, not a case of taking the boat to a safer location. Is that consistent with your knowledge and your experience?

Mr Bowles : It does sound consistent with some of the things that I have seen in the last couple of months. We will be notified of a boat in distress or something like that. I must admit that I have not gone into the detail of why some of these things have happened and what they, themselves, are doing to the boats, other than that they are in distress and need to be intercepted and picked up. We have had tragic incidents although they were not necessarily related to those issues. It is risky thing to get a lot of people on what are generally small boats.

Senator FURNER: To your knowledge, were all individuals who were towed back to Indonesian waters under the previous governments arrangements towed back safely?

Mr Bowles : You would have to ask Border Protection Command or Navy about that. I am not really aware.

Senator FURNER: In your opinion and experience, how would you enforce a turnback policy if you do not have in place an agreement with Indonesia? How would that operate?

Mr Bowles : Again, I do not think my department would be the one trying to enforce a tow-back policy; that would be more for the Navy or Border Protection Command.

Senator FURNER: That is true, you would not be able to enforce it but certainly you would have to deal with it. It would be a case that the department has the aftermath or the end result.

Mr Bowles : We would have to do the normal things that we do if people arrive here, and we would do the normal things that we do in a regional cooperation framework context where we have to maintain relationships with all countries in the region.

Senator FURNER: Notwithstanding that view, if you do not have an arrangement in place with Indonesia, that will no doubt cause some difficulties with respect to our relationship with a particular country. I think this government has built up a reasonable rapport with Indonesia and I would imagine that would test the boundaries of the rapport in enforcing such a policy, would it not?

Mr Bowles : We do have a very good relationship with Indonesia. I have met with my Indonesian counterpart and that dialogue was exceptionally good. Again it is pretty hard for me to comment on a policy perspective like that. Our job is to implement policy. There are always going to be difficulties in relationships when we have different views on how we need to deal with a particular issue. I would do what I always do: I would deal with my counterparts in a professional manner, try to deliver on the policy and try to do the most appropriate thing.

Senator FURNER: Do you believe tow-backs could be resumed today, in the current climate?

Mr Bowles : Again that would be best asked of Border Protection or Navy, I think.

Senator FURNER: In regard to tow-backs versus the Malaysian arrangements, can the department please outline the key differences between the turn-back policy, which in effect is provided by 245F of the Migration Act, and the Malaysian agreement. Just looking at some of the differences more closely, can I ask: what protections were in place under the Howard government for people to tow back to Indonesia, or Indonesian waters, and were those asylum seekers given work rights or access to health care or education?

Mr Bowles : I might ask Ms Parker to talk a little bit about the detail. Some of this is a bit before my time.

Ms Parker : In terms of the comparison between tow-backs to Indonesia and the arrangement with Malaysia, I guess they are similar except that one is a virtual tow-back in terms of Malaysia in that it is returned by air—or not necessarily returned, because the people may not have come through Malaysia. But it is using a safe means of taking people back. In terms of the protections that were in place under the Malaysia arrangement, there were a number of protections, although Malaysia is not a signatory to the Refugee Convention or a number of other human rights conventions.

The actual arrangement had a commitment from the Malaysian government, in relation to the persons who were transferred back to Malaysia, to not refoule those people to a country where they may be persecuted. They would be provided access to procedures through the UNHCR in Malaysia and the Malaysian government would treat them with dignity and respect and in accordance with international human rights conventions. As I understand it, and I was not fully involved in this area at the time that the tow-backs were taking place, I do not believe there was a specific arrangement with Indonesia.

Senator FURNER: Okay. The second part of my question is: were those asylum seekers provided with work rights, access to health care or education?

Ms Parker : They were indeed provided with lawful status and that would give them access to the labour market in Malaysia. That was actually quite an important protection. The references to caning that we often hear in the media related to a particular offence under the Malaysian immigration act which related to unlawful entry, and the arrangement provided for those people being transferred to Malaysia to be exempt from that, such that they would be legally in Malaysia. There were also provisions in the operational guidelines that were attached to the arrangement to allow for provision of health services and for children to attend school. And, if those arrangements could not be done through the public system, there was a safety net provided by IOM to ensure that those people had access to those services.

Senator FURNER: How does the Malaysian agreement compare in terms of the protections for people sent back to Malaysia from Australia?

Ms Parker : Sent back to where, sorry?

Senator FURNER: Sent back to Malaysia from Australia.

Ms Parker : Sorry, could you repeat the question?

Senator FURNER: How does the Malaysian arrangement compare in terms of the protections for people sent back to Malaysia from Australia?

Ms Parker : I am not sure that I am understanding the question.

Senator FURNER: I am just wondering whether there are any differences in how the arrangements would apply through the Malaysian arrangement in comparison to the terms of protections for people sent back.

Ms Parker : Certainly before people were to be taken to Malaysia there was to be an assessment in relation to their fitness to travel and also as to whether they might have any claims against Malaysia itself or whether there was any other reason that they could not be returned to Malaysia, so there would be that formal assessment done.

Senator FURNER: Would you be familiar with whether the UNHCR has a view on the turnback policy at all?

Ms Parker : I cannot recall. Others may.

Senator FURNER: Anyone else from the department?

Mr Bowles : I have not heard any commentary on Malaysia.

Senator FURNER: As you would no doubt be aware, the coalition's new policy is to send asylum seekers intercepted by Australian authorities only to refugee convention signatory countries. Is Indonesia a convention signatory?

Ms Parker : No, they are not.

Senator FURNER: They are not? And was Nauru a convention signatory when the Howard government sent people there?

Ms Parker : It was not. It is now.

Senator FURNER: If I understand it correctly, the two greatest source countries of boat people in recent years have been Afghanistan and Iran. Are these countries signatory to the refugee convention?

Ms Parker : No.

Senator FURNER: Neither of them?

Ms Parker : I would need to double-check on that, actually.

Senator FURNER: If you can come back to us on that, that would be good. Would it be your view to say that sending people to refugee convention signatory countries provides a guarantee of their protection?

Ms Parker : That is quite a difficult question. There are some countries that are signatories that have been known to refoule people. It is a question of what happens in practice, I think. In relation to Malaysia, whilst not a signatory, the government had made a political commitment to not refoule those people to be transferred and to treat them in accordance with human rights conventions.

Senator FURNER: So there were some guarantees around, although they were not signatory to the convention. There were some guarantees around certain protections for them.

Ms Parker : As the High Court pointed out, there were not any legal guarantees but there were political guarantees.

Senator FURNER: Can I turn to TPVs now. I have some questions to Mr Bowles in regard to the follow-up on evidence that the department gave before the estimates committee last year. Firstly, were there boat arrivals and did the composition of these arrivals change after TPVs were first implemented in 1999? I am happy to put that on notice if that is an issue that needs some examination. If so, can you provide the committee with the number of people who arrived two years before and two years after TPVs were implemented, by month, by age and by sex. Once again, if that is not readily available, I will put that on notice.

Mr Bowles : I would have to take that on notice. Again, being a new boy on the block here, I have monitored the media a fair bit and monitored the conversations backwards and forwards around TPVs. My understanding—I have done some work trying to understand the issues here, and I am not going to comment one way or the other—is that in the 12 months before the introduction there were just over 3,000 arrivals, and in the subsequent 12 months there were just under 3,000 arrivals. That is in that pre-1999-post-1999 type time frame. And then there was a significant jump just after that. In effect, from the numbers, there is not a significant variation just before and just after. I would have to take the detail of your question on notice.

I think the only other thing that I have seen in this space is that the composition of arrivals did change. We saw more women and children on boats post. I suppose, talking internally in the department about some of these issues as we do, the changing composition of boat arrivals has been one of the things we monitor quite closely, because it is quite critical for us just to manage the network. That is one point. But, again, women and children on boats are a very sensitive area, as you would imagine.

