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Chapter 2 - The committee's response to the inquiry conducted by the Commonwealth
Ombudsman
2.1
This chapter re-examines the committee's interim
findings in light of the report produced by the Commonwealth Ombudsman and
prepared by Mr Neil
Comrie (known as the Comrie Report).[3] Under relevant headings, it compares the
findings of each report and also considers the recommendations made by Mr
Comrie and Mr
Palmer.[4]
The committee makes further comment and recommendations where it believes
necessary.
Establishment of identity
2.2
Both the committee and Mr
Comrie were highly critical of the processes
followed by DIMIA compliance officers in attempting to establish Ms
Solon's identity before she was removed in
2001.
2.3
The committee found that DIMIA failed to act diligently
in its efforts to establish Vivian's identity.
It found that, although Ms Solon
insisted that she was an Australian citizen and had married an Australian,
potential lines of inquiry were not pursued by DIMIA officials prior to making
the determination that she was an unlawful non-citizen.
2.4
The committee found that the process followed to
establish or verify her identity lacked rigour and it seemed that once the
assumption was made that Ms Solon was an undocumented arrival in Australia,
little serious attempt was made to test this assumption.
Mr
Comrie's findings
2.5
Mr Comrie's
report agreed with the above points made by the committee. He identified a
number of lost opportunities to identify Vivian.
He considered the failure to follow up on these opportunities 'through more
rigorous investigation, considered analysis or database manipulation—highlights
the limited capacity of some compliance officers to effectively fulfil their
roles and responsibilities'.[5] He also noted
that staff were inhibited in performing these duties as a result of having had
little or no training in investigation techniques.[6]
2.6
Mr Comrie's
recommendations to address the issue of establishing identity focused on the
interview process and IT training (see appendix 4, Recommendations 3, 4, 5 and
6). Mr Palmer's
recommendations addressed identification where identity remains unresolved
after initial inquiries (3.4), development of minimum standards for identity
checking (5.2) and the need to review decisions to detain people reasonably
suspected of being an unlawful non-citizen (7.4).
Committee view
2.7
The committee agrees with the findings and
recommendations proposed by Mr Comrie
and Mr Palmer
to address the apparent deficiencies in the process to establish Ms
Solon's identity. The committee also notes the
response by the department during hearings that measures have been taken to
remedy the obvious shortcomings in its processes in this area, eg. the
establishment of the National Identity Verification and Advice Unit.[7]
2.8
The committee, however, would like to note two further areas of concern in relation to the
interview process as presented to the committee.
Record of interview
2.9
From the documentation made available to the committee
it was clear that Ms Solon
was unable to sign the record of the interview conducted on 13 July 2001. To ensure greater
transparency and fairness, the committee considers that all records of
interview must be signed by the interviewee and, if unable to be signed, must
be witnessed and certified as correct by a third party.
Recommendation 1
2.10
The committee recommends that in relation to the
interviewing of detainees, if a detainee is unable to sign the record, there
must be certification by a third party that the record of interview is correct.
Use of DIMIA employees as
interpreters
2.11
The committee was told that at the interview in May
2001, the interpreter used was a DIMIA employee. DIMIA further told the
committee that they did not know if the person was an accredited interpreter.[8] The committee considers that to ensure
objectivity, fairness and avoid conflict of interest, independent, accredited
interpreters must be used and DIMIA employees should only be used in
exceptional circumstances. Migration Series Instruction (MSI) 234 (General
Detention Procedures), para 3.1, notes that whenever the person has difficulty
understanding and/or speaking English, DIMIA officers are to seek the
assistance of a qualified interpreter such as from the Department's Telephone
and Interpreting Service.
Recommendation 2
2.12
The committee recommends that DIMIA staff are reminded
that independent and accredited interpreters must be used and that the use of a
departmental officer as an interpreter should occur only in exceptional
circumstances.
The removal process
2.13
The report will now re-examine a number of concerns the
committee had with the removal process.
