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Immigration - Commonwealth Ombudsman

Senator HANSON-YOUNG: Thank you, Mr Asher, for coming along today. I was keen to focus the questions that I have in relation to your role as the Ombudsman looking after areas of immigration. Of course, one of the roles that you have specifically is in relation to reviewing the individual cases of people who have been held for a certain amount of time within detention. I imagine that workload has gotten significant in the past year or so and yet it seems as though there is not much increase-or no increase really-in the budget to allow you to continue to do that work. Do you think, based on the ability of your unit, that you will be able to carry out those duties as required?

Mr Asher: There are two aspects to our supervision of those folk. The first is a statutory one that when somebody has been in immigration detention for two years or more we are required to do a review of the circumstances and we report to both the minister and we provide a deidentified report that is tabled in parliament. By another arrangement with the former minister for immigration, we undertake similar reviews at six months. When we first started doing that a couple of years ago the numbers in that were in the hundreds. Now, of course, they are in the thousands. I guess we are really struggling to find a way of meaningfully interviewing that many people and providing reports to the secretary of the department about aspects of, say, mental health or suitability of people remaining on Christmas Island rather than being brought on the mainland and things like that. It is also true that we were asked, again in a new policy proposal this year, to continue that work, although we are funding that work from elsewhere within our office by trying to find ways of trimming down other areas of complaint work so that we can continue to do that.

Senator HANSON-YOUNG: So, despite the increase in the number of cases you are being requested to review, with no additional funding you are still going to have to be able to manage that. What kind of impact do you think that will have on the transparency and accountability of not just individual cases but the overall conditions within detention centres?

Mr Asher: I am thinking that we will have to just redefine the way that we do that and perhaps instead of doing individual reviews we might have to do batch reviews-all of the detainees from a particular boat or something like that-and then try to rely more on the department's work with mental health provision and so on. I do regard this area as some of the most important work that we are doing, and we certainly do not wish to see individuals fall into limbo. I am reminded from the Australian this morning that it is just on a number of years since they first published the Cornelia Rau story, and we are very conscious of the impact that has had and we do not want to see the department slip back to those bad old days.

Senator HANSON-YOUNG: You would not want to see vulnerable people slipping through the cracks simply because you have not been able to look at their individual case.

Mr Asher: Indeed.

Senator HANSON-YOUNG: In February you issued a report and you warned the government about the situation on Christmas Island; you said it was unsustainable. Of course we have seen the results of that since-
riots on Christmas Island, and increasing levels of self-harm, not just amongst adults but amongst young people as well. Since then you have also made comments in relation to the government breaching their own values. Minister Evans is sitting right next to you. They were values that were promoted widely by the minister. Do you stand by those comments?

Mr Asher: The basis upon which we made that statement was that the values the government adopted for immigration detention included ones that spoke of people not being in detention on Christmas Island for any longer than was necessary; that unaccompanied minors and young folk should be brought onto the mainland at the earliest possible opportunity; and that we should treat people there with full respect and provide all of the services that are needed-legal services, interpreting services, mental health care services and so on. It was all those very points that we made in a report that we submitted to both the department and to the government last September, which we finally published in February.

Senator HANSON-YOUNG: So, you gave the government those warnings in September?

Mr Asher: That is right, yes.

Senator HANSON-YOUNG: In September you said that these were warning signs?

Mr Asher: Not only that, but we have had the practice over the last two years since October 2008, in fact, of submitting on every visit to Christmas Island-and we have now made 10-reports on all of these issues. We felt, though, that after the deteriorating situation that we found in September we should make a public report as well to draw wider attention to some of those, what we saw as, unsustainable tensions, overcrowding and a system which had, as we said in the report, come to rely on the goodwill of all parties. That includes excellent efforts by departmental staff, contractors and notably by advisors to asylum seekers and the asylum seekers themselves. We just predicted that you simply cannot keep drawing on the goodwill of folk in circumstances like that.

Senator HANSON-YOUNG: How has the government responded to the recommendations and that direct criticism?

Mr Asher: Partly from the recommendations and partly I suspect the government's own policy intent there have been now a number of new onshore facilities opened-Darwin, Tasmania, and the expansion of some others, Scherger. The number of people held now on Christmas Island has fallen quite considerably over the last six months or so. There is still some way to go and there are still unaccompanied children and families that are a matter of concern to us. We have had an inspection team there in the last week or so and another one going in a fortnight. We will be following up on all of those recommendations very soon.

Senator HANSON-YOUNG: Have you been informed specifically around measures to deal with, in particular, mental health care services and medical services that are available, considering they were specific things in your report that you criticised and that said needed to be fixed?

Mr Asher: Yes. We have been specifically following that up. There is a government health advisory group that is monitoring those issues, and we have been in touch with it. It is our intention to take with us some mental health specialists on a future visit not just to Christmas Island but to some of the other detention centres in remote areas where we think some of those same pressures will be building up.