Senator FURNER: Okay. I will put on notice the breakdown of two years before and two years after for each month and by age and by sex, thanks. Reflecting back on last year's budget estimates, your department ran through some figures on what happened to those who were granted TPVs. The figures were 11,206 TPVs granted. Of those, 9,600 were granted permanent protection visas. Do you think it is a fair point that people smugglers or asylum seekers who might be looking at whether or not an Australian government might reintroduce TPVs would be mindful of the outcomes of those who were granted them last time?

Mr Bowles : I have already said, Senator, that I believe the people-smuggling network are very attuned to policy positions, attuned to media reporting and attuned to a lot of this sort of stuff. They will be watching and monitoring, I have no doubt, and I think that happens on a range of fronts.

Senator FURNER: Are you able to recall what the Howard government made of the TPV regime in 2005? Why were these changes made?

Mr Bowles : Sorry, I am not aware of specific changes, and all of my deputies here and all these people here were definitely not in their current jobs at that particular point.

Senator FURNER: We might put that on notice then.

Mr Bowles : I can take that on notice.

Senator FURNER: Yes. I will put the question to you and see. You did indicate that you were not willing to elaborate too much on the High Court ruling in respect of different pieces of the legislation before parliament, but on page 79 of the Hansard of the additional estimates hearing on 13 February this year, the former secretary, Mr Metcalfe, said:

The important thing here is the decision of High Court, which effectively renders offshore processing unavailable under current law.

Is it still the department's view that offshore processing is rendered unavailable under the current law?

Mr Bowles : I think our view would be yes.

Senator FURNER: I would also like to understand the department's view on the forms of offshore processing it thought would be legal prior to the High Court decision last August, and that is in particular to the reference of section 198A(3). What is the department's view before the High Court decision of August 2011 that section 198A(3) allowed the Minister for Immigration and Citizenship to declare countries that were not signatories to the refugee convention but met the conditions in section 198A(3)(a)—for example, Nauru before it became a signatory? And, to be clear, if the parliament were to pass legislation that restricted offshore processing to refugee convention signatories, would this be a department to which the department's view of the 198A allowed prior to the High Court decision last year?

Mr Bowles : I might just turn to my colleagues to see if they have an answer there.

Ms Parker : That is a very long and intricate question, Senator. I may have to take it on notice to give you a fair response.

Senator FURNER: Sure.

Ms Parker : But I think what you are asking is what was the understanding of the legislative provisions prior to the High Court decision.

Senator FURNER: Correct.

Ms Parker : I think it is quite clear, on the basis of the time and resources put into negotiating the Malaysia arrangement, that we had understood that the requirement to be a signatory to the convention was not part of those provisions but that there was subsection 198A3, I believe, that you referred to, which talked about the sorts of things that you would have regard to in designating a country as a place that people could be processed in an offshore arrangement.

Senator FURNER: That is right.

Ms Parker : Okay.

Senator FURNER: If you could elaborate on that further on notice, that would be good. But thanks very much for that. I have no further questions at this stage.

Dr Southern : Chair, if I may just add something. Senator Furner asked about whether Afghanistan and Iran were signatories to the refugee convention. They both are.

Senator FURNER: Thank you.

Senator CASH: Could I just follow up some questions from Senator Furner in relation to the very interesting and very generous discussion that you have been having—

CHAIR: You can in a minute, when I give you the go-ahead, but I am going to cut you off at about 25 past. I think it would be a good idea to deal with Senator Hanson-Young's questions.

Senator CASH: And then we will come back tonight? Is that right? Or at half past 11?

CHAIR: We are going to have a morning tea break at 10.30.

Senator CASH: And then go through to 11.30?

CHAIR: Correct. So you can follow up now, but I am going to stop you and give Senator Hanson-Young—

Senator CASH: The follow-up questions are in relation to the Malaysia solution.

CHAIR: All right, but I am going to stop you at about 20 past so Senator Hanson-Young can—

Senator CASH: That is fine. I will come back. Seeing as it is budget estimates, and we have been canvassing the Malaysia solution in quite a bit of detail: Mr Bowles, could you take me to the parts in the budget statement that actually have provision for the Malaysia solution?

Mr Bowles : In relation to the 2012-13—

Senator CASH: Correct.

Mr Bowles : It is not in there at this stage.

Senator CASH: And why is it not in there?

Mr Bowles : Because there is—I'm not sure how you would describe it—an impasse at a policy level about whether it can go ahead or not.

Senator CASH: What do you mean by an 'impasse at a policy level'? Legislation has not been brought to the floor of the House yet. It has not been tested on the floor of the House, so how is there an impasse?

Mr Bowles : Senator, I am not going to comment on those sorts of issues.

Senator Lundy: You don't need to—

Senator CASH: No, Mr Bowles, you have just had a very interesting discussion—

Senator Lundy: because I am happy to comment in relation to policy. If Senator Cash would like to have—

Senator CASH: with Senator Furner.

Senator Lundy: a political debate about asylum seekers—

CHAIR: Senator Cash and Minister Lundy, thank you.

Senator Lundy: and the Malaysia arrangement, I am happy to have it. I do not think it is appropriate to have it now. You cannot come back today and say, 'Bring the legislation in' when the coalition says no all of the time—

Senator CASH: If you just let Mr Bowles—

CHAIR: Order!

Senator Lundy: If you want to play that game, I will keep calling you up on it.

CHAIR: Minister!

Senator CASH: But you won't call your own senators up on it.

CHAIR: Senator Cash! We have had some questions from Senator Furner. If you have follow-up questions, please ask them. This is not a debating chamber; this is an opportunity to ask questions.

Senator CASH: I would just like to know where in the budget papers the policy discussion that has taken place over the last 30 minutes actually appears.

Senator Lundy: I will answer that: it is not in the budget papers, because the coalition has not agreed to support our legislation. If you are indicating—

Senator CASH: And have the Greens indicated that they will support it?

CHAIR: Senator Cash, you will wait until the minister has finished.

Senator Lundy: that the coalition is going to support it, and are inviting us to bring the legislation into the chamber, then I suggest you ask your leader, Tony Abbott, to give Julia Gillard a call and say you are willing to talk to us about the Malaysia arrangement. Until you are willing—

Senator CASH: Well, you have Senator Sarah Hanson-Young here—

Senator Lundy: to do that, don't waste this committee's time.

CHAIR: Senator Cash, if you have questions that you want following-up, please ask them, because I am going to go to Senator Hanson-Young—

Senator CASH: That was my follow-up question. There has been a significant policy discussion and I was confused—I thought it must have still been government policy. I was just asking for direction as to where it appeared in the budget papers. But my understanding from Mr Metcalfe was—and maybe Mr Metcalfe was wrong; perhaps you could clarify that, Mr Bowles that Mr Metcalfe had previously given evidence to this committee that the Malaysian solution had been removed from budget papers because it was no longer government policy.

Senator Lundy: Senator Cash, you have been given your answer.

Senator CASH: Why wasn't in the budget papers?

CHAIR: I am going to go to Senator Hanson-Young now.

Mr Bowles : Can I just make a quick statement, Chair?

CHAIR: Yes, Mr Bowles.

Mr Bowles : I responded to a series of questions, Senator Cash. I did it in a factual way.

Senator CASH: You did it in a very generous way, by passing—

CHAIR: Senator Cash!

Mr Bowles : I did it in a factual way.

Senator Lundy: Don't you provide an editorial on witnesses evidence!

CHAIR: Order! Minister and Senator Cash! Mr Bowles is responding here, and I would ask that you give him the courtesy of letting him finish what he is saying.

Mr Bowles : Thank you, Chair. I provided a factual response based on what I have been looking at since I have been in the job. I am not commenting, and I have not commented, on a range of issues that may have been raised in the past. But I would just like it to be on the record that my job as a public servant is to provide answers to questions. I have done that in the most professional way I can, being very objective about the range of issues I have looked at since I have been in this job—which is only a short time, obviously. I would just like to put that on the record.