Documentation of the process was
inadequate
2.14
The committee found that transparency and
accountability were lacking in the process leading to the determination to
remove Ms Solon
and that the documentation accompanying this determination was inadequate. It
believes that any officer involved in the process of depriving a person of
their liberty must adhere to strict guidelines and that written records must
substantiate that adherence. In particular, the committee has concerns about
the checklists used by DIMIA.
The need for comprehensive checklists
2.15
DIMIA told the committee about a checklist for a
person's removal that was described as a process list regarding obtaining
travel documents, tickets etc attached to MSI 54.[9] The committee noted this form did not
evidence the actual decision-making process, but seemed to be a checklist of
things to do once the decision to remove a person had been made. Recommendation
2 from Mr Comrie
would require staff to comply with the requirement of MSI 267 that a compulsory
checklist be completed to record the actioning of a removal.
2.16
In correspondence, DIMIA later clarified for the
committee that two MSIs refer to the same checklist. MSI 54 titled 'Implementation
of enforced departures' (replaced by MSI 361 in September 2002, which was
replaced by MSI 376 in May 2003) and MSI 267 titled 'Advice of removal
arrangements' refer officers to the same checklist which is titled 'removal
checklist (Section 198 of the Migration Act 1958)'.
2.17
While the checklist requires the attachment of evidence
that a person is an unlawful non-citizen (such as an extract from Movements
Data Base),[10] the committee remains concerned
that it does not require the attachment of a comprehensive list of the checks
and actions carried out prior to removal. The committee is concerned with both
the lack of comprehensiveness and the failure to document the actions taken.
This failure to require a person to demonstrate that adequate measures were
taken before he or she determined a person to be an unlawful non-citizen means
the process lacks rigour. It increases the risk that initial assumptions may
not be tested. In Ms Solon's
case, the assumption that she was an unlawful non-citizen was perpetuated. The committee
considers that the checks undertaken to determine a person's identity, the evidence
that they are an unlawful non-citizen, and other necessary actions prior to
removal must be carried out diligently and properly documented, attached to the
file and cross referenced with the removal checklist above.
Identity
2.18
In Ms Solon's
case, DIMIA also had the problem of establishing Ms
Solon's identity. The committee notes Mr
Palmer's recommendation 5.2 that the DIMIA
executive ensure the preparation for staff of a checklist to be used as a
minimum standards template for conducting identification inquiries. The
committee agrees with the recommendation which addressesed the lack of rigour
in the identity checking undertaken.
Determination of immigration status
2.19
MSI 376 states an unlawful non-citizen 'is a person who
either entered Australia without being immigration cleared, who entered legally
but no longer has permission to remain in the migration zone or is a person
whose visa has been cancelled'.[11]
2.20
The committee was concerned that in Ms
Solon's case, a relatively junior officer
had the authority to determine that she was an unlawful non-citizen and as a
consequence was to be removed. The committee noted information from DIMIA that
now all decisions to remove unlawful non-citizens are cleared by a Senior
Executive Service (SES) officer.[12] The
committee supports this initiative, which it believes should be standard
practice.
Other actions prior to removal
2.21
After the identity checking was conducted and Ms
Solon had been determined to be an unlawful non-citizen,
there were a number of actions that the committee considered should have been
taken. The written record, however, indicates these were not taken. From the
evidence presented to the committee it would appear that this is not just a
matter of enforcing record keeping but that these actions, considered essential
by the committee to protect the rights of individuals, do not appear to be
required by any checklist. These actions are outlined below.
Investigation of any criminal acts
against Ms Solon
2.22
The committee's
first report noted the extent of Ms Solon's injuries.[13]
The committee was concerned that as the agency responsible for her well-being, DIMIA
made no attempt to ensure that any possible criminal act against Ms Solon, such as assault or road accident, was thoroughly
investigated by police. Apart from the fact that such an investigation may have
brought to light more details about her identity[14] and facilitated a connection between Ms Solon and a missing persons investigation, the committee
considers Ms Solon was not afforded natural justice.
