Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Legal and Constitutional Affairs References Committee
11/11/2016
Serious allegations of abuse, self-harm and neglect of asylum seekers in regional processing centres

BRAYLEY, Dr John, First Assistant Secretary, Health Services and Policy Division, Chief Medical Officer Surgeon General ABF, Department of Immigration and Border Protection

GOLEDZINOWSKI, Mr Andrew, Ambassador, People Smuggling and Human Trafficking, Department of Foreign Affairs and Trade

HAYWARD, Mr Stephen, Acting Deputy Secretary, Corporate Group, Chief Operating Officer, Department of Immigration and Border Protection

NOCKELS Mr David, Acting Deputy Commissioner, Support Group, Department of Immigration and Border Protection

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

ROENNFELDT, Ms Claire, Acting First Assistant Secretary, Children, Community and Settlement Services Division, Department of Immigration and Border Protection

SLOPER, Mr Daniel, First Assistant Secretary, Pacific Division, Department of Foreign Affairs and Trade

WOODFORD-SMITH, Mr Kingsley, Assistant Commissioner, Detention, Compliance and Removals Division, Department of Immigration and Border Protection

[9:03]

CHAIR: Welcome. Information on parliamentary privilege and the protection of witnesses and evidence has been provided to you. I remind witnesses that the Senate has resolved that an officer of the department of the Commonwealth or the state should not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer questions asked of the officer to superior officers or to a minister. This resolution prohibits only questions asking for opinions on matters of policy and does not preclude questions asking for explanations of policies or factual questions about when and how policies were adopted.

I would like to invite you to make a short opening statement and at the conclusion I will invite members of the committee to put questions. No statement? We will proceed to questions.

Senator WATT: Thanks everyone for coming along, and thanks to Mr Pezzullo. I know we had a chat recently at estimates. The time for today's hearing is very compressed because of Remembrance Day ceremonies. Undoubtedly, I think we will need to get the department back in over the course of this inquiry. I realise we will not be able to cover everything today.

I want to turn immediately to the most topical issue in this whole conversation about management of asylum seekers, and that is third-country resettlement. One of our terms of reference is to look at the management of attempts to reach resettlement agreements. Obviously, there is a lot of stuff in the news about this at the moment and a lot of interest, with legislation related to it as well. How close is the government to securing viable third-country resettlement arrangements that would see the removal of all asylum seekers from Nauru and Manus Island?

Mr Pezzullo : As Minister Dutton has said, and as has been reiterated by the Prime Minister and the foreign minister, we are working actively on those arrangements. Mr Dutton said that we get closer every day, so today we are closer than what we were yesterday.

Senator WATT: Sure, but we have been hearing those sorts of things from ministers for some time now—

Mr Pezzullo : And when ministers are ready to pronounce on those arrangements I am sure they will.

Senator WATT: And not a day goes by that we do not see backgrounded reports about imminent deals. There were more reports along those lines this morning—

Mr Pezzullo : You are asking me to be a commentator on those comments?

Senator WATT: No, I am asking you how close the government is to actually finally reaching these resettlement deals that we have been hearing about for a very long time?

Mr Pezzullo : Well, I have answered that question. We are actively working on those arrangements and, as Mr Dutton said, we work on them every day.

Senator WATT: In the department's focus in trying to reach these agreements is there any criteria that countries need to reach, in the sense of respect for human rights and what might be called 'developed' or 'less developed' countries, or is it any country that will take people? What sorts of criteria are applied?

Mr Pezzullo : I can assure the senator that once the arrangements are struck and ministers are in the position to announce them—the partners that we have engaged with—the subject of those announcements will be considered to be appropriate.

Senator WATT: What does 'appropriate' mean?

Mr Pezzullo : It will be self-evident on the day, I think.

Senator WATT: So you think it will be self-evidently appropriate?

Mr Pezzullo : Yes.

Senator WATT: Okay, so—

Mr Pezzullo : Once we can actually discuss the arrangements in a more public fashion I think some of those questions would be better answered at that time.

Senator WATT: So you cannot tell us anything about that? I understand that we are dealing with sensitive material. I have not asked you which country; I understand that there are certain things that cannot be said. But you are telling us that you cannot—

Mr Pezzullo : You are sort of edging up towards that.

Senator WATT: Yes, but I am falling short, deliberately. You are telling us that you cannot tell the Senate anything about the kinds of criteria that are taken into account in determining whether a country is appropriate or not?

Mr Pezzullo : No, I am saying to this committee that I do not propose to add to what ministers have said on the matter.

Senator WATT: What conditions have third countries that we are currently in negotiation with imposed as a requirement of any resettlement agreement?

Mr Pezzullo : That is just a variant, if I may say so, Senator, on the question you have just asked me. Once you start to specify those matters are you really are talking about the nature of the agreements that are in prospect, so I do not propose to add anything to what ministers have already said.

Senator WATT: In the last couple of weeks, we initially read about, and then saw, legislation introduced that has been regarded or called the 'visa ban legislation'. In lay terms it says that, 'If you came to Australia by boat and you're resettled somewhere else, at no time in the future will you ever get a visa of any kind to come to Australia.' In your negotiations with other countries to reach resettlement agreements, have any countries asked Australia to legislate that visa ban?

Mr Pezzullo : There are several parts to my response. I know that in the interests of time your description of that legislation was necessarily high level and somewhat caricatured. It only applies to persons who arrive over the age of 18 after 19 July 2013, just to be clear about that.

As the legislation on its face makes abundantly clear, it is not that you will never get a visa; you will never be able to put in a valid application unless a minister raises the bar on your application. In those circumstances, future discretion could be applied to particular types of applications for people to come here for particular purposes. But otherwise I would accept your characterisation of the legislation. That is point one.

Point two: the motivation for the legislation has been clearly explained by the minister in his introduction of the legislation, as well as in the associated commentary by him and by the Prime Minister. It is our own sovereign position that, in moving to a resettlement arrangement that will be clear once it is announced in its detail, you want to avoid a situation where—and I will use the shorthand in the interests of time—you are emptying out reprocessing centres just to then fill them up with new arrivals.

The legislation, as has been made clear in the comments by the minister, and I will further elaborate on those, is really as much targeted on prospective arrivals and making it very clear to them—and people are sitting there in Indonesia, principally in Java, with their money ready to go, and the boats are ready to launch the moment there is any sense of softening in policy—that if they think that they will ever come here, even as a tourist, if they part with their money and give it to a smuggler then this legislation entrenches in law the shield that has been part of the policy rhetoric or the policy position, as I understand it to be the case, of the major parties. So it is as much about creating psychological deterrents in terms of future arrivals. Because let there be no doubt that, with any resettlement arrangement that you strike, because it intrinsically has to involve consensual movement—because no-one is going to be deported as a refugee to an alternative place of residence—you need to create a mixture of incentives and disincentives. If the disincentives are not strong enough and the incentives are too strong, you will see another wave of arrivals.

Senator WATT: Thank you for that. With respect, that does not answer my question which was whether any countries asked Australia to adopt this legislation.

Mr Pezzullo : It does answer your question, Senator, with all due respect. I said I am not going to speculate on the detail of those negotiations.

Senator IAN MACDONALD: A point of order: at great expense to the committee, we have set aside half of next Tuesday to deal with this bill, and if we are going to do it all here today—

CHAIR: We are not dealing with the bill, Senator.

Senator IAN MACDONALD: No, the question is directly related to the bill. I thought the departments were here to talk about the ANAO report this morning, and here we are going into a piece of legislation that has not got near the Senate yet.

CHAIR: We are within our terms of reference for this inquiry.

Senator IAN MACDONALD: If we are going to do this inquiry now we might as well rearrange Tuesday, have five minutes—

Senator WATT: Chair, as you pointed out, the terms of reference very clearly include:

… attempts by the Commonwealth Government to negotiate third country resettlement …

and

… additional measures that could be implemented to expedite third country resettlement …

An argument has been made consistently by the government that the motivation for this bill—well, the motivation changes every day, but one argument has been third country resettlement.

Senator IAN MACDONALD: It was to try and fix up a mess that the Labor Party created.

Senator WATT: So we are clearly within our terms of reference and we should move on.

CHAIR: I cannot, as you know, Senator Macdonald, dictate to members of this committee—provided they are within the terms of reference—what questions they ask.

Senator IAN MACDONALD: They are talking about a bill that has not yet passed.