CHAIR: Senator Hanson-Young, we will go to you for questions now.

Senator HANSON-YOUNG: Thank you, Chair. I will be as brief as I can. I just want to get this clearly on the record. I know we have had a number of conversations about this, particularly with Mr Metcalfe before your appointment, Mr Bowles; so, sorry, I will try to get you up to speed. It is in relation to the age-determination process. I know that there were some changes in relation to the way the immigration department manages that. Could you, for the record, outline what the process is and what techniques you use?

Mr Bowles : I will start and then hand over to my colleague. Basically, it is around an interview process. It is a reasonably sophisticated process where we ask a whole series of questions and come back around all of those issues. That has been our practice for a while, and that is where we stand on the matter. Mr McCairns, do you want to add anything to that?

Mr McCairns : Sure. Just to recap, if age is in dispute we would try and collect any documents we possibly could to try and support the age of the person. That could include travel documents, identity documents, employment records—anything that is there. Often they are not there, but anything that is there we will gather together.

The second point is that we would always conduct that in the presence of Life Without Barriers, which is a NGO, to support the person who may be a young person or may not be so young—but we would absolutely always do that in the presence of that support agency.

Senator HANSON-YOUNG: Can I just clarify: this process starts on Christmas Island, doesn't it?

Mr McCairns : Yes. We clearly would not go back to the country of origin, as with all asylum seekers, in case there were any issues for that client in relation to that country of origin. The crux of it is that we would have two very experienced DIAC officers—quite highly graded and very highly trained.

Senator HANSON-YOUNG: Mr Metcalfe actually said in February that you were training a new team of people for that process.

Mr McCairns : There are 72 now trained. And that would involve intensive training, coaching and mentoring and experienced officers watching, if you like, less experienced officers. My colleague Mr Cross, who is up the back, has a whole QA process—'Can you confirm Life Without Barriers was there?' et cetera. So we have a QA process as well. So it is very carefully done. And if I say 'forensically' I mean that in a positive sense.

Senator HANSON-YOUNG: You do the age-determination process before you refer anyone, even if they are boat crew, to the AFP. Is that correct?

Mr McCairns : Yes, Senator.

Senator HANSON-YOUNG: That age determination process by the department happens before anyone who has a question mark over their age is referred to the AFP?

Mr Bowles : Yes.

Senator HANSON-YOUNG: Can I confirm when the immigration department stopped using, as part of that process, the X-ray technology?

Ms Wilson : We have never had the X-ray technology as a requirement for our age determination process. In the past—and I am talking, in 2010—where that was available, we would use it, but we would never seek it as part of our process; that was more a requirement for other agencies. We introduced the age determination process, which is the interview technique we are talking about, as a pilot on Christmas Island in 2010 and it was expanded from then.

Senator HANSON-YOUNG: We continue to keep hearing about this December change of process. Can you just outline for me succinctly what the change in December was?

Ms Wilson : In December the government made a decision that DIAC would then use its interview technique in relation to crew and make a determination about whether they were minors or not.

Senator HANSON-YOUNG: So before December it was not that the interview technique was the primary determining factor?

Ms Wilson : We are talking about minor crew, specifically, not about unaccompanied minors.

Senator HANSON-YOUNG: Okay; minor crews specifically.

Ms Wilson : I guess there was not a clear direction. There were a number of agencies doing a range of things. The government gave it consideration and decided that DIAC's interview technique would be the one that was pursued.

Senator HANSON-YOUNG: And was it in December the change happened—that until DIAC is confident that somebody is indeed an adult, they are not referred to the AFP?

Ms Wilson : That is the case, but there are other criteria—for example, people who are repeat offenders or people who have other charges over them would get referred regardless. But, in general, yes.

Mr Bowles : To flip it around the other way: if we think someone is a child, they are handled appropriately. I think the other side of what happens is best asked of Attorney-General's or the relevant agencies.

Senator HANSON-YOUNG: Yes, and I will, Mr Bowles. I will get there on Thursday when those agencies are in front of us. The importance of your department, though, is that you deal with these people first.

Mr Bowles : Yes.

Senator HANSON-YOUNG: You are making a decision on whether somebody is a minor or not in the first instance. So, as to those changes that occurred in December, to try and clarify that process: if we go back to earlier in 2011, would there have been cases where X-rays had been used by other agencies, if not by yours, in determining that person's age?

Mr McCairns : We can only answer from the government's decision of 21 November which we then implemented in December. And what my secretary said is absolutely right. It is best to look at the reverse. If we determine someone is under 18, they will not be referred to the AFP and we will take steps to try and send them home.

Senator HANSON-YOUNG: If somebody disputes your determination, what then happens?

Mr McCairns : There is not a dispute, in the sense that—what I was going to go on to say was: we have two officers doing that; they do that independently. They often come to the same decision, as, 'Over 18,' or 'Under 18'—and, remember, we are not determining an age; we are just trying to determine if someone is a minor or not. If there is a dispute between the officers, the benefit of the doubt always goes to the client, so—

Senator HANSON-YOUNG: No—I am asking whether the client disputes it.

Mr McCairns : If we say, 'You are an adult,' and the client disputes it? Let me come back to you on that. I have not had that one, I think. But I will come back to you.

Mr Bowles : This is not an exact science we are talking about here.

Senator HANSON-YOUNG: No, it is not.

Mr Bowles : I think it is important that we understand that it is not an exact science. If someone is 12, it is probably a relatively simple case. If they are 28, it is probably a relatively simple case. But there is a whole group that will actually be around 18—up or down. I do not think we have ever portrayed what we do as the be all and end all and an exact science. There obviously are some issues around that. On balance, though, I think we have a pretty robust process whereby we can actually determine that at least they are under 18—or at least in our view they are under 18. I have not heard of any rejections of our view on this at this stage.

Senator HANSON-YOUNG: Since the December decision? Since the December process?

Mr Bowles : Since the December decision, no.

Senator HANSON-YOUNG: Okay, so I just want to be clear: prior to December—that clarity of the process—was the department using X-rays in any type of evidence? You were obviously still doing the interviews, but were X-rays being used in that determination process prior to December?

Mr Bowles : I will just ask Ms Pope for some commentary on that.

Ms Pope : I probably have the historical perspective on this, not the current perspective. I began work on this subject in February 2010. At the time, we were not actively undertaking age determinations even in our own case load, and determinations around crew were a matter for the AFP and the Attorney-General's Department, so we were not directly involved. I think we have discussed the history of this before. We started to focus on it in our own case load and then became aware of the issues for the crew case load and became involved in whole-of-government consideration about the best way to go forward. We were not using wrist X-rays at the time. We have occasionally used them in the past.

Senator HANSON-YOUNG: As the immigration department?

Ms Pope : That is right. And, as Ms Wilson said, if somebody had a wrist X-ray, then we were prepared to take it into account, and we still are. But we were not asking for them. Having said that, though, the immigration department—over its years in business—has used wrist X-rays occasionally, and some people try to use them to prove age in relation to FOI requests—to change personal details after permanent residency has been granted, for example. We did occasionally use them overseas in disputes around age. But at the time we began to focus on it—in February 2010—and looked at the international practice and background around it we came to a decision that wrist X-rays were not a method that we wanted to pursue. And, as Ms Wilson has said, we piloted the interviewing approach, and we have continued with that since then.

Senator HANSON-YOUNG: Thank you. That is a good clarification. Prior to December, even though your department may not have been using them since February 2010, you are aware that other government agencies had been. Age determination was a joint process, wasn't it?

Ms Pope : No, it was not joint at that stage. We were not directly involved in age determinations involving crew.

Senator HANSON-YOUNG: No, but even though they were being detained in your facilities, the AFP were the ones who were making a determination as to whether someone was a minor or an adult.

Mr Bowles : I think you would need to ask the Attorney-General's Department, or AFP officers, if they are here. It was their responsibility prior to that time to deal with crew.