2.23
The committee
recommends that in cases where a criminal act is suspected, contact with the
police be included as part of a checklist before removal action is commenced.
The committee recognises that this action would not be required in the majority
of cases (see committee recommendation 4 below).
Ensuring individuals are made fully
aware of their rights regarding legal assistance
2.24
The committee found that DIMIA officers did not take
adequate measures to ensure that Ms Solon
was made fully aware of her legal rights and no person was made available to
represent her interests. It would appear that this confused, infirmed woman,
who may well have been the victim of an assault or road accident, who did not
have any family or friends to support her, was destitute, without a known
identity and facing removal to another country, was not afforded appropriate and
proper legal assistance. The only direct reference in the written record to any
attempt by DIMIA to obtain assistance for Ms Solon regarding her immigration
status seems to have been made through a third person.[15] DIMIA agreed at the hearings that
there was no record on the file to confirm that information regarding Ms
Solon's legal rights was provided to her.
2.25
The committee considered that the offer of legal
assistance should have been made directly to Ms Solon as part of the removal
process and was concerned that there was no evidence that this was done. The
question in the interview on 13 July
2001 about the notice to people in immigration detention being read
to Ms Solon
did not allay the committee's concerns, as we know she was confused. The
committee recommends including advice regarding legal assistance as part of a
checklist to be completed before removal action is commenced (see committee
recommendation 4 below).
Committee view
2.26
The committee considers that in cases where the person
in question is clearly not in a position to make an informed decision (eg. when
obviously confused as in Ms Solon's
case), DIMIA should ensure the person has access to independent legal advice.
2.27
To ensure that issues such as the investigation of
possible criminal acts and the protection of individuals' legal rights are at
least considered by DIMIA compliance officers, the committee recommends that
DIMIA review relevant checklists to ensure these actions are included and
recorded on the file. The intention is for the list to be a safeguard for the
individual and not an onerous paper burden on the DIMIA officer. Where an
action is not required or not possible, this should simply be stated, along
with a brief reason.
Recommendation 3
2.28
The committee recommends that DIMIA carefully consider the
process to ensure someone in a distressed and confused state has access to
legal advice.
Recommendation 4
2.29
The committee recommends DIMIA review checklists
regarding identity checking and the decision to detain and remove process to
ensure that the actions outlined above regarding contact with the police and
advice regarding legal assistance are captured so they are addressed by DIMIA
officers when effecting a removal.
2.30
The committee considers that the explanation of rights
concerning medical examinations should also be included in checklists completed
by DIMIA officers prior to removal. This is outlined in the section on the
health of Ms Solon.
Ensuring DIMIA officers understand their powers under the Migration Act 1958
2.31
The committee was concerned that DIMIA officers did not
demonstrate a good understanding of s.189 of the Migration Act 1958. The committee was told that 'because of the way
the Act [Migration Act 1958]
is structured, there is technically no decision to remove. Removal is a duty
that an officer is required to carry out if a person is an unlawful
non-citizen...'.[16] This understanding
was examined by Mr Comrie.
Mr
Comrie's findings
2.32
Mr Comrie found that 'DIMIA officers, from field level
to senior executive, seemed to have had little understanding of their
responsibilities under the Act—other than a mistaken belief that they must
detain a person and that when the person is detained the detention is absolute'.[17] He noted that:
The power to detain under s.189 of the Migration Act is absolute—providing
the 'reasonable suspicion' rule has been met—but the Inquiry found little
evidence that DIMIA officers are either are trained to make a conscious
decision to detain or are otherwise required to make such a decision by DIMIA
policy.[18]
2.33
Mr Comrie
noted that paragraph 7.2 of MSI 234 clarified that the 'power to detain is
strictly limited to situations where knowledge or a reasonable suspicion has
been established. It stated that the detaining officer must actually have the
suspicion and that this suspicion must be a reasonable one based on objective
evidence'.[19]
2.34
Mr Comrie's
report provided a detailed discussion of the words used in the Act—'reasonable
suspicion'—and found that the suspicion that led to Ms
Solon's detention was not reasonable.