Senator WATT: Mr Pezzullo, I think your answer was interrupted there. I ask you again: have any countries asked Australia to adopt this legislation or made it a condition to reach a resettlement agreement?

Mr Pezzullo : I can only repeat what I said earlier. I am not proposing to canvass the nature of our negotiations with any prospective third country resettlement partner in any detail. Once I start to answer one question I then have to potentially not answer another question, and you gradually start to build a picture by inference of the nature of those negotiations.

I stress—and perhaps I was too subtle in my response—that the nature of this legislation is within our own sovereign remit. The government, on advice, has decided to strengthen our maritime shield to deal with the anticipated attempts to breach our maritime borders as we move through the dismount phase. I do not want to trivialise it, but if you think of it as a routine, a complicated gymnastics exercise, then if you do not nail the dismount, it does not matter what you have done. You will just create a further tragic and chaotic wave of arrivals, as we saw over a period of time. So the dismount is as important as everything that we have done hitherto, and that is why we need a strengthened shield.

Senator WATT: Sure. In the interests of time, I will try to keep my questions brief. I note that there have been a couple of times now where you have given us what you consider to be the rationale for this legislation, and neither time have you referred to there being a need related to resettlement agreements—it is more about preventing anticipated new arrivals.

Mr Pezzullo : Sorry, Senator. Perhaps I am not being clear, and I do apologise: I am saying that there is an intrinsic connection to how we deal with the last phase of dealing with the previous wave of arrivals, dismounting off that problem, and setting up a shield that prevents the next wave. I cannot say it any more clearly. They are linked. I simply cannot say that more clearly.

Senator WATT: Has the department provided any advice to the minister that this new legislation is required in order to reach resettlement agreements with any other country?

Mr Pezzullo : It is required to achieve resettlement. The agreements themselves are just a component. You need this legislation and you need a whole lot of other things, some of which we will never talk about publicly because they relate to sensitive operations of intelligence and other character. You need a suite of measures to deal with the tail end of the loss of the control of our borders that was experienced by this country some years ago. I am sorry if I am not being clear: it is a suite of integrated measures.

Senator WATT: One of the reasons I have been asking these questions is I understand that in a briefing you and your officers provided to the shadow immigration minister earlier this week you advised the opposition that no country had asked for the government to adopt a lifetime ban on visiting Australia—is that correct?

Mr Pezzullo : If the confidentiality of those briefings has been lifted—which I am assuming, because I did not see you in the room—

Senator WATT: Yes, I have asked the question.

Mr Pezzullo : I did not see you in the room, so I am assuming that the confidentiality of that briefing is not as solemn as perhaps it might have been on the day. I am not prepared to canvass what was said in that briefing, because it was a confidential briefing, other than to reiterate that whether or not—I will answer it slightly differently—a partner has said, 'Have you thought about this measure or have you thought about dealing with the wave of boats that might come if we do this deal', whether or not that has been in the discussion, is something I am not prepared to canvass, other than to repeat to you yet again that it is in our sovereign remit to strengthen our defences as we jump off the final phase of the last time we lost control of our borders, to ensure that we do not lose control of them again. Again, I say: it is intrinsically linked to that dismount phase. I cannot say that any more clearly, and I do apologise if I am not being clear.

Senator REYNOLDS: I would like to pick up from where the ANAO left off. My interpretation of their evidence this morning on their report was that they take a very clinical look at a particular time frame that they report on, but they do not take into account context. Nothing happens in a bubble, and there is always context, history, to where you find yourself at a particular point in time. I was wondering, to start with, if you could give us that context—maybe go back to 2007 and 2008—of the situation the department found itself in, and the journey that the department has gone through in record keeping and contracts and contract management. That context would be very informative for us.

Mr Pezzullo : With the caveat that for a large amount of that period I can only speak from the record as an external observer.

Senator REYNOLDS: Yes.

Mr Pezzullo : I was appointed secretary of the department in October 2014. With the commencement of the arrival of illegal maritime arrival vessels in September 2008—that was the first arrival after the changes in policy arrangements earlier that year—there was a steady build up.

Senator REYNOLDS: So, just clarify: 2008. Yes. Keep going.

Mr Pezzullo : Well, if you would like me to give you a historical narrative—

Senator REYNOLDS: Yes, please.

Mr Pezzullo : If you then want to editorialise on my narrative, that is up to you, but it will just take up more time.

Senator REYNOLDS: My apologies. Please continue.

Mr Pezzullo : With the arrival of vessels that commenced in the latter part of 2009—in 2008 I am sorry—as I observed it, as I was then with the Customs Service initially, with the policy settings that involved bringing people to Christmas Island or similar locations, by the then marine unit of the Customs Service and the handoff to the then immigration and citizenship department, there was obviously no need to put in place regional offshore processing; it was not the policy at the time.

Fast forward to the advent of the Expert Panel on Asylum Seekers, led by Mr L'Estrange, who was joined by Air Chief Marshal Houston and Mr Paris Aristotle. That was brought down as a report to the Gillard government in the mid part of 2012. The then Gillard government made a decision to move to, or restore, regional offshore processing. That, as is apparent on the face of the narrative that is in the ANAO report, required in effect—and I will use a colloquial term—a 'scramble' to put in place the appropriate arrangements separately in Nauru and then slightly later in Manus.

As you would know from the evidence given to other committees, principally the estimates committee of the Legal and Constitutional Affairs Committee, in those early days procurement, the provision of amenities, putting up what were initially, I think from memory, canvas military tents providing field kitchens and all the rest of it—all of those matters have been extensively canvassed in a related committee, so I will not repeat that ground.

I think what the ANAO has found, and I think the department in its response has said, in that early period from the latter part of 2012 going through into 2013, it was certainly stressful, very high tempo. The government had made clear its expectation that having pivoted to a new policy setting—that is to say, the restoration of regional processing under Prime Minister Gillard and its reinforcement with the agreement signed by Prime Minister Rudd in his second shorter stint—that required the putting in place of a whole series of what are known as garrison and warfare support services. In those early phases, the ANAO said, I think fairly—you used the term 'clinical' in terms of its assessment of those matters—that, notwithstanding how busy you are, there is a certain degree of record keeping and appropriate adherence to procurement standards that they otherwise would have expected to see.

I think it is the case, though—and I think this is perhaps where there is a divergence of view that was expressed by the department in its response to the ANAO, which they kindly, at least in a summarised form, or a particular form, included in their final report—that once that situation started to stabilise through the course of 2013 and into 2014, that the amenity was put on a more sustainable basis. Hardwalled facilities were put in, and better kitchens, better medical facilities, better child welfare and protection services and the like, and they have been gradually building up over time.

The one contextual point I would make, which perhaps represents a point of departure with the view taken by the auditor and his staff, is that, when we then moved to consolidate those contractual arrangements, because they were quickly put in place, it was our own internal processes—the establishment of probity processes, procurement processes and an appropriate steering committee that was sitting above the project team—that in fact put, if you like, a red card to say: look, we have got to a point where the scope of the services, in what is described in the ANAO's report as the third phase of that process, had gotten to a point that there was no point in proceeding with the tender in its current form.

I will be very frank: this was partly because, as we have heard in other committees, the scope of services was constantly having to be reappraised because of the requirements to deal with things like trauma, mental health, protection of children. So as various reports were coming down—we have talked about the Moss inquiry report, to take one example, in the early part of 2014—more and more services were being provided.

Let me assure this committee, because I think it goes to what I thought were the main terms of reference of this committee—and our submission canvases this extensively—we have worked very hard to ensure, particularly as we consolidated those services and moved from things like canvas tents to different forms of accommodation, that the level of service provision, which I have seen in both Nauru and Manus, is certainly comparable to what Australians in most suburban, regional and rural settings would experience. Indeed, we are probably now at a point, frankly, where we could not provide any more services.

I was on Nauru just a few weeks ago and I went to the emergency room and there were some very competent and capable staff provided by our contractor. You might take a very different view of hardworking medical professionals, Senator McKim, but perhaps you might—

Senator McKIM: Point of order, Chair.

Mr Pezzullo : Well, I'm sorry—

Senator McKIM: No. Point of order, Chair.

Mr Pezzullo : In my life—

Senator McKIM: Mr Pezzullo, you are in a Senate committee here—

Mr Pezzullo : I know exactly where I am, Senator.

