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Appendix 4 - Recommendations of the Ombudsman's Report
and relevant recommendations from the Palmer Report
Ombudsman's report: inquiry into the circumstances
of the Vivian Alvarez matter
Recommendation 1 - The Inquiry recommends that the Secretary of
DIMIA take all necessary steps to:
-
Redress the
negative culture in the Brisbane Compliance and Investigations Office—as
demonstrated by the failure of a number of officers to take action on becoming
aware that an Australian citizen had been unlawfully removed from Australia.
-
Ensure that the
problems and deficiencies identified in relation to the Brisbane Compliance and
Investigations Office do not exist in other regional offices and in related
areas in DIMIA head office.
-
DIMIA response -
agreed
Recommendation 2 – the Inquiry recommends that the Secretary of
DIMIA instruct staff to comply with the requirement of Migration Series
Instruction 267 that a compulsory checklist be completed to record the
actioning of a removal and that the actioning of a removal be approved by a
senior compliance officer—the Officer in Charge of Compliance. The checklist
should be attached to every compliance file.
DIMIA response -
agreed
Recommendation 3 – The Inquiry recommends that the formal
interview of detainees be constructed in such a way as to require that, where
necessary, responses from a detainee be further investigated. The interview
process should be dynamic and designed to elicit information useful to the
making of decisions about detention and removal.
DIMIA response –
agreed.
Recommendation 4 - The Inquiry recommends that as an urgent
priority, DIMIA commission a thorough, independent review and analysis of its
information management systems. The review should be carried out by an
experienced, qualified IT systems specialist and should aim to do the
following:
-
Identify the real
organisational policy and operational information management requirements—particularly
requirements for interconnectivity, compliance management, functionality, and
growth
-
Explore the
potential for single-search entry to all DIMIA databases
-
Formulate an
implementation plan for consideration by the DIMIA executive.
DIMIA response -
agreed
Recommendation 5 - The Inquiry recommends that DIMIA commission
a thorough, independent review and analysis of the IT training requirements for
the Border Control and Compliance Division and the Unlawful Arrivals and
Detention Division. The review should identify the requirements for the various
functional responsibilities within the divisions.
DIMIA response -
agreed
Recommendation 6 - The Inquiry recommends that in the training
program for compliance and investigations officers there be a focus on
objectivity in decision making and a strong warning that false assumptions will
contribute to poor decisions. Further, all staff at DIMIA should be reminded of
the need for great care in the spelling and recording of names in files and
records.
DIMIA response -
agreed
Recommendation 7– The Inquiry recommends that
DIMIA institute a review of the operations of contact centres, to determine
more effective procedures for dealing with information those centres receive.
DIMIA response -
agreed
Recommendation 8– The Inquiry recommends as follows:
-
That compliance
staff be trained to exercise greater caution in performing their duties – including
verification of information—where it is known or suspected that a possible
unlawful non-citizen may have mental health problems
-
That any training
programs developed as a result of the Palmer report and this report include a
component to better equip compliance
offices to deal with people with known or suspected mental health problems.
DIMIA response -
agreed
Recommendation 9– The Inquiry recommends as follows:
-
That DIMIA take
all necessary action to ensure that appropriate standards for health and care
needs are developed and introduced for situations involving detainees in
transitional detention.
-
That, where it is
necessary or appropriate to conduct a medical examination to determine the
fitness to travel of an unlawful non-citizen, DIMIA officers make all reasonable efforts to ensure that the
medical practitioner concerned receives the medical history and record of the
unlawful non-citizen and that the medical practitioner—who, if possible, is
someone who has previously treated the patient—is advised of the factual
circumstances, including the behaviour of the unlawful non-citizen, that have
led to the need for the medical examination.
DIMIA response -
agreed
Recommendation 10 - The Inquiry recommends that the
Secretary of DIMIA take all necessary steps to ensure that email business
records are kept in accordance with the requirements of the Archives Act 1983.
DIMIA
response – agreed
Recommendation 11– The Inquiry recommends that the
Minister for Immigration and Multicultural and Indigenous Affairs write to Mr Robert
William Young to commend him for his diligence in pursuing the matter of Vivian
Alvarez and bringing it to the attention of the Australian Government.
