1.1
On 10 December 2013, the Senate referred the following matter to the
Legal and Constitutional Affairs References Committee (the committee) for
inquiry and report by 21 February 2014:
1.2
On 21 February 2014, the committee tabled an interim report extending
the reporting date until 6 March 2014.
1.3
On 14 November 2013, the Senate ordered the production of the following
documents by the Minister representing the Minister for Immigration and Border
Protection (Senator the Hon Michaelia Cash, Assistant Minister for Immigration
and Border Protection):
- all communications relating to any 'on water operations'
that occurred between 7 September 2013 and 14 November 2013 be laid on the
table by the Minister representing the Minister for Immigration and Border
Protection, by noon on 18 November 2013, including but not limited to:
Any report or briefing to, or
email or other correspondence between the Minister or the Minister's office and
the Department of Immigration and Border Protection or the Detection,
Interception and Transfer Task Group and related agencies which includes
information related to any or all of the following:
- the chronology of events,
- 'illegal maritime arrivals'
(unauthorised arrivals),
- Suspected Irregular Entry
Vessels (SIEVs) intercepted at sea,
- distress calls to and
response time by the Australian Maritime Safety Authority,
- where the SIEV was detected,
- nationality of passengers,
- safety-of-life-at-sea
incidents,
- SIEV turn backs,
- SIEV tow backs,
- number of people suspected to
be on board the SIEVs,
- the number of children
suspected to be on board the SIEVs, and
- how many people, if any,
were subject to 'on water transfers';
- no later than 24 hours after an event relating to 'on
water operations' all communications be laid on the table by the Minister
representing the Minister for Immigration and Border Protection, including but
not limited to:
Any report or briefing to, or
email or other correspondence between the Minister or the Minister's office and
the Department of Immigration and Border Protection or the Detection,
Interception and Transfer Task Group and related agencies which includes
information related to any or all of the following information:
- the chronology of events,
- 'illegal maritime arrivals'
(unauthorised arrivals),
- Suspected Irregular Entry
Vessels (SIEVs) intercepted at sea,
- distress calls to and
response time by the Australian Maritime Safety Authority,
- where the SIEV was detected,
- nationality of passengers,
- safety-of-life-at-sea
incidents,
- SIEV turn backs,
- SIEV tow backs,
- number of people suspected to
be on board the SIEVs,
- the number of children
suspected to be on board the SIEVs, and
- how many people, if any,
were subject to 'on water transfers'; and
- if the Senate is not sitting
within the 24 hours after the event relating to 'on water operations' then the
documents are to be presented to the President under standing order 166 on the
next working day.[2]
1.4
The deadline for compliance with the order was set by the Senate as noon
on 18 November 2013.[3]
1.5
On 18 November 2013, the day set by the Senate for compliance with the
order, the Minister for Immigration and Border Protection, the
Hon Scott Morrison MP, responded by stating:
In answer [to the order for the production of documents], to
assist the Senate, the Government is prepared to offer Opposition and
Australian Greens Senators a confidential briefing delivered by
Lieutenant-General Angus Campbell, Commander Operation Sovereign Borders.[4]
1.6
In addition, the minister attached the following documents to the letter:
- transcripts of Operation Sovereign Borders press conferences on
23 September 2013, 30 September 2013, 4 October 2013, 11 October 2013, 18 October
2013, 25 October 2013, 1 November 2013, 8 November 2013 and 15 November 2013;
-
media statements dated 18 October 2013, 21 October 2013, 23
October 2013, 25 October 2013, 29 October 2013, 9 November 2013 and
13 November 2013; and
- weekly operational updates commencing 30 September 2013.[5]
1.7
In the government's response, the minister claimed that provision of the
other documents requested would not be in the public interest and cited
possible damage to national security, defence, or international relations, and
possible prejudice to law enforcement or protection of public safety as the
grounds for the claim.[6]
1.8
This response was presented out of sitting and was received by the
President of the Senate on 18 November 2013. It was then tabled in the Senate
on the next sitting day (2 December 2013) by the Minister representing the
Minister for Immigration and Border Protection (Senator Cash).[7]
1.9
On 3 December 2013, the Senate:
-
resolved that the Minister representing the Minister for
Immigration and Border Protection (Senator Cash) had failed to comply with the
order of 14 November 2013;
-
again ordered the Minister representing the Minister for
Immigration and Border Protection (Senator Cash) to comply with the order by 5.00
pm on 4 December 2013; and
-
rejected the claim of public interest immunity made by the Minister
representing the Minister for Immigration and Border Protection (Senator Cash)
in respect of the documents and the grounds for making the claim.[8]
1.10
In response, on 4 December 2013, the Minister representing the Minister
for Immigration and Border Protection (Senator Cash) tabled the following
documents:
-
a letter from the Assistant Minister for Immigration and Border
Protection (Senator Cash) to the Clerk of the Senate (Dr Laing), dated 4
December 2013.
-
a letter from the Minister for Immigration and Border Protection
(Mr Morrison) to the Chair of the Legal and Constitutional Affairs
Legislation Committee (Senator Macdonald) responding to the order of the Senate
of 3 December 2013 and raising public interest immunity claims, dated
4 December 2013.[9]
1.11
During the ensuing debate, the Minister representing the Minister for
Immigration and Border Protection (Senator Cash) advised the Senate that the
government had complied with the order for the production of the documents by
providing 'a substantial amount of information' and had 'clearly articulated in
considerable detail' the reasons why it was not in the public interest to table
the other documents for which the order called.[10]
1.12
The current inquiry was referred to the committee on 10 December 2013.
Conduct of the inquiry
1.13
In accordance with usual practice, the committee advertised the inquiry on
its website and wrote to a number of organisations and individual stakeholders
inviting submissions by 14 January 2014. Details of the inquiry were made
available on the committee's website.
1.14
The committee received nine submissions, which are listed at Appendix 1.
Public hearings were held in Canberra on 31 January 2014 and 11 February 2014,
and a list of witnesses who appeared before the committee at the hearings is at
Appendix 2. Correspondence received by the committee from the Department
of Immigration and Border Protection was published on the committee's website
and is attached in Appendix 3.
1.15
The committee also sought advice from the Clerk of the Senate on two
occasions. The advice was published on the committee's website and is attached
in Appendix 4.
Acknowledgment
1.16
The committee thanks all those who made submissions and gave evidence at
its public hearings.
Note on references
1.17
References to the committee Hansard are to the proof Hansard.
Page numbers may vary between the proof and the official Hansard
transcript.
Structure of the report
1.18
This report is comprised of three chapters. Chapter 2 considers the
Senate's authority to determine claims of public interest immunity and examines
the claim before the committee. Chapter 3 discusses an option for reform to
resolve disputed claims of public interest immunity.
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