Senator McKIM: and this is a point of order that I am taking. Chair, I would ask you to hear my point of order.

CHAIR: Yes. I have an obligation to hear your point of order, Senator McKim.

Senator McKIM: The point of order is I was having a private conversation with Senator Dodson. Something Senator Dodson said made me smile. Then Mr Pezzullo came in and attempted to play politics in here by asserting that I think something that he was talking about is funny. I would simply ask you to ask Mr Pezzullo to calm down—

CHAIR: I am sure—

Senator McKIM: No, I have not even finished. I don't remember pulling the chain.

Senator IAN MACDONALD: That is an outrageous allegation!

Senator McKIM: It is not.

CHAIR: There is no—

Senator IAN MACDONALD: I would ask Senator McKim to apologise for—

CHAIR: I do not need your interjection on this ruling.

Senator IAN MACDONALD: Well, you get him to apologise.

CHAIR: Mr Pezzullo, I am sure you have noted Senator McKim's comment and that you therefore do not need to reflect on his behaviour in your evidence.

Senator McKIM: I would ask that Mr Pezzullo withdraw the implication.

CHAIR: Senator Reynolds can continue with her questions.

Senator McKIM: No. Point of order, Chair.

Senator IAN MACDONALD: I have a point of order.

CHAIR: I have ruled on the point of order.

Senator IAN MACDONALD: I have another point of order.

CHAIR: Okay. What is your point of order, Senator Macdonald?

Senator IAN MACDONALD: It is the conduct of senators who laugh at submissions made by witnesses. It should not be allowed. This is a point of order that I might say—

CHAIR: I think that—

Senator IAN MACDONALD: Let me finish, please! It is a point of order, I might say, that Senator McKim was very keen to—

CHAIR: I have ruled on that point of order already.

Senator IAN MACDONALD: This is about Senator McKim's conduct, not about Mr Pezzullo's. I am asking you, as chair, to bring your committee members into line and make them apologise to public servants.

CHAIR: Senator McKim was not reflecting on Mr Pezzullo. That is now clear.

Senator IAN MACDONALD: Well, he was.

CHAIR: Senator Reynolds, you are free to continue your questioning.

Senator McKIM: Sorry, Chair—point of order. So that we can all move on, I would ask if Mr Pezzullo would withdraw the implication that I was in some way laughing at medical professionals on Nauru, which is what he was talking about at the time—

CHAIR: He indicated—

Senator McKIM: because the fact is I was not.

Senator IAN MACDONALD: Madam Chair, if you are going to allow Senator McKim to run this committee, we should perhaps abandon the whole inquiry. Senator McKim should apologise to Mr Pezzullo for the comments he made about Mr Pezzullo playing politics. That is an outrageous slur.

CHAIR: Mr Pezzullo, you indicated to me as chair that you understood that Senator McKim had clarified that reaction.

Mr Pezzullo : I understand that his laughter—I will not characterise it any other way; I am trying to concentrate on my evidence—was not related to a reflection on those medical professionals.

CHAIR: We have had a fair bit of activity at the table. It makes it difficult for those giving evidence to concentrate on their evidence—

Senator IAN MACDONALD: It does when you allow members to abuse public servants—outrageous!

CHAIR: if we move around the table.

Senator IAN MACDONALD: I will be reporting this to the President.

Senator WATT: It's kind of like what you said about Gleeson, really, isn't it?

Senator McKIM: Madam Chair, I think Senator Dodson is trying to—

CHAIR: Thank you, Mr Pezzullo.

Senator DODSON: My comment, which probably caused some mirth with Senator McKim, was that it would be good if this committee were able to visit and witness what you are outlining as this prestigious sort of accommodation.

Senator IAN MACDONALD: How is this a point of order?

Senator DODSON: No, I am just explaining why Senator McKim—

Senator IAN MACDONALD: Well, we don't just have a chat about anything.

CHAIR: I need to return to giving Senator Reynolds the call. She only has a minute left in her time allocation.

Senator REYNOLDS: I hope I can get back the last three minutes, due to Senator McKim's snort.

Senator IAN MACDONALD: Five minutes.

CHAIR: Senator Watt had 10 minutes, you have had 10 minutes and I need to briefly give the call to Senator Hinch very shortly.

Senator IAN MACDONALD: And then to me.

Senator REYNOLDS: I am very glad we have spent the last five minutes on Senator McKim's very audible snort and it was actually not in response to Mr Pezzullo.

CHAIR: If you want to ask questions, Senator Reynolds, please do.

Senator REYNOLDS: Before that distraction, the secretary had not finished his answer. Secretary, as I understood it, what you said before we had a slight diversion was that the department had in fact red-carded itself—

Mr Pezzullo : On what is called the third phase, yes.

Senator REYNOLDS: on the third phase. And you said the added complication was also that the scope of services was constantly changing and evolving, which in any contractual service is quite challenging.

Mr Pezzullo : It is very difficult, Senator. Through you, Chair, may I just thank Senator Dodson. I found that clarification very helpful. Thank you, Senator. To Senator Reynolds: it is a challenging circumstance where, as you work through the advice that you are getting in relation to the scope of services required, at any one point in time, you have either settled a tender evaluation or you have a preferred tenderer or you might have a second preferred bidder—they are sitting on the reserve bench, as it were. You are in discussions about what is the best way to provide things like counselling services at schools and sports programs. As more refugees are being determined—this is particularly pertinent to Nauru where the refugees live out in the community in family units: women and children, sometimes accompanied by male members of the family—what are the appropriate services, for instance, for visiting situations? As those services evolve it is very difficult in a one-point-in-time, contractual exercise to appropriately say in a clinical way—to use a phrase I think you used at the very start of your line of questioning—'Well, that was our original scope. We're now negotiating against that original scope.'

We did get to a point where are our own internal checks and balances—which is perhaps the better phrase—raised a red flag, saying, 'Look, we've got to a point where we either retender this, because the scope of services has changed, or we try to work out a way that we can ethically and appropriately, within the procurement guidelines, still land that expanded scope of services with a preferred tenderer who put a bid in against what is an originally varied scope.' So it was our checks and balances that led to that conclusion that we could not achieve that, and I endorsed the view taken by the then deputy commissioner of the ABF who runs those procurement services.

Just to finish this line of questioning and my answers, the only point that relates to the medical facility was just to go to scope. We have probably gotten to a point now where we have calibrated it such that, when I visited the clinic and I saw the five very professional, very competent members of staff and I walked into the emergency clinic with a paramedic ambulance, the resuscitation beds et cetera, I said to the staff explicitly, because there had been stories—some of them circulated in the media and some of them circulated by advocates—that there was no medicine in the medical pantry, that the equipment was dodgy, the ambulance did not work, 'Is there anything more that we could possibly provide you by way of support?' and they said, 'No. We have some of the best equipment that we can operate with.' I do not want to be too particular, because I do not want the chap identified, but the lead paramedic had served in combat operations. He had worked in combat ER, and he said, 'This is as good as we could imagine. It's such that we actually go out into the community and help them when the general hospital down the road is sometimes experiencing difficulty.'

We have gotten to a point where we have calibrated it to where we think the service provision is adequate. It is a fair assessment, though, as the ANAO arrived at, that the original scope for phase 3, the so-called consolidation phase, did not quite reflect that calibration. So we have improved our processes around record keeping and ensuring that we stay to scope. We contend, we say, that our checks and balances are the things that identified the problem, and it did not require the external raising of a red card that otherwise you would imagine has occurred from reading about this in the press.

Senator REYNOLDS: I congratulate your staff in terms of the submission. I thought that the quality of the submission you made on this was extremely high and very informative. It gave a very good snapshot of things as they are today. Pass on our thanks.

Mr Pezzullo : Thank you, Senator. I do not need to pass it on, because they are actually in the room. I am sure they will appreciate it.

Senator HINCH: At an earlier session of the committee hearing I asked you about the possibility of the government discussing whether you were planning to put an independent child welfare administrator on Nauru. You said no, and one of the reasons was that Nauru is a sovereign state. At a different estimates committee hearing I put that question to the Human Rights Commission President, Gillian Triggs. Not to put words in her mouth, she thought it was a great idea and she pooh-poohed the idea of its being a sovereign state. I put it to you again: given the millions of dollars we pay to the Nauruan government, surely you could find a way to put a child welfare administrator on that island. It would take care of some of the problems that you have got with the allegations on Nauru. Are you considering it again, or have you considered it at all?