Senator HANSON-YOUNG: Okay. Ms Pope, you are aware, though, that those agencies were using wrist X-rays in their determinations.

Ms Pope : Yes. That is public knowledge.

Mr Moorhouse : It may be worth stating that the legal process that occurs, which you described as a joint process, is that if the police issue a criminal justice stay certificate we are precluded from moving that person from Australia, so they are required to remain in immigration detention. I just wanted to clarify where DIAC stands in relation to that. The criminal justice stay certificate puts us in a position where we have to detain them.

Senator HANSON-YOUNG: That is a good point. So where do you then determine somebody is detained in that situation? This comes back to one of the cases I asked about yesterday, where somebody who is on a justice stay certificate is disputing their age determination. Do you in this situation apply the benefit of the doubt about where you locate that person? Or, because you had already made an assessment that you believe this person to be an adult, do you put them in the adult facility?

Mr Moorhouse : I think it is important to distinguish between the situation now and the previous situation.

Senator HANSON-YOUNG: Let's talk about the situation now, because this person I referred to yesterday—

Mr Moorhouse : In the situation now it does not reach that point, because a criminal justice stay certificate would not be issued for a person DIAC has determined to be a minor.

Senator HANSON-YOUNG: But, Mr Moorhouse, I asked you yesterday to go back and have a look, because you had given me a response to a question on notice that there is at least one person; I wanted to know how many others are on those justice stay certificates who are disputing their age.

Mr Moorhouse : To answer your question from yesterday, there are four people who DIAC has assessed as being minors and they are in the process of being removed from Australia. So they are relatively recent crew arrivals. There is one person who is the subject of a criminal justice stay certificate who is disputing the determination in relation to his age.

Senator HANSON-YOUNG: I accept that you cannot remove them, even if you then did determine that they were a minor. Where is that person being located? Are they in an adult facility or are they in the facilities for the rest of the minors that are awaiting deportation?

Mr Moorhouse : My understanding is that the person is disputing the age determination, the fact that he is a minor. The information I have is that the client is currently located in a correctional facility awaiting an outcome from the AFP.

Senator HANSON-YOUNG: So it would be in an adult correctional facility?

Mr Moorhouse : The only information I have is that it is in a correctional facility.

Senator HANSON-YOUNG: So who do I ask to get the—

Mr Moorhouse : The Attorney-General.

Senator HANSON-YOUNG: The Attorney-General will know whether that person is being held in an adult facility or not?

Mr Bowles : Well, it was before the process as we understand it, Senator, so it will be dealt with through their process.

Mr Moorhouse : That person is the subject of a criminal justice stay certificate, so it is a matter for the police.

Senator HANSON-YOUNG: Yes. So they are not being held in your detention facilities?

Mr Bowles : No.

CHAIR: We will now take a break.

Pro ceedings suspended from 10:31 to 10:51

Senator CASH: Could I ask some follow-up questions in relation to the three persons who had their community detention revoked because they had criminal charges laid against them in relation to drug offences— just in relation to how they were actually found again. Were they found as a result of DIAC compliance activities or were they found by the police?

Mr Bowles : We will ask Ms Pope to talk about that, Senator.

Senator CASH: Thank you, Ms Pope.

Ms Pope : I would like to take that on notice to get the exact and proper answer for you but it is my belief that it was a consequence of police action, not DIAC compliance action.

Senator CASH: If you could take it on notice that we do note that, that would be appreciated. If I could now turn back to the discussion that we had yesterday on the security checks of persons in detention prior to their release on bridging visas. I particularly want to go through the PAMs, the procedures advice manuals, in relation to the department's Procedures Advice Manual Three. It provides the following advice about checking and determining the identity of IMAs and it states in a section entitled 'Undocumented arrivals, levels of identity assurance' that it will not always be possible to complete all identity enquiries and security checks prior to a client being placed in the community. Could I just ask in terms of 'to complete all', what exactly is encapsulated in that phrase?

Mr Bowles : I would have to get someone up here who understands that particular issue, but if we are going back to what we talked about yesterday, I again want to stress that this is one factor in a range of factors that actually determines the outcome.

Senator CASH: I appreciate that.—

Mr Bowles : And if we are unclear the outcome would probably be, they would stay where they are.

Senator CASH: And that is the reason we work through exactly what the procedures advice manual means.

Mr Bowles : I will see if Ms Wilson or Mr McCairns can help.

Mr McCairns : I will expand on what we talked about yesterday. The secretary is absolutely right. It might be, if we were in doubt, people might have time to collect more evidence or more documents. So if we were concerned about someone it would be time for them to, in a sense, prove who they were or give a bit more evidence about who they actually were—so collect more documents and supply them to the department.

Senator CASH: Clause 10.3 says: 'Where the results of identity inquiries for a client are adverse and a client has already been placed in the community, the receiving officer should urgently forward the results to the service area currently engaging the client and ensure receipt of the communication. For example, if the client is unable to remove, the returns and removals team must be notified. Where the adverse identity outcome shows evidence of fraud or indicates the involvement of facilitators or perpetrators of fraud, these cases and information supporting these conclusions should also be forwarded to the National Allegation Assessment Team.' My interpretation of clause 10.3 is that it clearly does contemplate clients being released into the community where their identities are actually not known.

Mr McCairns : Sorry, it is not my area; it is an operational area.

Ms Pope : I think the evidence we gave yesterday around bridging visas and community detention was that people needed to be cooperating with us in relation to their identity. Sometimes that process takes a long time and while they are cooperating it would not be a reason not to place them into community detention or on a bridging visa. As that sets out, it is predicated on continued cooperation to the establishment of identity. It can sometimes be difficult for people to get documents and so on that would conclusively prove identity.

Senator CASH: Am I right in saying though that clause 10.3 really refers to what we termed yesterday as claimed identity, that people can be released into the community where their true identity is actually not known and could subsequently be found to be adverse?

Mr Bowles : I think we are conflating a range of issues now.

Senator CASH: I specifically just want to talk about the Procedures Advice Manual.

Mr Bowles : I do not have that in front of me, but if we are talking about someone who goes through our system and becomes an adverse security assessed person, that is the end of a security assessment process. If you are asking, 'Is it possible for someone to get out on a bridging visa or community detention and then be found subsequently to be adverse security assessed?' the answer is: yes, we have had a number of those examples. The evidence we put on the table is that, if we have someone in the community who is actually assessed that way, they are brought back to held detention.

Senator CASH: No, my questioning is in relation to the meaning of clause 10.3, where it says, 'It will not always be possible to complete all identity inquiries.' In saying 'complete all', are we saying that the claimed identity is as far as this clause actually anticipates?

Mr Bowles : I cannot answer that, Senator.

Ms Wilson : I think what we are saying is most irregular maritime arrivals arrive undocumented. So we go through a process which I think I outlined in a lot of detail yesterday about how we go about establishing identity. That process continues all the way to the granting of the protection visa. So we continue to gather more information, as Mr McCairns said. That part of the PAM, which I do not have in front of me, seems to indicate we have come across a piece of information that causes us to rethink the identity we had established about that person. As Ms Pope has also said, we would go back to the person and keep working with them, because they had been released into the community based on a commitment to continue to engage with us to resolve their status.

Senator CASH: Okay. In other words, if he claimed identity is accepted, the person is released into the community and that is the extent of the threshold. After that the security check continues—or the identity check; it is actually identity.

Ms Wilson : That is right. It is not the security check that that refers to, it is the identity, and the identity process is a continuous process; it is ongoing. We gather all the information we can, until we are at a point when we are making a decision about granting a permanent visa.

Senator CASH: In relation to what is contemplated in clause 10.3, what level of confidence can the community have that the person is not a character of concern if the threshold for release is merely an acceptance of claimed identity?