Senator HANSON-YOUNG: You talk about there being a reduction in the numbers of people on Christmas Island, but of course we know that the numbers in places such as Curtin, for example, are growing. Surely this does not take away those same dangerous elements.
Mr Asher: No. Our view is that it is the remote locations rather than specifically it being Christmas Island that is a generator of much of the huge expense and difficulty. However, even though Curtin and some of the other facilities are remote and still expensive and problematic, there are extreme versions on Christmas Island, with a very limited ability to resupply, equipment breakdown and inadequate facilities with people accommodated in tents. Those features fortunately do not appear in some of these other facilities.

Senator HANSON-YOUNG: How serious do you really think the government is about acknowledging what a tense, volatile situation there is in these centres? It seems to me that every day we are hearing of more and more cases of people being pushed to self-destruction.

Mr Asher: I have announced that we are currently developing terms of reference for a review of control of self-harm and suicide to see whether the practices being implemented are ones that have learnings from deaths in custody in the prison systems. We will be careful to consult with relevant stakeholders and experts around that, so I think I would prefer to wait until our research is finished.

Senator HANSON-YOUNG: Will the terms of reference include looking at the adequacy of the training, expertise and quality of the mental healthcare workers available in these facilities. That is, of course, from an advocate's point of view a complaint that has been raised time and time again?

Mr Asher: Indeed, we have such expressions of concern. Anyone who has looked at any of the literature on suicide and self-harm knows that only a small part of it is the actual facility in which people are kept. So much of the rest of it is about reassurance about what is going to happen to them-why, when and how-even if that might be in terms of a negative decision. We will be looking at those issues.

Senator HANSON-YOUNG: When will you make public the terms of reference and when this inquiry will go ahead?
Mr Asher: At the moment we are deeply engaged in a review of the use of force on Christmas Island, the incidents that occurred there, and the interrelationships between the contractor, Serco, the department and the Australian Federal Police. We have considerable resources on that at the moment. As soon as we can find some more resources we will proceed with the second area of inquiry.

Senator HANSON-YOUNG: Why did you decide to launch that inquiry when the government has their own inquiry-the Hawke-Williams inquiry? Why do we need another one?
Mr Asher: We have been doing the work that we have been doing for 35 years. We know about effective administration and cooperation. We have considerable legal powers that go across all agencies and all recipients of Commonwealth funding. We have done this many times and it was our concern that there are some specific issues that we want to explore.

Senator HANSON-YOUNG: I was in the Senate estimates session this morning with the immigration department and asked them specifically around the performance indicators and the contract with Serco. There has been a lot of talk about whether there have been breaches, whether there have been trained staff, whether staff are adequately equipped to deal with these issues, and not just when a situation in a centre gets to a point of rioting but just dealing with the day-to-day needs of traumatised people. The immigration department could not give me anything, because the contract is not publicly available. It will not be given to Senate estimates. The numbers of breaches Serco is involved in is not disclosed. There is no publicly disclosed information about whether they have breached or indeed, if they have, what the recourse has been. Will your inquiry, under the powers that you have, be able to access that information?

Mr Asher: Yes, we have power to obtain any information that we feel is necessary or relevant to pursue one of our statutory inquiries, and we do not have any suggestion at all that that information or cooperation will not be forthcoming.

Senator HANSON-YOUNG: Do you think it is acceptable that that type of information is not as a matter of course disclosed to the public?

Mr Asher: I think the government has a culture backed by new legislation for openness in government, and one of the cardinal goals that our organisation has been working toward for 35 years is fair, open and transparent administration. We do not engage in policy discussions. Certainly in public we have lots of opportunities through parliamentary committees and legislative processes where we will make submissions, but on the broad issue more transparency, in my view, is likely to lead to fewer problems. There is an old principle that sunlight is the best disinfectant, and I think that is a pretty good one.

Senator HANSON-YOUNG: You referred in the beginning of my questioning to the desire not to see another situation such as what we saw with Cornelia Rau.
Mr Asher: Yes.

Senator HANSON-YOUNG: Is it your frank assessment that unless there is more transparency and the ability for units such as your own to investigate there may very well be a chance for that type of case to fall through the cracks?

Mr Asher: Perhaps if I could answer slightly more widely that departments that are open to scrutiny and who welcome exposure of administrative deficiencies and take onboard changes, in my view, do not get into trouble; departments that resist them and are secretive do.

Senator HANSON-YOUNG: Thank you very much.
Senator Chris Evans: Can I just say, though, from the government's point of view, it is this government that invited the Ombudsman to have access to Christmas Island and to oversee operations there.

Senator HANSON-YOUNG: But we need it funded.
Senator Chris Evans: It is this government that encouraged their involvement in the review of people in detention in an attempt to keep the pressure on the department to resolve what were difficult cases. The department welcomed that scrutiny and welcomed the cooperation of the Ombudsman's office and still does, I understand, but I think the reality is the increase in numbers of clients has put enormous pressure on the system. There is no getting away from that. Systems that work well with small numbers are much harder to maintain in the face of larger numbers of clients, but the principle and the values remain, and the role of the Ombudsman in oversighting and having access to detention centres is an important one on which the government could use your support.

Senator HANSON-YOUNG: The point is that we need to see that backed up with appropriate resources.

 

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