Mr Pezzullo : Consideration of appointing someone with, if you will, statutory or some sort of lawful set of powers that sit outside of Nauruan law essentially cannot be contemplated, because short of some kind of treaty or some sort of exchange of sovereignty or some sort of reference of sovereignty from one sovereign nation—I am surprised that Professor Triggs would need any kind of illumination on this very basic point of international law; I am sure that is not the case—it would require some kind of adjustment to the sovereignty relationship for us to have lawful powers to do that. However—and this, perhaps in material terms, addresses your question, and perhaps other colleagues can address the detail of this—we have worked with the Nauruan authorities in providing a template and model legislation, model arrangements for how to undertake child protection and welfare arrangements. They have passed legislation, which we have assisted them in the development of. We have got capacity building and technical advisers on the ground. To take one example, you might recall from other evidence that the Australian Federal Police have given that they have got advisers that work with in-line police on both gender violence and child protection policing, to take one example. Whilst we cannot, if you like, exercise lawful authorities there—we do not have the immunities; we do not have the legal basis to—we are as close as you can be as advisers in assisting them in this field. And there are other members of my staff who can assist you by adding to the answer.

Senator HINCH: I think you have almost answered me. When you talk about needing a treaty to do this because it puts some legal standing there, surely you have done that already with the security agencies. The guards are there; they would have to have special Nauruan permission to behave the way that they do.

Mr Pezzullo : All of our security services on island are contracted services that operate within Nauruan law. They do not have police powers, for instance. It is the Nauru police force that enforces the law of Nauru. Like any security guard, even here in Australia, there are no particular policing powers that a security guard has, beyond common-law powers of defending themselves and preventing someone from harming themselves or someone else until the police arrive. So it is no different from that regime.

Senator McKIM: Mr Pezzullo, is the department supporting the government in the government's negotiations with other countries around resettling people on Manus and Nauru?

Mr Pezzullo : We execute the policy of the government of the day, so we are the arms and legs.

Senator McKIM: So the department is negotiating with other countries. The minister has made it clear that the government is in negotiation with other countries, plural, and the department is—

Mr Pezzullo : Well, the executive government, as you will know, having served as a minister, is supported by its officials, and it tasks its officials to do certain things, and we are doing certain things as tasked by the government. Sorry, that is a rather circular answer, but—

Senator McKIM: The answer is you are supporting the government in its negotiations.

Mr Pezzullo : Sorry, do you mean 'supporting' in the sense that we are evaluating and putting up sort of cheer squad numbers?

Senator McKIM: No. I mean are you conducting—

Mr Pezzullo : We are executing.

Senator McKIM: You are executing?

Mr Pezzullo : Yes, absolutely.

Senator McKIM: So how many countries are you in negotiation with?

Mr Pezzullo : I am not in a position to answer that.

Senator McKIM: Mr Pezzullo, I am not sure you have the luxury of that answer to the Senate, unless—

Mr Pezzullo : Unless I claim immunity.

Senator McKIM: So you are making a claim of public interest immunity?

Senator WATT: On what ground?

Senator McKIM: Yes, on what ground?

Senator IAN MACDONALD: He has to refer that to the minister.

Senator WATT: No, he has to tell us on what ground.

Senator McKIM: Yes, he has to tell us the ground.

Senator IAN MACDONALD: He has to refer that to the minister.

Senator McKIM: You are not the chair, so just relax.

CHAIR: I will ask Mr Pezzullo to state the ground on which the—

Senator IAN MACDONALD: Besides which, how many times does Senator McKim get to ask questions?

Senator McKIM: This is my first question to this department.

CHAIR: This is his very first question. Can I ask, Mr Pezzullo, if you have a ground on which you are relying?

Mr Pezzullo : Yes, I would call in aid Mr Dutton's claim of relevant community. It is in relation to another matter, but it is germane because it is the same question that the senator asked me in supplementary estimates. Mr Dutton wrote to the chair, Senator Macdonald, as it turns out, of the Legal and Constitutional Affairs Committee on 21 October. So I claim immunity within that—

Senator McKIM: On those grounds?

Mr Pezzullo : Yes.

Senator McKIM: Just to focus your mind a bit here, the question is actually not the same. The previous question I asked is: which countries? I am asking you: how many?

Mr Pezzullo : I will refer that to the minister. I suspect the minister will say that it falls within the ambit of his claim of immunity, which—

Senator McKIM: If you look at the reasons he has given—I think you have it in front of you—as to why, the reasons relate to the disclosure of the identity, and I am not asking you the identity; I am simply asking you how many.

Senator IAN MACDONALD: Mr Pezzullo has already said he would take it on notice.

Senator McKIM: No, he has not.

Senator IAN MACDONALD: Yes, he has.

CHAIR: He has made a claim—

Senator McKIM: He has made a claim of public interest immunity—that is very different.

Mr Pezzullo : Senator, you refer, quite accurately, to the claim being referable to 'which countries'.

Senator McKIM: Yes.

Mr Pezzullo : I will now refer the matter of how many. You can ask me any number of questions; I will refer them all to the minister. I daresay, because we help him prepare this correspondence, that if we change the preambular paragraph, you will get the same set of reasons—but that is for the minister to determine.

Senator McKIM: I think that is almost certain, Mr Pezzullo. But whether that is a valid claim will be a matter for the Senate.

Mr Pezzullo : That is a matter for the Senate, of course. I am sure there will be another proceeding.

CHAIR: That is correct. It is up to the Senate to decide if it wants to press an answer.

Senator McKIM: Before we move on, I am going to ask a couple more questions on this to test your response, Mr Pezzullo. If I use the word 'cohort' to describe the entirety of the people that are currently on Manus and Nauru, have you divided up the cohort in any way, and, if so, in which way?

Mr Pezzullo : Divided for what purpose?

Senator McKIM: I will give you an example to help you understand. Are you looking at all of the families with children who are on Nauru and looking to resettle them in a particular country that is different from, for example, the single men on Manus?

Mr Pezzullo : Minister Dutton has made clear now on several occasions, and he has stated this quite emphatically so I will repeat what he has advised publicly—that the focus in our resettlement program will be on women and children first—whether women and children alone, as part of family units and family units as well—and then single adult men will be lower down the priority list.

Senator McKIM: That raises the issue of the comment from the Papua New Guinean foreign minister last week that Manus Island is in 'the final phase of shutdown.' Have you been advised by the Papua New Guinea government that Manus is in the final phase of shutdown and, if so, have they put a date on the closure of Manus?

Mr Pezzullo : We are in regular discussions with our counterparts in Papua New Guinea. We are well aware of their position.

Senator McKIM: What is their position?

Mr Pezzullo : Are you referring to comments by Minister Pato, the foreign affairs and immigration minister.

Senator McKIM: Yes.

Mr Pezzullo : Well, he has made comments that are self-evident on their face.

Senator McKIM: The question is: has that information been conveyed directly to your department?

Mr Pezzullo : We are in constant engagement with them. I can assure you that what we discuss privately with them is no different from what Minister Pato and Minister Dutton announced in August—that we are in mutual and bilateral discussions about the decommissioning of Manus.

Senator McKIM: What is the time frame for that?

Mr Pezzullo : Neither government has indicated a time frame.

Senator McKIM: I am asking you, Mr Pezzullo.

Mr Pezzullo : In that case, I will need to refer that to the minister in terms of—

Senator McKIM: Are you making a claim of public interest immunity?

Mr Pezzullo : Yes.

Senator McKIM: On what grounds? It is a very different question to the one I previously asked.

Mr Pezzullo : It relates generally to infringing our ability to conduct negotiations with foreign countries. It will be the international affairs claim, no doubt, but I really do need to refer it to the minister. If you want to send me a list, I can take them to the minister and he will consider them—

Senator McKIM: I will ask the questions and you can respond to them. I am certain there will be some further discussions around these matters into the future. I want to turn to the Migration Act amendments, which were the subject of questions from Senator Watt—well within our terms of reference. Just so we get our terminology straight, when I use the word 'cohort' I am talking about the cohort of people to which the Migration Act amendments would apply. We have seen the legislation; it is through downstairs. Is the department aware of any families with children who are currently in Australia that would be caught, if you like, by the Migration Act amendments?

Senator IAN MACDONALD: Madam Chair, I raise a point of order. This is entirely a hypothetical question.