Mr Bowles : I am a little troubled by that because what that starts potentially to do for us is stereotype a group of people who are challenging for us to identify. Ms Wilson has just gone through a process—and yesterday as well—of talking in some detail about how we go about identity all the way through to the grant of the protection visa. If we look at our experience of dealing with these people—and, again, this is something I have been quite interested in since coming to the job—I would not like to get to a point where there is this view that everyone is characterised as being not nice. I do not think that is helpful—

Senator CASH: Who said they were not nice? Is that your terminology?

Mr Bowles : That is my terminology. But if we go to talking about the fact that because we cannot identify them immediately they are not good for the community, or it could scare the community, that is quite problematic.

Senator CASH: That may be your interpretation of what I am saying, but I am trying to understand what the threshold level is for belief in or acceptance of the claimed identity before someone is released into the community. Under what circumstances would a person be released into the community with, as clause 10.3 contemplates, an incomplete identity check?

Mr Bowles : We have already said a number of times that people will get into the community with varying levels of that. Again, we would not release some person if we had some doubt that they were telling the truth. We have a series of experienced officers who do these sorts of exercises. They ask a series of questions and go up and down these sorts of issues. My assessment so far would be that we are reasonably confident about that. But we cannot put the final thing on this until we get right the way through our process.

Senator CASH: My understanding of this evidence is that going through that process there have been, and there will be going forward, instances where people's identity is not as they have claimed and there may well be an adverse security finding.

Mr Bowles : I do not think we should conflate the two issues. Just because we cannot identify someone does not mean that they end up on that pathway. Adverse security can come from a range of reasons. Being either a direct or an indirect threat to this country is one of those things. I do not think we should necessarily deal with that. Overwhelmingly we see with the people who flow through the system is that identity is established quite soundly.

Senator CASH: How many IMAs have been released into the community and then recalled from community detention because the results of their identity were found to be, in the words of clause 10.3, 'adverse'?

Ms Pope : None.

Senator CASH: Have any of the IMAs who have been released into the community had a finding that their identity is adverse, but they have not been removed from community detention?

Mr Bowles : Again, it is probably a language thing, but identity is not adverse, as such. A security assessment becomes adverse. They are two separate issues.

Senator CASH: Where it says in clause 10.3: 'where the results of identity inquiries for a client are adverse,' what does that mean?

Mr Moorhouse : To assist in that area, the term 'adverse' has its plain English meaning in that context.

Senator CASH: I was referring to clause 10.3.

Mr Moorhouse : An adverse security assessment is the term we have been discussing as a specific.

Mr Bowles : I want to make it clear we are not talking about the adverse security issue.

Senator CASH: I was referring to the clause. Should I substitute a different word?

Mr Bowles : 'Adverse' is fine now that I understand the context.

Mr Moorhouse : Perhaps I might be able to help from another perspective. To give an illustration of the sort of situation you are talking about, imagine a person arriving without a passport, for example. We know that most IMAs destroy their passport because they are told to do so by the people smugglers in order not to facilitate their prompt return. They do it because they are instructed to do so by people smugglers. However, many IMAs carry some form of documentation with them. It is quite appropriate for a DIAC officer who is looking, for example, at a birth certificate or something like that to have it checked. So that might be sent back to our overseas post for checking, and we have a referrals team at many of our overseas posts to do that sort of checking. Our capacity to do that depends upon the local authorities. So you go to a particular country and ask for a birth certificate to be verified. In one country it might be back in two days; in another country it might take four months. I think the key thing that is contemplated there is that, if after doing that form of checking, the information that comes back is not consistent with the identity that is being provided, then we revisit the issue again. That is really what that is contemplating.

Senator CASH: I am assuming that then takes us to clause 15.3 of the PAM in relation to bridging visas, which states: 'If there is uncertainty about an applicant's name—for example, they travelled to and entered Australia on one name and then applied for a visa in a different name—and it is unlikely that this can be clarified quickly, the bridging visa should be granted in the name that appears to be the one most likely to be correct, and in most cases this is likely to be the name they used to travel to and into Australia.'

Mr Moorhouse : Again, this is outside my area but, as someone who has been involved in processing for a long time, the issues of naming a really quite complex as well. People in many cultures can have different variants of their name or use different forms of their name. That can often be quite innocent. For instance, a Spanish name might have two particular parts and people will use two parts in one context and one part in another context. So there are a whole series of circumstances where the variations on a person's name can be different, and that is providing guidance in terms of how you would resolve that.

Senator CASH: What steps are taken to determine the one that is most likely to be correct—the steps that you have just outlined?

Mr Moorhouse : I am trying to be helpful. I do not want to get into the precise meaning of the PAM, because it is outside my specific area of responsibility. But the one that is most likely to be correct is the one that is most likely to be the one that should be used for official purposes.

Senator CASH: If they have no documentation, though, when they arrive, how is that actually determined?

Mr Bowles : I think Mr Moorhouse said that a lot of people do come with documentation. It may not be passports. We then can refer it to our overseas post to check those sorts of things, or if they give us some form of name or evidence that might be there, we can still check with our overseas posts.

Senator CASH: And in relation to those who come with no documentation, what is the process there?

Ms Wilson : The process is as we discussed yesterday, which is going through the biodata collection, going through the entry interview. I sat through some entry interviews in Darwin last week and people are very quick to pick up when their details are not captured correctly. They get multiple times to look at it and make sure that it is accurate and reflects the way they would like to be reflected.

Senator CASH: Mr Bowles, in relation to your comment that most people arrived with documentation, however, it may not be a passport—

Mr Bowles : No, I did not say that. Mr Moorhouse mentioned that while the majority do not turn up with a passport they do turn up with some form of identity. I did not really quantify how many.

Senator CASH: That is what I would like to do, because certainly in previous estimates my understanding was that the majority turned up with no documentation. What percentage of arrivals in 2011-12 have arrived with no documentation?

Ms Wilson : Are we talking about the IMA cohort?

Senator CASH: Correct.

Ms Wilson : Up to 30 April, about 90 per cent.

Senator CASH: And when we say no documentation, is that, as Mr Bowles said, just not a passport? Do they have other documentation or is this no documentation at all?

Ms Wilson : This is undocumented. I guess just to add to what Mr Moorhouse and the secretary were saying—and again, I experienced this last week went I went up for the entry interviews—people often have left documentation with somebody and they can make a call and get that documentation forwarded.

Senator CASH: But in terms of the definition of 'undocumented'?

Ms Wilson : Undocumented is talking about undocumented on arrival, but it does not mean that they do not have access to get information. In the cases I sat through last week they had left them with their mother or their brother and, if they felt it was safe for it to be provided, then they would make a phone call and ask for it to be provided.

Senator CASH: But in terms of the percentage of arrivals in 2011-12 who arrived undocumented, it is approximately 90 per cent?

Mr McCairns : Yes, Senator. As Ms Wilson said, that is almost stepping off the boat onto the jetty. It is that instant; that is when the statistic gets counted from. But, as Ms Wilson said, literally within days, or a matter of some weeks, documentation can and does emerge.

Senator CASH: Thank you. That segues very nicely into my next question. What percentage of arrivals provide documentation by the time of their primary RSA decision—seeing as all it takes is a phone call, based on the evidence that I am hearing?

Mr McCairns : Sometimes.

Senator CASH: Exactly. So what is the percentage?

Ms Wilson : We do not have that information with us, Senator. We would have to take that on notice.

Senator CASH: Have you got information in relation to previous years?

Ms Wilson : Previous years of undocumented arrivals?

Senator CASH: Not undocumented arrivals—those who provide documentation by the time of their primary RSA decision.

Ms Wilson : No, we do not have it broken down in that way.

Mr Bowles : Are you talking about a positive primary RSA, or just an RSA?

Senator CASH: Just an RSA. Ninety per cent arrive undocumented. What then is the percentage that, by the time they get into an RSA—whether it be positive or negative—are able to say, 'This is actually who I am, because I have managed to find a document.'