2.35
Section 189 of the
Migration Act 1958 states:
(1) If an
officer knows or reasonably suspects that a person in the migration zone (other
than an excised offshore place) is an unlawful non-citizen, the officer must
detain the person...[20]
2.36
These are extraordinary powers that result in the deprivation
of a person's liberty. Given these powers, the committee is concerned that the
current wording of 'reasonable suspicion' in the Act is not sufficiently clear on
the amount of evidence that is required before the person is detained. Mr
Comrie's report outlined a number of cases
in which courts have considered the meaning of 'reasonable suspicion'. In
particular, he noted that in Goldie v Commonwealth, the Federal Court
explained the principles governing the operation of 'reasonable suspicion'.
Explaining that the operation of s.189 involved a more rigorous test than
merely thinking that a person might be an unlawful non-citizen, the court said,
in part:
...the officer is not empowered to act on a suspicion reasonably
formed that a person may be an unlawful non-citizen. The officer is to detain
the person whom the officer reasonably suspects is an unlawful non-citizen.[21]
2.37
Mr Comrie's
report also noted:
The Court also made it clear that the exercise of 'reasonable
suspicion' detention 'must be justifiable upon examination of relevant
material' and that the detaining officer could not simply rely on information
immediately to hand but must make 'efforts of search and inquiry that are
reasonable in the circumstances'.[22]
2.38
Mr Comrie
drew attention to the recommendations made by Mr
Palmer, which focus on:
-
improving training for compliance officers and all
other staff who might be expected to exercise the power to detain a person
under s.189 (1) of the Migration Act 1958
(see appendix 4, recommendation 3.1); and
-
ensuring decisions are reviewed and assessed
within 24 hours of the decision being taken (see appendix 4, recommendation
7.4).
2.39
Mr Comrie
further noted that once the decision was taken, there was no ongoing review to
validate or substantiate 'reasonable suspicion' in relation to her status.[23]
Committee view
2.40
The committee agrees with Mr
Comrie and Mr
Palmer's findings and recommendations to
improve the lack of understanding of s.189 of the Migration Act 1958.
Adequacy of s.189 of the Migration
Act 1958
2.41
The committee questions the adequacy of the Act as it
stands to protect people such as Ms Solon
from wrongful detention and removal, and to ensure that 'efforts of search and
inquiry that are reasonable in the circumstances' are carried out. Given the
different definitions that 'reasonable suspicion' allows regarding the amount
of evidence required, the committee suggests that a review of the current
wording of the Act is warranted to strengthen the Act to ensure the obligation
to have substantial evidence is clear. Mr
Comrie also noted that the seriousness of
taking a person's liberty did not seem to be reflected in the actions of DIMIA
officers, which lends weight to the committee's suggestion to review the Act.
2.42
It would also seem that departmental guidelines such as
MSIs do not adequately highlight or clarify the steps required in the decision
making process. The committee acknowledges and supports the review of MSIs
recommended by Mr Palmer
(see appendix 4, recommendation 7.2) but considers that the promulgation of a
regulation to clarify or even specify the steps required may be necessary. This
checklist would clarify, particularly for junior officers, actions which must
be at least considered in the process. If actions are not required, the
checklist would require a reason to be noted.
2.43
The government could consider a number of options to
better capture these requirements:
-
Option 1 – examine strengthening s.189 of the Migration Act 1958 to remove 'reasonable
suspicion' and replace it with 'believes on reasonable grounds'. This is the
requirement in other Acts relating to the deprivation of liberty, such as
powers of arrest in the Crimes Act 1914.