Senator McKIM: No, it is not.

Senator IAN MACDONALD: No-one knows if the bill will be passed or in what form it will be passed. The question to Mr Pezzullo is: can you hypothetically think how the bill might end up and then—

Senator WATT: No, the bill as it is currently drafted, and passed by the House of Representatives.

Senator IAN MACDONALD: Can I at least finish without interruption, Chair?

CHAIR: Senator Macdonald, a question about policy, and asking for an explanation of that policy, is a legitimate question; it is not a speculative one.

Senator IAN MACDONALD: Madam Chair, this is saying, 'Will these people be caught by this that or the other?'

Senator McKIM: I am happy to re-phrase the question—

CHAIR: Senator McKim may ask a question asking for an explanation of policy, and the legislation is clearly that.

Senator McKIM: Have you ruled my question in order, Chair?

CHAIR: Yes.

Mr Pezzullo : I think the best way to answer the question and not be speculative about the actual people who at the time of royal assent—when the legislation comes into effect—may or may not be captured. But the legislation on its face—you need to read the draft statute, at least, and the explanatory memorandum—makes clear that any persons who are transferred to either Manus or Nauru subsequent to 19 July 2013 and are above the age of 18 at that time—I think this goes directly to your question, so I won't go to numbers—including those persons who at law are defined as transitory persons who have been transferred to either Nauru or Manus, repatriated to Australia for specific, defined purposes, generally speaking medical conditions—in some cases, as is well-known, those medical conditions have been dealt with—but either through legal injunctions and/or undertakings that are legally binding that the minister has entered into to not return those persons either to Manus or Nauru, subject to legal proceedings being dispensed with, then, yes, those transitory persons who are in Australia are captured under the statute, if it is passed. Those transitory persons will be the subject of that law, yes.

Senator McKIM: I have a couple of follow-up questions and to pre-empt any time-wasting points of order when I refer to the legislation I will refer to it as currently drafted, as passed by the House of Representatives. But I acknowledge that it is not yet through the Senate.

Mr Pezzullo : Yes.

Senator McKIM: As currently drafted, would that legislation catch any families with children who are currently, as you have described, under transitory arrangements in Australia?

Mr Pezzullo : Yes, as I have just indicated.

Senator McKIM: How many?

Mr Pezzullo : I refer back to my previous answer. My preference at this stage is not to add to what is in the explanatory memorandum and what might have been said in the second reading speech. We will need to deal with that as it stands with the passage of the legislation, should it be passed—and it is coming into effect at royal assent, noting that it has a particular date of commencement and a date of effect as at the introduction last week.

Senator McKIM: Might I suggest, Mr Pezzullo, that probably you could take that on notice, unless you are making a claim for public interest immunity on that question.

Mr Pezzullo : I will look at it. I think it is something we can take on notice, Because, whilst the legislation is prospective, in the sense that it comes into effect at royal assent, its state of effect is last week, when it was introduced.

Senator McKIM: I am asking you as of now, though, as we sit here today.

Mr Pezzullo : I will take that on notice.

Senator McKIM: Thank you. So, when the minister says that no children will be caught by this legislation—I am paraphrasing, but you have heard his comments around children—

Mr Pezzullo : Yes.

Senator McKIM: What you are saying is that some children's parents will be caught by this legislation?

Mr Pezzullo : The parents will be.

Senator McKIM: Yes. So in other words the parents are going to be taken away from their children, aren't they, if this legislation passes as drafted?

Mr Pezzullo : I cannot imagine a resettlement arrangement being put in place that would see a situation where children who are not 18 as at 19 July 2013—so we keep coming back to that marker—were forced to say in Australia, or indeed anywhere else, separate from where their parents are resettled—

Senator McKIM: No, okay. So they are not going to be forced to stay—

Mr Pezzullo : I could not see that.

Senator McKIM: I accept that.

Mr Pezzullo : I could not see that occurring.

Senator McKIM: I hope not. I hope you are right.

Mr Pezzullo : We would be solving one problem and just creating another one.

Senator McKIM: I would argue that the government's entire policy framework is trying to solve one problem by creating another problem. But anyway, you have said, by implication by saying no children would be forced to stay, that actually children will go with their parents when their parents are deported.

Mr Pezzullo : No-one is suggesting that we are going to break up families.

Senator McKIM: Okay—

Mr Pezzullo : I do not understand the—

Senator McKIM: The thrust of my question is that the minister has said that no children will be caught by this legislation but the effect of this legislation actually will be to deport children and rip them out of their schools and communities.

Mr Pezzullo : Sorry, I misunderstood the point. The legislation is not about removal of deportation. The legislation is about this: if you make a future visa application—permanent migration, student, tourist and all the other matters that have been canvassed—unless the minister of the day lifts the bar on that application you will not be able to lodge a valid application. So what it is saying is that in your hypothetical scenario—let's say mum and dad have just been resettled in country X; we will just call it country X—

Senator McKIM: No, sorry. That is not quite my hypothetical, Mr Pezzullo. I thank you for engaging on this. My hypothetical is the transitory people that you mentioned earlier.

CHAIR: You cannot ask a hypothetical. You can only ask for an application under the existing policy.

Senator McKIM: I withdraw the hypothetical. My question is about the actual transitory people that exist and that you have just confirmed exist—

Mr Pezzullo : Yes.

Senator McKIM: that are in Australia and that are families with children—that cohort.

Mr Pezzullo : Where the child is not captured but the parent is.

Senator McKIM: Well, just let me ask the question.

Mr Pezzullo : Sure.

Senator McKIM: So there is a cohort of people: families who are transitory people currently in Australia. Correct?

Mr Pezzullo : Yes.

Senator McKIM: They would be caught by this legislation as currently drafted.

Mr Pezzullo : Sorry, Senator. This is where I am not being clear, and I apologise. Families are not captured by the legislation; individuals are, if they were above the age of 18 as at 19 July 2013, when Mr Rudd made his policy pronouncement—so you have to have been over 18 at that time. If you were not born at that time or if you were under the age of 18, you cannot be in the legislation.

Senator McKIM: I understand. I will just rephrase my question.

CHAIR: Senator McKim—

Senator McKIM: Am I nearly done?

CHAIR: You are, but you are getting wound up, so I can give the call to Senator Macdonald.

Senator McKIM: I am actually feeling pretty calm, not wound up.

CHAIR: I am winding you up.

Senator McKIM: I will just try to follow this line of questioning.

Mr Pezzullo : Neither of us is wound up, Chair. We are both very calm.

CHAIR: It is the clock—but, yes, you are indeed.

Senator McKIM: Thank you. Mr Pezzullo, I accept that this legislation would impact on people, not families. I accept that.

Mr Pezzullo : Individual people. But, to be really clear, it is a future visa applicant. The legislation is not about who gets moved where; it is whether you are able to lodge a visa application that is valid.

Senator McKIM: Yes, I understand that. Would that include extensions of visas? Would it include people applying to extend visas?

Mr Pezzullo : Logically not, because if they are resettled they do not have an Australian visa. I will come back to the transitory people in a moment. Every person on Manus and Nauru is there subject to visas of Papua New Guinea and Nauru. Persons who are transitory persons in Australia—and I need to be clear; I just cannot quite remember the category of the visa—

Senator McKIM: But they are here on an Australian visa.

Mr Pezzullo : Yes, but the moment they are resettled that visa expires, because its original purpose was for medical attention. So the medical attention has been dealt with. The legal injunction and/or legal undertaking is, just for the sake of this argument, set aside. The person is resettled. There is no visa on foot. It is extinguished. There is nothing on foot.

Senator IAN MACDONALD: Mr Pezzullo, you are not aware of this as yet, but the committee yesterday at its meeting set aside next Tuesday morning to have your department in Melbourne to answer the questions that you have just been answering now. So I am just alerting you to that to indicate why I am not going to ask you any questions along that line, because the committee has set aside a morning next Tuesday.

Mr Pezzullo : Thank you, Senator. I cannot express how thrilled I am!

Senator IAN MACDONALD: Mr Pezzullo, you keep mentioning, I think, 29 July 1913. This is the only question I will ask about the thing. What is the significance of that date?

Mr Pezzullo : Sorry, 19 July 2013.

Senator IAN MACDONALD: 2013, yes.