DIMIA
response – agreed
Recommendation 12– The Inquiry finds that the
conduct of officers A,B and C, as described in this report, might constitute a
breach of one or other of the requirements of the Australian Public Service
Code of Conduct as detailed in s.13 of the Public
Service Act 1999. The Inquiry recommends that this opinion be brought to
the attention of the Secretary of DIMIA, in accordance with s. 8(10) of the Ombudsman Act 1976.
DIMIA response –
Noted. It has been determined that an investigation is needed and will commence
as soon as possible.
Relevant recommendations from the inquiry
into the circumstances of the immigration detention of Cornelia Rau
Recommendation 3.1.
The inquiry recommends that DIMIA:
-
Design, implement
and accredit—for all compliance officers and other staff who might reasonably
be expected to exercise and power to detain a person under s. 189 (1) of the
Migration Act 1958—a legislative training package that provides the officers
with the requisite knowledge, understanding and skills to fairly exercise their
power
-
Ensure that the
training comprehensively covers the use of DIMIA and other agencies' databases
and search capability and the conduct of searches to support investigations
-
Restrict the
authority to exercise the power to detain a person under s.189 (1) to staff who
have satisfactorily completed the training program and who are considered to be
otherwise sufficiently experienced to exercise that power
-
Ensure that a
component on 'avenues of inquiry' be included in the Certificate IV in
Government (Statutory Investigation and Enforcement) Training Program delivered
to DIMIA officers.
Recommendation 3.4
The Inquiry
recommends that DIMIA create a dedicated Identity and Immigration Status Group
to ensure that, where the identity or immigration status of a detainee remains
unresolved after initial inquiries have been completed, frequent follow-up
reviews are conducted. The Identity and Immigration Status Group should:
-
Review the
continued validity of 'reasonable suspicion' based detention on a regular basis—and
at least every month—against the background of accumulating information
-
Be staffed by
people who have wide experience in compliance and detention policy and
operations, are familiar with the associated Commonwealth and state and
territory legislation and arrangements, and have skills in investigation and
analysis
-
Have the
authority, responsibility and accountability for conducting and /or overseeing
all necessary inquiries to establish the identity and immigration status of
unidentified detainees
-
Report monthly to
executive management on the status of individuals still in immigration
detention, the reason why they are being detained, what is currently being done
to resolve the situation, and the expected date for resolution.
Recommendation 5.1
The Inquiry
recommends that the DIMIA Secretary:
-
Commission and
oversee a review of departmental processes for file creation, management and
access
-
Take a leadership
role in implementing the major changes that will probably be necessary as a
result
-
Ensure that staff
receive training in effective file management practices and the reasons for
them
-
Make executive
management personally accountable for ensuring that sound file management
practices are followed
Recommendation 5.2
The Inquiry
recommends 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 checklist should provide a menu of avenues of
inquiry, specify a sequential order for investigations, be included as an
attachment to the DIMIA Interim Instruction of Establishing Identity in the
Field and in Detention, and form part of the personal investigation file. The
DIMIA executive should also:
-
Formalise the
Interim Instruction together with the checklist attachment as soon as
practicable
-
Ensure that
suitable training modules are developed and delivered to all staff—including
managers—who might be involved in identification inquiries
-
Institute
management arrangements to ensure that such inquiries are linked as appropriate
to the Identity and Immigration Status Group.
Recommendation 5.3
The Inquiry
recommends that, as a matter of urgency, the Commonwealth Government take a
leadership role with state and territory governments to develop a national
missing persons policy to guide the development of an integrated, national
missing persons database or capacity. Initial policy developments could be
carried out under the guidance of the Australasian Police Minister's council,
with the output submitted to governments for consideration and agreement.
Recommendation 5.4
The Inquiry
recommends that, on the basis of an agreed national missing persons policy, the
Commonwealth Government take a leadership role with state and territory
governments in developing and implementing a national missing persons database
or capacity that will provide an effective national recording and search
capability under both names and biometric data. Discussions in this regard
should be informed by reporting on the progress and success of the Minimum
Nationwide Person Profile project to the Australasian Police Ministers Council.
Recommendation 5.5
The Inquiry
recommends that DIMIA reassess its position in relation to privacy in all its
public policy operations associated with immigration detention. In revising its
practices, it should:
-
Seek advice from the
Privacy Commissioner and the Minister
-
Take immediate
steps to increase awareness and understanding on the part of relevant DIMIA
staff—including executive staff—of the principles and provisions of the
Commonwealth Privacy Act 1988
-
Revise and
strengthen procedures relating to identity in immigration detention, to ensure
that the wider options potentially created by this approach are considered.