MSI 234, para 2.1, notes 'the detention of a person under the Act is analogous
to the action which constitutes an arrest by the police or other law
enforcement agency. As with police arrest, immigration detention is brought
about by depriving the person of his or her liberty'.[24]
-
Option 2 – along with strengthening the Act the government
may wish to consider the introduction of an appropriate regulation which refers
to a checklist of actions that must be completed before any decision to detain and
remove a person can be made.
-
Option 3 – the government may wish to consider
the introduction of the regulation only, as described in the paragraph above.
Recommendation 5
2.44
The committee recommends that the Australian government
review the adequacy of s.189 of the Migration
Act 1958 and/or the introduction of a regulation that stipulates the
evidence required for a person to be detained as an unlawful non-citizen.
The health of Ms Solon
2.45
There are a number of issues regarding the health of Ms
Solon prior to her removal about which both
the committee and Mr Comrie
expressed serious concerns.
Fitness to travel
2.46
The Philippines
Deputy Head of Mission
in Canberra raised concerns about
whether Ms Solon
was fit to travel.[25] It would appear
that these concerns prompted DIMIA to seek medical advice in order to obtain a
certificate that she was 'fit for travel'. On 19 July 2001, at the request of a DIMIA officer, a local
doctor provided a report that she was fit to travel.[26]
Mr
Comrie's findings
2.47
Mr Comrie found that 'taking into account the extent of
Vivian's physical disability, the Inquiry considered that a more thorough
medical examination was warranted and that the locum GP should have had the
opportunity to obtain details of Vivian's medical history from Lismore and
Liverpool Hospitals'.[27]
2.48
After speaking to the people directly involved, Mr
Comrie also drew attention to another area of
concern regarding how DIMIA officers dealt with Ms
Solon's physical condition. He believed her
detention for one week in a single motel room was inappropriate:
Her privacy, dignity and welfare were compromised by the fact
that she was guarded in this room at all times by two contracted security
guards and had no access to the medical facilities available to people held in
immigration detention centres.[28]
2.49
Mr Comrie's report noted a response from DIMIA
acknowledging that 'there is a lack of clarity about the question of the
application of the standards 'Health Care Needs' to detainees who are in
transitional detention between their Bridging Visa E expiring and the
Department making appropriate arrangements for the person to depart Australia,
such as in the Ms Alvarez case'.[29] Mr
Comrie's recommendations focused on achieving a greater awareness of mental
health problems, development of appropriate standards of health care for
detainees in transitional detention and ensuring that efforts are made to
provide a medical history to medical practitioners determining the fitness to
travel of an unlawful non-citizen[30]
(see appendix 4, recommendations 8 and 9).
Committee view
2.50
The committee also found that DIMIA officers paid
inadequate attention to Ms Solon's
welfare needs and supports the recommendations made by Mr
Comrie. As the committee was unable to speak
with the people directly involved, the additional information obtained by Mr
Comrie about the accommodation in Brisbane and the health of Ms Solon cause the
committee even greater concern. In particular, the committee notes the
information obtained by Mr Comrie
that shows Ms Solon's
physical needs were even greater than the committee was able to determine. Mr
Comrie notes that:
...staff of Australasian Correctional Management contacted their
supervisor and asked that a nurse be made available to assist with Vivian's
care (The staff kept a daily log, recording that Vivian
was unable to see to her basic hygiene needs such as toileting and showering
without help).[31]
2.51
There are three additional issues regarding Ms
Solon's health which the committee will now
consider.
No counselling/psychological
assessment was sought
2.52
No counselling/psychological assessment was sought for Ms
Solon. Vivian was initially admitted to the
psychiatric unit of Lismore Base Hospital and it was later discovered she had
been diagnosed as suffering from 'a paranoid psychotic illness'. The department
has acknowledged that there is a lack of clarity regarding the application of
the standards 'Health Care Needs' to detainees in transitional detention and Mr
Comrie made a recommendation to address this (see appendix 4, recommendation
9). The committee considers that this recommendation should specifically
include mental health as an area to be addressed.