Ms Wilson : We will have to take that on notice, Senator.

Senator CASH: If they can get other documents from family members, presumably they should also be able to get their passport, or does that not occur? If they have left their documents with their family and they pick up the phone and say, 'By the way, I have now been asked by the Australian officials for this document,' is the passport a document that they can actually obtain?

Ms Wilson : Photocopies of the passport, because they tend to have travelled to some point using a passport—

Senator CASH: So these are the ones who have actually flown into Indonesia, using their passport to get through?

Ms Wilson : Yes. But the documents that we have been provided subsequently, based on what I have heard and seen, do not tend to be the originals. It tends to be a photocopy of things.

Senator CASH: Okay. So they have used their passport to get to Indonesia and then destroyed it, and so they are phoning home for other documents.

Mr Bowles : Destroyed or had it taken from them by people smugglers.

Senator CASH: In relation to that comment, Mr Bowles, could you provide the committee with the percentage of people—and again I believe this would be an update—who claim to have had their passport taken from them in Indonesia, for example, or who admit to having destroyed their documents, their passports?

Mr Bowles : We can take that on notice and update, Senator.

Senator CASH: Thank you. In terms of the general statement that there appears to be an ability to make calls home, how widespread is this? Ninety per cent arrive undocumented. How many are able to just pick up the phone and say, 'I can actually get you that information?'

Ms Wilson : I think Mr Moorhouse could probably comment more appropriately, but when people arrive they are encouraged to make a call home to tell relatives that they are safe. That is freely available at most detention centres, but I might get Mr Moorhouse to comment on that.

Mr Moorhouse : I cannot really add to what Ms Wilson said, and that is that clients have access to telephones and the internet and therefore they are able to communicate with families in their home country.

Senator CASH: In terms of the passports, and you say you receive photocopies of passport, the particular person has photocopied their passport prior to leaving and then used their original passport to actually fly into whatever port they need to fly into before they get to Indonesia. So they are able to phone home and get a copy of the passport that they have left with their family member.

Ms Wilson : As I referenced, it was based on the entry interview I sat through last week, but they had put those arrangements in place.

Senator CASH: Oh, they put those arrangements in place. Okay. If you have the information with you—again this is an update question—what percentage of IMAs arriving in 2011-12 had arrived in the region, or Indonesia or Malaysia, by plane, including how many ports of call they had been to prior to arriving in Indonesia and Malaysia?

Ms Wilson : We have provided that to you previously on notice. It takes a lot of interrogation of the entry interviews, so we would need to do the same thing and take it on notice and give you an update.

Senator CASH: Thank you very much. Could I get an update in relation to the answer to question 0301 from the February estimates, which was in relation to the 47-year-old Cairns man who was charged with 97 offences against the Migration Act relating to 120 people? The answer that was provided included:

This man will next appear in the Cairns Magistrates Court on 5 April 2012.

Do we have an update?

Ms Wilson : We do not have one with us at the moment. I have the question and the answer in front of me, but unless one of my colleagues has an update on the 5 April hearing we will have to take it on notice.

Senator CASH: I also refer you to the answer given to question 0391, in relation to the Iranian person charged in the Northern Territory for inappropriately touching young girls during a swimming pool excursion. The answer given was:

He remains in custody pending a court hearing to be held in February 2012.

Do we have an update on that case?

Mr Bowles : I think we should take that one on notice and give you an update.

Senator CASH: You do not have one at the table?

Mr Bowles : No.

Senator CASH: In relation to the minister's exercise of discretion under section 195A of the Migration Act to grant a visa to a person who is in detention, did the minister exercise this discretion in 2011-12 and, if so, how many times?

Dr Southern : I think the short answer to that question is yes, he has exercised that discretion, but in relation to the number of times—

Senator CASH: I would also ask the types of visas that were issued.

Dr Southern : We have ministerial intervention data, I think, to the end of December. That has been published.

Senator CASH: Only to the end of December. Have you got anything further on that?

Dr Southern : I think we will have to take it on notice and bring you up to date to a more recent reporting period.

Senator CASH: Just for the Hansard record, what information do you have to the end of December?

Dr Southern : We might be able to get that for you during the course of the day.

Senator CASH: Thank you. My question, therefore, is: how many times did the minister exercise his discretion under section 195A of the Migration Act, what kinds of visas were issued and had any of those people who received a visa been subject to an adverse security assessment or previously received an adverse security assessment?

Dr Southern : In relation to anyone with an adverse security assessment, we can be categorical in saying no, he has not granted any visas.

Senator CASH: Could you just check that, because it has been raised. I take you to the investigation of Mr Ian Rintoul. Since August 2008 the department has investigated Mr Rintoul for possible links to people smugglers or asylum seekers in Indonesia prior to their arrival in Australia on illegal boats. Has the department asked the AFP to investigate whether Mr Rintoul might be involved in encouraging or aiding and abetting asylum seekers to make dangerous boat journeys?

Ms Parker : I cannot answer that question—apologies.

Senator CASH: Does anybody on the table have any knowledge in relation to Mr Ian Rintoul and whether or not the department has asked the AFP to undertake an investigation?

Mr Bowles : To my knowledge it has not, but we can take that on notice.

Senator CASH: Is there an updated status of Mr Rintoul's case?

Mr Bowles : It is more than I can say. If we can find out we will let you know; otherwise, we will take it on notice.

Senator CASH: In relation to the 17 Vietnamese minors that escaped from immigration detention, what is their status at the moment? Have they been located?

Ms Pope : My comments are in relation to absconding from community detention—

Senator CASH: That was it, yes.

Ms Pope : There were 11 Vietnamese who absconded from community detention. Six of those have been relocated. Those were two adults, and four people who claimed to be unaccompanied minors at the time they absconded but have since been proved to be adults.

Senator CASH: And the other five?

Ms Pope : They remain at large.

Senator CASH: There were various reports of the figure of 17.

Ms Pope : There are other Vietnamese clients who escaped from centres.

Senator CASH: Are those 17 separate from the 11 who escaped from community detention?

Ms Pope : Yes.

Senator CASH: So the 11 who escaped from community detention—

Ms Pope : In relation to the Vietnamese overall, 30 Vietnamese clients have escaped from various forms of immigration detention.

Senator CASH: Over what period of time?

Ms Pope : There is a question! My brief does not tell me but I can get that for you on notice.

Senator CASH: Thank you.

Ms Pope : Nineteen escaped from a facility or while they were on an excursion, and two of those reoffended in terms of escaping.

Senator CASH: So they were found and then re-escaped?

Ms Pope : Yes. As I said, 11 absconded from community detention, two adults and nine people who claimed to be unaccompanied minors. As I said, of those six have been redetained. Of the remaining 19, 16 have been located, although one re-escaped, if that is the term. I have more detail which I can provide, or we can provide that on notice.

Senator CASH: If you could provide more detail that would be appreciated.

Ms Pope : Certainly. Three escaped from NIDC, and they include the one who escaped twice. Four escaped from Christmas Island APOD. Six absconded from community detention, as I already referred to. Three escaped from the MITA. Fifteen remain at large in the community.

Senator CASH: What compliance activities have been undertaken by the department to find these people?

Ms Pope : The usual processes and activity that are applied have been applied—reporting them to the police and so on. That is how several of those clients have come to notice since then. It is not my area of responsibility to describe compliance operations.

Senator CASH: In relation to the one who re-escaped, what is the procedure in place once someone has absconded from detention, they are located and they are taken back to detention? How are they given the opportunity to again escape detention?

Ms Pope : I will need to hand over to a colleague for that.

Mr Moorhouse : Generally, if a person has escaped we will take that into account in relation to how they are detained.

Senator CASH: That is my point exactly. How do they get to reoffend?