Recommendation 5.6
The Inquiry
recommends that DIMIA establish for inquiries about immigration detainees a
'hotline' facility that can deal with those inquiries as a 'one stop shop'.
DIMIA should ensure that the contact officer position is continuously staffed,
regardless of the absence of any officer, and that all embassies and high
commissions are advised of the details of these arrangements and ask their
consular officials to direct all immigration detention inquiries to the
nominated DIMIA contact officer in the first instance.
Recommendation 5.7
The Inquiry
recommends that DIMIA ensure that:
-
Fingerprints and
other biometric data collected from individuals in immigration detention are
stored on a national database to facilitate investigations by Commonwealth and
state and territory and other law enforcement agencies
-
Appropriate
liaison arrangements are made with CrimTrac
-
Any DIMIA
decision in relation to the collection and storage of biometric data are
consistent with strategies being pursued by CrimTrac in response to guidance by
Australian governments
Recommendation 7.1
The Inquiry
recommends that DIMIA develop and implement a holistic corporate management
system that ensures every immigration detention case is assessed
comprehensively, is managed to a consistent standard, is conducted in a fair
and expeditious manner, and is subject to rigorous continuing review.
Recommendation 7.2
The Inquiry
recommends that DIMIA critically review all Migration Series Instructions from
an executive policy and operational management perspective with a view to:
-
Discarding those
that no longer apply in the current environment
-
Where necessary,
rewriting those that are essential to the effective implementation of policy,
to ensure that they facilitate and guide effective management action and
provide real guidance to busy staff
-
Ensuring that
up-to-date, accurately targeted training is delivered to staff who are required
to implement the policy guidelines and instructions
-
Establishing
regular management audits that report to executive management, to ensure that
the Migration Series Instructions are up to date and DIMIA officers are adhering
to them.
Recommendation 7.3
The Inquiry
recommends that the Minister commission the Secretary of DIMIA to institute an
independent professional review of the functions and operations of DIMIA's
Border Control and Compliance Division and Unlawful Arrivals and Detention
Division in order to identify arrangements and structures that will ensure the
following:
-
DIMIA's
compliance and detention functions are effectively coordinated and integrated
-
The desired
outcomes of these functions and the necessary resources—including the number
and the skills profile of staff—are clearly identified before a decision is
made on the structure that will best enable effective and equitable service
delivery
-
The restructuring
accommodates these requirements and ensures that arrangements are made to
monitor and manage the high-level risks to the Commonwealth inherent in
immigration detention
-
The aims and
objectives of the Government's immigration detention policy are fairly and
equitably achieved and human dignity is demonstrably respected.
Recommendation 7.4
The Inquiry
recommends that DIMIA:
-
Review the
current training programs for compliance and detention officers to ensure that
induction and in-service programs convey an accurate and contemporary picture
of DIMIA operations and adequately prepare operational and management staff for
all aspects of the work they will be expected to do
-
Ensure that such
training particularly deals with the consultation, coordination, reporting and
management requirements of compliance and detention operations and shows how to
manage the risks inherent in the performance of these functions
-
Immediately
develop and implement a policy that requires that every decision to detain a
person on the basis of 'reasonable suspicion of being an unlawful non-citizen'
is reviewed and assessed within 24 hours or as soon as possible thereafter.
DIMIA should
incorporate this policy of 24-hour review in all relevant training programs and
operational guidelines to ensure that compliance officers understand the need to:
-
Objectively
determine the reasons and facts upon which a decision to detain is made
-
Verify the
validity of the grounds of 'reasonable suspicion' and the lawfulness of the
detention
-
Take immediate
remedial action as necessary and report the circumstances of any unresolved
matter to the Identity and Immigration Status Group.
Recommendation 8.3
The Inquiry
recommends that DIMIA:
-
Develop, for all
immigration detention and compliance executives and managers, a briefing
program that clearly explains the need for a decision to be made to remove from
Australia a person reasonably suspected of being an unlawful non-citizen and
the responsibilities associated with exercising that power
-
Ensure that the
central factors relating to removals and the implications for identity
investigations and the exercising of detention powers are included in
departmental training programs for compliance and removals officers
-
Ensure that the
implications of all aspects of identity checking, detention and removals are
included in the checks and balances exercised by the Identity and Immigration
Status Group.
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