Recommendation 6
2.53
The committee recommends that the development of
appropriate standards for health and care needs for detainees in transitional
detention—identified in Recommendation 9 in the Ombudsman's report—specify
mental health as an area to be addressed.
Explanation of rights regarding
medical examination
2.54
The committee was concerned to hear that there was no
evidence that Ms Solon had been explained her rights regarding the medical
examination, which was undertaken to determine her fitness to travel. The
committee notes the response from DIMIA that there are some cases where the
early notification of a removal may pose a significant risk to the detainee
and/or other person's safety, and the person may not be informed of the reason
why they have been requested to undertake a medical examination. In these cases
the committee suggests this is noted on the checklist.
Recommendation 7
2.55
The committee recommends that the explanation of rights
regarding the medical examination be included in a relevant checklist as
discussed in recommendation 4 above.
No formal response to concerns
raised by the Philippines
government
2.56
The committee was also concerned that there was no
evidence on file to indicate that a formal response to the health concerns
raised by the Philippines Embassy had been provided.[32] The press release from the Embassy of
the Philippines
indicates that the Embassy instructed the [Brisbane]
consulate to make representations with DIMIA to provide Ms
Solon with 'therapeutic counselling and
further treatment for trauma before sending her home'.[33] The committee suggests that there
should have been a formal response to these concerns outlining how they were
being addressed.
DFAT involvement
2.57
During the week that Ms
Solon was in immigration detention, the
deputy head of the Philippines Embassy in Canberra
raised concerns not only about Ms Solon's
health but also that the issue had the potential to affect the bilateral
relationship. An email from a DFAT officer shows that the deputy head of the Embassy
made representation to DIMIA that the removal of Ms
Solon could damage bilateral relations
between Australia
and the Philippines.[34]
2.58
The committee was surprised that the mention of a
threat to bilateral relations did not appear to have been acted on by DFAT with
any degree of seriousness. The committee was told that senior officers in Manila
were made aware of the concerns but it would seem not in Canberra.
It appears unusual, and is of concern, to the committee that something that may
impact on bilateral relations would not have been brought to the attention of
senior management in Canberra and
the Minister. DFAT's explanation that the concerns did not warrant a judgement
and they were waiting for more information did not allay the committee's
concern.
Mr
Comrie's findings
2.59
Mr Comrie's
findings relate to the removal process and he found that as DIMIA was entirely
responsible for this process, no criticism should be levelled at DFAT in
connection with this aspect of its involvement.[35]
Committee view
2.60
The committee agrees with Mr
Comrie's finding but remains concerned that
the issues raised by the Philippines Embassy about the bilateral relationship
did not appear to have been treated seriously. The committee cannot understand
why DFAT did not take this matter more seriously.
Recommendation 8
2.61
The committee recommends that DFAT review internal
processes regarding the treatment of concerns expressed by other governments that
have the potential to affect bilateral relationships, with a view to ensuring that
appropriate senior officers in Canberra and in relevant posts are made aware of
these concerns.
Inadequate reception arrangements
2.62
The committee and Mr Comrie both found that reception
arrangements for Ms Solon in the Philippines were inadequate, given she was
confused, had no family to meet her, no money and was clearly in need of
medical assistance.
2.63
Mr Comrie noted 'it was more a matter of good luck than
good planning that Vivian found herself in the care of the Overseas Workers
Welfare Association at Manila airport'.[36]
Committee view
2.64
The committee was told that records were unclear as to the
arrangements made for Ms Solon's
return to the Philippines.[37] The committee believes that, given Ms
Solon's circumstances, DIMIA failed in its
duty of care to ensure that there was adequate assistance and care for Ms
Solon on arrival in the Philippines.