Mr Moorhouse : Let me answer the first part and I will then come back to the second if I may. Generally, if a person has escaped they will be held in one of our more secure facilities. In relation to the person that escaped, or absconded, more than once, I am not particularly familiar with that situation. But, if it is one of the three from Darwin, that was part of an organised incident that involved attending church. The people had been taken to church and there appeared to be some degree of organisation behind them absconding. Indeed, when you mentioned what compliance action has been taken in relation to the Vietnamese, one additional thing that we have done in that context is to liaise with the police because of the apparent involvement in the level of organisation behind the Vietnamese absconding.

Senator CASH: When you say a level of organisation, does that involve only detainees? Does it involve members of the community or anybody else outside of the IMA cohort?

Mr Moorhouse : What I am indicating is that there were indications that people outside the detention facilities were involved in supporting or assisting with the escapes. For example, it is hard to see how the three people who escaped from the church could have escaped if there had not been someone nearby—

Senator CASH: Assisting?

Mr Moorhouse : to assist them.

Senator CASH: In relation to the person who has escaped twice, have they been relocated or are they still at large?

Mr Moorhouse : I am not quite sure of the particular case. Some of the people who escaped from the church were relocated, but I cannot be sure whether it was that particular individual. I will take that on notice and come back to you.

Senator CASH: Could I just go back to Mr Rintoul. I asked whether the department had asked the AFP to investigate whether Mr Rintoul might be involved in encouraging, aiding or abetting asylum seekers to make dangerous boat journeys. Has the department themselves investigated Mr Rintoul?

Mr Bowles : Again, I am not aware of that. It is not as though we investigate those sorts of things.

Senator CASH: On how many occasions has DIAC been advised by Mr Rintoul of boats en route to Australia following his contact with them at sea, including vessels in distress?

Mr Bowles : I am not sure whether we will be able to answer that. I have heard of it anecdotally, but I do not think it is something we keep statistics on.

Senator CASH: You have heard of it anecdotally. When you say you have heard of it anecdotally, could you explain exactly what you mean?

Mr Bowles : There have been various media reports where Mr Rintoul has said that he has been in contact with people on a boat.

Senator CASH: And that is not something—

Mr Bowles : I am not aware that we keep statistics on that and I would be surprised if we do.

Senator CASH: On how many occasions have IMAs nominated Mr Rintoul as someone whom they have been in contact with during their entry or subsequent visa interviews?

Mr Bowles : Again, I am not sure we would have that information. I can check, but I would be surprised if that were a specific question we asked people. So whatever the answer would be would probably not be correct.

Senator CASH: It may not have been something that the department during its process asked, but it might have been something that an IMA has actually volunteered?

Mr Bowles : That is true. Again, without going through every entry interview, I am not sure we would have kept that information. As I said, I am happy to take it on notice and check, but I would not want to be going through every entry interview to try to find reference to Mr Rintoul. Quite frankly, that would just bring our system to a halt.

Senator CASH: Some may say it has already been brought to a halt for other reasons. In the time we have left can I briefly turn to the Chinese boat. Who made the decision to place the Darwin asylum seekers in the Airport Lodge APOD after the family decided to claim asylum in Australia?

Mr Bowles : That is an internal decision that we would have made based on the issues that were happening on the ground at the time.

Senator CASH: When you say 'internal decision,' at what level?

Mr Bowles : Probably at Mr Moorhouse's level. Mr Moorhouse and I had conversations about what was going to happen at this particular—

Mr Moorhouse : Actually, I was on leave at that particular time. However, I just want to be precise about this: the placement of the family in an APOD would be quite consistent with normal practice. Where we have a family group in a situation such as that we would seek to place them in appropriate accommodation.

Senator CASH: When you say you were on leave, Mr Moorhouse, did you have someone acting in your position?

Mr Moorhouse : Yes.

Senator CASH: So that was the person who—

Mr Moorhouse : I think it was Mr Douglas. I would have spoken to Mr Douglas or Ms Mackin.

Senator CASH: But it was at the secretary/deputy secretary level?

Mr Moorhouse : I think it is important to characterise things properly. When there are unusual incidents in our operational network, it is appropriate for senior officers to be advised and, if necessary, consulted, but a decision such as that is an operational decision that I would expect my staff on the ground to be able to make. I would of course expect them to escalate it to let me know, and I would let the secretary and the minister's office know of something as unusual such as that.

Senator CASH: Was that process followed in this case?

Mr Moorhouse : I would assume so, but I can correct it if it was not.

Senator CASH: Were you briefed on this when you returned from leave?

Mr Moorhouse : By the time I returned from leave, the incident was effectively over, but, yes, I was briefed on the incident.

Senator CASH: Are you able to provide a breakdown of the family profile of the people?

Mr Allen : I can provide that. In terms of the people on that particular yacht—

Senator CASH: In total how many were there?

Mr Allen : There were 10. There was a family group consisting of grandparents, parents and two children. That is six people. There were three adult males and an adult female who were not part of that family group.

Senator CASH: Not related at all?

Mr Allen : Not as far as I am aware.

Senator CASH: Were there any incentives offered by the department or the government to the passengers on this boat to prevent them from continuing their journey to New Zealand?

Mr Bowles : Incentives?

Senator CASH: If you recall the Oceanic Viking, we had what were effectively incentives provided by the government to get the people off the boat. What discussions were had with the Chinese boat?

Mr Bowles : The answer to that is no. It was dealt with operationally as we would normally deal with any strange event that happens like that.

Senator CASH: So nothing was said by the department or the government that would give these people reason to prevent them from continuing their journey to New Zealand?

Mr Bowles : Not to my knowledge.

Senator CASH: Mr Moorhouse? Or is it more appropriate for Mr Douglas, who was in charge at the time?

Mr Bowles : At the end of the day, this was happening in Darwin, and Mr Douglas was with me in Canberra. But there was no incentive, as far as I am aware, in relation to these people.

Senator CASH: In terms of the single persons who were on the boat, is it normal for single persons to be put in APODs? Is that part of the usual procedure that is followed?

Mr Moorhouse : It depends upon the composition of the group. If they are an extended family or there are other associations—

Senator CASH: My understanding is that they are not extended family; they are unrelated. There are three adult males and an adult female. What are the circumstances that would mean that they are placed into an APOD?

Mr Allen : I would first of all say that placements are a decision for the detention network. However, it would have been apparent to the officers on the ground that there were very strong bonds in general between the 10 people on board the boat. They had been on board the boat for at least 40 days before arriving in Australia.

Senator CASH: Where are they now and at what stage is their processing?

Mr Moorhouse : My understanding is that eight of them have got bridging visas.

Senator CASH: Which eight are they?

Mr Moorhouse : They were the eight that had passports, as I understand it.

Senator CASH: Who does that exclude from that group?

Mr Allen : I believe there were two adult males who were excluded from that group. When they arrived, eight had passports; two did not.

Senator CASH: So eight are on bridging visas. Are they in accommodation? Does the department know where they are?

Mr Bowles : We would know where they are because they would report their address, but we do not manage their accommodation per se.

Senator CASH: Where are the two that did not have passports?

Mr Moorhouse : They are located in Villawood.

Senator CASH: At what stage are they at in the process?

Mr Bowles : They would be in the normal process that we would be dealing with people, getting identity and the associated work that we do.

Senator CASH: What discussions occurred with the people in terms of what would happen if they did remain in Australia?

Mr Allen : Senator, I can answer that. There were discussions with the individuals in which it was made clear to them that if they chose to stay in Australia and seek protection they would be detained and that they would undergo the normal health identity and security checks as part of that process. There were no guarantees given about protection outcomes, and there were no guarantees given about time frames.

Senator CASH: Were there discussions in relation to bridging visas?

Mr Allen : Not as far as I am aware.

Senator CASH: Mr Moorhouse, in your briefing were there discussions about bridging visas?

Mr Moorhouse : I am not aware of them. The briefing I received when I returned from leave in relation to the group is that they were treated entirely consistent with normal practice. That is demonstrated by the fact that the eight people with passports have been able to gain a bridging visa and move into the community, and the ones without are in detention awaiting processing in the same way that anyone else who has arrived as an undocumented arrival would be.