Mr Pezzullo : That was the date that the then government stated that henceforth illegal maritime arrivals would never be allowed to settle in Australia. So the legislation seeks to entrench legal effect for that policy position that was enunciated by the government of the day on 19 July.

Senator IAN MACDONALD: Who actually said that?

Mr Pezzullo : Mr Rudd.

Senator IAN MACDONALD: Mr Rudd said that—okay. So this policy that you have just spent 10 minutes talking about—this proposed legislation—is all about putting into effect Mr Rudd's statement on 19 July 2013.

Mr Pezzullo : When it was stated that for all illegal maritime arrivals henceforth, if you arrived by illegal maritime means, you would never be allowed to settle in Australia.

Senator IAN MACDONALD: Getting back to the reason why you are here today, which was the ANAO report, I know Senator Reynolds asked you about this to an extent. But, summarising the complaint, the ANAO said that your department—and I appreciate it was before your time—had difficulties in the first phase, and the ANAO said they well understood, with you trying to shift 10,000 people in three weeks or something, why there would be difficulties. They then said there was a second phase, and I forget what they said about that. Their complaint is that since then your department has not followed the proper procurement guidelines. I just want to put that to you to give you the opportunity to respond.

Mr Pezzullo : As I intimated in my earlier remarks, which related to what the ANAO considered to be scope creep through that third phase, we take issue—because we stated it and it is republished in the ANAO's report—that in that case anything other than our own internal surveillance and checks and balances has ceased that. We got to a point where the scope of services to deal with school counsellors and home based activity care and all sorts of things, as refugees were being settled in the community of Nauru—it was our own internal processes that said, 'Hang on, we're now so beyond the original scope of the tender that we', on a recommendation to me as secretary, 'should cease and desist through our checks and balances that we had internally put in place', along with probity advisors and other proper governance arrangements, that we thought that our own internal disciplines were not sufficiently well highlighted. As a result, we perhaps would take some exception to some of the narrative rather than the findings or conclusions of the ANAO's report. That is point 1.

Point 2 is that we—regrettably, I have to say—reject pretty comprehensively any suggestion that we were operating without cabinet or budgetary authority. I cannot begin to describe how many times I will be in meetings with the Treasurer and the finance minister, and the thought that they would say, 'Gosh, do we have a regional processing facility on Nauru again, do we? What a coincidence'—that is some alternative reality. We had a complete sanction from government through cabinet decisions and administrative executive decisions of ministers to proceed with building those arrangements that flowed from the expert panel's recommendations to Prime Minister Gillard to re-establish regional processing. Yes, in the early days it was very rushed, somewhat chaotic—canvas tents and all the other matters that I alluded to earlier. And then over time we have been consolidating and improving those arrangements, and some of those are I think very well displayed and set out in our submission.

The thought that we were operating either at budget or at MYEFO, the midyear economic review, without appropriations as to operating or capital expenditure, we dissent from. It is regrettable, and we made our views known to the ANAO. They chose to characterise our responses in the way that they have. I have no other option other than on the public record stating that we do not agree with their commentary in that regard. We were operating completely within government authority.

Senator IAN MACDONALD: Apart from this hearing, have you responded formally to the ANAO telling them that, or in any other way?

Mr Pezzullo : I will indeed. During the course of their fieldwork—and Mr Hayward, the acting chief operating officer, might be able to illuminate this better than I can—

Senator IAN MACDONALD: No, I accept that; you have said that. My question is, since their report came out, apart from today, have you publicly indicated—

Mr Pezzullo : I think I might have made some obiter dicta comments on the way through when Senator Watt asked me—

Senator IAN MACDONALD: But you have not written or formally responded.

Mr Pezzullo : We wrote to them on their final draft, and it is included in the report. There is an annex in the report that shows our dissent.

Senator IAN MACDONALD: Finally, because time is running out: you say you were in Manus, or Nauru, was it, or both?

Mr Pezzullo : Nauru more recently.

Senator IAN MACDONALD: And you made the comment that you cannot think of another service you could supply.

Mr Pezzullo : Sorry, I will rephrase that. I am not medically qualified. I asked the staff, 'Is there anything more I can give you?'—more medicines, a resuscitation kit, a better-equipped ambulance. And the response was no, that this gear is—

Senator IAN MACDONALD: Schooling?

Mr Pezzullo : I visited the school. They were very happy with the school that we have—

Senator IAN MACDONALD: Accommodation?

Mr Pezzullo : They are very happy with the accommodation. It is humid, but other than that—

Senator IAN MACDONALD: You talked about tents, originally. Briefly describe the accommodation.

Mr Pezzullo : There is a variety of both hard-walled and also—I think we have used this phrase before—not canvas tents; I might get Mr Nockels to describe the—

Senator IAN MACDONALD: We are running out of time. Are they air-conditioned?

Mr Pezzullo : Yes, for the most part.

CHAIR: There are some pictures in the submission, are there not?

Mr Pezzullo : Yes.

Senator IAN MACDONALD: I am pleased to hear that, but I am wondering whether any of you have ever been to any Aboriginal communities and whether you could comment on the comparison between what is implied for illegal maritime arrivals in another country and what we as Australians supply to our own Indigenous people in some of the settlements and camps. I wonder whether any of you have been to the camps.

CHAIR: I think that is outside our terms of reference, but—

Mr Nockels : I have not been, so I cannot make that comparison.

Senator IAN MACDONALD: And it is not outside the terms of reference, Chair, because—

CHAIR: I know it is about the standards of accommodation, yes.

Senator IAN MACDONALD: it relates to what Australia has provided for these illegal maritime arrivals that we do not provide for our own First Australians.

Senator HANSON: With reference to Senator Hinch's question about child welfare, how many children are there?

Mr Pezzullo : On Nauru? I will get one of my colleagues to answer that. Some of them are in the community. They are living with guardians or parents in the Nauruan community because they have been found to be refugees, and some of them are accommodated in what is known as the open centre in the RPC. Ms Roennfeldt has the data.

Ms Roennfeldt : There are about 178 children on Nauru, and that is a mixture of children who are in the RPC and refugee children.

Senator HANSON: So, there is a child protection unit set up anyway, from what I am understanding here.

Ms Roennfeldt : There is, certainly.

Senator HANSON: There has been a lot of talk about allegations of sexual abuse and attacks that have happened on the island. Can you tell me the numbers that have been reported?

Mr Pezzullo : I might ask Assistant Commissioner Woodford-Smith in the first instance to speak very briefly about the analysis that he did on that very question after the so-called Nauru files were recently published. The assistant commissioner actually went back to all the data, just to make sure that we understood what the numbers were, and he has some evidence that he might provide.

Mr Woodford-Smith : Perhaps I could touch on the Nauru file firstly. There were 23 allegations of sexual assault. Out of those, 12 related to children and 10 related to adults. In terms of the actual incidents within the Nauru RPC—and that is for the period of 8 September 2013 to 30 September 2016—there were 19 alleged incidents of sexual assault against adults, and then there were 14 alleged sexual assaults of minors.

Senator HANSON: I have just read the Review into allegations of sexual and serious assaults at the Manus Regional Processing Centre, by Mr Robert Cornall, AO. He says that, of the allegations raised on the SBS Dateline program which initiated the review, overall the following alleged incidents did not occur:

• Transferees being sexually abused, raped and tortured with the full knowledge of staff

• Victims being returned to Single Adult Male compound to be raped again

• Weapons including knives being held by transferees …

So, has what actually happened been blown completely out of proportion and sensationalised by the media?

Mr Pezzullo : I will respond on behalf of the department. I think there certainly has been a degree of reporting that does not have regard to the sorts of checks and balances that a journalist might normally put in place. You referred to the Dateline program that Mr Cornall looked at. There have been other incidents, such as when the ABC earlier this year had to apologise for running a completely fallacious story about a so-called raped boy back in February—on 7.30. Regrettably, we have had calls recently to raise a complaint against Four Corners. Frankly, they did not even engage in the basic standards of putting claims to us or through us to the Nauruan government—or directly to the Nauruan government; we do not really care how they want to approach it.