The committee repeats the findings of Mr Comrie that Ms
Solon required assistance for 'basic hygiene
needs such as toileting and showering'.[38]
There is no doubt that Ms Solon
was in need of assistance on her arrival. The committee could find no excuse
for DIMIA's failings in their duty of care obligations towards Ms
Solon.
2.65
It is quite clear that DIMIA was ultimately responsible
for Ms Solon's
removal, which includes all the associated arrangements on arrival. Records on
who was to meet her were confusing. It would appear that these arrangements
were left to third parties and were not even checked or confirmed by DIMIA
officials. A phone call from the escort and a rough handwritten note on file,
indicating that Ms Solon
had been handed over, demonstrated a rather casual attitude to her welfare.
Moreover, the information recorded on the file note was incorrect in that Ms
Olajay was not from the Australian Embassy.
This incorrect information would later cause some confusion in the search for Ms
Solon.[39]
2.66
The committee was also concerned that the records show
there was no formal hand-over and no follow-up to determine where she went from
the airport or that she was safe. The committee considers that DIMIA should
review removal processes to ensure that formal and proper procedures are in
place for the reception of people being removed from Australia
in circumstances similar to Ms Solon.
Furthermore, it believes that clear and comprehensive records of arrangements must
be kept.[40]
Recommendation 9
2.67
The committee recommends that DIMIA review its
procedures to ensure that formal procedures are in place for the reception of
people being removed from Australia
in circumstances similar to Ms Solon
and that their final destination is recorded on file.
2.68
The committee also noted the lack of clarity over when
DIMIA's responsibility for a detainee formally ends.[41] The committee is firmly of the view
that there should be no 'grey area' with regard to Australia's
responsibility for those persons removed from Australia.
There must be an indisputable and identifiable point at which Australia's
responsibility to these people starts and ends. Ms
Solon's circumstances have highlighted the
need for the Australian government to review and clarify this area of
responsibility.
Recommendation 10
2.69
The committee recommends that DIMIA review and advise
staff when their responsibilities for a detainee begin and end, noting there
may be circumstances like that of Ms Solon
where there may not be a strict legal obligation but a moral obligation to
ensure their welfare.
System deficiencies
2.70
The committee has already noted the system deficiencies
which contributed to Ms Solon
not being identified before she was removed. These deficiencies also
contributed to the connection not being made between the names Solon
and Alvarez until 2003. This area has been dealt with
extensively in the Palmer report and the
Ombudsman's report and the committee supports the recommendations made in both.[42]
Information was not passed to senior officers in 2003 and 2004
2.71
The most damning finding by the committee and Mr
Comrie was the failure of DIMIA officers to
take action when they discovered that an Australian citizen had been wrongfully
removed. After speaking with the individuals involved, Mr
Comrie has referred the matter to the
Secretary of DIMIA for investigation of a possible breach of the Australian Public
Service (APS) Code of Conduct.[43]
2.72
The committee agrees with this course of action but it is
still concerned that this failing in communication needs to be thoroughly
examined. The reasons for this lapse may include the department's culture,
resources, training of staff, systems of checks and balances or its reporting
regime. Systems must be in place to ensure that senior staff are made aware of
what is happening in their areas of responsibility.
Recommendation 11
2.73
The committee recommends that the independent
investigation into whether the actions of individual officers breached the APS
Code of Conduct include consideration of any systemic issues that may have contributed
to the lack of action. Furthermore, if the investigation identifies any
systemic issues that it make recommendations to address them.