Senator CASH: In relation to the eight who have been granted bridging visas, how long were they in detention before they were granted the bridging visas?

Mr Allen : Approximately four weeks.

Senator CASH: Perhaps I could just confirm the evidence given yesterday in relation to the time frames people spend in detention. My understanding was that it is around 144 days before they receive a bridging visa.

Mr Moorhouse : 124 days.

Senator CASH: Okay, 124 days. And what was different—30 days compared to 124 days?

Mr Moorhouse : My colleague may be able to help in more detail here, but the difference was that they arrived with a passport and presented themselves to us. It is the difference between someone who is arriving as an undocumented arrival and someone who is arriving with a passport. But I will ask Mr Allen to give you more background in relation to that if you wish.

Mr Allen : I think that is essentially the point. This group were documented, so therefore a lot of the process that was described earlier today could be achieved more rapidly, because there was confirmation about their identities.

Senator CASH: So basically if you arrive with documentation that confirms who you are you can be on a bridging visa within a four-week period, but if you arrive without documentation and you merely have a claimed identity you are looking at a substantially longer period in detention. Am I reading it correctly?

Mr Bowles : I think that has always been a view held. That does not mean that these people are guaranteed protection, and it does not mean that they are going to—

Senator CASH: No, but it means they have a bridging visa. How long is the bridging visa for?

Mr Bowles : I do not know specifically.

Senator CASH: I know yesterday we discussed that the bridging visa for a particular gentleman was for three years, because of the situation in his home country. Is that the general standard of bridging visas?

Mr Bowles : That was a different type. That was a pending removal visa. The normal bridging visas we talked about yesterday were for anywhere between six and 12 months. We would have to check those individuals.

Mr Moorhouse : And it could be substantially less than that if the circumstances were appropriate. In terms of the period, I could take that on notice. But bridging visas can be for however long is appropriate in the circumstances of the individual person.

Senator CASH: Perhaps I could turn briefly to Cocos and Keeling Islands. What security and health procedures are in place on the Cocos and Keeling Islands with respect to the reception of IMAs who arrive there?

Mr Moorhouse : We can discuss that with you. There is a presence on the island from other agencies that are involved in border protection, but there is no DIAC presence on the island. Our practice is that if there is an arrival direct to the island then we arrange a charter as quickly as possible and remove them to Christmas Island.

Senator CASH: Are the initial health screenings conducted on the island?

Mr Moorhouse : We do not have resources to do that from a DIAC perspective. It is normal that if we organise a charter we have a doctor or medical staff on the flight so we are able to examine people to see what their state of health is and make decisions in relation to how we deal with them.

Senator CASH: So there is no DIAC presence on the island, but there is a presence of other agencies. When people arrive, the department will try to get a charter as soon as possible to facilitate the commencement of the process. Is there any ability at all for the other departments to conduct the initial health screenings on the island?

Mr Moorhouse : I cannot answer that question. It is best to direct that to Customs and Border Protection.

Senator CASH: Hold on. In relation to the fact that you are sending the charter over and you are picking the people up, what briefing are you given when the department arrives in Cocos (Keeling) Islands? Are you going to double up on a health screening? Are you told, 'No, it hasn't actually occurred,' so that is still part of the process that it needs to go through? I am just trying to establish who conducts it, where it is conducted and how many staff are involved.

Mr Moorhouse : I guess the point I am trying to make is that there is no formal health screening from a DIAC perspective. We will receive advice in terms of the state of health of people from time to time. For example, in the 13 months that I have been in this job, we have had two direct arrivals to Cocos (Keeling) Islands, approximately a year apart. With the arrival that occurred just over a year ago, some of the people on that vessel were in quite poor shape from a health perspective. We did everything we could to get a charter to them as quickly as possible. It was very difficult and involved an enormous amount of logistical work given the time that they arrived. They arrived over Easter. We do get feedback—

CHAIR: Mr Moorhouse, you are right. They arrived in the early hours of Good Friday and I was on Cocos (Keeling) Islands when they arrived. So I might be able to answer some of the questions for you, if you like.

Mr Moorhouse : I think Ms Mackin just left because she was clearing space for Mr Douglas to talk about health matters, but I can tell you that Ms Mackin did not get any sleep for many days trying to organise the charter to get those people off the island as quickly as we could.

CHAIR: Yes, I know exactly what happened.

Mr Moorhouse : With this particular recent arrival we were able to get a charter there much more quickly. There was some concern about the lack of scrutiny that we had been able to conduct for the people and as a precautionary measure we asked the people to wear masks when they were on the aircraft.

Mr Douglas : For this particular charter, a medical crew, predominantly nurses, was collected from Christmas Island and taken with the charter to Cocos. There was only a one-hour turnaround, so the nurses conducted a rudimentary check to ensure that all of the persons seemed fit to travel before allowing them on the aeroplane. As Mr Moorhouse said, as a precaution against public health risk, all passengers and crew aboard the aeroplane travelled with masks until they arrived at Christmas Island. Once they were at Christmas Island we then commenced the usual health induction assessment process.

Senator CASH: How many in total were in that medical crew on the charter? You said there were nurses.

Mr Douglas : I would need to take that on notice, but my recollection is around five.

Senator CASH: If you could confirm the details.

Mr Douglas : I will check that during the lunch break.

CHAIR: I think, Mr Douglas, both times—if I am not wrong here—most people have arrived severely dehydrated and with dysentery and are not fit to be moved anywhere for 24 hours or so.

Mr Douglas : I have no advice to that effect. The initial advice I received for this particular arrival is that they seemed in much better shape than might be expected given the arduous journey they had undertaken. During their temporary detention, shall we say, they were provided with access to food and water, of course.

CHAIR: And that was in the club in Cocos (Keeling) Islands, again?

Mr Douglas : I believe they might have started off in the club and I think they might have been moved to another location at some point during the evening or the following day.

Senator CASH: Of the 63 people who arrived on 15 May, the rudimentary health check was carried out on the island by the medical crew when they arrived via charter and then the full medical was carried out on Christmas Island when they were subsequently transferred.

Mr Douglas : A standard health induction assessment. My colleague has just advised me that that is correct, Chair. They started out in the club and then they were relocated to the cyclone shelter.

Senator CASH: All 63 were transferred to Christmas Island?

Mr Douglas : Correct.

Senator CASH: And that was by the charter aeroplane?

Mr Douglas : Correct.

Senator CASH: Was it a commercial air charter?

Mr Douglas : It was the A319 from Skytraders.

Senator CASH: Do you know the cost of chartering the A319 for the journey to and from Cocos?

Mr Moorhouse : That would be complex for us to give you because we have an arrangement in relation to that aircraft that is both a standing fee and then a fee for the particular flight or distance that it goes.

Senator CASH: What is the standard fee in relation to the A319?

Mr Moorhouse : I would need to give you that sort of detail on notice, if that is okay.

Senator CASH: Please give a breakdown of the standard fees in relation to all aircraft, then, that the government charters for IMAs and the fee per service when it is actually used.

Mr Moorhouse : Yes, certainly.

Senator CASH: Are there IMAs detained on Cocos (Keeling) Islands at the moment?

Mr Moorhouse : No.

Senator CASH: No, they have all been moved. In terms of security checks, my understanding is that the AFP has two officers on an island—is that correct?

Mr Moorhouse : I do not have—

Senator CASH: My understanding is that there are two. What provision was made for security checks of the people before they were transferred, if any?

Mr Moorhouse : I am not really familiar with what you are referring to.

Mr Bowles : I think you should ask that of the Attorney-General's Department.

Senator CASH: Okay.

CHAIR: We will return to outcome 4 at around 2:30. If you could get yourselves back here, that would be great. We will move to the Office of the Migration Agents Registration Authority prior to going to outcome 1.