I am loath to use terms like 'sensationalism', but there is a certain reflexive instinct to report on the basis of what an advocate says or something that appears on Facebook from groups that have an interest—and they are entitled to this view in a democracy—in tumbling the policy. So if you have a group—and I do not want to name them here—that hates the policy, then it will say, 'This policy is leading to this abuse or that rape,' or whatever, then you need to be careful that you just do not simply summarily dismiss all such allegations because then you get into another problem, which is: of the 10 that are potentially fallacious, the one that you really should be addressing because someone has been harmed gets dismissed. So you need to be always very calibrated in looking at each and every matter. The assistant commissioner's division spends a lot of time looking at all matters that are raised with our Naruan partners to make sure that you are looking past anything that is frivolous, vexatious, repeated. You are always concerned—

Senator HANSON: There have been a lot of frivolous claims.

Mr Pezzullo : There have been, Senator, but—

Senator HANSON: There have been about 1,100.

Mr Pezzullo : There have been a lot of—in fact, with the Nauru files, there are even more numbers there. But I must say, and I make this very clear to my staff: take a heavy scepticism both ways. Yes, on the one hand assume that advocates are pushing a particular line, but also be careful that the one day that you are dealing with something that is true and factual you are not dismissing that out of hand either.

Senator HANSON: Of course.

Mr Pezzullo : We have to be healthily sceptical on both sides.

Senator HANSON: Just a couple more questions. We have 50,000 come in—approximately that. How many are still there on the island that will never ever be allowed to come to Australia and will not be settled anywhere else? What is going to happen to them? Why won't they go back to their countries and why won't their countries accept them?

Mr Pezzullo : That is quite a complex—

CHAIR: That is outside our terms of reference.

Mr Pezzullo : Chair, I am happy to—

Senator IAN MACDONALD: It is exactly the same as Senator McKim's—

CHAIR: Yes.

Mr Pezzullo : I might get the assistant commissioner just to give you a snapshot of how many people are on both Manus and Nauru as of today, noting that there are also the transitory persons back in Australia who were transferred after that date that we have been speaking about and who came here for medical treatment. In some cases that medical treatment has been done, but they cannot go back for legal reasons. There are just under 400 of those. But that can be explained by the assistant commissioner.

To your question about why they will not go back, or why they cannot be sent back: they fall, basically, within two categories. Under both Naruan law and PNG law—because they are the two operative laws—a significant number of people in both locations have been found to be refugees. So under international law, which those two countries have codified in their own laws, you cannot return those people to the country against whom they have made a claim of persecution. DFAT colleagues can assist at this point, perhaps. Under international law, that breaches the commitment that we all entered into against not refouling people—it is a French term about returning people to where they are being persecuted from. So those folks have to be found a home. There are a number of possibilities. The agreement that was struck with PNG does allow for resettlement in PNG. A small number of people have taken that offer up, and some might prospectively do so. There is a third country agreement that we have that is a three-way agreement between ourselves, Nauru and Cambodia. That is another sort of pathway to a home. As discussed earlier in responses, or attempted responses—perhaps, not to the satisfaction of Senators Watt and McKim—we are currently in third-country resettlement negotiations with a number of parties that I am not in a position to specify. And that is to assist both PNG and Nauru, who look to us to provide them with that diplomatic assistance, in finding homes for those who have been found to be refugees. So they are the refugees. And the assistant commissioner can speak to numbers in the moment.

The persons who are called transferees—those who were transferred post that date that we talked about earlier—have not yet had their status determined or have had their status determined and have been found not to be refugees. By law—and these are the laws of PNG and Nauru, as applicable—they should go home. It is like someone coming here—if you have no lawful basis to be here, we deport you, or you voluntarily get taken to the airport, and then off you go. In some cases, that is able to be effected. Through the very good work done by our esteemed colleagues in DFAT, we have working arrangements with any number of countries, such as Vietnam, Sri Lanka and other countries, where that can happen.

In other cases to do with diplomatic complications that I do not necessarily want to go into here, unless DFAT colleagues wish to add anything, the recipient countries in those circumstances either do not recognise the citizenship or the authenticity of citizenship or the lawful right of return or one-issue travel documentation. So, regrettably, some of those folks are stuck in limbo. They are found not to be refugees and they have had their review and appeal rights dispensed with; they cannot stay in Nauru or Papua New Guinea under their laws; they cannot come here for reasons to do with our Migration Act; and what we think are their home countries will not accept them. They are actually the hardest cases. Those who will be found homes through the resettlement program that we sort of talked about earlier will find a home. It is those who have not been found to be refugees. They cannot stay in Nauru, cannot stay in PNG and cannot come to Australia. They are the ones who require some close attention, and that is really about working with the countries who really should be accepting them back but will not.

CHAIR: I need to give the call to other senators. Senator Hanson, you have had your equivalent 10 minutes to everyone—

Mr Pezzullo : I am very keen for my colleagues in DFAT to add to my answer, Chair.

CHAIR: They have come all this way. All right. Very quickly.

Mr Pezzullo : Thank you so much, Chair.

Mr Goledzinowski : Specifically on the questions of returns, I think the secretary pretty much outlined it. He knows exactly what we do. Part of the job that I do as Ambassador for People Smuggling and Human Trafficking is enter into negotiations with countries on return arrangements. Those are, in some cases, on water returns. In other cases, they are people who are in Manus or Nauru and, in other cases, people who are on shore in Australia but to whom no legal protection is owed. As the secretary pointed out, in many cases that is a negotiation which is easily arrived at because the country concerned is as interested as we are in repatriating these people in a way which is safe, dignified and appropriate, and in which case that occurs. In other cases there are complications. The most difficult ones are the ones where people are stateless. There are cases of individuals and some cohorts where their country does not accept them as nationals of that country, although they were born there and perhaps their parents were born there. That is particularly difficult. In other cases there are issues of identification and in yet other cases there are political complications in their home countries, which on the face of it should be easy to resolve, but in practice it gets tied up in other issues, often to do with the internal politics of a country with which we are negotiating.

Senator HANSON: Would you be in this dilemma because a lot of them have actually destroyed their identification papers and their passports?

Mr Goledzinowski : That certainly does slow things down. We have found that, where identification documents are available, it is much easier to return people because issues of identification simply do not arise in that case. In the case of some countries, of course, they want to be able to establish identification in the absence of documentation through face-to-face interviews. That also is complicated by the location of some of these people in countries where diplomatic representatives of those countries are not available.

CHAIR: I have a range of questions for Dr Brayley and others, but I will not have time to ask them this morning, so I will put them on notice. Senator Dodson and Senator Watt have questions for the last couple of minutes.

Senator DODSON: Again, you can take this on notice. I may not be at the meeting on Tuesday. I am interested in the symbolism you started off with, Mr Secretary, about the maritime shield and dismounting. That led me to think that, if you can dismount, so you must be getting off something or getting away from something. The 'getting away' is the infrastructure and outlays Australia has placed on these countries, presumably—

Mr Pezzullo : In part.

Senator DODSON: My interest is: what have been the specific outlays that would benefit both of those two nations, Nauru and Papua New Guinea, as we dismount and, I presume, extract ourselves out of there—those capital outlays that have been made for that, as well as the service provisions that we have invested to enhance their capacities, particularly in the child unit area and any other place where services are being provided? I do not expect you to answer that today, but please take that on notice. When you meet on Tuesday, hopefully I will be on a phone somewhere, but I may not be there.

Mr Pezzullo : Thanks, Senator. That is a very good question. It might be challenging to identify what you might describe as social infrastructure. Obviously there will be a commitment to retain, particularly on Nauru, where we have committed to capacity building around things like gender violence and child welfare protection, as opposed to physical infrastructure where there will be a normal Commonwealth process of decommissioning assets.

I should be clear; perhaps my imagery was a bit too vivid. It is not just a dismount from the $1 billion per annum of expenditure that we currently undertake. I was really referring to this: we are approaching—and I need to be a bit indeterminate as to timing here—the closing phase of recovering in relation to the loss of control of our maritime borders initially. What I was saying is that, as you do that dismount, you need to be careful that, as you engage in resettlement, you do not end up creating vacancies for smugglers. I am not referring to those seeking to travel; they have all sorts of different motivations, some of which relate to the refugee convention and some of which do not. It is the criminal elements who will seek to market an opportunity: 'I can get you to Australia, and even if you need to sit it out in Nauru you'll end up in country X or they'll let you into Australia.' It is doing that dismount whilst you put up a shield against those criminals.

Senator DODSON: I understand that.

Mr Pezzullo : That is the imagery.

Senator DODSON: I am more interested in what happens to the capital outlays that we have made.

Mr Pezzullo : Thank you, Senator. We will take it on notice.