DFAT involvement in 2003
2.74
In 2003, DFAT received a request from the missing
persons unit of the Queensland
police force for information on the identity of the person who met Ms
Solon when she arrived in Manila
in 2001. The committee was told that the request was not formal but 'came
through a telephone conversation' and it did say that 'she was an Australian
who had been removed or may have been unlawfully removed in 2001'.[44]
2.75
The committee understood that the request from the
Queensland police was couched in specific terms and that the DFAT officer
handling the matter in Manila treated the matter as confined strictly to
identifying the person who met Ms Solon at the airport in 2001. It is clear,
however, that DFAT officials both in Canberra
and the Philippines
were aware in 2003 that an Australian citizen had been removed. The committee
could not understand why further questions were not asked. The committee
considered that although it was not the responsible department, in this
instance DFAT showed a lack of initiative and good judgement in failing at the
very least to make enquiries of DIMIA about this extraordinary case of an
Australian citizen being removed from Australia. There must also have been
broader diplomatic implications that had the potential to affect both the
Australian and Philippines
governments. These seem to have been ignored.
Mr
Comrie's findings
2.76
Mr Comrie
also found that although the handling of the matter was consistent with the
Consular Handbook, he was of the view that 'important obligations to an
Australian citizen were not met'.[45] He
found that:
The unlawful removal of an Australian citizen is a grave error,
and it should have motivated any government official learning of the situation
to do whatever was necessary to resolve the problem. It is reasonable to
suggest that the DFAT officers, in Canberra and Manila, who were involved in
the incident would ask of their readily accessible DIMIA colleagues 'How could
this have happened?' and, more importantly, 'What is being done to resolve the
problem?' No such questions were asked.[46]
DFAT response regarding remedial
action
2.77
DFAT told the committee and Mr
Comrie that it is in the process of
strengthening their cooperation arrangements with the AFP for the handling of
such inquiries. The department also said they have taken steps to ensure the
cable system is used for communication with posts, which has a wider
distribution than email and ensures other officers who need to know about
important matters learn about them.[47]
Committee view
2.78
The committee and Mr
Comrie agree on this issue. However, the
committee would like to note a further concern regarding the interaction
between DIMIA and DFAT.
2.79
In 2004, DIMIA asked DFAT for a copy of Ms
Solon's passport dossier. The request did
not comply with established protocols and DIMIA was advised to resubmit the
request. This was not followed up by either DIMIA or DFAT. The committee
considers that this was another lost opportunity to start the process of
searching for Ms Solon.
Recommendation 12
2.80
The committee recommends that DIMIA and DFAT remind
staff of the correct procedures to be followed when making requests for
passport information.
Other committee findings
Poor record keeping
2.81
The inquiry process exposed poor record keeping in
DIMIA and this has been emphasised in the two reports of the committee. During
the hearings DIMIA officers tried unsuccessfully to answer questions from the
committee based on the written record and while examining documents, committee members
were able to see the gaps in the record for themselves.
Mr
Comrie's findings
2.82
Along similar lines, Mr Comrie found that there were
gaps in the records kept by DIMIA and recommended that the Secretary take steps
to ensure that email business records are kept in accordance with the
requirements of the Archives Act 1983 (see appendix 4, recommendation
10). Mr Palmer
also recommended a review of file management (see appendix 4, recommendation
5.1).
Committee view
2.83
The committee agrees with the findings of Mr
Palmer and Mr
Comrie and supports their recommendations.
Conclusion
2.84
The committee was pleased to note that there was a
large degree of overlap with the findings of the Palmer,
Senate committee and Comrie reports on this matter. Despite being unable to
speak with the individuals directly involved, from documentation the committee
identified the same systemic issues and supports all recommendations made by Mr
Palmer and Mr Comrie to address them. The committee has only made further comment
and recommendations where issues were not addressed by the other two reports or
where the committee considered Inquiry comment needed to be further strengthened
with a recommendation. It was not the committee's intention to place an
additional burden on DIMIA officers already planning and implementing the
recommendations by Mr Palmer
and Mr Comrie.
Rather, the committee's input is intended to ensure that all systemic problems
are addressed, that there is greater transparency, clarity and evidence-based decision
making with the detention and removal processes and greater protection for
people in circumstances similar to Ms Solon.
SENATOR STEVE HUTCHINS
CHAIR
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