Senator WATT: I know we are fast running out of time, but I just had a few quick questions about one of the resettlement agreements that the government has entered into, and that is with Cambodia. Can you just remind me: how much in total is the funding that has been provided to Cambodia as part of that agreement?

Mr Pezzullo : There are two components. I might ask colleagues in Foreign Affairs and Trade to speak to the second. There was an aid program, which is not related to the numbers of persons or not directly connected, as it were—'You take X number of people and you get this much aid.' There is an aid program in the order of, I think, $40 million from memory. The ambassador can speak to that. Our component of the program is to provide settlement and support services. That is a capped program; it is an appropriated program in the order of about $15 million, but we have not drawn down anything like that.

Senator WATT: To be honest, given the time, that is probably all I need. So, in total, it is about $55 million, divided between $40 million in aid and about $15 million for the actual resettlement.

Mr Pezzullo : Yes, not all of which has been drawn down.

Senator WATT: Do you know how much has?

Ms Roennfeldt : To date we have had, for Cambodia, $1.2 million drawn down.

Senator WATT: Okay. And I am right that in total there have been five people resettled there? Is that right?

Mr Nockels : Five or six.

Senator WATT: Five or six have been resettled?

Mr Pezzullo : I just do not have the number off the top of my head.

Mr Nockels : Five.

Senator WATT: Five resettled, one of whom is still there?

Mr Pezzullo : It is either one or two.

Mr Nockels : That is correct.

Senator WATT: One, is it? So five were resettled, one is still there and the other four have gone back to their—

Mr Pezzullo : We will, on notice, make it abundantly clear. If we need to change our evidence, we will. But it is either one or two.

Mr Nockels : Excuse me, Secretary. It is six. Two are still there.

Senator WATT: Okay, six have gone and two are still there, and a total of $55 million all up has been allocated if not spent.

Mr Pezzullo : Sorry, Senator. We would say that for our program—we run the resettlement program—that is a provision of $15 million.

Senator WATT: Okay. Without casting too many aspersions, I know that Cambodia is regarded by Transparency International as a pretty corrupt country. It ranks pretty poorly in terms of corruption. What safeguards has the department insisted on or implemented to ensure that that money is being spent in the way it was intended?

Mr Pezzullo : It is spent through service providers, and we see the invoices from them. Either Mr Nockels or Ms Roennfeldt might wish to add to that. We do not give people bags of cash.

Senator WATT: No, I am not suggesting that. My worry is that money is handed over to the government or service providers—whoever—and even with the amount of money, which is one point—

Ms Roennfeldt : I would just like to clarify that. That is the year to date this year. I want to add that since May 2015 we have spent $3.48 million. In 2015-16, we spent $2.71 million in Cambodia, and for the year to date this year we have spent $1.29 million.

Senator WATT: But since the agreement was struck it is $3.48 million in total?

Ms Roennfeldt : Yes.

Senator WATT: For six people who were sent there, only two of whom are there, that seems like an awful lot of money to be spending for, on the most positive interpretation, six people. The other interpretation is two people. What on earth is that money being spent on for two people?

Mr Nockels : It is really the contractual arrangement with IOM, who provide most of these services, as well as some small amount to Connect Settlement Services, who also assist. So they need to be there—

Mr Pezzullo : For, like, accommodation.

Mr Nockels : Yes, and they need to be there for that period of time in readiness for refugees—

Senator WATT: But surely, in a country like Cambodia—the cost of anything over there is significantly cheaper than in a country like Australia, so, if it is $3.48 million for two people, what could possibly be costing that much?

Mr Nockels : It is not that amount of money for those two people; it is to run that process. Perhaps we can take it on notice and give you a more broken down understanding of where that money has been spent in terms of the program around refugees being resettled into Cambodia.

Senator WATT: In answer to my question about the risk of corruption, I think, effectively, what you said was that, really, it is a matter for the service providers. Or have I misinterpreted that?

Mr Pezzullo : We contract with IOM, so the probity relationship is between us and not a Cambodian entity—and I do not raise any imputations in saying that—but our relationship is straight with the International Organization for Migration.

Senator WATT: Do you monitor that spending to ensure that it is being spent appropriately?

Ms Roennfeldt : We certainly do. We have contract managers who work closely with IOM as well. I can talk to some of the high-level things that we work with them on. They provide things such as Khmer language tuition, understanding Cambodian culture, vocational training, access to health services, finding appropriate employment and accommodation.

Senator WATT: I am well aware you are not going to say which countries you are having agreement discussions with et cetera, but what safeguards will you insist on in any new resettlement agreements to ensure that the risk of corruption is avoided?

Mr Pezzullo : Point one is that the resettlement will always be between the relevant jurisdiction—either Nauru or PNG—and the receiving country. Point two is that you should not necessarily assume that the Cambodian-style resettlement support services arrangement will be replicated. It will be relevant to where we land in terms of the partners that we finalise these negotiations with.

Senator WATT: So, depending on the country involved, there may be greater or fewer corruption avoidance measures?

Mr Pezzullo : I prefer to put it in these terms: there will need to be settlement support arrangements that are particular to that country.

Senator WATT: Thanks.

CHAIR: Senator Dodson, did you have questions?

Senator DODSON: No. I just wanted to make clear that—I am talking about the assets here—I am presuming the outlays of considered Australian assets in Nauru and—

Mr Pezzullo : Unless they are otherwise disposed of or gifted.

Senator DODSON: But currently they are Australian assets? The outlays that we have made—are they Australian assets?

Mr Pezzullo : The capital infrastructure is on our ledger.

CHAIR: Has the department done an assessment of what proportion of the Nauruan economy our facilities make up?

Mr Pezzullo : I am not sure that we have done an assessment. I suppose that perhaps our aid people understand what relative proportion of our economic activity—

CHAIR: That is probably a more appropriate question for DFAT. Apologies.

Mr Pezzullo : Possibly, yes. We provide services; how it affects the Nauruan economy is perhaps more a matter for Foreign Affairs.

Mr Sloper : We do not track specifically the flows arising out of activities associated with the regional processing centre. Notwithstanding that, it is clear that it is providing clear revenue into the government at the moment. Our bilateral aid program is just over $20 million per annum and it focuses on benefits to the broader community of Nauru—that is, all residents, be they citizens, transferees and so on.

CHAIR: What is the population of Nauru?

Mr Sloper : Just bear with me. I think I have a figure here.

Mr Pezzullo : It is just under 10,000, I think.

Mr Sloper : Yes, it is just under 10,000. It varies, how many people are on the island at any time. I am sorry—I do not have the right sheet but, yes, it is approximately 10,000 people.

CHAIR: Has the department done an assessment of the ramifications for Nauru in terms of once that infrastructure that Australia is spending money on there is withdrawn, should successful resettlement policies be put in place?

Mr Sloper : If I could make a point on the aid program: the priorities identified in the aid program are those agreed with the Nauru government, and it is the same arrangement we have in place for all Pacific governments. As they identify new or alternative priorities, we will then look at those. That commitment remains irrespective, if you like, of the work that might be underway in regard to resettlement.

CHAIR: Within that, you would be doing an assessment of the long-term prospects of the Nauruan economy without the significant amount of money being spent by the immigration department.

Mr Pezzullo : If I can just address that to be very clear so that the wrong signals are not given by these proceedings, the government has not made a similar announcement, as we have with the government of Papua New Guinea, that the Nauru facility will be shut down as such. Mr Dutton has spoken about engaging in discussions with the Nauruan government about maintaining a durable, long-term capability should we ever need it again. Again, going back to the discussion earlier, our strategic objective here is to back out of the problem we have been dealing with for a number of years now, making this one of the last pieces of that fix: preventing new arrivals coming in to fill those vacancies. The government has not indicated a disposition with the government of Nauru to withdraw from regional processing on Nauru completely.

CHAIR: I have submitted a number of questions on notice. Thank you for your submission today. I know you have in part B a range of incidents and complaints raised. With my questions on notice I am looking for a more substantive critique of the impacting factors on the health of refugees and detainees within the centre. So I would ask you to characterise where those health impacts are coming from.

Mr Pezzullo : Is that on notice?

CHAIR: Yes.

Mr Pezzullo : Thank you.

CHAIR: I would like to thank all of you for your attendance and participation today. The return date for questions on notice will be 25 November. Thank you.

Committee adjourned at 10 : 26